Puerto Rico is no longer foreign in the domestic sense, it is domestic in the domestic sense

 In another post, J.H. and I had an interesting discussion about Puerto Rico’s political status. Is it a colony in which the U.S. constitution does not apply — what American law calls an “unincorporated territory”? Or is it an old-fashioned territory, like Alaska and Hawaii before 1959 or Arizona and New Mexico before 1912?  

I am going to argue that Puerto Rico is in fact a de facto incorporated territory, just like the area covered by the Northwest Ordinance or Colorado before 1876. Bit by bit, in scattered pieces of legislation, Congress has fully extended the Constitution to Puerto Rico. Sure, Congress could pass an organic act and declare the Commonwealth to be an old-fashioned territorial government, but that would change nothing. It is now just an old-fashioned territory, like Arizona used to be.

Some history: the United States annexed Puerto Rico along with the Philippines in 1898. For purely racial reasons, there was zero support for taking over the Philippines as an ordinary territory, thereby bringing 7 million “Malays” into the American polity. Congress therefore created a special colonial status for the Philippines, under which the U.S. government would exercise sovereignty but within which the U.S. Constitution would not apply. That status was extended to Puerto Rico (essentially by default) and the Supreme Court ratified it in the infamous insular cases, which ruled that Puerto Rico was “foreign in a domestic sense.”

After 1898, however, Congress  and the Supreme Court slowly but surely extended the Constitution to the island. In 1917, Puerto Ricans became American citizens. In 1947, Congress extended Article IV, Section 2 of the Constitution to the island. In 1952, it went further, declaring that anyone born in Puerto Rico (regardless of parental citizenship) would be a citizen. The Supreme Court then extended the First, Fourth, Fifth, Eleventh and Fourteenth amendment to the territory; extending the latter brought along the Sixth and Eighth amendments with it. 

The Seventh Amendment, which guarantees a jury trial in civil cases, does not apply to Puerto Rico. But it does not apply to any state, either: in 1877, in Pearson v Yewdall, the Supreme Court held that the 14th Amendment does not impose the Seventh upon the states.  

What about criminal law? Didn’t the Supreme Court recently rule that someone could not be tried separately in federal and Puerto Rican courts? Well, yes it did, but the logic of 2016’s Puerto Rico v. Sanchez Valle stated only that Puerto Rico was not a state, sovereign under the 11th Amendment. Rather, it was a creation of Congress. But that gives Puerto Rico the same status as any pre-1959 territorial government; nothing in the reasoning derives from Puerto Rico’s original colonial status. 

Puerto Rico is indeed treated differently in terms of federal funding — a big part of the recent crisis is in fact due to Congress’s decision to fund Medicaid at a far lower rate on the island. But is that because Puerto Rico is unincorporated? No: Alaska was similarly shortchanged for federal highway money before statehood.

That leaves the income tax exemption. (Alaskans paid income taxes before statehood; the District of Alaska was incorporated in 1912, around the time of the 16th Amendment.) It seems fair that Puerto Ricans don’t pay those taxes on the basis of “no taxation without representation,” but the courts haven’t held that. Rather, they don’t pay because of 48 U.S. Code § 734. In other words, Congress exempted the island in 1917. Could it have done that with an incorporated territory? I have no idea and I would love to have a lawyer weigh in ... but I suspect that the answer is yes. After all, nobody doubts the constitutionality of the Empowerment Zones, which provide tax exemptions for investors and businesses that set up shop inside them. 

Finally, what about citizenship? Reader J.H. worries that Congress might strip Puerto Ricans of their citizenship should it so choose. (Or, more realistically, should Puerto Ricans vote for independence.) That, however, seems unlikely. The courts have defined Puerto Ricans as natural-born American citizens. It is extremely hard to strip a natural-born American of their citizenship. The courts have ruled that taking out a foreign nationality will not do it; hell, not even serving in the armed forces of another state will do it. (My uncle Eddie served in the IDF; he kept his citizenship.) The law now recognizes the SCOTUS decisions. Note the italics: “A person who is a national of the United States whether by birth or naturalization, shall lose his nationality by voluntarily performing any of the following acts with the intention of relinquishing United States nationality.”

That is, of course, only a law. It could be changed, but the change would only apply to naturalized citizens (maybe): the courts have been clear that the 14th Amendment protects natural-born citizens unless they explicitly declare that they intend to renounce their citizenship. 

There is a peculiar court decision from 2008 that argues that Puerto Rico has effectively become an incorporated territory. Consejo de Salud Playa de Ponce V. Rullan concluded, “Actions speak louder than words. Although Congress has never enacted any affirmative language such as ‘Puerto Rico is hereby an incorporated territory,’ its sequence of legislative actions from 1900 to present has in fact incorporated the territory.” 

