Fantasy Island

Written by Erin F. Delaney & Christina D. Ponsa-Kraus

When it comes to the status of Puerto Rico, sides have been staked out, factions formed, lines drawn.  For many decades, Puerto Ricans have been split three ways: roughly half advocates an improved version of the current “commonwealth” status; roughly half supports the island’s admission into the Union as the fifty-first state; and a tiny but vocal minority favors independence.  Yet by taking an unorthodox approach to the question of Puerto Rico’s future, Joseph Blocher and Mitu Gulati may have managed to find unexpected common ground.  With an intriguing and provocative set of arguments, they have made a welcome contribution to what has long looked like an intractable debate.

The authors argue that Puerto Rico’s status problem is ultimately a legal issue: one that sounds in the register of international law and the law of self-determination, even as it must be resolved in a manner consistent with domestic constitutional law.  And they suggest, boldly, that their analysis might lead to new obligations on the part of the United States.

The Article asks whether the United States could expel Puerto Rico, and concludes, based on the authors’ reading of international law, that it could not, “for almost exactly the same reasons that [international law] gives Puerto Rico a right to independence.” (Blocher & Gulati, p. 226).  But there’s more.  Not only could the United States not expel Puerto Rico, but on the contrary, it arguably has a legal obligation to allow Puerto Rico to become a state of the Union—at least under international law, and possibly even under U.S. constitutional law.

With that one-two punch, Blocher and Gulati could conceivably make everyone in Puerto Rico happy: the “commonwealthers,” whose greatest fear is expulsion; the “statehooders,” whose nightmare is rejection; and the independentistas, who dream of separation.

The authors first present their view of the relevant international law as updated by a law of self-determination for the twenty-first century.  They explain that, historically, international law recognized the right of sovereigns to control their borders, including by ceding portions of their territory.  And they correctly observe that the U.S. Supreme Court’s Insular Cases (1901) articulated the domestic constitutional version of this understanding.  But they persuasively contend that “it is implausible to think that this traditional rule” would hold sway today. (Blocher & Gulati, p. 225).  The principle of self-determination, which was initially applied to aid colonies seeking independence, cuts a broader swath now, they argue, and should be understood as limiting a nation’s effort to expel a territory.  Unilateral action by the central government against a territory or region would not be acceptable; consent from the territory’s residents would be required before expulsion.

The authors then apply their argument to the case of Puerto Rico.  They focus on Public Law 600: the most contested legal text in the island’s status debate.  A statute passed by the U.S. Congress in 1950, Public Law 600 authorized the adoption of a Puerto Rican constitution in these words: “[F]ully recognizing the principle of government by consent, this Act is now adopted in the nature of a compact so that the People of Puerto Rico may organize a government pursuant to a constitution of their own adoption” (Pub. L. 81-600, §1 (1950)) (emphasis added).  Ever since then, Puerto Ricans have argued over the meaning of the phrase “in the nature of a compact.”  Did the developments following the passage of Public Law 600—the adoption of the Constitution of Puerto Rico and, with it, the creation of the “Commonwealth of Puerto Rico”—transform Puerto Rico into a sovereign entity?  Were Puerto Rico and the United States now bound by a “compact” unalterable except by the mutual consent of the parties?  Or, even as it attained local self-government, did Puerto Rico remain a territory of the United States?  Was the island still governed by Congress under the Territory Clause of the U.S. Constitution and still subject to Congress’ plenary power, despite its enjoyment of substantial autonomy?

The stakes could not be higher.  If Puerto Rico is a separate sovereign, then Puerto Ricans have already realized the basic goals of self-determination and, pursuant to Public Law 600, have structured a binding, sovereign-to-sovereign bilateral union with their former imperial overlord.  On this view, perfecting Puerto Rico’s status merely requires addressing a few remaining flaws in the arrangement—for example, finding a way to compensate for the island’s continuing lack of representation in the federal government.  But if Puerto Rico remains a territory, then it remains a colony, and self-determination has not been achieved.  Decolonization requires either statehood or independence.  (Congress’ creation in 2016 of a Federal Oversight and Management Board (FOMB) to handle the island’s ongoing economic crisis has strained the former view nearly to the breaking point. After all, the FOMB, which is composed of members appointed by the federal government and wields broad powers, looks a lot like… well, an imperial overlord.  Even so, the view that Puerto Rico is a separate sovereign somehow still has its defenders.)

Commonwealthers hold the former view; statehooders and independentistas the latter.  And there they have stood, staring each other down, neither side blinking, for nearly seventy years—thus making what Blocher and Gulati do next so improbable, it is almost heroic.

