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August 21, 2007


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I've been following the various bills that have been introduced by the Congress critters wrt PR's status as of late. It's been interesting to read about. Everyone here really ought to know my personal opinions at this point: I think that PR ought to be a state. Hell, all of you know I think that Canada and Mexico look rather juicy too, but that's not the question being asked.

Taking off my Evil Imperialist-Expansionist Jack Boots for a moment, I did a little reading about the Insular Cases and found myself wanting to take a bath. Maybe its my idealistic side. Maybe it's my naiveté. Yet, I find the whole idea of unincorporated territory very distasteful. I don't really believe that we should keep them as is. I think they ought to have the chance to either go free (as in independence) or become a state.

For that reason, I happen to rather like the Puerto Rico Democracy Act of 2007 because it will probably force the issue one way or another rather than just leave it as is. On that note, I think that Senator Mel Martinez ought to get smacked. I also find the Free Associated status of Pacific islands less than savory for PR because - in theory - PR has a chance at something of an economy when independent. The Pacific islands don't have squat in that regard (Doug, correct me if I am wrong).

On a tangent, I've been reading some books on proposed solutions for the illegal immigration isue wrt Mexico. This last book I read recommended Free Associated State status for Mexico. When I'm done putting out fires at work, I'll do a blog post on it. Along with finishing the post on the Late Triassic Extinction - already 8 pages long in Word - and read - and post - a number of papers sent to me by one of the researchers of the Claytronics Project at CMU. As well as see if I can squeeze my way into a Quantum Computing class at Berkeley for this semester. oy.

BTW, isn't PR a Commonwealth, not a Free Associated State, Noel?

In Spanish, Puerto Rico is called the "Estado Libre Asociado," which translates to Associated Free State.

In English, the island is officially known as the Commonwealth of Puerto Rico, which is rather vaguer than the Spanish term. After all, I happen to live in the Commonwealth of Massachusetts. But it is what is, and "commonwealth status" is a fairly well-understood colloquial term.

The Pacific Islands have signed "compacts of free association" (CFA) with the U.S. Unlike Puerto Rico, the federal government retains no executive authority (except a few auditing, defense, and environmental functions, where it exercises de facto executive power) and U.S. courts hold no sway. Nor are their citizens American citizens.

The compacts essentially grant the following to the Pacific states and their citizens:

(1) The right to live and work in the U.S.;

(2) A U.S. defense guarantee, in return for U.S. authority to deny foreign powers access to the islands, some residual powers, and a promise by the Pacific states to "refrain from actions which the Government of the United States determines, after appropriate consultation with those Governments, to be incompatible with its authority and responsibility for security and defense matters";

(3) Permanent access to the U.S. market on the same terms as the unincorporated territories;

(4) Use of the dollar, but seignorage revenues are retained by the United States;

(5) Continued access to the services of the Weather Service, FAA, FEMA, DOT, FDIC, USPS, and (in effect, if not explicitly) EPA, among other things;

(6) A 1986 promise to give direct aid worth approximately (in 2006 dollars) $1,062 per person for 15 years, extended and amended in 2004 to $630 per person (adjusted for inflation) through 2023. This doesn't include the cost of the services in point (5);

(7) U.S. auditing of government spending;

(8) Other random stuff you can find at http://www.fsmlaw.org/compact/index.htm.

Social security never operated in the TTPI --- in 1967, Congress created a separate system for the territory, which the CFAs did not alter. The CFAs only had to address a special retirement system for government or military employees.

In fact, TTPI citizens were never considered American citizens. Puerto Ricans, on the other hand, hold the exact same citizenship that you and I do.

A CFA for Puerto Rico similar to the one granted the former TTPI would cause $2.9 bn in FICA revenue from the island to evaporate, but leave the SSA on the hook for current retirement, disability, and survivor payments to American citizens resident on the island. ($4.9 bn to 713,000 people as of 2005.) Those people are Americans and would remain Americans, just like the 414,000 social security recipients currently living outside the United States or its possessions. That liability would shrink as the recipients died off, but it's significant.

Medicare further complicates things. Roughly $0.3 bn in tax revenue would immediately disappear, but I find it hard to believe that Congress would cut off the 444,000 retirees living in Puerto Rico. (They cost about $2 bn per year, a per capita costs around half the national average, due to a combination of better health and lower costs on the island.)

Would a CFA be a fair agreement for the 3.8 million Americans who currently reside in Puerto Rico? Would Congress accept the cost?

Would a CFA be a fair agreement for the 3.8 million Americans who currently reside in Puerto Rico?