No other courts have cited this ruling, but the logic seems to hold: Congress could pass an organic act incorporating Puerto Rico tomorrow, and it is not clear that anything would change. 

(Statehood, of course, is an entirely different thing.)

To conclude, I am honestly not sure that Puerto Rico’s “unincorporated” status amounts to anything. I suspect that it doesn’t. 

ADDENDUM: This piece in the The Atlantic came to my attention after I wrote the above. It is accurate in the particulars but misses the point: SCOTUS ruled against Puerto Rico on the grounds that it has no independent sovereignty, just like Alaska or Arizona or Minnesota or anywhere else before they became states. The insular cases have nothing to do with it!

(Note: Some states were sovereign before statehood: the Thirteen Colonies, Texas, and maybe if-you-squint Vermont. Hawaii was sovereign but lost it in 1898, 61 years before it became a state.)

Comments

[Peter]

Being exempt from federal income taxes is not an unmixed blessing for the people of Puerto Rico. If they were within the income tax system a fairly substantial percentage would qualify for the Earned Income Tax Credit and get money back.

[Noel Maurer]

Absolutely! Most Puerto Ricans would be better off.

[J.H.]

Very interesting and persuasive piece Noel. Also very informative, especially the bits about the various Amendments that were extended to the Island over time.

A couple points:

- I would say Alaska was organized in 1912 not "incorporated". It was incorporated in 1867. So Alaskans paid income tax when the 16th amendment was passed.

- If Puerto Rico held a referendum in say...2018 and in that referendum the ELA Soberano (Sovereign Free Associated State or Sovereign Commonwealth) option won say 54% of the vote and there were no issues with protest "invalid/spoilt" ballots or "none of the above" options...what would happen then? Because a majority of Puerto Ricans would have voted to become not-Americans via independence (with a compact of free association). Surely if Congress can vote cede incorporated territory via treaty (the border adjustments with Mexico) then it can vote to give an incorporated territory independence if a majority of its residents expressed the desire for it. BUT, there is a 1978 ruling by the US Board of Immigration Appeals which found that persons born in the town of Rio Rico (now in Tamaulipas) between 1935 (when the Rio Grande was diverted, putting the area south of the river) and May 26, 1977 (when the town was transferred to Mexico) were still American citizens. Logically speaking this would mean that if Puerto Rico did vote for ELA Soberano and it actually came into effect, you would have an independent state where everyone there except those born at or after the moment of independence were still entitled to retain their American citizenship. That would make for some.....interesting dynamics.

[Noel Maurer]

J.H., you're absolutely right. With the caveat that the numbers have changed, I explored the dynamics in this comment to an old post: http://noelmaurer.typepad.com/aab/2007/08/the-never-endin.html?cid=116939386#comment-6a00e3933590d5883400e552aa292b8834

Short version: granting independence to Puerto Rico would likely be more expensive than statehood in the short term, at least from the point of view of the federal treasury.

I write "likely" because Congress could immediately cut off all Medicare and Medicaid funds, which would put the federal treasury in the black. Cutting those payments off immediately would, however, open up a mass of lawsuits. (There is also no way Puerto Rico would vote for independence if an immediate cut off was on the table.) So any negotiated Compact of Free Association (CFA) between an independent Republic of Puerto Rico and the United States would almost certainly keep those funds flowing until current recipients passed away.

Meanwhile, social security and veterans benefits would keep on flowing because the recipients would remain citizens.

And at the same time, anyone related to someone in the United States could now claim absentee ballots. A million more voters in Florida! Presumably, however, Congress could deal with that with a law stating that no American citizen residing in Puerto Rico can cast an absentee ballot unless they can prove that they are permanent residents of the United States.

All that said, it's social science fiction: Puerto Rico is never going to vote for independence, even under a CFA. Congress would have to unilaterally impose it. In theory Congress can do that; in practice, it's harder. Congress had to strongarm the Philippine legislature into approving independence; even then, Quezon kept trying to retain formal links. Similarly, the parts of the TTPI that wanted to remain became the CNMI.

It's impossible to imagine Puerto Rico being different; the scenario is quite literally unthinkable in the sense that I can't think how it would realistically happen.

[Doug M.]

It's not an old-fashioned territory. The US Constitution fully applied in New Mexico and Arizona before 1910 (or in Alaska and Hawaii before 1958). It doesn't fully apply in the CNMI, AmSam, or Puerto Rico.

(Trivia: what is the one US overseas possession, not a state, where the US Constitution *does* fully apply? If you can answer without googling, you're good.)

-- Now, as a practical matter, the distinction is either nonexistent or nearly so. The Puerto Rican Constitution gives almost exactly the same guarantees as the Bill of Rights. You'd need something really weird, like a Third Amendment case -- there have been a few -- to trigger an Insular Case review.

