That the current U.S. citizenship of persons
born in Puerto Rico during the territorial
period is restricted and less-than-equal
is self-evident from the fact that this class
of citizens, as residents of an unincorporated
territory subject to the Territorial Clause,
do not have voting representation in Congress,
do not vote in national elections, and the
U.S. Supreme Courtas ruled that Congress can
exercise its Territorial Clause powers to treat
the U.S. citizen in Puerto Rico in a manner
which is not equal to that treatment of
U.S. citizens in the several states.
Representative Don E. Young (R-AK),
H. Rept. 104-713, Part 1 (1996)
Puerto Ricans have an unconditional right
to birthright citizenship.
Dana J. Boente, Acting Deputy Attorney General,
Debates over the question of the citizenship status of Puerto Rico presently center on at least four debates. First and foremost, is the question of whether persons born in Puerto Rico acquire a statutory or a constitutional citizenship. A second debate centers on what would happen to the status of Puerto Rico-born citizens if the islands change their political status. A third debate focuses on the ascriptive or second-class citizenship status of Puerto Ricans residing in Puerto Rico. A fourth debate focuses on varying litigation that has attempted to force he courts to resolve the question of nature of citizenship in the territories. Although the legislative histories of the citizenship legislation for Puerto Rico answered these questions, for mostly ideological reasons, academics, political actors and activists continue to ignore this history.
Statutory and/or Constitutional Citizenship
Federal debates over the 1989-1991 plebiscitary legislation for Puerto Rico propelled a new narrative about the nature of the citizenship status of persons born in Puerto Rico. The new narrative claimed that persons born in Puerto Rico acquired a statutory citizenship that was not constitutional. This interpretation assumed that statutory citizenships are not constitutional and that the citizenship statutes enacted for Puerto Rico did not have a constitutional source or anchor. Both claims ignored the legislative history of the citizenship legislation enacted for Puerto Rico.
A simpler question to ask is whether a statutory citizenship can be constitutional. In his 1945 Masters of Law thesis, former judge and constitutional law professor Raúl Serrano-Geyls argued that the question is what is the constitutional source of the citizenship statute? The U.S. Constitution contains two sources of citizenship, namely the Naturalization Clause (U.S. Const. Art. I, §8, cl. 4) and the Citizenship Clause (U.S. Const. 14th Amend. cl. 1). Citizenship statutes anchored on either clause are constitutional. Naturalization statutes enable individuals to acquire statutory citizenships via naturalization. Alternatively, Serrano Geyls reasoned, Congress could invoke the Territories Clause (U.S. Const., Art. IV, §3, cl. 2) to create statutory citizenships that are mere regulations without any constitutional anchor on either of the citizenship clauses (i.e. non-citizen nationality or Puerto Rican citizenship). In sum, the question should be: what is the constitutional source of the citizenship statute extended to Puerto Rico?
Central to these debates was a 1989 Congressional Research Service Memorandum (1989 CRS Memo) written by John H. Killian at the behest of Senator J. Bennett Johnston (D-LA). This memo addressed the question of what could happen to the citizenship status of Puerto Rico-born citizens should electors vote for a change in the islands’ political status. Killian’s response began by incorrectly asserting that the Jones Act of 1917 was the source of U.S. citizenship for persons born in Puerto Rico in 1989. He then proceeded to argue that the Supreme Court’s ruling in Downes established that Puerto Rico was not located in the United States. It followed that for constitutional purposes birth in Puerto Rico was tantamount to birth outside of the United States. Because under Rogers v. Bellei (1971), the prevailing Supreme Court precedent, only persons born or naturalized in the United States could acquire a 14th Amendment citizenship, Killian concluded that persons born in Puerto Rico did not acquire a constitutional citizenship and its ensuing rights. Thus, Congress could unilaterally expatriate Puerto Rico-born citizens if electors voted for Puerto Rican independence.