No, I don't think so at all. I am at a loss as to what Sen. Martinez is doing. The only thing I've seen as even remotely plausible - but still far out there - is that he's trying to divide the "enhanced commonwealth" group. Or I suppose that he just wants to muddy the waters to keep the status quo

Would Congress accept the cost?

Somehow I doubt that. The too least expensive options seem to be statehood or independence. The latter really seems 'cheapest' in dinero terms.

Independence would be just as costly as a CFA --- in fact, it might be more costly. It all depends on what happens to Medicare.

The thing that you have to keep in mind --- that needs to shouted from the rooftops --- are that Puerto Ricans are American citizens. This was not the case in the Philippines or the TTPI. (Today, only Samoans lack American citizenship.)

The independence of Puerto Rico would not cause Puerto Ricans to lose their citizenship. Do you lose your citizenship when you move to a foreign country? In fact, American courts have consistently ruled that giving up U.S. citizenship requires an intentional and deliberate act by an individual. Accepting a passport from a hypothetical Republic of Puerto Rico would not qualify any more than accepting one from Canada.

With the possible exceptions of Medicare and food stamps, Puerto Ricans would continue to receive all of the benefits that they currently receive, whereas the U.S. would immediately lose all of its tax revenue from the island.

The net fiscal impact on the U.S. Treasury of full independence is easy to calculate. $2.9 bn in federal revenue sharing goes away. So will $3.5 bn in tax revenue, for a net loss of $0.6 bn.

$0.9 bn in federal wages might eventually go away, but certainly not immediately. In fact, given the nature of the federal civil service, most of those people will be able to transfer to jobs back in the continental U.S. In the unlikely event that all federal employees on the island are fired, the ledger would move into the black, but only to the tune of about $300m.

The wild cards are the $2 bn in Medicare spending and $1.8 bn of spending on non-social-security benefits to individuals. (90 percent of that is food stamps and school lunches.) That spending might go away. The courts would make the final determination, since Medicare and food stamps are entitlements, but ones which normally can only be collected within the geographic borders of the United States.

I suspect that the courts would rule to continue the expenditures for some time. (Muir? Edelstein?)

A CFA won't change any of that --- a CFA just means that Congress and Puerto Rico negotiate the terms of separation, rather than throwing it into the courts. And even then, it will wind up in the courts. This is 21st-Century America, not some European colonial empire circa 1962.

Again, to repeat: the courts get involved because you'd have the unique situation of a jurisdiction full of American citizens being handed over to a new government.

U.S. law simply doesn't allow for the kind of mean, nasty, vindictive, and racist decolonization that our British friends imposed on their Caribbean holdings. Independence the way most people think of it is simply not an option absent a complete breakdown of the American constitutional order.

In fact, the consequences of Puerto Rican independence get even more bizarre. Many --- perhaps most --- of the Puerto Rican population would be able to vote in presidential elections if Puerto Rico became independent. After all, they could qualify for absentee ballots, just like any other American living overseas.

In theory, then, Puerto Rican independence could blow a $600m hole in the federal budget and lead to the addition of several million absentee voters to the rolls in, say, Florida.

Some empire, eh?

That's funny that it would actually cost us MORE to cut them loose than to keep them. All the better as far as I am concerned to give them statehood.

HOWEVER! Since they are an unincorporated territory, I thought that under the Insular Cases - whether or not I get violently ill when thinking of them or not - doesn't Congress have the ability to strip the islanders of any citizenship status?

Only if Congress has the power to strip you of your citizenship. Citizenship, sir, is citizenship.

I would like to think so, Noel, but I do seem to remember that the Insular Cases, nasty bits they, provided Congress the ability to do damned well what it pleased with the unincorporated territories and the inhabitants therein.

frak, you're making me have to go drag out my book on the subject when I'm almost swimming in books on mass extinctions right now.

I would leave be.

Most mainlanders and most Puertoriquenos are content with the current situation. Why mess with success?

There's this strange, irrational drive to "push Puerto Rico off the fence". Tchah. What fence? They are what they are.

Will, I don't believe Congress could strip the inhabitants of an unincorporated territory of citizenship, Insular Cases or no. The Insular cases are icky, but they don't apply to all rights -- just to ones that aren't "basic". You know, like jury trials and equal representation. I joke, but citizenship is about as basic as it gets.

-- I have to say, there is a case to be made for the Insular Cases. Yes, they're gag-inducing relics of early 20th century paternalism and racism. But they're also soooo convenient. The relations with the various Commonwealths would be a lot more complicated without them.

Doug M.

