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May 03, 2010


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"(2) All United States citizens born in Puerto Rico who comply, to the satisfaction of the Puerto Rico State Elections Commission, with all Commission requirements (other than the residency requirement) applicable to eligibility to vote in a general election in Puerto Rico."

I have to say, this really bothers me. So basically every Puerto Rican in the U.S. can vote on this? And the Puerto Rican government can keep holding a vote until it gets the result it likes?

I guess we've learned from Brussels.

That means that the Puerto Ricans currently collecting federal entitlements or individual benefits would continue to do so in an independent republic.
There's no property right in entitlements/benefits. Congress could pass a law saying people living in the Republic of Puerto Rico can't collect benefits, and it'd pass constitutional muster.

Good to see you here, Finny!

To the question, it is true that Congress has made it clear that it reserves the right to alter entitlement programs at any time. It is also true that the courts would uphold such changes; hell, they'd dismiss suits against them as frivolous.

That said, denying benefits to U.S. citizens resident in Puerto Rico would be very difficult ... because that isn't a wholesale change in the entitlement laws. Rather, it's a change in the ability of specific class of American citizens to claim those benefits.

First, you'd be denying benefits to the millions of Americans who have decided to retire outside the United States. Doing otherwise would open up a legal challenge, since U.S. law (which includes treaties) makes it hard to arbitrarily discriminate countries in the absence of a hostile regime. That pretty much rules out the kind of law you propose, since treaty obligations trump domestic law. (Of course, if there were mass popular anger against Puerto Rico, I wouldn't bet on the courts sticking to their position ... but this is Puerto Rico in 2010, not Algeria in 1962.)

Second, courts have often upheld the principal of "legitimate expectations;" you'd have to overturn a mass of precedent. That opens the door to Medicare surviving, in addition to V.A. benefits and social security.

Third, the Puerto Ricans would be very unlikely to accept independence without guarantees that the federal government continue providing the entitlements to which they have been guaranteed; a Congressional rejection of that would be very unlikely to pass ... and if it, would almost immediately come under legal challenge, opening the possibility that the courts would invalidate the independence instrument. The above point presupposes that Puerto Ricans would vote for sovereignty-association rather than outright independence, but the legal problem would hold regardless.

Orthogonally to your question, but still very real, Congress would face severe political obstacles to passing such a law. There they would be, cutting off American citizens, many of whom had fought in the country's wars, most of whom with relatives on the mainland. Again, absent a groundswell of mainland anger against Puerto Rico, passage of such a law would be difficult to impossible ... even if the Puerto Ricans voted for independence rather than association, which is equally difficult to impossible to imagine.

In short, while it is possible that Congress would pass a law immediately cutting off all federal transfers to the island, such a law would run a large chance of being struck down.

Me, I wouldn't bet on it.

"keep holding elections"

AIUI from recent wikipedia reading, Puerto Rico is in a rather nebulous area. A stable one so far, but... it's an organized but unincorporated US territory, meaning it is currently owned by the US, but not part of the US. Courts extend some fundamental rights to anyone under US jurisdiction, but everything else is at the whim of Congress, from Puerto Rico's self-government to whether people born there are US citizens -- they are, by virtue of 1917 law, not by the 14th Amendment. I'm not certain if Congress would be unable to revoke citizenship from Puerto Ricans still living in PR; it could certainly stop birthright citizenship for future Puerto Ricans.

By contrast, sovereignty association would be a more legally permanent status. So it's more like "keep voting until Puerto Ricans make up their mind for something permanent". The UN still debates whether PR is proper decolonialized or not, though the UN probably debates lots of things.

I also learned that PR's tax-free status isn't, so much. PR pays various federal taxes I don't know about, plus payroll taxes; they just don't pay income tax. At median household income of $17,000/year, I'd guess they wouldn't be paying much income tax anyway. Payroll tax is stiffer... and in return they do get SS, but don't get SSI, and don't get as much in Medicare as the states.

They do get their own Olympics teams. Woot.

Both party platforms endorse PR self-determination, and PR is big enough to be a respectable state -- at about 4 million, it's only slightly below the mean state population -- so if Puerto Ricans ever did give a majority vote for statehood, I'm not sure Congress would balk for long, or could get away with balking. Plurality vote, well, don't even know what the right thing to do there is.