The 1989 CRS Memo was more of a political opinion rather than an honest constitutional analysis. For example, the Jones Act of 1917, an organic act that extended a naturalized citizenship status to persons born in Puerto Rico, was replaced by the Nationality Act of 1940, which treated Puerto Rico as a part of the United States for the sole purpose of extending a birthright citizenship to the Puerto Rican islands. More importantly, as the legislative histories of the 1940, 1948 and 1952 birthright citizenship legislation for Puerto Rico unequivocally established, Congress believed that the new citizenship legislation was anchored on the Citizenship Clause of the 14th Amendment. In sum, according to Congress, since 1940, birth in Puerto Rico is tantamount to birth in the United States for the sole purpose of conferring a birthright citizenship status on persons born in these islands.
Citizenship and Puerto Rico’s Future Political Status
It is possible to argue that any status debate over a change in Puerto Rico’s political status needs to address to issues, namely the future of the Puerto Rican economy and the citizenship status of its inhabitants. Core questions about citizenship include: Can Congress unilaterally expatriate a Puerto Rico-born citizen? Is the citizenship status of a Puerto Rican contingent on Puerto Rico’s territorial status? Are there alternative citizenship arrangements? Possible answers to these questions vary according to at least four political status options.
Statehood. If Puerto Rico became a state of the Union, the Citizenship Clause of the 14th Amendment would apply ex propio vigore or on its own force rather than by statute. Persons born in Puerto Rico would no longer have to rely on a birthright or jus soli citizenship statute as a source of citizenship. United States citizens residing in a Puerto Rican state would acquire political rights (i.e. the right to an Electoral College that can participate in the selection of a President, right to elect federal legislators, etc.). These rights, however, are already available to any Puerto Rico-born citizen who resides in a state of the Union. Again, Puerto Rico-born citizens possess the same citizenship as anyone born in a state of the United States. As the Supreme Court established in Balzac, it is the status of the territory, not the citizenship, that determines the application of the Constitution.
Estado Libre Asociado (ELA)/Commonwealth. The legislative and legal histories of the Estado Libre Asociado (also known as the Commonwealth) unequivocally establishes that Congress did not incorporate or change Puerto Rico’s territorial status in 1952. Puerto Rico has remained an unincorporated territory since 1900. As should be evident by now, throughout this period, Congress has debated upwards of 100 bills containing citizenship provisions for Puerto Rico. Likewise, Congress has enacted upwards of twelve statutes and one Treaty conferring at least three different citizenship statuses on persons born in Puerto Rico, namely a non-citizen nationality/Puerto Rican citizenship, a naturalized citizenship (individual and collective) and birthright or jus soli citizenship. Persons born in Puerto Rico have always acquired a U.S. citizenship via a statute. As history demonstrates, the ELA or rather the unincorporated territorial status can accommodate a wide range of citizenships.
Even though at the time of this writing Congress has enacted legislation treating Puerto Rico as a part of the United States for the sole purpose of conferring birthright or jus soli citizenship on persons born in Puerto Rico, neither Congress or the Supreme Court have incorporated or changed Puerto Rico’s territorial status. In the same way that Congress has historically enacted varying citizenship statutes conferring different citizenships on persons born in Puerto Rico, Congress can enact future legislation providing for a different citizenship status for persons born in Puerto Rico. To this extent, nothing about the ELA or more precisely Puerto Rico’s unincorporated territorial status limits Congress’ power to enact new and different citizenship statutes for Puerto Rico in the future.
Independence. Debates about the relationship between citizenship and the independence option have typically revolved around two questions. The first question, most recently addressed in the 1989 CRS Memo, is whether Congress could unilaterally expatriate Puerto Rico-born U.S. citizens should the islands’ electors vote for independence. Citing the precedent established in Rogers v. Bellei (1971), the 1989 CRS Memo essentially argues that because Puerto Rico is located outside of the United States, Puerto Rico-born citizens are not entitled to a 14th Amendment citizenship. Because Puerto Rico-born citizens are not constitutional citizens, the 1989 CRS Memo further argues, they do not possess the necessary constitutional rights to protect them from expatriation. Because they are statutory citizens, Congress can presumably enact legislation to strip Puerto Rico-born citizens of their U.S. citizenship should Puerto Rico become a sovereign or independent nation.