(Before some reader mentions it: yes, PR residents can't vote for Congress or the Presidency. That has to do with being a territory, not with being an unincorporated territory. Yes, it's weird given that PR has been a territory for 100+ years now and is more populous than about a third of the actual states. But legally, it's a separate question.)

Anyway: the Insular Cases are still good law. They haven't been used as the basis for creating new exceptions since the late 1970s, but they haven't been seriously challenged either. A couple of cases in this century have nibbled away at them, with some modest success, but the CNMI still restricts land ownership to Chamorros, and AmSam still has its fucking curfews.

Here's a metaphor: Insular Case jurisprudence is basically frozen at Don't Ask, Don't Tell. Nobody likes to invoke or cite them because they're awkward relics of our imperialist and just plain racist past, and nobody is using them to carve out new exceptions to constitutional rights. But -- _pace_ Judge Gelpi -- nobody wants to entirely overthrow them either, because they're do damn convenient. So, Gelpi's opinion was sort of like Gerry Studds standing up on the floor of Congress in 1979 and saying "I'm gay, and so are lots of other members of Congress, and we should have our own caucus!" -- neither untrue nor unreasonable, but greeted with awkward coughs and foot-shuffling.

Doug M.

[Doug M.]

Also: because PR is "unincorporated", there is no legal obstacle to it declaring independence and becoming its own country. As you correctly point out, the practical difficulties involved would be vast -- but legally, it's totally possible.

This is not the case with US states (_Sherman v. Georgia, 1864) and it wasn't the case with incorporated territories, back when we had them -- Alaska in 1950 could not have declared itself independent.

It doesn't seem likely that we'll ever acquire any more territories -- but if we do, then the incorporated / unincorporated distinction would become a thing again.

Doug M.

[J.H.]

Hmm...Okay.

But Doug, Noel has pointed out that the US Constitution now fully applies to Puerto Rico as a result of incremental moves between 1917 and 1952 (and beyond I think). In what way does it not fully apply to Puerto Rico?

(I'm sure it doesn't fully apply to American Samoa or the rest of the territories excepting Palmyra Atoll which is the only de jure incorporated territory left after it was left over from the Territory of Hawaii when Hawaii became a State).

Are you suggesting that even the 1952 legislation means that all persons born on the island are still only statutory citizens, even if natural born (and thus "statutory natural born citizens")?

If so are you suggesting that what has happened in essence is that the application of the US constitution in full has only been paralleled in Puerto Rico through statute, the local Puerto Rican laws and Supreme Court rulings rather than in actuality?

[Noel Maurer]

I know the answer to your parenthetical question without googling; so does J.H. I'll leave it for other readers.

I don't understand, Doug. Far as I can tell, the Constitution does now seem to fully apply to Puerto Rico.

No, really. The main sticking points are the Third and the Seventh ... but the Seventh does apply to federal civil cases originating on the island. It does not apply to cases brought under Commonwealth law, but it does not apply to the states, either.

Meanwhile, SCOTUS (sometimes using Congressional statutes as a basis) has extended the rest of the Bill of Rights. (I don't think the 13th, 19th, 24th or 26th are issues.)

Given all those precedents, I suppose it is possible that SCOTUS would rule that the PRARNG could station forces in private homes after a natural disaster (there was a 1982 U.S. case about that regarding the NYARNG) but I would be honestly shocked if the Court held that the 3rd didn't apply to Puerto Rico.

Finally, I don't think that the right of Congress to give up incorporated territories has been adjudicated, not even under Sherman v Georgia. If Alaska had voted to secede in 1950, and if Congress had approved the secession, would SCOTUS have stood in the way? My intutition is no. And no one seems to believe that unincorporated territories have a unilateral right to secede.

I know that AmSam is weird, and it sounds like the CNMI is as well, but P.R., as you say, is a distinction without a difference. Only the distinction appears moot.

Short version: I don't understand your answer in regard to Puerto Rico.

[J.H.]

And actually Noel, reading over your comment that explored the dynamics of a CFA for Puerto Rico, I can imagine it as an easy sell to Puerto Ricans...because such a CFA is in essence the "enhanced Commonwealth" status that some of them have been pushing for over the years:

- independent representation internationally

- retention of social security

- complete autonomy in internal affairs

- retention of US defence guarantees

- retention of US citizenship for all 3.8 million residents (but not for those newly born.....although the US Immigration and Nationality Act might mean that all children born on the island right after Puerto Rican independence might qualify for US citizenship by descent since the Act allows for such citizenship provided that one or both parents had been resident in the US for 5 years prior to the birth and of course Puerto Rico was an outlying possession of the US for 5 years before independence....)

