Incorporating the Territory

Tuesday May 03, 2011
Julio Figueroa Nuñez | PRSSA Ponce


 “...There comes a time in the history of nations when their peoples must become fully reconciled to their past if they are to go forward with confidence to embrace their future.”
                                     – Kevin Rudd, Former Australian Prime Minister

These words, made by a foreign leader addressed to his people seem to me relevant and its spiritual impact should touch the spirit of those of us yearning for change.  The transformative and revolutionary power of reconciliation, healing and wisdom imbued in those words were present in the minds of those who founded this great country just a few centuries ago.  The generations of Americans that followed have inherited strong institutional and philosophical foundations that have helped us create a strong country full of promise for those of us who were fortunate enough to be born here.  But somewhere along the way, we have left some of our people behind.

We have witnessed time and time again, when foreign policy and political decision makers aim to export our brand of democracy to foreign soil so that others can enjoy what not all of us in the United States have.  Often times, the price to execute our mission around the world has been paid with the blood of our own people – including men and women that signed and swore their loyalty to our Constitution in a part of the country where the Constitution does not fully apply.  Racial, ethnic, and cultural differences matter not when donning the Nation’s uniform in a forward location – in the frontlines where we battle to carry out these missions, we are all Americans.

The matter at hand, which drives our discussion, is the President’s Task Force Report on Puerto Rico Status released in March 2011.  The aim of the first part of the 2011 Report is to propose policy options to resolve the island’s perennial status problem by “taking a fresh look at issues related to status without being bound by prior analyses or limited in the issues on which it focused,” (Task Force Report, March 2011, p. 23).  Having already read and analyzed the report, it is my opinion that the Committee did not accomplish their objectives, leaving the report incomplete due to the omission of an option I think is worthy of discussion and serious consideration.  What the report fails to discuss is that there are two legal variants of territory status that we need to take a closer look at – incorporated and non-incorporated status.

While both territory status variants are still subject to the Territory Clause of the U.S. Constitution, the differences between them are too enormous to ignore.  For example, under incorporation, the U.S. Constitution will fully apply to residents of the island.  This new legal reality will have immediate repercussions on the island.  If the Constitution fully applies to the territory of Puerto Rico, most, if not all discriminatory jurisprudence that stem from the Insular Cases by judicial fiat will no longer apply to the island.

Additionally, the questionable legal status of our citizenship will no longer be subject to speculation concerning the law it was borne out of due to the full applicability of the Constitution.  No longer will we be “Foreign in a domestic sense” or “Belonging to, but not a part of.”  Under Incorporation we will be “Domestic in every sense” and “Belonging to, and a part of” the United States.  Other implications to consider are:

- First, all laws that apply to the States that did not apply to the territory will have to apply in order to achieve as much compatibility with the States as possible since Congress will be obligated to treat the incorporated territory with much deference and care.

- Second, the Federal tax code can be incorporated into the territory.  This can be accomplished in phases, reflecting the economic realities of the island as it evolves into a more prosperous economy.  This will in-turn, entitle us to fully participate in most, if not all Federal programs in a more equal footing with the States.  An alternative would also be participating in Federal programs through bloc-grants aimed specifically at creating jobs with fair pay comparable to the States; tax incentives for corporations that commit to build our economy; fair treatment of Puerto Rican consumers; investing and improving our infrastructure; and promoting self-sufficiency and wealth at the government and individual level.

- Third, incorporation will also tighten the economic, social, and political ties of the island to the rest of the country in ways the non-incorporated territory (“Commonwealth”) currently does not.

