Back in 2013, at a Senate hearing on Puerto Rico’s political relationship with the U.S., Senators tussled with the question of what might be “viable status options” for the U.S. territory. The Senators concluded that while statehood and independence were both credible choices, a unique status for Puerto Rico, often referred to as “enhanced commonwealth,” was not a possibility.
This was by no means the first time a part of the federal government had made this determination, and as time went on, decisions from the Supreme Court reinforced the Senate Committee’s conclusion and built on related declarations from the U.S. Departments of Justice and State, as well as statements from the President’s Task Force on Puerto Rico.
Senators: Statehood or Nationhood Only Ways to Resolve Status Issue
By 2020, Congress determined that justice and fairness dictated that Puerto Rican voters should be presented with only viable non-territorial status options, and that elections should not waste time with unconstitutional or implausible choices. These options were reflected in the Puerto Rico Status Act, which was passed by the House of Representatives in 2022. The White House endorsed the legislation with a favorable Statement of Administration Policy on December 15, 2022, but the bill died in the Senate.
Questions and answers from Hernandez
In a recent interview in El Nuevo Dia, however, Puerto Rico’s new Resident Commissioner in Washington, Pablo Jose Hernandez Rivera, expressed thoughts on the issue of status that reflect a break from this established past.
For example, when asked if it is possible to be within the U.S. Constitution’s territorial clause and not be a colony, the Resident Commissioner replied that “you can be within it and be a unique status.”
This answer appears to contradict established jurisprudence. As the U.S. Supreme Court ruled long ago in the now infamous Insular Cases, if an area is covered by the Territory Clause, it can only be a territory that is part of the United States, as an “incorporated” territory on the path towards statehood, or an “unincorporated” territory that is a possession of the U.S.
The Territory Clause gives each Congress the power to govern all territories in local as well as national matters, provided that it does not violate certain fundamental rights of individuals, such as freedom of speech. A Congress can delegate the exercise of congressional governing power to a territorial government, and it has done so in the case of Puerto Rico. That delegation of power does not change the territory’s status. A subsequent Congress can take back the delegation from the territorial government, as was done with the establishment of the Fiscal Oversight and Management Board under a 2016 law, the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA).
Hernandez was also asked if it would be possible for Puerto Rico to be outside the territorial clause and not be a sovereign nation or a state, to which he replied “that remains to be seen. The prevailing view, right now, from a Justice Department that is more conservative than it was before, is no.”
Yet the Justice Department has addressed the issue many times over the past several decades under Presidents who span the ideological spectrum and found no such alternative. There is little if any room for ambiguity: the possible status options for Puerto Rico, beyond its current status as a U.S. territory, are statehood or independence (with or without a free association arrangement like the U.S. has with Palau). The State Department and the White House have echoed this position many times. It has, further, been the dominant position of the U.S. House of Representatives as well as the U.S. Senate committee of jurisdiction.
As just one example, the 2005 report of the President’s Task Force on Puerto Rico’s Status said succinctly, “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.”
Proposals for a different governing arrangement with “unique” status outside of the U.S. Constitution’s territorial clause have been consistently rejected by the Federal government in every decade since the 1950s.
It’s not just Hernandez
Resident Commissioner Hernandez is not the first person to make these claims, but as the first member of Puerto Rico’s Popular Democratic Party (not affiliated with the U.S. Democratic party and also commonly called the “commonwealth” party) to hold the position of Resident Commissioner since 2005, his views are receiving renewed attention, and with the spotlight may come renewed attention to viewpoints that had deeply held in the past.
Updated on February 3, 2025