- the ability to vote in US Presidential elections as absentee voters

- the ability to move freely to the US (and ensure that all children are born in the US and thus perpetuating US citizenship)

Heck....now that I think about it, a CFA Republic of Puerto Rico (or ELAS Puerto Rico) would in essence be the Republic of Texas (populated and run by Americans) or Republic of Hawaii in reverse (run by Americans). And on steroids.

That brings up an interesting question....in the 1830s when Texas declared independence from Mexico, what was the citizenship of the Texans who had been Americans settlers? Did they lose their American citizenship? Ditto for the Hawaiian leaders who ran the Republic of Hawaii.

[J.H.]

Oh that should have been:

"the Republic of Texas (populated and run by Americans) or Republic of Hawaii (run by Americans) in reverse (moving away from statehood)

[Noel Maurer]

The Hawaiians, they were Americans. At least it never came under legal challenge. That dog probably didn't bark because the anti-annexationists, like President Cleveland, didn't want to inflame nationalist sentiment at home. Trying to strip the Hawaiian putsc ... er, pardon me, revolutionaries of their citizenship would have thrown a big juicy steak to the Republicans in the '96 election.

But I don't know the Texan case! I have no idea.

[Logan]

What do you think of American Samoa?

http://www.reuters.com/article/us-usa-court-samoans-idUSKCN0YZ1LC

http://www.npr.org/sections/codeswitch/2015/02/24/388716342/how-birthright-citizenship-for-american-samoans-could-destroy-the-samoan-way

[Noel Maurer]

Is that addressed to me? Doug knows much more about the country. I don't really have an opinion. I find it strange and disturbing that the United States rules over a population of non-citizens, but I don't want to throw them out of the Union for that if it's their preference.

Now I have to look up that ruling, damn you. The courts have ruled differently for Puerto Rico; I'm curious to see if the court referenced P.R.-related jurisprudence in the Samoan case.

[Noel Maurer]

Logan, I'd like to call Doug back in. The second article makes it seem as though the worry in American Samoa is over the ability to discriminate in favor of Samoans when it comes to land ownership. The fear is that if you make Samoans into full citizens, then those laws will become untenable.

My first reaction is that the CNMI has laws just like that, discriminating in favor of Chamorros, yet CNMI citizens are full U.S. citizens.

My second reaction is that I know nothing about CNMI land law other than that it exists. So I'd like to call in Doug (or anyone!) who knows more to explain how it works and how it differs from AmSam law.

[Noel Maurer]

OK, found it.

Original decision: https://www.cadc.uscourts.gov/internet/opinions.nsf/A927D0D5D8A8FB0B85257E5B004F530D/$file/13-5272-1555940.pdf

The reading of the 14th Amendment is tortured, but follows overwhelming precedent. It has no implications for Puerto Rico, however, since it notes that Congress extended birthright citizenship to the island.

There is an amazing point about Puerto Rico, which brings us back to Judge Gelpi. Congress and courts have extended the full jurisdiction of the United States to Puerto Rico. But they did so piecemeal, rather than in a single organic act. Why, however, is a piecemeal extension of full incorporation different than a one-time extension of full incorporation?

Doug above seemed to argue that it is, but I don't understand why.

P.S. Note that I believe that Article IV, Section 3 of the Constitution would allow Congress to separate an incorporated territory with the consent of its citizenry, but that there is no way to adjudicate that argument short of an actual Supreme Court case. We shouldn't debate that difference, therefore, since it's purely hypothetical and could (in theory) go either way.

[J.H.]

Hmmm...Noel, have you ever come across this:

General Accounting Office, U.S. Insular Areas: Application of the U.S. Constitution, November 1997 - http://www.gao.gov/archive/1998/og98005.pdf

In it, they note that "The question whether particular rights are fundamental has been answered only as specific cases come before the Supreme Court. The Court has identified the Fifth Amendment privilege against self-incrimination as a fundamental right.18 On the other hand, the Court has said that the Sixth Amendment right to trial by jury and the Fifth Amendment right to indictment by a grand jury “are not fundamental in their nature, but concern merely a method of procedure . . . .”19

Under the Insular Cases and subsequent decisions, rights other than fundamental rights, even though they may be stated in the Constitution, do not apply to the territories or possessions unless the Congress makes them applicable by legislation.20 The Congress can by law extend the coverage of the Constitution in part or in its entirety to a territory or possession, and has done so with respect to some territories. In the absence of such congressional action, however, only fundamental rights apply. The Insular Cases use the term “incorporated” to distinguish territories where all constitutional rights apply, because a statute has made them applicable, from “unincorporated” territories, where fundamental rights apply as a matter of law, but other constitutional rights are not available."

