U.S. Citizenship in a Sovereign Puerto Rico: Worth the Gamble?

One of the biggest issues arising in discussions of the Puerto Rico Status Act is the question of what happens to U.S. citizenship if Puerto Rico is no longer a U.S. territory.

As a State, Puerto Rico would be covered by the 14th Amendment of the U.S. Constitution.  Everyone born in Puerto Rico would have permanent U.S. citizenship.

The 14th Amendment says, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.”

There are U.S. citizens still living today who were born in the then-territories of Alaska and Hawaii before they became States. Their U.S. citizenship has never been in doubt.

The Puerto Rico Status Act discussion draft is consistent with this history.  The proposal makes it clear that U.S. citizenship is “recognized, protected, and secure” if Puerto Rico becomes a State.

As a sovereign nation, however, with or without a free association agreement with the U.S., United States citizenship for Puerto Ricans would not be guaranteed by the Constitution.

What the new draft bill promises instead for both sovereign options – independence and free association – is “a right to retain the United States nationality and citizenship for life by entitlement or election as provided by Federal law.”

Whatever “Federal law” the draft refers to is not clear.  No specific statute is cited. Never before in the history of the United States has a territory been granted sovereignty with all of its millions of residents keeping U.S. citizenship “for life.”

So the proposal appears to be referring to a future “Federal law” that will guarantee U.S. citizenship “for life” to the residents of a sovereign Puerto Rico.

Is this a promise that can be kept?  History says no.

The State Department

The State Department explicitly rejected dual citizenship for residents of a sovereign Puerto Rico in testimony delivered on October 4, 2000 before the House Natural Resources Committee.

In oral testimony, Assistant Legal Advisor for Treaty Affairs Robert Dalton said,  “[The State Department has a] concern about the 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.”

In his written testimony, Dalton went further. “The Department of State opposes [the legislation’s] attempt to legislate dual nationality for residents of Puerto Rico.  Our opposition is grounded in the recognition that the conferral of that status upon the citizens of another nation is wholly incompatible with the notion of sovereignty,” he wrote.

“[T]he United States would be required to confer U.S. citizenship on persons whose admission to Puerto Rico it apparently would not control.  This is an unacceptable surrender of sovereignty by the United States with profound consequences since birth in Puerto Rico would guarantee the right to enter, live, and work in any part of the United States.”

The Congressional Research Service

In 1989, Senator Bennet Johnston (D-LA) requested clarification on the possibility of U.S. citizenship for a sovereign Puerto Rico to the research organization that serves members of Congress. In a letter, the Congressional Research Service (CRS) responded with a restatement of the question, asking, “If the decision should be in favor of independence, what alteration could Congress constitutionally make with respect to United States citizenship of the residents of Puerto Rico?”

The CRS further explained, “Puerto Rico, whatever its exact status and relationship to the United States is not itself in the United States,” and that U.S. citizenship for people born in Puerto Rico is granted by a statute and not the 14th Amendment of the U.S. Constitution.

“Of course,” the letter continued, “some Puerto Ricans do have ‘Fourteenth Amendment citizenship.’ That is, those who were born in the United States are within the meaning of [the 14th Amendment] and are therefore constitutional citizens from birth.” It goes on to say that “dual citizenship or some treaty provision requiring some choice might be alternatives for these individuals.”

But not for the vast majority of Puerto Ricans alive today.

Does this matter?

If Puerto Ricans were to choose to become a sovereign nation – with or without free association – it is not at all a stretch to say that people born in Puerto Rico could lose their U.S. citizenship. In fact, statements from leading authorities over many years indicate that a loss of U.S. citizenship is a likely result of severing ties to the U.S.