The following letter, with a finalized list of signatories, will be sent to Congressional leadership on April 12th, in anticipation of a hearing scheduled in the Committee on Natural Resources (which has jurisdiction over matters concerning Puerto Rico’s status) on April 14th. If you would like to sign, please email Christina D. Ponsa-Kraus at [email protected] no later than Saturday, April 10th. Thank you for your consideration. 

 

April __, 2021 The Honorable Nancy Pelosi  Speaker of the House  U.S. House of Representatives  Washington, DC 20515	The Honorable Charles Schumer  Senate Majority Leader  U.S. Senate  Washington, DC 20510
The Honorable Kevin McCarthy  House Republican Leader  U.S. House of Representatives  Washington, DC 20515	The Honorable Mitch McConnell  Senate Republican Leader  U.S. Senate  Washington, DC 20510

 Dear Speaker Pelosi, Majority Leader Schumer, and Leaders McCarthy and McConnell: 

We, the undersigned legal and constitutional scholars, write to express our strong opposition to the Puerto Rico Self-Determination Act, H.R. 2070, and any Senate companion bill that may be presented for it, and to register our equally strong support for the Puerto Rico Statehood Admission Act, H.R. 1522, and its Senate companion bill, S. 780. 

Like all Americans, we support self-determination. But unlike the supporters of the Puerto Rico Self-Determination Act, we believe that genuine self-determination requires the United States to offer Puerto Ricans a real choice. By “real,” we mean constitutional and non-territorial. Puerto Rico’s self-determination options must be constitutional, for the obvious reason that neither Congress nor Puerto Rico has the power to implement an unconstitutional option. And they must be non-territorial, because a territorial option is not self-determination. 

There are two, and only two, real self-determination options for Puerto Rico: statehood and independence. Yet the Puerto Rico Self-Determination Act defies constitutional reality by calling upon Puerto Ricans to define other non-territorial options. There are no other non-territorial options. For many decades, advocates of “commonwealth” status argued that it was non-territorial. They argued that when Puerto Rico made the transition to commonwealth status in 1952, it ceased to be a U.S. territory, became a separate sovereign, and entered into a mutually binding compact with the United States. But they were wrong. Quite simply, Congress does not have the power to create a permanent union between Puerto Rico and the United States except by admitting Puerto Rico into statehood. Lest there be any doubt, the U.S. Supreme Court has repeatedly and recently refuted the controversial “compact theory.” In Puerto Rico v. Sanchez Valle (2016), the Court ended seven decades of debilitating debate over the question of whether Puerto Rico’s commonwealth status created a permanent union between two separate sovereigns with an unequivocal “no”: as the Court made clear, Puerto Rico is, and always has been, a U.S. territory, and Congress retains plenary power to govern the island under the Territory Clause of the Constitution (Art. IV, §3, cl.2). And in Financial Oversight and Management Board of Puerto Rico v. Aurelius Investment 

LLC. (2020), the Court went on to explain that Congress’s creation of a federal board with substantial powers over Puerto Rico’s local government was a permissible exercise of Congress’s plenary power over a U.S. territory. In short, as long as Puerto Rico is neither a state of the Union nor an independent nation, it will remain a territory. By inviting Puerto Ricans to define non-territorial options other than statehood or independence, the inaptly named Puerto Rico Self-Determination Act disserves its purported goal by perpetuating the pernicious myth that such options exist. They do not. 

Despite longstanding political division within Puerto Rico, Puerto Ricans have long shared an overwhelming consensus on two key points: They reject territorial status and they wish to remain U.S. citizens. But while both statehood and independence would fulfill the goal of self-determination, only one of those options would guarantee U.S. citizenship: statehood. Last November, in an unmistakable effort to determine their political future, a clear majority of Puerto Ricans voted “yes” in their own referendum on statehood. Now that Puerto Ricans have publicly and officially asked for statehood, it is time for the United States officially to offer it. The Puerto Rico Statehood Admission Act does just that. 

Proceeding respectfully, cautiously, and pragmatically, the Puerto Rico Statehood Admission Act responds to the November referendum with an offer of statehood and sets the terms for admission, but it makes admission contingent on a second referendum in which Puerto Ricans would ratify their choice. Were they to do so, the President would issue a proclamation admitting Puerto Rico as a state within one year of the vote. If they were to reject statehood, then the island would remain a territory with the option to pursue sovereignty at any time in the future—so the Act does not force statehood on Puerto Rico in any way. In other words, the Puerto Rico Statehood Admission Act respects the result of Puerto Rico’s referendum by responding with concrete action, while ensuring that Puerto Ricans have the first and last word on their future. 

In the 123 years since the United States annexed Puerto Rico, Congress has never offered Puerto Ricans the choice to become a state. Instead, the United States has allowed Puerto Rico to languish indefinitely as a U.S. territory, subjecting its residents to U.S. laws while denying them voting representation in the government that makes those laws. We strongly support a congressional offer of statehood to Puerto Rico, and we urge Congress to pass the Puerto Rico Statehood Admission Act immediately. 

Signed,*
*University affiliations listed for identification purposes only. 

Jack M. Balkin
Knight Professor of Constitutional Law and the First Amendment
Yale Law School 

Jessica Bulman-Pozen
Betts Professor of Law
Faculty Co-Director, Center for Constitutional Governance
Columbia Law School 

Guy-Uriel E. Charles
Edward and Ellen Schwarzman Professor of Law
Duke Law School 

Erwin Chemerinsky
Dean and Jesse H. Choper Distinguished Professor of Law
U.C. Berkeley School of Law 

Michael C. Dorf
Robert S. Stevens Professor of Law
Cornell Law School 

Barry Friedman
Jacob D. Fuchsberg Professor of Law
New York University School of Law 

David Golove
Hiller Family Foundation Professor of Law
New York University School of Law 

Mark A. Graber
University System of Maryland Regents Professor
University of Maryland Francis King Carey School of Law 

Randall L. Kennedy
Michael R. Klein Professor of Law
Harvard Law School 

J. Andrew Kent
Professor of Law and John D. Feerick Research Chair
Fordham Law School 

Lawrence Lessig
Roy L. Furman Professor of Law and Leadership
Harvard Law School 

Sanford V. Levinson
W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair and
Professor of Government
University of Texas at Austin 

Martha Minow
300th Anniversary University Professor
Harvard University 

Samuel Moyn
Henry R. Luce Professor of Jurisprudence
Yale Law School 

Christina D. Ponsa-Kraus
George Welwood Murray Professor of Legal History
Columbia Law School 

David Pozen
Vice Dean for Intellectual Life and Charles Keller Beekman Professor of Law
Columbia Law School 

Richard Primus
Theodore J. St. Antoine Collegiate Professor
The University of Michigan Law School 

Lawrence Sager
Alice Jane Drysdell Sheffield Regents Chair
University of Texas at Austin 

Kate Stith
Lafayette S. Foster Professor of Law
Yale Law School 

Geoffrey R. Stone
Edward H. Levi Distinguished Professor of Law
The University of Chicago 

Laurence H. Tribe
Carol M. Loeb University Professor and
Professor of Constitutional Law Emeritus
Harvard Law School 

Stephen I. Vladeck
Charles Alan Wright Chair in Federal Courts
University of Texas School of Law 

Kenji Yoshino
Chief Justice Earl Warren Professor of Constitutional Law
New York University School of Law