Options for the Future of Puerto Rico

Puerto Rico has three viable status options:

• statehood
• independence (with or without a Compact of Free Association)
• current territory status

Federal law, official documents and members of U.S. Congress have been explicit that Puerto Rico is a “possession” of the United States. This ownership implies some responsibility on the part of the United States, but the U.S. Constitution does not specify any particular responsibilities or requirements for the United States toward Puerto Rico under its Territorial Clause.

The Supreme Court has ruled that the United States does not have to treat Puerto Rico equally with the states. The Court has even said that the U.S. Constitution does not apply in the same way to U.S. citizens living in Puerto Rico as it does to citizens living in states.

As a matter of human rights, we might argue that the federal government should provide for Puerto Rico as a state, but that is not a legal requirement.

Can the United States completely abdicate responsibility for Puerto Rico and give up ownership of the territory?

The 2005 Report of the President’s Task Force on Puerto Rico explained:

The Federal Government may relinquish United States sovereignty by granting independence or ceding the territory to another nation; or it may, as the Constitution provides, admit a territory as a State, thus making the Territory Clause inapplicable. But the U.S. Constitution does not allow other options.

Granting independence

The government could give up ownership of Puerto Rico by granting the Island independence. Since Puerto Rico has rejected independence in every vote on status– independence never having received more than 5% of the vote — it appears that Puerto Rico does not actually want independence.

However, there is historical precedent. Malaysia expelled Singapore in 1965, forcing independence on the nation against its will. The United States could do the same to Puerto Rico as long as Puerto Rico remains a territory.

Ceding the territory

The federal government could also cede — give — the territory to some other country. The land that is now the State of Arkansas was transferred from France to Spain and back again without even communicating the fact to the inhabitants of the territory. It would be surprising for something like this to happen in the 21st century. We would expect that, if the United States decided to give Puerto Rico to Haiti, for example, the residents would be consulted.

But that is not required by U.S. or international law. Singapore’s forced independence took place only in the 1960’s.

Admitting Puerto Rico as a State

The federal government can also admit Puerto Rico as a state. This would make the U.S. Constitution’s Territorial Clause inapplicable.

States are admitted on equal terms with all the other states according to the U.S. Constitution. We have seen new states formed from territories since the 1700s, so there is plenty of history to draw on.

Congress can even admit Puerto Rico as a state without waiting for Puerto Rico to hold another referendum. Alabama was admitted without holding a referendum at all. California was admitted without even being officially named a territory. Congress has a great deal of leeway for admitting states.

Compact of Free Association

One option often viewed as a variation of independence involves a COFA, or Compact of Free Association. A COFA is an international agreement between two nations. It is a “free” association because either side can end the relationship at any time.

The United States has COFAs with three sovereign nations – Palau, the Federated States of Micronesia (FSM), and the Republic of the Marshall Islands (RMI). None of the people living in COFA nations – often referred to as the Freely Associated States (FAS) –  are citizens of the United States. They can travel and work freely within the United States, and they pay U.S. income tax if they live in a state, but they are not U.S. citizens.  They are official “migrants.”

U.S. migrants from COFA nations cannot vote and are not eligible for Medicaid.

This last point is an interesting example of how a COFA works. People from the FAS used to have access to Medicaid and other federal benefits when they lived in the United States. In 1996, however, Congress enacted the Personal Responsibility and Work Opportunity Reconciliation Act, which eliminated non-U.S. citizen immigrants from Medicaid coverage.

Even though FAS migrants are not classified as “immigrants” under their Compacts, the 1996 law did not make this distinction.  The law instead removed federal Medicaid eligibility for all U.S. residents from the three COFA nations.

Now, facing COVID-19, many people from the FAS living in the U.S. are essential workers.  Others may be out of work, like their U.S. citizen neighbors, but they cannot receive medical care for COVID-19 under Medicaid.  The prevalence and fatality rate of COVID-19 within the FAS population is many time higher than the national average.

In the same way, Puerto Rico could negotiate terms for a COFA now, and find that the practical application of those terms have changed at some point in the future. As we see in the case of Medicaid, Congress can pass laws that change the experience of FAS nationals living in the U.S.

COFAs also expire and require renegotiations.  Current COFAs are due to be renegotiated in 2023 and 2024. The United States has also expressed an expectation of self-sufficiency by the COFA nations, ending financial assistance while retaining control over the national security policy of the FAS.

Will Puerto Rico fare better under a COFA? History shows no precedent for a COFA nation retaining U.S. citizenship, not at the moment of granting nationhood and not for future generations.  History also shows that U.S. based healthcare could disappear quickly – both in a Freely Associated State of Puerto Rico and by FAS citizens from Puerto Rico living in the U.S.

Granting independence to Puerto Rico — or forcing independence on Puerto Rico — may not be a popular choice in Puerto Rico. Puerto Ricans are citizens of the United States and, while there is no guarantee of continued U.S. citizenship as an independent nation, Puerto Ricans could move to a state while they still had that citizenship.

Some observers have predicted another exodus of Puerto Ricans to the U.S. in the event of announced independence.

Ceding Puerto Rico to another nation would require the other nation to join in the process, and the second country could keep Puerto Rico in the position of a colony. This would be another unpopular choice in the modern era.

Sovereign nationhood with Free Association is a legal possibility. However, it is important that the United States and Puerto Rico go into such an arrangement with their eyes open. There is no guarantee of permanence.