During the 1989-1991 Federal plebiscitary debates over the territorial status of Puerto Rico, Senator John B. Johnston (D-LA) asked the Congressional Research Service (CRS) to opine on whether Congress possessed the authority enact legislation providing for the unilateral expatriation of persons born in Puerto Rico should the island become an independent or sovereign republic. In 1989, the CRS released a memorandum (1989 CRS Memo) declaring that persons born in Puerto Rico acquired a statutory citizenship under the terms of the Jones Act of 1917 and that Puerto Rico was not located in the United States. Because Puerto Rico was not located in the United States, the 1989 CRS Memo reasoned, persons born in Puerto Rico did not acquire a Fourteenth Amendment citizenship. It followed, the CRS concluded, that Congress possessed a plenary authority to enact legislation permitting the unilateral expatriation of persons born in Puerto Rico. Since then, most academics and federal law and policymakers like Representative Don E. Young (R-AK) have relied on this interpretation to argue that Puerto Ricans are statutory citizens and therefore less-than-equal citizens.
Since then, interpretations of the 1989 CRS Memo sparked political and academic debates over the status of Puerto Rican-born citizens. The political debates, in turn, have generally centered on efforts to clarify the meaning of the latter citizenship through legislative action or in the Courts. Simultaneously, legal scholars also offered a range of interpretations that have been the subject of polemical debates. Unfortunately, because the Supreme Court, the final interpreter of the Constitution, has fueled these debates by refusing to clarify the constitutional status of Puerto Rican-born citizens.
As I noted above, it is possible to discern to strands of political responses to the 1989 CRS Memo’s interpretation of the status of Puerto Rican-born citizens. On strand has emphasized the use of status plebiscites and referendums that make the status of island-born citizens contingent on the political choices of Puerto Rican voters. Alternatively, some Puerto Ricans have tried to force federal courts to settle this problem. So far, neither approach settled the question of the status of Puerto Rican-born citizens.
Since 1898, Congress has debated upwards of 132 status and plebiscitary bills seeking to resolve Puerto Rico’s political status, but has yet to pass any law authorizing Puerto Ricans to choose a political status for their home. Scholars generally agree that the 1989-1991 federal plebiscitary process was the closest that Congress has come to passing legislation authorizing a status plebiscite in Puerto Rico. Congress debated three bills during the 101st Congress, namely S. 711, S. 712 and H.R. 3536, and S. 244 during the 102nd Congress containing citizenship provisions for Puerto Rico. With the exception of S. 711 (which was promptly replaced by S. 712) all other bills contained citizenship provisions for Puerto Rico that protected the ability of Puerto Rican-born citizens to retain their U.S. citizenship should Puerto Rico become a sovereign nation-state. All concurred that once Puerto Rico became a sovereign nation-state, the island became a foreign country for citizenship purposes and the children of U.S. citizens could only acquire their citizenship in conformance with prevailing naturalization laws. Despite the fact that Congress rejected the 1989 CRS Memo’s interpretation, the idea that Puerto Rican-born citizens can be involuntarily expatriated continues to linger.
On December 8, 1991, the Puerto Rican government, then under the control of the Partido Popular Democratico (PPD), carried out a referendum on a series of questions designed to strengthen the islands autonomic constitution and its autonomic status within the U.S. empire more generally. Electors were asked to vote on whether the Puerto Rican government should demand the following from the United States: 1) a right to determine the island’s future political status without being bound to Congress plenary authority over the island; 2) an affirmation that Spanish should remain Puerto Rico’s official language; 3) a right to retain an Olympic team; and 4) a declaration establishing that the U.S. citizenship extended to Puerto Rico was constitutional and not statutory. A majority (53%) of Puerto Ricans rejected the PPD’s proposal.
Although Congress has never authorized a federal law enabling Puerto Ricans to resolve the island’s anomalous political status, since 1967 various Puerto Rican governments have held five (1967, 1993, 1998, 2012, 2017) status plebiscites in Puerto Rico. These electoral events enabled Puerto Ricans electors to vote on a status option, generally among statehood, some form of territorial autonomy, and some variant of independence. In the aftermath of the 2012 Plebiscite on Puerto Rico’s Political Status, the fourth local status plebiscite held in the island, President Barack H. Obama requested federal funding to conduct a Puerto Rican voter education campaign that could better prepare electors to participate in a status plebiscite. In the aftermath of its electoral victory in the 2016 island-wide elections, the reigning Puerto Rican statehood Party, the Partido Nuevo Progresista (PNP), organized a status plebiscite scheduled for 11 June 2017. Central to the Puerto Rican statehood party’s plebiscitary campaign was an unsubstantiated claim that the only way that Puerto Ricans could preserve their U.S. citizenship was to vote for the statehood option. Simultaneously, on 7 February 2017, Representative Luis V. Gutiérrez (D-IL) introduced H.R. 900, which contained several provisions guaranteeing the right of Puerto Rican-born U.S. citizens to retain their citizenship should Puerto Rico vote for independence in a future status plebiscite.