Based on this then it wouldn't be that the Supreme Court extended the application of the Constitution to Puerto Rico, but that it was merely confirming which rights were already applicable as fundamental rights (since the Court could not extend the application of law to Puerto Rico as a jurisdiction; that would be a legislative action rather than a judicial one it seems).

Plus, if I'm reading the Wikipedia articles about the "incorporation of the Bill of Rights" and the "Sixth Amendment" properly then the Sixth Amendment would apply to Puerto Rico only insofar as it applies to local authority via the Fourteenth Amendment but not to federal authority on the island. So for local laws the right to a speedy, public trial by jury is fundamental in the case of Puerto Rico's local authority, but is not fundamental for federal laws and cases arising therefrom on the island (even though such cases may be heard by a jury and be held speedily and in public). Thus in essence, if one day for whatever reason, the federal government wished to prosecute a case in Puerto Rico that did not follow the Sixth Amendment it could probably do so.

Additionally, if the Eighth Amendment was found to be fundamental in connection with the Fourteenth Amendment via the Supreme Court's incorporation doctrine (applying the Bill of Rights to the states and local authorities themselves and not just the federal government as had been the case before 1925) then it would seem it is only fundamental in relation to Puerto Rican local authority and not federal authority and laws. If so, that would probably explain why the federal government has seemingly been "violating" the Eighth Amendment in relation to federal cases from the island according to this Note in the Cornell Journal of Law and Public Poly by this Puerto Rican law graduate: http://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1394&context=cjlpp

It might well be that the federal government is not violating the Eighth Amendment insofar as federal laws are concerned and that the subtle difference has been lost in all the heat generated over the Puerto Rican status debate (much as how quite a few Puerto Ricans and other Americans seemed to genuinely believe that Puerto Rico's "commonwealth" status meant it was no longer a territory, whether unincorporated or incorporated - see the passion in previous status referenda when the "commonwealth" option was referred to as being "territorial").

[J.H.]

Re: Alaska, Noel, here is the Michigan Law Review in 1916 describing it as "for many years an unorganized but incorporated district or territory recently made into an organized territory of the United States."

https://www.jstor.org/stable/1276270?seq=1#page_scan_tab_contents

As I noted before, Alaska seems to have always been viewed as incorporated/integral.

[Noel Maurer]

You're right about Alaska, I believe.

N

[Noel Maurer]

But it gets more interesting, J.H.! Alaska was later held to have been incorporated because of Article 3 of the treaty of cession. Read it -- under that logic, Puerto Rico has been incorporated since 1952.

Obviously, we need a case to settle the issue, but it is by no means clear that the insular acts still apply to Puerto Rico. Doug, have I missed something?

[J.H.]

Ummm...Noel, that's what I've been saying in regards to Alaska from the very beginning. Lol. That Alaska has been held to have always been incorporated since 1867....

Hmmm....re: Puerto Rico, you might be right that the legislation surrounding the 1952 Constitution (Congress' acts allowing for it and accepting it) might have incorporated the territory. A court case is definitely needed as I don't think the Supreme Court's ruling that the Sixth Amendment does not apply to Puerto Rico has in fact been overruled (as Cornell's Annotated Constitution suggests that ruling still holds: https://www.law.cornell.edu/anncon/html/amdt6frag1_user.html). You have me wondering again after I began to doubt the logic of Judge Gelpi.....

I read through that 2008 court case and I'm bit embarassed for Judge Gelpi to be honest. He does three things in that ruling which are cringe-worthy:

1. He bases his line of reasoning that Congress' "sequence of legislative actions from 1900 to present has in fact incorporated the territory" on the fact that for the Spending Clause protections to apply in Puerto Rico Congress "must have....incorporated the territory". Only problem here is that he is conflating two entirely separate rulings which deal with different aspects of the same Clause (so different in fact that they should properly be called sub-clauses as the Uniformity Clause is a part of the Spending Clause). He bases his opinion of this off the First Circuit Court’s 2003 ruling (Nieves-Marques v Puerto Rico) which noted that "Congress may attach conditions to the receipt of federal funds pursuant to its Spending Clause power." and implies that this runs counter to the Supreme Court’s 1900 Downes ruling that Article I, Section 8, Clause 1 did not apply to Puerto Rico (in fact the Supreme Court did no such thing, it only ruled that the Uniformity Clause of Article I, Section 8, Clause 1 did not apply, it didn't say the entire Section 8, Clause 1 did not apply). But he admits that the 1900 Supreme Court ruling actually dealt the Uniformity Clause (the last bit of Article I, Section 8, Clause 1) rather than the Spending Clause while the 2003 First Circuit Court ruling dealt with the Spending Clause’s power to tax.

2. While declaring the series of legislative actions has "in fact incorporated the territory", Judge Gelpí then goes on to say "Let it be clear. The court today is in no way attempting to overrule the Insular Cases as applied to the US territories – only the Supreme Court can."

