- Andrés L. Córdova, Professor of Law 04/13/2021
- https://www.elvocero.com/opinion/la-resoluci-n-hr-279/article_279a09b2-9bf4-11eb-91d5-b7a17e520d2d.html
On March 26, HR 279 was introduced in the U.S. House of Representatives to condemn the continued application of the insular cases and its doctrine of unincorporated territory to cases and controversies settled under the U.S. Constitution.
The Resolution is directed in the first instance, evidently, to express its opinion on the case United States v. Vaello Madero, now before the Supreme Court of the United States. This case deals with the unequal treatment of Supplemental Security Income (SSI) benefits to U.S. citizens in the territories. The legal justification for this unequal treatment in this program and others has been the non-incorporation doctrine articulated in the insular cases that allow for selective application of constitutional rights to the territories, depending on whether they are fundamental or not. As HR 279 rightly points out, this doctrine was the fruit of a racist vision of the time that is still in force today.
The determination of the incorporation of a territory, as noted in the island cases, is a congressional determination, not a jurisprudential one. That is, Congress need not wait for judicial adjudication to incorporate a territory.
As this case continues its jurisprudential path, the House Natural Resources Committee will be holding a hearing tomorrow, Wednesday, to hear testimony on the bills on admitting Puerto Rico as a state (H.R. 1522) and on holding a status convention (H.R. 2070).
HR 2070, authored by Congresswoman Nydia Velázquez, reproduces the idea of a status convention promoted by the anti-statist sectors to address our perennial political problem. From the formal point of view, this proposal suffers from serious flaws -legal and political- that in my opinion make it unfeasible, and its only purpose seems to be to hinder HR 1522.
In Pueblo v. Sánchez Valle (2016) the Supreme Court made it abundantly clear that Puerto Rico lacks sovereignty other than that delegated by Congress. To seek federal legislation recognizing the sovereignty of the People of Puerto Rico to self-determination as a natural right would be an abdication of Congress' constitutional powers and authority.
We have so abused the term "colony" in public discussion that we have bought into the story that Puerto Rico has, in effect, a distinct and separate sovereign legal personality from that of the United States. Here is a good example of the dangers of inaccurate use of language.
From a democratic perspective, it is inconceivable to imagine a status convention where the majority of voters do not favor it. If 53% of the electorate voted in the 2020 plebiscite in favor of statehood, it can hardly be claimed that such a convention represents "the People". A status convention is fundamentally a political exercise to stop statehood under the guise of a fictitious and accommodating collective entity. We must not lose sight of the fact that "the People" is a corporatist trope without existential content, typical of a collectivist imagination that privileges concepts over historical reality.
Assuming that Congress (the Senate would also have to speak out) were to declare the inapplicability of the island cases, one would have to ask what would be left in their place. Without the basis of this jurisprudence, Puerto Rico (and the other territories) would be automatically incorporated. That is, Puerto Rico would become - in the language of Downes v. Bidwell (1901) - part of the United States and not merely a part of it.
Not only would the territories have the right to participate in federal programs on equal terms, but all constitutional principles, including the tax uniformity clause, would also apply to them. As incorporated territories, we would be irreversibly on our way to statehood, under the parameters of the Northeastern Ordinance of 1787. It should be noted that in the history of the United States, there has never been an incorporated territory that has not become a state.
It is, therefore, somewhat contradictory that Congresswoman Nydia Velázquez and her allies in the Popular Democratic Party promote equality in the treatment of federal programs for U.S. citizens in Puerto Rico, at the same time that they seek to advance a status convention project that is predicated on the sovereignty of the "People" of Puerto Rico as a political entity distinct and separate from the United States.
The question is not whether one is "outside the territorial clause" -as a Popular Democratic Party obsessed with finding the Seven Cities of Cíbola insists- but whether one is inside or outside the Constitution of the United States. You can't be in Mass and ringing bells at the same time.