Since 1991, Congress has debated at least fourteen status and plebiscitary bills with citizenship provisions for Puerto Rico. On 7 February 2017, Representative Luis V. Gutiérrez (D-IL) introduced H.R. 900, the latest of these bills. Representative Gutiérrez’ bill contained several provisions guaranteeing the right of Puerto Rican-born U.S. citizens to retain their citizenship should Puerto Rico vote for independence in a future status plebiscite. Like all previous bills introduced in Congress, H.R. 900 affirmed the ability of Puerto Rican-born citizens to retain their birthright citizenship.
On 13 April 2017, Dana J. Boente, Acting Deputy Attorney General (ADAG) for the U.S. Department of Justice, wrote a letter to Governor Ricardo A. Roselló Nevares criticizing the “misleading” and incorrect language adopted in the scheduled plebiscite. On the question of the citizenship debate, ADAG Boente wrote:
The ballot’s description of the “Statehood” option contains the following statement: “I am aware that Statehood is [the] only option that guarantees the American citizenship by birth in Puerto Rico.” This statement is inaccurate when considered in the context of all available status options, as under current law, Puerto Ricans have an unconditional statutory right to birthright citizenship. This sentence is potentially misleading and reinforces the ballot’s flawed omission of an option for retaining Puerto Rico’s current territorial status (emphasis added) (USDOJ Letter 2017, 2).
Stated differently, the U.S. Department of Justice argued that Puerto Rican-born citizens possessed an unconditional right to retain their citizenship even if Puerto Rico became an independent nation-state. Of course, once Puerto Rico became a sovereign nation-state, Puerto Ricans would likely be subject to the same immigration and naturalization laws applicable to sovereign nation-states.
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.
Central to the question of the citizenship status of persons born in Puerto Rico is the following question: what is the constitutional source of the citizenship legislation for Puerto Ricans? At least six different theories or interpretations have been the subject of debate.
Statutory Citizenship. As noted above, on 9 March 1989, Johnny H. Killian, a Senior Specialist in the American Law Division of the Congressional Research Service, submitted a memorandum outlining the power of Congress to enact expatriation legislation for U.S. citizens born in Puerto Rico should the island become a sovereign nation-state. Ignoring the legal history of the Nationality Act of 1940 and subsequent citizenship legislation, Killian began by arguing that the Jones Act of 1917, a congressional statute, was the “present law” conferring citizenship on persons born in Puerto Rico. He then proceeded to explain how the Insular Cases established that Puerto Rico was not “in the United States” for citizenship purposes. While Killian was not sure what Puerto Rico’s “exact status and relationship to the United States,” he was convinced that it was not located within the United States for purposes of the Citizenship Clause of the Fourteenth Amendment. Drawing on the precedent established by Rogers v. Bellei (1971), Killian reasoned that persons born or naturalized in Puerto Rico were not born or naturalized in the United States for constitutional purposes. Killian concluded that Puerto Ricans were mere statutory citizens without constitutional and Congress possessed a plenary power to enact legislation that could unilaterally expatriate persons born in Puerto Rico. Amplifying the imperialist expansionist tradition, the 1989 CRS Memo argued that Congress could enact statutory citizenship legislation without a constitutional source.
Statutory Citizenship Jurisprudence. A related interpretation suggests that the Supreme Court has affirmed the principle that persons born outside of the United States can only acquire citizenship at birth by way of a statute. According to this interpretation, the Insular Cases established that unincorporated territories are not located in the United States for purposes of the Citizenship Clause of the Fourteenth Amendment. Advocates of this interpretation generally cite Federal courts of appeals rulings such as Valmonte v. INS (1998), Lacap v. INS (1998), Rabang v. INS (1994), Nolos v. Holder (2010) to argue that the Citizenship Clause of the Fourteenth does not apply to individuals born in unincorporated territories. In each of the cases, individuals argued that the Citizenship Clause applied ex propio vigore or on its own force to the Philippines while it was an unincorporated U.S. territory. It is important to note that while the United States ruled the Philippines, Congress decided not to enact any organic act or other legislation providing for the collective naturalization of Filipinos or any laws extending birthright or jus soli citizenship to the Philippines. Notwithstanding, advocates of this interpretation insist that Federal jurisprudence has established that persons born in unincorporated territories, including Puerto Rico, can only acquire a statutory citizenship.