Will, the insular cases determined that the inhabitants of the new territories were not automatically citizens. Separate citizenships were in fact created for the Philippines, Puerto Rico, Guam, Samoa, the USVI, and the TTPI.

Congress then extended citizenship to Puerto Ricans in 1917, Virgin Islanders in 1927, Guamians in 1950, and the residents of the CNMI in 1986. (Samoans remain non-citizens, although unlike the Philippines and the TTPI, Congress never chose to create a special passport for them.)

No one ever lost citizenship as a result of independence from the United States, not in the Philippines and not in the TTPI.

Congress cannot strip Americans of citizenship on the basis of their residence. This is a red herring.

On the other hand, the American government can do all sorts of things to *all American citizens* outside the boundaries of the incorporated United States. In other words, citizens are citizens are citizens are citizens ... this is not the British Empire. On the other hand, the U.S. government's power over those citizens varies based on where they happen to be.

Doug, you're not being fair in calling it irrational to want to regularize the status of the unincorpated territories. I happen to agree with you, but such desire is far from irrational.

It is true that the arrangements both command a popular consensus and protect essential civil liberties, which is a good Burkean reason for keeping them.

There are, however, two objections. First, the differing tax treatment of the islands create questions of fairness. Since the Puerto Ricans are incorporated into the social security system, the remaining inconsistencies don't bother me much, but it is not irrational to prefer that the federal government treat all citizens equally in terms of taxation and benefits within the sovereign boundaries of the United States.

Second, it denies democratic representation at the federal level to large populations of American citizens who are nonetheless subject to federal authority.

Again, I agree with you. The persistence of the U.S. Senate is far more "gag-inducing" than the lack of Puerto Rican representation therein. Our constitution has got way more fundamental problems than the fact that the residents of a few scattered territories can't vote in national elections.

That said, however, two wrongs do not make a right, and I understand the positions of people who would prefer to extend statehood to the territories, or at least incorporate them. Don't you?

Wow, I'm kinda surprised that the debate just died like that. Jussi, no opinion? Like, really?

"Doug, you're not being fair in calling it irrational to want to regularize the status of the unincorpated territories. I happen to agree with you, but such desire is far from irrational."

Actually, in practice, it usually is.

Yah, there's a more-or-less rational argument to be made. But that's not the argument that usually *is* made; or, when it is, it's usually being added on as a post hoc justification.

I can't speak to the PR side of the debate because I haven't been there. But I have some familiarity with the American side, and... well, it's not exactly a model of enlightened discourse. On any side.
Puerto Rico is an asterisk, a five-legged cow, a proud nail. And that just bugs some people.

(There's also the racial-cultural-nationalist thing. Wait, brown people who don't speak English? _How_ many of them? But that's something else again.)

Doug M.

I haven't seen the irrationality on the pro-statehood U.S. side. (The antis, different story, of course.) Doesn't mean it's not there, of course. Would you mind giving an example?

What, there's an issue?

Only half-way kidding. For people in the know, I'm sure there are lots of issues. But for people not close to PR, so what?

I'm legally a DC resident, and I think statehood -- or at least representation with a vote -- is the way to go. But I realize that there are many millions of Americans who don't know and don't care about the status of DC.

By analogy, same for PR.

On the other hand, if both became states, then there would be as many states as there are cards in a deck, which has to be handy in some way.

But with Statehood - what of the Federación de Baloncesto de Puerto Rico http://www.fbpur.com/

good heavens, what of Miss Purto Rico?!?!?! http://missprunofficial.websiteanimal.com/

oh and btw- hey y'all

Hey, Francis!

They call it baloncesto, not baquetból? Weird.

Anyhoo, "The Puerto Rico Basketball Federation is a non-profit corporation organized under the Puerto Rico Incorporation Act. It is charged with promoting all aspects of the sport of basketball in Puerto Rico."

I think that'd still be legal under statehood. I'm not as sure about the separate basketball team in international competitions.

Do we have a lawyer in the house? Is it the Constitution or is it apathy that stops Texas from fielding its own World Cup team?

Shit no! If we go statehood, my daughter won't get on the Olympic fencing team! So -- statehood in ten years or so, but no earlier, OK?

Statehood, statehood. Puerto Rico will never vote for statehood or for independence, because they've been a Free Associated State with citizenship since 1952 and if it ain't broke, PR will never fix it. Ever. Sometimes if it is broke it takes a very long time. Ponce just reopened its public library; it only took them ten years between closing the old one because of roof leaks and building the new one, very laboriously. I tell you, there were times I almost went looking for somebody to tell them, "Give me the fricking mortar and bricks and I'll finish the damn thing myself!" But eh. The sun is shining and it's easier to go to the beach. Eventually they get things done.