3. He oddly refers to freaking Guantanamo Bay as an unincorporated territory of the United States and declares that Puerto Rico cannot be compared to Guantanamo Bay in any sense. On that last point he is correct since Guanatanamo Bay is not a US territory, but is in fact Cuban territory that has been leased by the United States. While the US exercises "complete jurisdiction and control over" Guantanamo Bay according to the 1903 Lease Agreement, the US still recognizes Cuba’s "ultimate sovereignty" over the leased area.

Sorry, but any person who cites Guantanamo Bay as being an unincorporated territory of the US is clearly misinformed about at least Guantanamo Bay and needs to do quite a bit more research as doing something like that greatly weakens his argument.

And this rather quirky legal reasoning seems to be a habit as in a 2014 case he ruled that the Seventh Amendment does in fact apply to the states and the territories, but in doing so he cites the 2010 McDonald ruling on the Second Amendment (which is not the Seventh Amendment clearly) as support for his interpretation that the binding precedent of the First Circuit Court’s 2009 case concerning the Seventh Amendment and the Supreme Court’s 1877 and 1916 cases concerning the applicability of the Seventh Amendment on states and local authorities may no longer hold with regards to the Seventh Amendment.

[Noel Maurer]

(I now notice that I used the wrong word, "incorporated," for the 1912 Alaska legislation.)

I'm not sure you're right about Guantanamo Bay. Oh, not that the U.S. recognizes Cuba's ultimate sovereignty; it does. But it's still an unincorporated territory.

Point (2) strikes me as a reasonable disclaimer.

As for point (1), well, the decision did not just deal with the Uniformity Clause. Rather, it concluded:

"So long as Congress has not incorporated the territory into the United States, neither military occupation nor cession by treaty makes the conquered territory domestic territory in the sense of the revenue laws. But those laws concerning "foreign countries" remain applicable to the conquered territory until changed by Congress. If Congress is not ready to construct a complete government for the conquered territory, it may establish a temporary government, which is not subject to all the restrictions of the Constitution."

https://supreme.justia.com/cases/federal/us/182/244/

That is the part that Gelpi argues has now been superceded. As a practical matter, he's correct: nothing would change if Congress passed a law incorporating Puerto Rico.

As a legal matter, I'm less sure. Doug has pointed out that the Insular Cases are alive and well in our other outlying territories, notably AmSam and the CNMI. (I suspect, but do not know, that Guam and the USVI are more akin to Puerto Rico.) You have pointed out that the issue is unsettled.

Both of those arguments are clearly correct! My only point is that Congress and the courts are treating Puerto Rico as fully incorporated, which is what matters.

The only exception to that would be if you accepted Doug's assertion that Congress cannot separate incorporated territories from the United States. I'm not sure where Doug gets that from: Congress did not consent to allow the southern portion of New Mexico to secede in 1861! A bunch of traitors in Mesilla declared that all on their own. But if there is case law that Congress cannot separate or transfer incorporated territories, then I will reverse myself and agree that the distinction is vital for Puerto Rico!

Doug?

[J.H.]

Also Noel, I'm now doubting if the 1952 Acts and Constitution really incorporated Puerto Rico. If they did then why did Congress and the President need to make changes in 1961 and 1966 so that the judicial structure in Puerto Rico would mirror that of the states (the 1961 legislation - which meant Puerto Rico Supreme Court judgments would go before the US Supreme Court rather than the First Circuit Court) and to extend Article III protections to Puerto Rico District Court judges (the 1966 legislation)?

See: https://en.wikipedia.org/wiki/United_States_territorial_court and https://en.wikipedia.org/wiki/Federal_tribunals_in_the_United_States#Congress_establishes_Article_III_Court_for_Puerto_Rico

If Puerto Rico was incorporated in 1952 then that stuff was unnecessary/redundant no?

[J.H.]

Noel, no, just no. Gitmo is not an unincorporated territory. Fifth Amendment rights do not apply there because it is de jure US territory but because there is extraterritorial application of the US Constitution by virtue of the fact that the 1903 Lease Agreement gave the US exclusive control and jurisdiction (making it de facto US territory as the Supreme Court found Boumediene v. Bush in 2008). In a sense it is very similar to the the extraterritoriality of the US Court for China in the first half of the 1900s.

To prove the point, what would be the nationality of a person born in Gitmo to non-citizen parents? Whilst it may be de facto US territory, one cannot be a de facto US national.