Inherent or Implied Citizenship. Notwithstanding the Court’s ruling in Downes and Balzac, a third interpretation suggests that Congress can invoke “inherent” or “implied” powers to enact citizenship statutes for Puerto Rico. Drawing on a Hamiltonian or imperialist reading of the Constitution, one argument suggests that Congress could look the sovereign powers of the United States, here understood as an actor in an international arena, to create citizenship statutes for Puerto Rico. Alternatively, Edward S. Corwin has argued that Congress possessed an inherent power “ascribable to it in its quality as the national legislature” (1978, 88). Stated differently, Congress, a constitutional creation, could look to an inherent power located in its own power to write and enact laws to enact a statute or law conferring a territorial birthright citizenship to Puerto Ricans that is different than that of the Citizenship Clause of the Fourteenth Amendment. These interpretations contemplate the possibility that the U.S. Constitution contains different sources of jus soli or birthright citizenship.
Territories Clause Citizenship. A fourth interpretation suggests that the Territories Clause (Art IV, §3, cl. 2) of the Constitution could be the constitutional source of the citizenship enacted for persons born in Puerto Rico. In his original Master of Law thesis, re-published in 2004, Raúl Serrano-Geyls argued that it was plausible that the U.S. citizenship extended to Puerto Rico was a mere “statutory privilege” tantamount to another “rule” or “regulation.” Congress, Serrano Geyls argued, could have anchored citizenship statutes for Puerto Rico in the Territories Clause. If this was the case, then persons born in Puerto Rico could not claim a “constitutional right” to U.S. citizenship (2004, 63-64). Although Serrano Geyls was clear that the question of the citizenship status of Puerto Ricans had not been settled, his interpretation suggests that Congress could invoke the Territories Clause to create a jus soli or birthright citizenship statute, privilege, rule, or regulation conferring a native-born status on persons born in Puerto Rico.
Ex propio vigore citizenship. In recent years, some legal scholars and advocates have argued that all U.S. territories are located within the sovereignty of the United States and therefore the Citizenship Clause of the Fourteenth Amendment. It follows that the Constitution more generally applies on its own force or ex propio vigore. In 2008, Professor Laurence H. Tribe and former Solicitor General Theodore B. Olson were asked to submit an opinion determining whether Senator John McCain was a “natural-born” citizen for constitutional purposes, a precondition for serving as President of the United States. Senator McCain, a presidential candidate for the Republican Party, was born in a military base located in the Panama Canal Zone or outside of the United States. In part citing the relevant language in U.S. v. Wong Kim Ark (1898), Professor Tribe and Solicitor General Olson argued that the military base in question was located within the sovereignty of the United States and therefore the Citizenship Clause of the Fourteenth Amendment applied on its own force. More recently, attorney Neal Ware has used a similar interpretation to argue that American Samoa is located within the sovereignty of the United States and birth in this territory is tantamount to birth in the U.S. For more than a century, persons born in American Samoa, a U.S. unincorporated territory, can only acquire a non-citizen nationality and have to undergo a naturalization process in order to acquire a U.S. citizenship. Both interpretations echo the century-old anti-imperialist/colonialist view.
Fourteenth Amendment Citizenship by Legislation. I argue that the legislative history of Nationality Act of 1940 demonstrates that Congress anchored its jus soli or birthright citizenship legislation for Puerto Rico in the Citizenship Clause of the Fourteenth Amendment. In other words, in 1940 Congress began to enact citizenship legislation or statutes for Puerto Rico that extended the Citizenship Clause of the Fourteenth Amendment to the island. My interpretation also draws on a reading of the so-called “doctrine of extension,” which poses that Congress has claimed a plenary power to extend or apply constitutional provisions through legislation. While it is true that the Supreme Court in Downes rejected one interpretation of the doctrine of extension, for more than a century Congress has used the doctrine of extension to enact birthright citizenship legislation that extends the Citizenship Clause of the Fourteenth Amendment to the territories. Evidence of this interpretation is clear in a wide array of organic or territorial acts (e.g. Oregon, Alaska, Hawai’i, U.S. Virgin Islands), federal agency reports and memorandums, and the legislative histories of some congressional citizenship bills. Again, because for more than a century the Supreme Court has refused to settle these debates, it is difficult to settle these debates.