Taking the right of independence for granted (that’s not the improbable part: we all take that for granted), the authors make the case against the United States’ right to expel Puerto Rico.  And they do so from both of the perspectives described above: “If the compact between Puerto Rico and the rest of the United States is akin to a treaty between separate sovereigns, one set of international rules applies,” they write.  But if Puerto Rico remains a territory, “a separate set applies.” (Blocher & Gulati, p. 220-21). On the former view, expulsion would require some sort of fault.  On the latter view, Puerto Rico’s colonial status precludes expulsion.  They also briefly analogize the compact to a “contract”; arguing that it should be read in light of international law principles and of Puerto Rico’s colonial history, they reach the same conclusion.   Drawing on this argument about expulsion, in its inverse they find a right to accession—that is, a right for Puerto Rico to become a state in the Union.  And they find additional support for this right in the domestic constitutional context.

Is it too good to be true?  Puerto Rico gets a prohibition on its unilateral expulsion, and a right to statehood, without relinquishing the right to independence?

Commonwealthers will pause to wonder how it is that interpreting their “compact” as a treaty could ever lead to a prohibition on expulsion.  A central tenet of what is known in Puerto Rico as the “compact theory” holds that the compact created pursuant to Public Law 600 is emphatically not a treaty, precisely because of what Blocher and Gulati themselves explain about treaties: ordinarily, sovereigns retain the right to withdraw from them and even, under certain circumstances, to expel other parties.  The commonwealthers’ insistence on the “compact” framing has always been intended to ensure that the United States could not unilaterally expel Puerto Rico.  (They simultaneously maintain that Puerto Rico would retain its right to independence—a double standard they’ve never fully theorized.)  Indeed, a faction of the pro-commonwealth Popular Democratic Party—the soberanistas—has in recent years begun to insist that if commonwealthers want to argue that Puerto Rico is truly sovereign, then they have to accept that the compact really is just a treaty, and that either party to it could withdraw.  But Blocher and Gulati contend that, in Puerto Rico’s case, expulsion would be precluded.  And if one finds their argument convincing, then the authors have given the commonwealthers something they have always lacked: a theory that reconciles Puerto Rico’s alleged sovereignty with the existence of a binding compact.

Statehooders, meanwhile, will puzzle over how something as desirable as a right to statehood could follow from something as undesirable as a defense of the “compact.”  To them, the compact is a trap: if it really were binding, it would relegate Puerto Rico to a permanent second-class status—a union with the United States without voting representation in the federal government.  Such a status could not vindicate the goals of self-determination.  And thus, statehooders have argued that Congress has an obligation to provide for a process of self-determination that includes only those alternatives that would truly decolonize Puerto Rico: either statehood or independence.  Yet even if statehood were to prevail in such a process, it would not guarantee admission.  Once again, though, if one is persuaded by Blocher and Gulati, the authors have improbably managed to eliminate one of the most daunting obstacles to statehood: namely, Congress’ right to reject Puerto Rico.  And if they are right, then the compact is no longer a trap, because it simultaneously protects Puerto Rico from unilateral expulsion and confers upon Puerto Rico a right to statehood.

The independentistas, meanwhile, haven’t lost anything.  According to Blocher and Gulati, Puerto Rico would still have the right to independence.  The independentistas’ problem isn’t that international law does not recognize Puerto Rico’s right to separate from the United States; their problem is that almost no one in Puerto Rico wants to.  Then again, who knows?  If the authors persuade enough people that the United States is bound to Puerto Rico by a compact that not only prevents it from expelling the island but also confers upon the island a right to statehood, then maybe the reality will begin to sink in that Puerto Rico will never, no, really, never, ever be independent, and in quixotic defiance, Puerto Ricans will begin to turn away from the United States and embrace the idea of independence. Or not.  But it is tempting to fantasize, inspired by Blocher and Gulati’s invitation to imagine the impossible for Puerto Rico.

Putting aside whether one finds Blocher and Gulati’s arguments convincing, they have pulled off an unusual, if not unprecedented, feat. They have reframed Public Law 600 in a way that permits common ground and, upon that ground, they have built an argument that empowers Puerto Rico in its struggle for self-determination. In so doing, they offer support to all of the status positions on the island.

It does seem too good to be true.  Yet to say so is not to say anything Blocher and Gulati do not already know. As they sagely acknowledge with respect to the U.S. Constitution (though it may be said with equal confidence about international law), the value of a legal argument need not lie in whether one could successfully litigate it.  Legal arguments have moral and rhetorical power in a situation like this one, where resolution will come not in a courtroom, but in the larger political arena.

In the end, Blocher and Gulati show us that consensus might be found where no one has thought to look.  They have also taken on another received wisdom: the bedrock assumption that no matter what happens, nothing can happen unless the United States wants it to.  Taking a sledgehammer to that bedrock, they refuse to accept as given the notion that the United States has unilateral power to dictate Puerto Rico’s political fate.  Truth, it is said, is a matter of the imagination.

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