Incorporated territory and/or statehood: Zero centimeters to exit dead end street

By GREGORIO IGARTÚA DE LA ROSA

Special to The STAR

The legal status of our political relationship within the American nation has remained at a standstill since 1952, when the Constitution of Puerto Rico was adopted, a necessary step toward statehood and equality as American citizens. After all, from what other perspective should the cause of this political stalemate be analyzed, if not from the standpoint of who we are -- 3.2 million American citizens who wish to retain our citizenship -- and no other?

And, what drives this stalemate? I recall that while I was serving as an adviser to Carlos Pesquera’s gubernatorial campaign in 2000, a highly respected pro-statehood leader visited us to offer guidance. He remarked that he could provide us with many ideas for achieving statehood.

The truth is, however, that he never advanced the cause of statehood by even a single centimeter.

And how much progress toward statehood, equality, or congressional certification of Puerto Rico as an “Incorporated Territory” has been made by the current New Progressive Party leadership, or by the Democratic or Republican parties? Zero centimeters -- save for the efforts and struggles of two or three dedicated warriors.

The fact remains that the first step toward moving Puerto Rico toward statehood is for Congress to certify that the island possesses the necessary elements to become a state (though there have been exceptions). Since the Northwest Ordinance, this process has been carried out by certifying a territory as “Incorporated” -- meaning it is already in transition toward statehood. To oppose this process is to act out of ignorance regarding how statehood is achieved. It is therefore appropriate to ask: Why does the doctrine of “Unincorporated Territorial Status” continue to be applied to Puerto Rico in a discriminatory manner?

Several factors can be identified. Consider, for example, the following:

* Currently, within the Territory of Puerto Rico, federal courts activate or deactivate the application of the U.S. Constitution in a discriminatory, case-by-case manner. Thus, the U.S. Department of Justice argues that a specific constitutional clause applies in one situation, while in other cases it maintains the opposite regarding that same clause, perpetuating a state of legal confusion that lends itself to political manipulation by Congress regarding Puerto Rico.

* The federal judiciary -- specifically the U.S. Supreme Court -- usurps, through the interpretation of its “non-incorporation” theory, the constitutional mandate granting Congress the authority to adopt rules and regulations for the territories, pursuant to Article IV, Section 3, Clause 2 of the U.S. Constitution. This is despite the fact that Congress has gradually -- since 1901 -- brought Puerto Rico to a situation of being a de facto incorporated territory (or a status comparable to that of a state for the purposes of many federal laws) without having formally certified it as such via a resolution; this leaves the door open for the continued discriminatory practice of “non-incorporation” regarding Puerto Rico -- that is, a state of limbo.

* The failure to be certified as an incorporated territory has generated confusion and led to arbitrary practices by Congress and the U.S. Department of Justice, consisting of the discriminatory and selective support for the applicability of the U.S. Constitution to Puerto Rico in some cases but not others.

* The practice of dual allegiance among leaders of local and national political parties: leaders of the New Progressive Party and the Popular Democratic Party remain separate at the local level yet unite and participate jointly in the quadrennial conventions of the Republican and Democratic parties. This duality creates conflicts of interest in congressional dealings, unfair political competition, and questionable political practices.

* The political protagonism of certain individuals who pretentiously or viciously obstruct the statements of others, or who believe they know better how to advance the cause of statehood. Almost all of them believe that shouting “Long live statehood!” at a rally makes them a leader and moves the issue forward in Congress.

* Leaders of the Popular Democratic Party, who continue to promote a political status that includes U.S. citizenship but excludes participation in federal elections (meaning governance without the consent of the governed). They oppose independence while simultaneously demanding sovereignty. They refuse to accept that such a status does not fit within the framework of the U.S. Constitution (specifically the 14th and 15th Amendments).

* Certain individuals in Puerto Rico oppose incorporation and statehood simply because they do not wish to pay federal taxes on income derived from sources within Puerto Rico; although they identify as statehood supporters, they are not truly such.

* The belief held by some politicians that the people need to be educated about what statehood entails -- as if slaves needed to be educated about freedom before their chains could be broken.

* The adoption of tax policies for U.S. corporations operating in Puerto Rico-- policies that channeled billions of dollars (over $600 billion) to parent companies in the states but required operation under an unincorporated territorial status (e.g., IRC Section 936) -- resulting in the denial of the right to vote in federal elections for U.S. citizens in Puerto Rico (1921-2005). (The high price of democratic denial – U.S. Constitution, 15th Amendment).

* The U.S. government’s reluctance to fulfill obligations arising from treaties that support Puerto Rico’s status of incorporation, including the right of its 3.2 million U.S. citizens by birth to a government based on consent.

* The involvement of some politicians who propose solutions to the status question lacking any legal or economic basis, or those who believe they hold proprietary rights over the political parties.

* After 128 years, Congress has neither certified Puerto Rico as an incorporated territory -- a status it holds de facto -- nor granted it statehood. Worse still, the statehood leadership has not properly requested it, nor have the Democratic or Republican leaderships.

* The consequences of treating Puerto Rico as an unincorporated territory in some instances and an incorporated one in others are not only illegal but also economically devastating. It is worth noting that many laws mandate unequal and discriminatory treatment, and the resulting costs and effects have been factors driving Puerto Rico’s economy into bankruptcy (see: “Statehood would mean billions more for P.R., boost U.S. tax revenues,” March 9, 2015). There is no way for Puerto Rico to emerge from bankruptcy or achieve a balanced budget unless it is treated like a state regarding the transfer of federal funds -- for example, for Medicare and Medicaid payments. Furthermore, unequal treatment in fund transfers has undermined the local labor market’s competitiveness and driven thousands of wage earners and their families to relocate to the United States (6 million citizens).

Zero progress toward incorporation, zero inches toward statehood. In short, Puerto Rico is on a dead end street with no exit.

Gregorio Igartúa de la Rosa is an attorney and longtime advocate of statehood for Puerto Rico.