At least two responses to this interpretation are readily available. A historical response contends that in 1940 Congress began to enact citizenship legislation that conferred a native-born status on persons born in Puerto Rico via birthright or jus soli citizenship legislation in order to protect Puerto Rico-born citizens from the denaturalization provisions of prevailing U.S. immigration and naturalization laws. This interpretation was explicitly reaffirmed in the Pagán/Fernós-Isern Amendment of 1948. More importantly, Congress believed that the only constitutional source of birthright citizenship laws for Puerto Rico was the Citizenship Clause of the 14th Amendment. In addition, José Julián Álvarez González contends that over time the Supreme Court has applied due process and equal protection rights to Puerto Ricans, barring Congress from arbitrarily expatriating Puerto Ricans during an independence process. Puerto Rico-born citizens would be guaranteed an individual hearing in a court of law to challenge efforts to violate their due process and equal protection rights to their citizenship. In sum, stripping Puerto Rico-born citizens of their U.S. citizenship as part of a process of granting independence to Puerto Rico would violate basic constitutional laws.
Following independence, Puerto Rico would become a sovereign nation-state located outside of the United States for citizenship and constitutional purposes more generally. To this extent, prevailing U.S. immigration and naturalization laws would apply to U.S. citizens wishing to reside in Puerto Rico. The ability of U.S. citizens residing in Puerto Rico to transfer their citizenship would be limited in the same manner as it would be limited to U.S. citizens residing in any sovereign nation.
Proponents of independence have offered various options to enable Puerto Ricans to retain a U.S. citizenship in a post-independence Puerto Rico. The simplest solution is to negotiate a dual citizenship agreement that would enable U.S. citizens who chose to remain in an independent Puerto Rico to retain a dual citizenship status. Congress could also enact special naturalization legislation that could enable Puerto Rican citizens to acquire a U.S. citizenship via a simple naturalization process such as making a declaration in an immigration court. Of course, any such negotiation will be contingent on the will of the federal government to enable Puerto Ricans to retain a special status within the United States.
Free Association or other non-territorial options. Historically, the U.S. government envisioned a series of status alternatives to the independence option, including the British notions of dependency, dominionism, and the Commonwealth, as well as variants of free association and an associated republic. These status options have sought to cement a permanent union between the United States and a more autonomous, but dependent, territory. Each of these options has carried varying citizenship provisions. An analysis of these provisions is beyond the scope of this discussion.
More recently, on 19 May 2022, Representative Steny Hoyer (D-MD) released a consensus bill for a proposed status plebiscite for Puerto Rico. The proposal included three status options, namely independence, statehood, and free association. The independence and statehood options affirm the basic constitutional principles discussed above. The free association option, an alternative to independence, however included a fairly controversial citizenship provision. Under the terms of this provision, there would be an initial transition period where two U.S. citizens (father and mother) could transfer their U.S. citizenship to a child born in a sovereign Puerto Rico. This initial proposal, obviously subject to further revisions, imposes an undemocratic, unconstitutional, and discriminatory standard on U.S. citizens who would establish residency in a sovereign Puerto Rico. The simplest solution is to use the same principles applicable to the independence option.
Ascriptive or 2nd Class Citizenship
Academics, politicians, activist and others often argue that the inequalities experienced by Puerto Ricans residing in Puerto Rico are a direct result of their second-class citizenship. This description draws from a liberal narrative of membership and progressive critiques of ascriptive citizenship. The liberal narrative argues that citizenship is a precondition for membership in the political community. The ascriptive critique contends that the inequalities experienced by some groups of people are ascribed an inferior citizenship due to their identity (i.e. race, ethnicity, ethnicity, etc.). Under this logic, citizenship explains the inequalities that Puerto Ricans experience. The liberal narrative, in all of its iterations, ignores the constitutional history of the relevant debates for Puerto Rico.
