Today, Puerto Rican governor Ricardo Rosselló resigns after weeks of protests over government corruption and widespread anger at the weak economy, creating additional political uncertainty on an island whose legal status is already anything but resolved. Officially, Puerto Rico is an unincorporated territory of the United States—one of four islands where people are born citizens of the U.S. but have no representation in the federal government and cannot vote for president unless they move to one of the 50 states.
Unofficially, the story is more complicated. Because its 3.2 million citizens are enlisted if there’s a draft, living in municipalities that cannot declare bankruptcy without Congress’ approval, and receive proportionally less Medicare and Medicaid benefits than their mainland peers, Puerto Rico is also called “the world’s most populous colony.” Though the island’s technical name is the “Commonwealth of Puerto Rico,” it is not one, and recent plebiscites have proposed changing its status to an “enhanced commonwealth,” which would allow it to ignore federal law, a United State, a sovereign free associated republic, and an independent nation.
According to Juan Cartagena, president and general counsel of Latino Justice, an advocacy organization for Latinxs, now is the perfect opportunity for Puerto Rico to re-examine its unusual status. In addition to the current political meltdown—more than a dozen government officials have resigned, including the next-in-line to be governor—he cites three other reasons: the federal government’s disastrous handling of Hurricane Maria, the subsequent exodus of an estimated 130,000 residents, and a decades-long fiscal crisis.
“The whole world is finally paying attention to Puerto Rico,” Cartagena says, “something that rarely happens. So, this is an opportune moment to talk about a lot of things, including the relationship to the U.S.” However, after over 100 years of control by the federal government, that relationship is legally murky, politically fraught, and administratively tricky, complicating a situation that’s already unpredictable.
In 1898, the U.S. invaded Puerto Rico during the Spanish-American War, and the following year, Spain ceded the island to the U.S. Immediately, the status of the island was in question: Was it a colony controlled by the federal government or a territory on the path to being admitted to the union? Two years later, the Supreme Court decided it was somewhere in the middle, with one justice writing that Puerto Rico was ” a territory … belonging to the United States, but not a part of the United States.”
Arguing that the island’s “religion, customs, laws, methods of taxation and modes of thought” were incompatible with the U.S.’s, the justices invented the term “unincorporated,” meaning not currently on the path to statehood. Though this designation was meant to apply only “for a time,” 118 years have passed, and, from the vantage of the Supreme Court, Puerto Rico is no closer to joining the Union now than it was then.
Periodically, there have been shifts in the island’s status. Puerto Ricans were granted citizenship in 1917, and, in 1950, the federal government authorized Puerto Rico to write its own constitution, a potential sign that the territory was moving toward “incorporation” and a path to statehood. However, that sea-change never came. In a 2016 Supreme Court case concerning double jeopardy and whether Puerto Rico could try someone the feds had already tried, the Obama administration’s solicitor general argued in a brief that, “The Executive Branch has recognized that Puerto Rico remains a U.S. territory subject to Congress’s authority.” In its decision, the Supreme Court concurred, declaring that Puerto Rico is, in the words of SCOTUS Blog,“entirely subordinate” to the legislative branch.
Such legal ambiguity would disappear if Puerto Rico were granted statehood, but it’s not clear whether that’s what the majority of the island wants. In the last referendum, in 2017, three options were presented: maintaining the current political status, independence, and statehood. Ninety-seven percent of voters chose the third option, but the pro-status quo party had called for boycotts of the plebiscite, and voter turnout was historically low at 23 percent.
And on the mainland, Puerto Rican statehood has also been a political non-starter. Though a few bills authorizing a referendum on self-determination have passed the House of Representatives, none have been approved in the Senate. The conventional wisdom for why is that a Puerto Rican state would be a liberal stronghold, but according to an aide for the House’s Natural Resources Committee, which is responsible for U.S. territories, “The quote-unquote fact that Puerto Ricans move to the mainland and vote Democrat as an outright guarantee is widely contested up here among conservatives that are attracted to the issue.”
The only congressperson to have passed a self-determination bill is Don Young, a Republican from Alaska, and Puerto Rico’s current non-voting member in the House, Jenniffer González, is also a Republican and [President Donald] Trump supporter. According to the Scholars Strategy Network, a non-profit, Puerto Ricans on the mainland are more likely to be registered as Democrats, but “Puerto Ricans who identify as Republican were more likely to have actually voted [in the presidential election] in 2016.”
In absence of bipartisan support for full enfranchisement, some have proposed workarounds. For example, in a 2007 article in the Yale Law Journal, José R. Coleman Tió proposed that Congress pass a law specifically granting Puerto Ricans representation in the House, similar to what was proposed at the time for Washington, D.C. Coleman Tió writes, “The search for grand, permanent solutions to Puerto Rico’s status may have dampened the search for pragmatic short-term solutions.”
In a rebuttal, legal scholar Christina Duffy Burnett argues that such a proposal “goes both too far and not far enough.” On one hand, Puerto Ricans would have representation in the House but no senators or say in the presidential race. On the other, even partial enfranchisement would “would weaken the argument that Puerto Rico remains a colony, offering Congress yet another excuse to ignore the underlying problem.”
Should another plebiscite be held, questions abound about who should be able to vote. “Remember, there are 8.2 million Puerto Ricans in the world, and only 3.2 million live on the island,” Cartagena says. “At what level do we say that we’re going to ignore the wishes of the people who had to leave for economic reasons, or humanitarian reasons, or health care reasons, or ‘I need a special education class for my child, and there are no more on the island because the schools are closed’?”
Though Latino Justice doesn’t yet have a position on who should be enfranchised, Cartagena personally believes that anyone born on the island should be eligible, regardless of where they now live. Still, he recognizes that any decision with regards to sovereignty is fraught. “This is an island whose colonial status goes for centuries, and only 100-plus years belong to the U.S.,” he says. “There are layers and layers of complexity.”
