The United States acquired both Puerto Rico and the Philippines from Spain following the Spanish–American War in 1898.
In 1946, the Philippines ended its status as a territory of the United States and became an independent nation.
During the roughly 50 years in which the Philippines was a territory, U.S. law recognized Filipinos as U.S. nationals, granting them special immigration privileges.
This ended when Congress passed the Tydings–McDuffie Act of 1934, the law that guided the Philippines toward its independence. The new law ended the status of Filipinos as U.S. nationals and explicitly established that Filipino American nationals were to “be considered as if they were aliens.” Immigration quotas for the new nation of the Philippines would be limited to 50 individuals a year.
Today, there is speculation as to what would happen to U.S. citizenship currently granted to the people of Puerto Rico under a 1917 law if the U.S. territory were to become independent.
But history is clear. The transition of the Philippines to independence can provide guidance. U.S. citizenship would end. The only question is when.
US Citizenship in Puerto Rico
The citizenship status enjoyed by Puerto Ricans is unique. It is technically called statutory citizenship because it is granted under a law passed by Congress – a statute – rather than through the U.S. Constitution.
This arrangement is often referred to as “second class” citizenship because it does not provide Puerto Ricans with the same Constitutional protections afforded to individuals born in the U.S or naturalized through the U.S. immigration system. These individuals have Constitutional citizenship – that is, protections granted under the U.S Constitution.
Constitutional U.S. citizenship is more secure. Congress can’t change Constitutional citizenship unless it amends the Constitution. Congress can change statutory citizenship by just passing another statute.
When the Philippines became a sovereign independent nation, Filipinos who had become naturalized U.S. citizens under the U.S. Constitution were able to keep their U.S. citizenship. Filipino U.S. nationals, however, who had achieved their status only through a statute and related court cases, lost their status as U.S. nationals.
What do the experts say?
Congress can rescind statutory U.S. citizenship for people born in Puerto Rico, just as it did for U.S. nationals in the Philippines in 1946. All that it takes is Congress passing a new statute.
This reality has been recognized by legal authorities many times over the years.
In 1991, for example, U.S. Attorney General Dick Thornburg observed: “I think when you look at the policy questions and what occurred in the Philippines when it changed from a commonwealth to a republic, Congress did not continue statutory U.S. nationality for residents of the Philippines.”
In 1997, Rep. Don Young further explained, “[A] Congressional Research Service (CRS) legal analysis in 1990 confirmed that establishment of separate Puerto Rican sovereignty would appear to provide the legal basis for Congress to withdraw statutory citizenship without violating due process. That CRS report was clear that only Puerto Ricans born in the US have 14th Amendment Citizenship and are therefore constitutional citizens from birth. Their citizenship cannot be taken away.”
A 2005 White House Report was consistent with earlier statements: “Any planning for Puerto Rican independence would need to consider citizenship. Individuals born in Puerto Rico are citizens of the United States by statute (rather than by being born or naturalized in the United States). The general rule is that citizenship follows sovereignty. So if Puerto Rico were to become an independent sovereign nation, those who chose to become citizens of it or had U.S. citizenship only by statute would cease to be citizens of the United States, unless a different rule were prescribed by legislation or treaty, much as citizens of the Philippines lost their status as U.S. nationals once the Philippines became independent.”
More recently, a group of academic leaders in the area of citizenship filed an amicus brief in the Supreme Court case of Fitisemanu v. US. In their May of 2022 submission to the Supreme Court, they explained that under common law rule “a change in sovereignty occasions a corresponding change in inhabitants’ allegiance and citizenship.”
The State Department has been resoundingly clear that granting U.S. citizenship to foreign residents would be “incompatible with the notion of sovereignty.”
- In 2000, Robert Dalton, Assistant Legal Advisor for Treaty Affairs at the U.S. Department of State, testified before the House Committee on Natural Resources: “We have concern about [a] proposal that would legislate dual nationality for residents of Puerto Rico, since it appears to be grounded in the recognition of the conferred citizenship on citizens of another nation, which is incompatible with the notion of sovereignty. There are also problems … about the diplomatic protection of U.S. citizens who would be in Puerto Rico and the responsibilities that a United States embassy would have under U.S. law to protect those rights.”
- In 1989, Mary V. Mochary, Department of State Principal Deputy Legal Adviser, similarly testified before the Senate Committee on Energy and Natural Resources: “The United States under no circumstances should cede its power to determine citizenship by the issuance of U.S. passports[.] Apart from constitutional concerns, there are foreign policy concerns and sound practical reasons for opposing these provisions so that control over the issuance of U.S. passports and immigration remains in the hands of a Federal authority. Chief among these are law enforcement interests and the need to promote the uniform issuance of passports.”
These legal positions are not mere theories. In the Pacific, the granting of U.S. citizenship follows this framework. The three sovereign Freely Associated States (Palau, Marshall Islands and Federated States of Micronesia) rejected U.S. territory status. They sought sovereignty instead. Today, their citizens do not have U.S. citizenship or even U.S. nationality.
Yet other islands that had been part of the same Pacific Trust Territory along with the Freely Associated States after World War II – the Northern Mariana Islands – accepted territory status instead. People born in this U.S. territory now have U.S. citizenship.
The takeaway for Puerto Rico
If Puerto Rico becomes a state, people born in Puerto Rico will attain 14th amendment citizenship under the U.S. Constitution, just like people born in any state.
If Puerto Rico makes another choice, the U.S. Constitution will not apply. There is simply no way to protect U.S. citizenship securely and permanently – or any other Constitutional protection. The U.S. Constitution does not apply broadly in foreign jurisdictions, and the U.S. Department of State has offered detailed policy rationales that justify the specific removal of citizenship privileges in a sovereign Puerto Rico.
Those who claim that Congress will not rescind Puerto Rico’s U.S. citizenship rights should look to the experience of the Philippines. According to the U.S. State Department, the Philippines is a sovereign, independent country today – as are the three freely associated states of Palau, the Marshall Islands and the Federated States of Micronesia. Philippines citizens had been U.S. nationals but are no longer. For the answer as to what would happen to U.S. citizenship in a sovereign Puerto Rico, one need look no further than the Philippines.
Updated March 3, 2023