We acknowledge that “incorporation” as well as “non-incorporation” do not change the essence of the territorial condition which bind them because, “under the Commonwealth option, Puerto Rico would remain, as it is today, subject to the Territory Clause of the

U.S. Constitution,” (Task Force Report, March 2011, p. 26).   But, there are sound and valid arguments that have convinced us that a legal change of status under the territorial clause is not only practical, but also legitimate because it reflects the desires of the majority of the electorate that wish to be in a permanent relationship with the United States.  We must remember that the Task Force recommendations keep the current status as a legitimate alternative by default.  If they we are to include the problem as a legitimate option, then we should at least consider the possibility of reformulating it in a way that truly reflects the aspirations of the majority of the Puerto Rican people – one that ensures our permanent union with the States, and one that seeks closer ties with the Union.

Consider that many polls have consistently shown that the vast majority of island residents wish to protect and retain their American citizenship.  The Task Force report itself notes that “the Task Force’s engagement with Puerto Ricans demonstrated that most of them value their U.S. citizenship enormously” and that  “[a]ny status option that could conceivably result in the loss of U.S. citizenship...would [sic] be viewed with hostility by the vast majority of Puerto Ricans,” (Task Force Report, March 2011, p. 30).  Other polls have also shown that most Puerto Ricans, even those sympathetic to the pro-Commonwealth Party, aspire to vote in U.S. Presidential elections.  For example, according to a recent Poll conducted by Stanford Clapper, 92% of those polled said U.S. citizenship was important to them and 80% wished to vote in U.S. Presidential elections.  Among them, 83% identified themselves with the Popular Democratic Party, while 92% identified themselves with the pro-Statehood New Progressive Party.

While incorporation will not guarantee any of those two things, incorporation will certainly position the island to achieve the things most Puerto Ricans consider important enough to fight for and protect – namely, our permanent Union with the United States and developing closer ties with the Union.

We must make clear that the Incorporation option does not seek to substitute Statehood as the best and most sound alternative to resolve our status problem.  But if the ‘Territory’ (“Commonwealth”) option is included as a ‘legitimate option’ to the people in any process chosen for a plebiscite on status, including the one “marginally” preferred by the Task Force[1], or the one approved by the New Progressive Party, then the ‘Territory’ (“Commonwealth”) option presented ought to reflect the desires of most of the
population.  To many of us, the “Incorporated”[2] option is the most sound because it seems to reflect what the majority of people currently desire.

Detractors of this proposal must keep in mind that even if Statehood wins, and Congress approves an enabling Statehood bill – there will most likely be a transitional period.  That transitional period will be nothing else than incorporation still subject to the Territory Clause of the U.S. Constitution.  Many Status Bills proposed in the past, both in the House and the Senate, have included “transition periods” if Statehood is chosen.  While it is true that there is a difference between transitional Incorporation and Incorporation as a substitute of the status quo, I ask you, if we were to have accepted the Murkowski Bill in 1998, for example, where would we be today?  Certainly, our island would be closer to Statehood than it currently is.

Most pro-permanent union leaders and voters associated with the pro-Commonwealth party wish to form closer ties with the U.S. but may currently have reservations concerning full Statehood.  The “Incorporated Commonwealth” would be highly attractive to these types of voters and if implemented, incorporation would certainly address people’s concerns – and in time, they would likely prefer full Statehood.

Let us envision the status quo as a one lane highway that to some, may lead towards true permanent union with the United States – what we propose is to construct a second lane that can prepare the Puerto Rican people towards what the majority will likely vote for in a near future in a more expedient and effective way – and ensuring that what waits for us at the end of that road is true permanent union and full equality by fait accompli.[3]


[1] The Task Force “marginally” prefer a two (2) round process where the electorate is asked if they wish to continue a relationship with the United States, and the second, assuming “Yes” wins, will have Statehood and Commonwealth as the only options to choose from.  If this is the process chosen by the Board, we suggest either redefining the Commonwealth from a non-incorporated one to a, incorporated one, or pass on to another round asking the voters to choose between the two territory status variants.


[2] For further analysis on the subject of incorporation and the Insular Cases, please see Consejo de Salud Playa de Ponce v. Rullan, 586 F. Supp. 2d 22 (2008).

[3] Something done that presumably cannot be reversed.