In fact, here we have the US State Department's Bureau of Consular Affairs noting that Gitmo is more like a US embassy than a US territory as babies born to non-citizens at US embassies and in Gitmo are not entitled to US citizenship: http://www.miamiherald.com/news/nation-world/world/americas/guantanamo/article2206171.html

And Cubans born in the base area are not considered US nationals: http://angelleal.com/wordpress/?p=40

And here we have the US Citizenship and Immigration Services outlining what the Boumediene v. Bush ruling in 2008 was actually about :https://www.uscis.gov/sites/default/files/err/E2%20-%20Applications%20for%20Certification%20of%20Citizenship/Decisions_Issued_in_2010/Feb162010_01E2309.pdf

[J.H.]

"That is the part that Gelpi argues has now been superceded. As a practical matter, he's correct: nothing would change if Congress passed a law incorporating Puerto Rico."

Hmmmm....nah. I can't agree with that. Gelpi is arguing that the entire clause has been superceded, but he admits (and I'll quote him verbatim here):

4. Downes involved the Constitution's Uniformity Clause rather than the Spending Clause. However, both provisions stem from Article I, § 8 cl. 1.

He wasn't arguing that Downes involved the whole revenue laws. Gelpi himself states that Downes case only involved the Uniformity Clause rather than the Spending Clause as a whole.

[J.H.]

And yes, where is Doug? It would be good to get his take on all of this.

I wouldn't agree that Congress cannot separate incorporated territory from the US. After all if it couldn't then the land swaps with Mexico in the 1970s would have been illegal and Rio Rico should still be on US territory.

[Noel Maurer]

On Guantanamo: meh. It was under the same legal regime as the Panama Canal Zone, which was referred to as an unincorporated territory at the time and subsequently. Note the birth issues apply to all unincorporated territories absent Congressional authorization. You're filibustering!

That said, there are some unique features to the occupation. A good overview of the situation is here: https://www.jstor.org/stable/2197290?seq=1#page_scan_tab_contents; see also http://www.jstor.org.proxygw.wrlc.org/stable/pdf/2127926.pdf. (Note the date! A feature, not a bug.) Short version: the U.S. can do what it wants, as long as the place remains a military installation. We can't legally set up a civilian colony.

On the 1966 legislation: absolutely! Agreed. The 1952 legislation didn't effectively incorporate the island by itself; the combination of all post-1917 legislation and the resulting jurisprudence is what did it.

Re Gelpi: I have no idea what we're arguing about.

I think you'll be interested in this book: Kal Raustiala, Does the Constitution Follow the Flag? It deals very little with Puerto Rico (and not at all in the modern context) but it's a great overview of territoriality in constitutional law.

[J.H.]

On Gitmo and the Canal Zone: I agree. They were under the same legal regime. But one way of looking at it is to view the Canal Zone as nothing more than a complex of base areas on steroids.

And not everyone referred to the Canal Zone as an unincorporated territory (in fact, I'm not even sure if the Supreme Court ever did so). The National Atlas of the United States in 1970 categorized it as a leased territory rather than a US possession (which is how it categorized Puerto Rico and all the other unincorporated territories).

Playing Devil's Advocate here, but Gitmo and the Canal Zone would seem more similar to the US administration of the Ryukyu and Bonin Islands rather than Puerto Rico and the Philippines. In the case of Gitmo and the Canal Zone there was a foreign power which had some kind of residual sovereignty (Cuba and Panama) much like with Ryukyu and the Bonin Islands (with Japan).

In the case of Puerto Rico and the Philippines, the US has/had absolute and total sovereignty.

There are indeed some unique features to the occupation of Gitmo which has historical roots in the occupation of Cuba (and in that regard Cuba would seem to more closely resemble the TTPI from 1899 to 1902 as Spain had relinquished title and sovereignty over Cuba but the US had not taken up the title or sovereignty and so in a way it was held in trust for the inhabitants (Cubans), whereas Spain had outright ceded sovereignty of Puerto Rico to the US). The first link is a nice overview. I can't view the second (have to sign in to George Washington University).

[J.H.]

Re: Gelpi; I dislike merely quoting only parts of a judgment as they are long epistles which require a great deal of work to go through. But let me see if I can make it clearer....

Gelpi argued that in order for the Spending Clause protections to apply in Puerto Rico then Congress must have incorporated the territory.

Firstly this is shaky logic as Congress has clearly extended bits of the Constitution to the island over time as even Gelpi notes. Thus why the protections of this one particular clause *must* mean Congress had fully incorporated the territory rather than merely extending yet another bit of the Constitution to the island isn't really clear.

Gelpi bases his reasoning on the 2003 First Circuit Court ruling which deals with the first part of the provisions of Article I, Section 8, Clause 1 of the Constitution.

He then argues that this must mean the territory is incorporated as the protections run counter to the 1900/1901 Supreme Court ruling in Downes.

However he admits that the Supreme Court case arose from a different set of provisions in the same Clause but argues that both provisions stem from Article I, Section 8, Clause 1.