I used to think PR had a nice cute situation, but after that reading, I think they'd be better off with statehood or associated sovereignty, and in terms of US law enforcement and bailouts and tax havens, statehood might be better for both parties.

...man, trying to post here with NoScript on is a real pain.

Hi, Damien!

If you click on the "Puerto Rico" tab on the blog, you'll find some detailed information on Puerto Rico's status. Wikipedia is not a good source. The most relevant post is here. The short version is that statehood would have significant effects on the island's income distribution.

(1) Congress cannot revoke citizenship without a positive act indicating the citizen's intent. The Jones Act isn't relevant; any Puerto Rican born to citizen parents and younger than the age of 92 is a full natural-born citizen, with full 14th Amendment protection. Congress could force Puerto Ricans to choose, although that would run into legal difficulties and a great deal of political pushback, particularly from states like New York. (These issues have been in the news lately, due to the Lieberman bill.)

What could happen is that, in line with the 1971 Rogers v. Bellei decision, U.S. citizens born outside the United States and resident in the Republic of Puerto Rico could lose their citizenship the same way that any American born to American parents outside the U.S. loses their citizenship if they spend at least five years living in the U.S. The case law, however, is unclear ... the insular cases defined Puerto Rico as part of the United States, but a part in which the Constitution did not fully apply. The read given me by an immigration lawyer is that the courts have held that the Commonwealth of Puerto Rico is considered part of the U.S. under Rogers v. Bellei ... the implication being that having lived on the island for five years previous to independence would be enough to retain U.S. citizenship thereafter.

(2) The U.N. accepted that Puerto Rico had been decolonized in 1953. Like you said, it debates a lot of things.

(3) Sovereignty-association would be less permanent than the current Commonwealth. Congress has the right to revoke treaties. In fact, the President alone may have such power; the case law is not clear.


Moreover, as an international treaty, the courts would be more circumspect in interpreting its clauses than they are with respect to Puerto Rican law.

Hope that helps!

Yeah, read the 2007 post on finances and citizenship after I managed to post. :-/

Sounded like the effects of statehood would be financially beneficial to most Puerto Ricans, if not to the ones with the most influence.

I'd still recommend statehood, but I don't feel very strongly about it at the moment.

HA! Noel. There's a law on the books it seems that gives a bit of precedent to stripping citizenship. Ole Lieberman wants to enhance it. Someone clue bat him quick! That's a foul thing to have enacted in the first place.



Will. The Supreme Court struck down the relevant parts of the Nationality Act of 1940. Afroyim v. Rusk, 1967:

"[T]he Amendment can most reasonably be read as defining a citizenship which a citizen keeps unless he voluntarily relinquishes it. Once acquired, this Fourteenth Amendment citizenship was not to be shifted, canceled, or diluted at the will of the Federal Government, the States, or any other government unit. It is true that the chief interest of the people in giving permanence and security to citizenship in the Fourteenth Amendment was the desire to protect Negroes. ... This undeniable purpose of the Fourteenth Amendment to make citizenship of Negroes permanent and secure would be frustrated by holding that the Government can rob a citizen of his citizenship without his consent by simply proceeding to act under an implied general power to regulate foreign affairs or some other power generally granted."

Lieberman does, of course, as you say, need to be cluebatted. (Great phrase!) But there is no relevance to Puerto Rico.

The relevant precedent for Puerto Rico is the 1971 decision in Rogers v. Bellei, which stated that Congress can impose a residency requirement on citizens not born or naturalized in the United States. If Puerto Rico became independent, the question would be whether Puerto Rico is considered part of the United States. Balzac v. Porto Rico implies that it is not; "We conclude that the power to govern territory ... does not require that body to enact for ceded territory, not made part of the United States by congressional action, a system of laws which shall include the right of trial by jury. ... Has Congress, since the Foraker Act of April 12, 1900, enacted legislation incorporating Porto Rico into the Union? ... [The Jones Act] does not contain any clause which declares such purpose or effect."

The hole, of course, is the whole slew of later Congressional actions regarding Puerto Rico.

Either way, it's academic. Puerto Rico won't vote for independence or sovereignty-association.

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