For many decades, as Congress has considered how to end Puerto Rico’s impermanent status as a United States territory, one question has remained as a significant source of contention: what would happen to Puerto Rican U.S. citizenship?
Sometimes the uncertainly over the fate of roughly 3 million U.S. citizen residents of Puerto Rico – and many millions more stateside – hangs in the air like the quiet elephant in the room. Other times, Members of Congress express frustration at the fantasies falsely presented as real ways to retain permanent U.S. citizenship, or disappointment at “make-believe” options presented to Puerto Rican voters as fact. Sometimes all they can do is laugh.
When Congress wants answers to complicated substantive questions, it tends to turn to its own, non-partisan research source: the Congressional Research Service (CRS). That’s what Senator Bennett Johnston (D-LA) did in 1989 when, as Chairman of the Senate Energy and Natural Resources, Johnston wrote to CRS asking whether the U.S. Congress may be “constitutionally constrained in decision-making with regard to the citizenship status of Puerto Ricans.”
The CRS conclusion was clear: No. Congress does not always have to adhere to U.S. constitutional restraints on U.S. citizenship based on birth in Puerto Rico. In Puerto Rico, U.S. citizenship is a right granted by only by Federal legislation, not the US constitution. Puerto Rican U.S. citizenship does not have the same protections as citizenship derived from birth stateside. Congress can do whatever it wants, just as it did in 1917 when it first presented U.S. citizenship to the people of Puerto Rico.
Read the memo.
Can Congress make new decisions on Puerto Ricans’ U.S. citizenship?
The question arose during discussion of a plebiscite vote that would offer Puerto Rican voters a choice among statehood, independence and continuing as a U.S. territory. The specific question raised was, “If the decision should be in favor of independence, what alteration could Congress constitutionally make with respect to United States citizenship of the residents of Puerto Rico?”
The answer? Anything it wants. In essence, the Constitution “would not restrain Congress’ discretion in legislation about the citizenship status of Puerto Rico.” What Congress gives, Congress can take away.
Killian’s analysis
Writing for the CRS American Law Division, Johnny H. Killian, Senior Specialist of American Constitutional Law, began his analysis with a consideration of the 1917 Jones Act that provided “all citizens of Porto Rico…are hereby declared, and shall be deemed and held to be, citizens of the United States.” The Jones Act remains present law (8 USC 1402).
In his 5-page analysis, Mr. Killian contrasts the Jones Act with the citizenship section of the U.S. Constitution, focusing heavily on the first sentence of Section 1 of the 14th Amendment, which provides that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.”
The question for Mr. Killian was whether the 14th amendment can protect Puerto Rico’s statutory citizenship.
After a review of U.S. jurisprudence, Killian concludes that “case law establishes that Puerto Rico, whatever its exact status and relations to the United States is not itself in the United States,” and, as such, U.S. Constitutional protections have not always applied to the U.S. territory. Acknowledging that “recent cases do apply certain Bill of Rights guarantees to the Commonwealth,” Killian looked for evidence that section 1 of the 14th Amendment of the Constitution was a right that would translate to people living in PR. He said, as a general rule, no.
He did carve out one exception. “Of course,” he explained in the memo, “some Puerto Ricans do have ‘Fourteenth Amendment citizenship.’ That is, those who were born in the United States are within the meaning of §1 and are therefore constitutional citizens from birth.”
“As to them, either dual citizenship or some treaty provision requiring some choice might be alternatives,” he suggested.
“In any event,” he concluded, “the relative numbers of persons involved will be small.”
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