When will Puerto Rico stop being a colony?
And how does a colony/territory choose independence legally?
In a recent Supreme Court opinion on a case involving Puerto Rico:
A century ago in the Insular Cases, this Court held that the federal government could rule Puerto Rico and other Territories largely without regard to the Constitution. It is past time to acknowledge the gravity of this error and admit what we know to be true: The Insular Cases have no foundation in the Constitution and rest instead on racial stereotypes. They deserve no place in our law.
Can you guess who wrote this?
Supreme Court Justice Neil Gorsuch, nominated by former President Donald Trump. In the above picture, he’s standing in the back, second from the right.
The Insular cases referenced by Justice Gorsuch are a series of Supreme Court decisions between 1901-1925 that defined Puerto Rico as an unincorporated territory. These cases followed the Spanish-American War, in which Puerto Rico and Guam became U.S. territories, Cuba became independent of Spain and the United States bought the Philippines for $20 million from Spain.
Puerto Rico remains an occupied territory with a population of more than 3 million people, which if a state would be the 32nd most populated in the Union. Those born in Puerto Rico are U.S. citizens but have zero voting members in Congress. They can vote in presidential primaries but not in the presidential election. Its citizens essentially have zero representation in the United States and cannot become a State unless both the House and Senate pass a law to that effect. And the Senate has the infamous filibuster, which can block any legislation unless 60 votes override the legislative procedure.
Between 1947 and 1952, Puerto Rico was allowed by Congress to elect its own Governor and ratify their own Constitution officially recognizing the island as the Commonwealth of Puerto Rico. However, not all Puerto Ricans were satisfied with being occupied and there was resistance:
U.S.-backed security forces had crushed violent pro-independence uprisings in the early 1950s, diminishing the nationalist movement as an electoral force. Activists were targeted by the FBI as part of the Counterintelligence Program and by the Puerto Rican police—sometimes with lethal consequences. In July 1978, two would-be revolutionaries, Carlos Enrique Soto Arriví and Arnaldo Darío Rosado Torres, were slain by police in what many viewed as a state-sanctioned assassination.
Recently in the past several years, there have been 4 Supreme Court decisions about Puerto Rico:
Commonwealth of Puerto Rico v. Sanchez Valle (Argued January 13, 2016—Decided June 9, 2016)
Case - Luis Sánchez Valle and Jaime Gómez Vázquez sold guns to an undercover officer. Both plead guilty to federal charges and moved to dismiss the Commonwealth charges on double jeopardy grounds (being charged twice for the same crime).
Verdict - 7 Justices voted that double jeopardy applied since Puerto Rico is not a sovereign entity from the United States and 2 Justices dissented
Commonwealth of Puerto Rico v. Franklin Tax-Free Trust (Argued March 22, 2016—Decided June 13, 2016)
Case - put simply, can Puerto Rico declare bankruptcy as it currently has no bankruptcy protection under current law?
Verdict - 5 Justices voted Puerto Rico could not, 2 Justices dissented and 1 Justice abstained
Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment, LLC (Argued October 15, 2019—Decided June 1, 2020)
Case - in response to the 2016 Puerto Rican fiscal crisis, Congress enacted the Puerto Rico Oversight, Management, and Economic Stability Act, which in turn created a Financial Oversight and Management Board whose members were chosen by President Obama without Senate advice or consent. Congress authorized the Board to file for bankruptcy on behalf of Puerto Rico. Since the Board’s members were not approved by the Senate, was the Constitution’s Appointments Clause violated?
Verdict - unanimous consent that the Constitution’s Appointments Clause was not violated
United States v. Vaello Madero (Argued November 9, 2021—Decided April 21, 2022)
Case - defendant Jose Luis Vaello Madero had received Supplemental Security Income (SSI) benefits while he was a resident in New York. He moved to Puerto Rico, where he was no longer eligible to receive SSI benefits but continued to do so. The lawsuit brought forth by the United States was to recover payments from when Madero was in Puerto Rico totaling $28,000. Madero claimed the SSI program excluding Puerto Rican residents violates the equal protections component of the 5th Amendment.
Verdict - 8 to 1 Justices voted in favor of the United States government
Though Justice Gorsuch sided with the majority in the Madero case, he wrote in his opinion:
The flaws in the Insular Cases are as fundamental as they are shameful. Nothing in the Constitution speaks of “incorporated” and “unincorporated” Territories. Nothing in it extends to the latter only certain supposedly “fundamental” constitutional guarantees. Nothing in it authorizes judges to engage in the sordid business of segregating Territories and the people who live in them on the basis of race, ethnicity, or religion.
Based on the case specifics, Gorsuch voted against Madero but cited structural legal flaws in how Puerto Rico and its residents are treated under existing laws.
Another territory that has been fighting for statehood is the nation’s capital, Washington, D.C. The district was specified to be created in the US Constitution:
To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States
As such, it has never been a State and has zero Senators. Slightly different than Puerto Rico, DC does have 1 Representative in the House who can “sit on and vote in Committees, can introduce legislation, can participate in legislative debates, but she cannot vote on bills being considered by the full House.”
In November 2016, DC voted on whether the district should become a State, with more than 85% of voters voting in favor. It should be noted that Puerto Rico also has voted 3 times to become a State in 2012, 2017 and most recently in 2020.
Supreme Court Justice Gorsuch ends his opinion on United States v. Vaello Madero:
Because no party asks us to overrule the Insular Cases to resolve today’s dispute, I join the Court’s opinion. But the time has come to recognize that the Insular Cases rest on a rotten foundation. And I hope the day comes soon when the Court squarely overrules them. We should follow Justice Harlan and settle this question right. Our fellow Americans in Puerto Rico deserve no less.
In 2020, Foreign Policy magazine reported “Beyond rhetoric, there is little appetite in the U.S. Congress to make [Puerto Rico] a full state, and its independence movement remains on the electoral margins.” It would seem at this moment the answer to both questions in the title would be when the right case is presented to the Supreme Court.
Of course, Congress could act prior to a case making its way to the Supreme Court. The last time new states were admitted were Alaska followed shortly by Hawaii in 1959 at the end of President Eisenhower’s second and final term in office. Both States, for political reasons, had to be admitted in the same year to avoid a political imbalance and assure statehoods were granted to two geopolitically valuable territories. If Puerto Rico is admitted, the other logical option would be to admit DC as well but both would tilt Democrat negating both territories’ chances of being admitted to the Union as full-fledged States.
Another option would be Democrats gaining a supermajority (60+ seats) in the Senate to overturn any filibuster. Based on current polling for the 2022 mid-term elections, Democrats are far more likely to lose their tenuous hold on the Senate than actually gain 10 or more seats.
The last option, which sadly is often not considered a viable option, is Congress puts fairness first.
..to learn more:
Supreme Court ruling: United States v. Jose Luis Vaello Madero (Justice Gorsuch’s opinion starts on page 24)