In the case of Puerto Rico, the status of the islands not the citizenship of its residents explains the inequalities that Puerto Ricans experience. More precisely, in Balzac v. People of Porto Rico (1922), the Supreme Court established that Puerto Rico-born citizens acquire the same citizenship that any other citizen possessed, but what determined the application of the Constitution in Puerto Rico was the status of the territory. Stated differently, the inequalities experienced by U.S. citizens residing in Puerto Rico are determined by the islands’ unincorporated territorial status. That is why any U.S. citizen who resides in Puerto Rico loses rights (i.e. the right to vote in presidential elections and the right to a 6th Amendment right to trial by jury), but any Puerto Rico-born U.S. citizen acquires these constitutional rights as soon as s/he moves to live in a state or Washington, D.C. If the inequalities that the residents of Puerto Rico were determined by a second-class citizenship, then they would experience these inequalities anywhere. In sum, Puerto Rico-born citizens acquire the same citizenship as anyone born in the United States, but the residents of Puerto Rico experience inequalities due to the status of Puerto Rico.
Citizenship and the Federal Courts
In addition, the Supreme Court and federal courts more generally have refused to clarify the constitutional status of birthright citizenship status of persons born in Puerto Rico. If anything, the Courts have created a morass of incoherent and contradictory interpretations. At least two examples illustrate the federal Courts’ interpretations. For example, in 1993 a number of Puerto Ricans began to renounce their U.S. citizenship and solicit Certificates of Loss of Nationality. Puerto Rican independentistas sought to live as Puerto Rican citizens in Puerto Rico. A central requirement for the issuance of a Certificate of Loss of Nationality is that the person seeking to self-expatriate must establish a residency outside of the United States. Some Puerto Ricans travelled outside of the United States to renounce their citizenship but sought to return to live in Puerto Rico. Given that federal law and policymakers continued to argue that Puerto Rico was an unincorporated territory, that is a territory that was foreign in a domestic or constitutional sense, some individuals sought to complete the final requirement of their petition, namely, to reside outside of the United States for a period of 1-year, in Puerto Rico. However, both the U.S. Department of State and the Washington, D.C. Court of Appeals rejected this argument and in Lozada Colón v. U.S. Department of State (1998) concluded that the INA of 1952 “makes it unmistakably clear that Puerto Rico is a part of the United States.” Stated differently, Puerto Rico is a part of the United States for citizenship purposes.
Sometime after 1989, Jennifer Efrón, a native of Puerto Rico, moved to Dade County, Florida where she established a 5-year residency. She subsequently sought to undergo an individual process of naturalization in order to acquire an “irrevocable” constitutional citizenship. Citing the Nationality Act of 1940 as the key source of citizenship in Puerto Rico, in Efrón v. United States (1998) another federal court concluded that Ms. Efrón was already a citizen. Unless Puerto Rico’s status changed and Congress enacted legislation to change Ms. Efrón’s citizenship status, the court did not have the power to intervene. The questions of the future citizenship status of Puerto Ricans residing in an independent Puerto Rico was a political and not a legal question, or so the court reasoned. In sum, since 1989, Federal courts have barred Puerto Ricans from both renouncing their U.S. citizenship and acquiring a naturalized citizenship while simultaneously refusing to clarify the constitutional status of Puerto Rican-born citizens.
In contrast, the litigation over the citizenship status of American Samoans have raised interesting questions that could offer a clarification of these debates. These cases argue that the Insular Cases should be declared unconstitutional and that the Citizenship Clause of the 14th Amendment applies on its own force to American Samoa, a territory located within the United States sovereignty. In the Fitisemanu litigation, the most recent of these cases, a U.S. District Court for the District of Utah affirmed the latter interpretation. However, the 10th Circuit Court of Appeals reversed this position arguing that Congress, not the federal courts, possessed a special power to determine the citizenship status of the residents of the territories. At the time of this writing, the plaintiffs were in the process of submitting a writ of certiorari to the Supreme Court.
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