How to Guarantee U.S. Citizenship: Statehood and the U.S. Constitution

The ballot for the 2017 status referendum held in Puerto Rico originally informed voters that future U.S. citizenship was guaranteed only under statehood.

The Department of Justice took issue with this wording in a letter to Puerto Rico Governor Ricardo Rossello. In the Department’s view, the status quo also allows citizenship. The Department’s letter was careful not to support or promise U.S. citizenship in an independent/freely associated state Puerto Rico, which is a far more dubious claim.

But does Puerto Rico’s current territorial status or independence/free association guarantee citizenship in the future, as statehood would?

It’s up to the U.S. government. It’s a decision that has yet to be official, so by definition there can’t be a guarantee. It’s also a decision that can change, so U.S. citizenship could exist for a while, but it could always be taken away. That’s no guarantee.

Congressional Authority Concludes that Constitutional Protections on Citizenship Do Not Extend to Puerto Rico

When Congress needs research done, it turns to the Congressional Research Service (CRS). This is what Senator Bennet Johnston (D-LA) did in 1989 when he wanted to know if there were limits on Congressional decision making power with regard to the citizenship status of Puerto Ricans. In other words, when does Congress have the power to guarantee U.S. citizenship to the people of Puerto Rico?

In its 5-page analysis, CRS concludes U.S. citizenship for residents of Puerto Rico would only be protected by the U.S. Constitution if Puerto Rico becomes a State.

Under the U.S. Constitution, Congress cannot change citizenship of people born in states, but can impact the citizenship status of people born in Puerto Rico. After all, it already has done so – in 1917 when it gave Puerto Ricans U.S. citizenship. Consistent with this history, CRS is clear in its memo that the U.S. Constitution cannot “restrain Congress’ discretion in legislation about the citizenship status of Puerto Rico.”

Citizenship is guaranteed by the U.S. Constitution only for people born or naturalized in a State. Congress has the power to both give and take away the grant of U.S. citizenship to people born in Puerto Rico. After all, Congress granted citizenship to Puerto Ricans in a statute, so it’s  intuitive that Congress has the authority to change this law. Congress can both give and take away citizenship in the U.S. territory – unless the island takes advantage of protections under the U.S. Constitution, which are currently available only to states.

Congress also cannot promise unlimited citizenship to the people of Puerto Rico as one Congress cannot bind a future Congress to its decisions. And Puerto Rico lacks the power to do any more than request U.S. citizenship; ultimately, that decision belongs to Congress under the Constitution’s Territorial Clause.

The CRS letter to Sen. Johnston references two Supreme Court landmark cases:

• Afroyim vs. Rusk (1967) decided that Congress generally couldn’t take away a U.S. citizen’s citizenship against their will. However, CRS concludes that “Afroyim is inapplicable in the instance of Puerto Rico.”  Legal scholar Howard Hills has argued that the very act of choosing independence and becoming a citizen of a new nation would be evidence of an intention to change allegiance to a new sovereign, in which case a removal of that citizenship would not be against the will of the former citizen.
• Rogers vs. Bellei (1971) held that an individual who was born outside of the United States but obtained U.S. citizenship through a parent may lose that citizenship for failure to fulfill the U.S. residence requirement. The Court also established that loss of citizenship is acceptable as long as it is reasonable and not arbitrary – a relatively lax legal standard that should put any Puerto Rican who values his or her continued U.S. citizenship on notice.

Reminding the reader of the Insular Cases, which decided that the U.S. Constitution doesn’t fully apply to unincorporated territories like Puerto Rico, the CRS further confirmed that Puerto Rico belongs to the United States but is not in the United States. “Whatever its exact status and relationship to the United States,” CRS cautioned, “Puerto Rico is not itself in the United States.” The 14th amendment, according to CRS, therefore doesn’t apply to people born in Puerto Rico. (In 2016, the Supreme Court confirmed in Tuaua v. U.S. that the Constitution’s 14th amendment does not apply to people born in a U.S. territory.)

Some scholars believe that “Puerto Rican U.S. citizenship is permanent and irreversible,” but the Congressional Research Service has long supported the claim that only statehood will actually guarantee U.S. citizenship for the people of Puerto Rico with the weight of the Constitution. The Justice Department can point out that Congress is not likely to take away the citizenship of Puerto Rico’s residents imminently if it were to remain a U.S. territory, and they are probably right. But that is not the same as a Constitutional guarantee, and Puerto Ricans who value their U.S. citizenship are on notice.

Read the memo by the U.S. Congressional Research Service (CRS)

Updated on August 5, 2024.