A good friend of mine (my daughter's fencing master, actually) is a Roselló man and pro-statehood. Me, I don't care; Puerto Rico is what it is and I enjoy laughing about its unique status.

If they go statehood, it's going to be 4 million very liberal voters, though, from a Stateside perspective. So Republicans will never demand statehood; it'd be suicide for them and they've had plenty of that for the last few years.

Oh, one reason not to like statehood, for me: the health insurance here is fantastic. Given my kids' medical problems, we can't actually live in the States any more. We can stay here, or move to Europe, but that's it. If PR goes United, I'm not sure what would happen there, but it couldn't be good.

Okay, I know this post is old, but it's fun reading through this blog and I found this debate fascinating. Doug M. said "Will, I don't believe Congress could strip the inhabitants of an unincorporated territory of citizenship, Insular Cases or no. The Insular cases are icky, but they don't apply to all rights -- just to ones that aren't "basic". You know, like jury trials and equal representation. I joke, but citizenship is about as basic as it gets"

Now having read this as well as Noel's take on the issue I did a little more reading on the issue and some thinking. First Noel (in the other, later post on the issue) is a bit off in the estimation of the maximum age of full natural born-citizens on the island. He said it would be 92 (at the time of writing) but this was based on the Jones Law of 1917. In 1952 there was another law passed which declared all persons born on the island between 1899 and 1941 to be US citizens and outlined that all persons born after 1941 were natural-born citizens. So anyone born before 1941 is still a statutory citizen it would seem, but then that means anyone currently 71 years or younger is a natural-born citizen, so no effective difference. Additionally not only were TTPI citizens never considered American citizens, they were never considered American nationals either so the TTPI is basically incomparable with the Philippines, Puerto Rico and American Samoa.

However Doug M. makes the assumption that citizenship is a basic right and this had me wondering if it could really be the case. After all if citizenship is a basic right then why do American Samoans still not have US citizenship? Instead they have American nationality. Since American Samoa and Puerto Rico are both unincorporated territories according to the Insular Cases, then it would stand to reason that US citizenship is no more a basic right on Puerto Rico than it is on American Samoa, otherwise American Samoans should go to court to get their current "non-citizen national" status overturned.

Thus if trial by jury isn't a fundamental right, could it be that possessing American citizenship is also not a fundamental right, but that possessing American nationality is? If so then it would seem that the Fourteenth Amendment doesn't apply to US territories outside of Palmyra Atoll. If so then what Congress giveth, Congress can taketh away. And if this is the case then I doubt the Fourteenth Amendment could apply to US citizens resident on Puerto Rico for 1 year even on an individual basis since US citizens resident on Puerto Rico for that length of time can't vote for the President of the United States via absentee ballot even though from some perspectives they are "overseas". Since the right to vote for President is based on residency in a state or DC and Americans who have gone overseas instead of to another part of the United States would still retain their state citizenship of the last state they resided in, then they qualify. In that respect US territories are a sort of legal blackhole and it might well be possible that in the extremely unlikely (I would even wager to say "impossible") event that a majority of Puerto Rican voters opted for free association independence like most of the former TTPI then Congress could legally declare all US citizens who were born on the island and who are still resident there (and possibly all US citizens resident on the island for at least 1 year including those who were never born in Puerto Rico but moved there) to be American nationals only and to do something similar to the 1934 Tydings–McDuffie Act by also declaring them to be aliens for the purpose of immigration and customs. That would in one move prevent any problems associated with a territory of the US expressing the will to become independent (even if in free association) while all of its residents still possessed US citizenship even after independence and it would enable the US to prevent an influx of Puerto Ricans attempting to move to the US before independence.

Thinking about this again, I was wondering.....if the Insular Cases were overturned and it turned out that one could not be an American national but not an American citizen and that citizenship followed the flag as it were (and the Fourteenth Amendment applied on every inch of American soil), wouldn't this mean that all Filipinos between 1898 and 1946 were American citizens and that those who were alive in 1946 are still American citizens and that all their descendants are also American citizens? Would that not add another 90+ million Americans to the US population and some 30 million voters? Or would this not apply because of Filipino nationality laws in effect since 1946? And what of Cuba? What was its real status between 1898 (cession from Spain) and 1902 (independence)? If it was legally speaking American territory then Cubans would have become American citizens and all Cubans today would theoretically be American citizens by descent wouldn't they?

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