The decision in Downes arose from a dispute over levies and their constitutionality based on the uniformity clause. For example references to "uniformity" are peppered throughout the judgment and part of the court ruling reads:

But as the duty in question was not a local tax, since it was levied in the United States on goods coming from Porto Rico, it follows that, if that island was a part of the United States, the duty was repugnant to the Constitution, since the authority to levy an impost duty conferred by the Constitution on Congress does not, as I have conceded, include the right to lay such a burden on goods coming from one to another part of the United States. And, besides, if Porto Rico was a part of the United States the exaction was repugnant to the uniformity clause.

The sole and only issue, then, is not whether Congress has taxed Porto Rico without representation,-for, whether the tax was local or national, it could have been imposed although Porto Rico had no representative local government and was not represented in Congress,-but is whether the particular tax in question was levied in such form as to cause it to be repugnant to the Constitution. This is to be resolved by answering the inquiry, Had Porto Rico, at the time of the passage of the act in question, been incorporated into and become an integral part of the United States?

What you say is the conclusion of the court in that case was actually the court referencing a prior conclusion all the way from 1850 to buttress it's argument and conclusion that the uniformity clause did not apply with regards to Puerto Rico:

"So long as Congress has not incorporated the territory into the United States, neither military occupation nor cession by treaty makes the conquered territory domestic territory, in the sense of the revenue laws; but those laws concerning 'foreign countries' remain applicable to the conquered territory until changed by Congress. Such was the unanimous opinion of this court, as declared by Chief Justice Taney in Fleming v. Page"

The Fleming v Page case from 1850 and involved a dispute over duties collected in Philadelphia in 1847 from Tampico which had been conquered by the US during the Mexican War. The Supreme Court cited the situation with Pensacola, Florida when the area had been ceded to the United States.

Entirely agreed that as practical matter he is correct. Between 1902 and 1966 Congress had extended various bits of the Constitution as well as various US laws to the island such that the day to day affairs on the island would not change much, if at all with formal incorporation. Puerto Rico is already a part of the customs area of the US; it has Article III courts (unlike the other territories which have Article IV courts), Article IV, Section 2 applies; the Fourteenth Amendment applies and the fundamental rights of the First, Fourth, Fifth and Eleventh amendments apply according to the Supreme Court; the Sixth and the Eighth amendments probably apply on the local level and not the federal level due to the Fourteenth Amendment.

Formal incorporation though would make things tidier and remove a lot of uncertainty as to Puerto Rico's status (remember some don't even view it as a territory but as some sort of unique commonwealth in a covenant with the US that can only be altered by mutual consent - the Oversight Bill has shown them how wrong they are on that point!).

[J.H.]

Yes! I think I would be interested in that book by Kal Raustiala. I'll look it up.

P.S. The links to the National Atlas pages from 1970:

https://www.lib.utexas.edu/maps/national_atlas_1970/ca000103.jpg

https://www.lib.utexas.edu/maps/national_atlas_1970/ca000041.jpg

https://www.lib.utexas.edu/maps/national_atlas_1970/ca000039.jpg

[Matt McIrvin]

Interesting! I'd never heard of those Caribbean banks that were disputed between the US and Colombia. Probably because the US signed away its claims in a treaty in 1972.

[Luis A Perez]

"To conclude, I am honestly not sure that Puerto Rico’s “unincorporated” status amounts to anything. I suspect that it doesn’t."

If Puerto Rico had been "incorporated" then it would be indissoluble from the Union. It would have been arrogant and imperialistic beyond the pale for the USA to state that Puerto Rico is an incorporated territory since that would mean that eventual separation from the US was impossible no matter the will and opinion of the people of Puerto Rico that already inhabit the island.

An incorporated territory cannot separate from the US or be sold as it is treated as an integral part of the nation where the constitution fully applies; not a mere possesion. Through history, most of these were territories from which new states were eventually carved out later on.

By creating the "unincorporated" label the US allowed for whatever evolution between the status of the territory and the US; including independence or the selling of that territory as well as eventual statehood. Statehood for Puerto Rico will mean the incorporation of the island into the US as a new sovereign state sharing sovereignty with the federal government instead of being under its sovereignty.

At this moment, the only incorporated territory that is not a state is an uninhabitated atoll in the Pacific (Palmyra Atoll).

That is the only major difference between an incorporated and an unincorporated territory.

Saludos,
Luis Perez

[Noel Maurer]

Hi, Luis! This is a belated response, apologies.

There is actually no law about whether an incorporated territory, with Congressional approval, can be separated from the Union.

Congress ceded incorporated territory to Britain in 1818, but that's a weak precedent. Still, it's a precedent. In other words, I don't see what's stopping Congress from allowing an incorporated Puerto Rico to secede.

I'm happy to be proven wrong! I'd like to see the logic, though.