Pablo José Hernández Rivera has been elected to the position of Resident Commissioner of Puerto Rico. For the first time in a quarter of a century, Puerto Rico’s representative in Washington will oppose statehood for Puerto Rico.
But Hernández Rivera also does not plan to fight against statehood, at least according to his recent op-ed in The Hill. Instead, he believes that “Puerto Ricans are simply tired of the sterile status debate,” and has pledged to stop “wasting time dealing with Puerto Rico’s political status.” He prefers to work on “promoting new tools for the island’s economic development, securing equal treatment in federal programs, and accelerating the disbursement of federal funds for the electric grid’s reconstruction.”
In sum, the incoming Resident Commissioner is clear that he believes his mandate “is to put statehood aside and prioritize economic development.”
He is equally clear, however, that he ultimately wants to “maintain and improve” Puerto Rico’s “commonwealth” status. What does this mean?
Return of the “enhanced commonwealth”?
Puerto Rico is often called a “commonwealth,” just as the state of Kentucky is officially the “commonwealth” of Kentucky. The term is meaningless in U.S. law: Puerto Rico is an unincorporated territory. But ever since Puerto Rico took on the “commonwealth” title in the 1950s, there have been claims that “commonwealth” is a unique relationship between the United States and Puerto Rico which can be developed, improved, or enhanced into something quite different from the current territorial status.
This has never happened. There have been no permanent “enhancements” to Puerto Rico’s “commonwealth” status that has transcended the Territorial Clause of the U.S. Constitution. If anything, Puerto Rico has only lost rights over time, leading to mass migration out of Puerto Rico and into the fifty states. Essentially, Puerto Ricans in search of “enhanced” rights have voted for statehood with their feet.
Many ideas to “enhance” the “commonwealth” have been proposed over the years, but these proposals have been soundly rejected by all three branches of the federal government and both U.S. political parties. These proposals include:
- Puerto Ricans would have permanent, irrevocable U.S. citizenship while Puerto Rico becomes a separate, sovereign nation.
- Puerto Rico could pick and choose among U.S. federal laws, refusing to implement U.S. laws that the people of Puerto Rico don’t like.
- The Puerto Rican government could make treaties with foreign nations, but “the free flow of good and services between the two countries will continue.”
- Nutrition assistance, Pell Grants, Medicare, Social Security and other U.S. federal benefits will continue.
- The U.S. will provide Puerto Rico with additional annual funding, with no strings attached.
- Congress could not change the terms of the agreement without Puerto Rico’s consent; the relationship would be a “permanent union.”
After decades of confusion, the idea of the “enhanced commonwealth” has been largely discredited. “Commonwealth” has gradually been dropped as a ballot option on status referenda, and many members of the “commonwealth” party started to call for independence with free association as an alternative. Yet Hernández Rivera continues to talk about developing the ELA — the “commonwealth.”
Equality without statehood?
In his Hill op-ed, Hernández Rivera expresses support for Puerto Rico’s inclusion in the U.S. federal nutrition assistance program (SNAP), equity in Medicaid funding, and support for manufacturing.
Unfortunately, even if Hernández Rivera is successful in persuading next year’s Congress to provide equality in federal benefits for Puerto Rico, a future Congress can take the benefits away. There is precedent for this: Puerto Rico used to be included in the federal nutrition assistance program, until Congress removed those benefits. Congress can always change the rules for territories.
On the other hand, states have “equal footing” under the U.S. Constitution. Congress cannot take benefits away from only one state.
In recent years, Puerto Rico has received tax credits that had not been available to the Island, but there are certainly no guarantees that Puerto Rico will continue to be provided with the same opportunities. Absent statehood, equality for the territory of Puerto Rico is necessarily temporary and uncertain.
Hernández Rivera
The final paragraph of Hernández Rivera’s Hill op-ed is where he mentions his goal of ultimately improving the “commonwealth” status.
“Once we are back on the right track, we can talk about status,” he wrote. “And when we do, we must be inclusive and democratic, and respect the people’s right to vote for statehood, independence, free association or to keep and improve their current commonwealth status.”
As noted above, “commonwealth” is not a technical legal term used to describe the island’s current status. Regardless, could Puerto Rico improve its relationship with the U.S. outside of the Territorial Clause of the U.S. Constitution? It hasn’t happened yet. Despite decades of attempts to make it so, there have been no meaningful “enhancements” to “Commonwealth” since the creation of the Puerto Rico “Commonwealth” Constitution of 1952. There have only been restrictions on Puerto Rican power.
The Territorial Clause of the U.S. Constitution gives Congress plenary power over territories, with the responsibility to make “all needful rules and regulations” for them.
Hernández Rivera is a lawyer, with degrees from Stanford and Harvard and experience in the courts in Puerto Rico and in Washington, D.C. He is expected to serve on the House Natural Resources Committee and has expressed an interest in the Transportation and Agriculture committees.
He is also the grandson of Rafael Hernández Colón, an esteemed former Governor of Puerto Rico. He edited his grandfather’s book on the “commonwealth” notion, as well as a book of essays “designed to provide tools to understand and promote the Commonwealth, and to comprehend the weaknesses of statehood and sovereignty for Puerto Rico,”
