An open letter to President Joseph R. Biden re: the draft bill on PR’s governing political status

By Gregorio Igartúa

Dear Mr. President:

Puerto Rico is a United States territory where more than 3 million American citizens live. In Puerto Rico the U.S. Constitution is the supreme law of the land and the U.S. Supreme Court is the ultimate court of appeals. All federal laws, except those that are locally inapplicable, apply in P.R. Federal agencies operate in P.R., and the American citizens living there have been serving in the U.S. armed forces for more than a century.

Residents of P.R. contribute more to the U.S. Treasury in Social Security, Medicare, and Unemployment Insurance taxes than the residents of some states.

U.S. Representatives Steny Hoyer (D-Md.), Nydia Velázquez (D-N.Y.), and Resident Commissioner Jenniffer González Colón (R-P.R.) introduced a draft bill in Congress that will provide for a federal government-sponsored plebiscite that will allow residents of P.R. to choose between statehood, an independent republic, and an associated republic status. The bill has the support of Gov. Pedro Pierluisi Urrutia. The bill is an attempt in good faith to solve the issue of the political uncertainty that we have lived in for 124 years. I respectfully oppose the plebiscite draft bill for the following reasons:

1. Never in the history of the U.S. have more than 3 million American citizens been asked to subject themselves to the authority of a foreign nation, in this case the Republic of Puerto Rico, nor have they been asked to exit their nation, the U.S.A.

2. At some point after independence people born in P.R. will not be American citizens at birth, like we are now. Never in the history of the U.S. have more than 3 million American citizens been asked to deny their children and grandchildren the precious legacy of American citizenship.

3. On and after the day that Puerto Rico becomes an independent republic the United States will place itself in the unenviable position of having to litigate, negotiate, and even use the force of arms to protect the safety and well being of more than 3 million of its citizens living in a foreign country. To some extent this also represents a security risk.

The Financial Oversight and Management Board has not uncovered the true cause of Puerto Rico’s economic problems, which is the discriminatory differential treatment of Puerto Rico on the part of the U.S. Congress. That differential treatment is damaging Puerto Rico’s economy and is encouraging health care providers, lawyers, law enforcement officers, teachers and other skilled workers to move from P.R. to the continental U.S. in search of better economic conditions. Should Congress continue to ignore our acquired rights as American citizens? Should we be forced to beg for the opportunity to vote in congressional and presidential elections? Would it have been morally right to ask slaves whether they wanted to be free or not? Would it have been morally right to ask Americans of African ancestry whether they wanted to end segregation or not?

At the same time that we are being denied our full rights as American citizens, and are being presented with the option of losing our American citizenship, millions of immigrants are being allowed to enter the U.S. with the option of eventually becoming American citizens.

Is your administration and the U.S. Congress willing to make us an independent nation and to discriminatorily deny us becoming full members of the American family? Federal courts continue to consider the Insular Cases of 1901 as the legal basis for their decisions concerning Puerto Rico in the 21st century. This policy is legally unfounded and incorrect. The practice of treating Puerto Rico in some cases as an unincorporated territory where only some constitutional provisions apply, and in other cases as an incorporated territory where the full U.S. Constitution applies, must end. This has led to capricious, unequal and discriminatory treatment by the three branches of the federal government against the American citizens residing in P.R. It is as if Plessy v. Ferguson had not been revoked. We cannot continue to be treated by the federal government as what we might become, as the bill proposes, but rather we should be treated as what we are, 4th-, 5th- and 6th-generation American citizens on our way to statehood. The theory of a permanent non-incorporated territorial status does not fit within the U.S. constitutional framework. The degree of incorporation of P.R. to be like a state can be considered by implication as strong as to exclude any other view than it is an incorporated territory of the U.S. (Consejo de Salud v Rullan, 586, FS2nd 27 (2008). (Opinion by Hon. Judge Gustavo Gelpí). (See also, G. Igartúa, The “de facto “ Incorporated U.S. Territory of Puerto Rico, 2019).

The discriminatory treatment of the more than 3 million American citizens living in P.R. will end when the U.S. Congress adopts a resolution to certify P.R. as an incorporated territory. Mr. President, you can propose that resolution, which is 124 years overdue.

Gregorio Igartúa is an attorney with a practice in San Juan.