In Citizenship We Trust? The Citizenship Question Need Not Impede Puerto Rican Decolonization

Jimmy McDonough* March, 2024

Puerto Rico is an uncomfortable reminder of the democratic deficits within the world’s oldest constitutional democracy. Puerto Ricans are U.S. citizens who live in a U.S. territory that is subject to the plenary authority of Congress, to which they cannot elect voting members. In 2022, under unified Democratic control for the first time in a decade, Congress considered the Puerto Rico Status Act, legislation that would finally decolonize Puerto Rico. The Status Act offered Puerto Rican voters three alternatives to the colonial status quo—statehood, independence, or sovereignty in free association—and committed Congress to implementing whichever alternative won majority support from Puerto Rican voters.

The Status Act sought to define how any change in status would affect Puerto Ricans’ access to U.S. citizenship. The Status Act proposed that all Puerto Ricans would retain their U.S. citizenship if Puerto Rico became independent or entered free association but included special restrictions that would limit Puerto Ricans’ ability to pass on their U.S. citizenship to children born after a change in status. While this Note appreciates the Status Act’s efforts to decolonize Puerto Rico, it argues that the Status Act erred in proposing this specialized regime for citizenship claims. Instead, it contends that the existing derivative citizenship framework would better regulate citizenship for Puerto Rican U.S. citizens born after a change in status.

Although the Status Act died in the Senate, it represents a new and influential formula for decolonizing Puerto Rico. Future proponents of status reform should draw on the existing derivative citizenship law because it offers clearer provisions that can better ensure a large number of Puerto Ricans may rely on U.S. citizenship—a benefit Puerto Ricans themselves clearly value—even after a change in status.

Introduction

The United States is a country of contradictions: a country whose Declaration of Independence extols the virtues of freedom although its author profited from slavery;¹ a constitutional democracy that frequently allies with autocrats abroad;² a nation dedicated to liberty that imprisons a higher proportion of its population than any other country in the world.³ So perhaps it should come as no surprise that the country founded by thirteen rebellious colonies—which proclaimed that government depends on the consent of the governed⁴—would eventually try its hand at imperialism by acquiring colonies in the Caribbean and the Pacific.⁵

Puerto Rico is officially known as a U.S. commonwealth,⁶ or in Spanish as an estado libre asociado (freely associated state).⁷ Puerto Ricans are U.S. citizens,⁸ which entitles them to migrate to the U.S. mainland without restrictions,⁹ participate in certain government benefits,¹⁰ enlist in the military,¹¹ and receive federal government protection whenever they travel abroad.¹² But in reality, Puerto Rico is also the oldest and largest U.S. colony.¹³ As this Note shows, the benefits of U.S. citizenship have not disrupted colonial governance.¹⁴

Even as Puerto Ricans have voiced their dissatisfaction with the territory’s colonial status, focus on U.S. citizenship has warped the debate about potential alternatives to colonialism.¹⁵ In 2022, the U.S. House sought to clarify and close this debate by passing the Puerto Rico Status Act.¹⁶ The Status Act invited Puerto Ricans to vote for one of three alternatives to colonialism: (1) statehood, (2) independence, and (3) sovereignty in free association.¹⁷ It also committed Congress to enacting¹⁸ whichever decolonial alternative won majority support in a three-way plebiscite scheduled for November 5, 2023; if no option secured majority support, a runoff plebiscite between the two leading options would be held five months later.¹⁹ Recognizing the importance of U.S. citizenship to Puerto Rican voters, the Status Act defined in detail how each change in status would affect Puerto Ricans’ access to citizenship.²⁰ And crucially, regardless of any change in status, the Status Act provided that all Puerto Ricans alive at the time of a change would retain their U.S. citizenship.²¹ At the same time, the Status Act proposed restrictions on derivative citizenship claims by future children of U.S. citizens born in a freely associated or independent Puerto Rico.²² Unfortunately, the Senate never debated the Status Act, and the bill died before ratification.²³ Nonetheless, it represents a novel framework that will continue to influence future efforts to decolonize Puerto Rico.²⁴

This Note examines how the Status Act proposed to regulate Puerto Ricans’ derivative citizenship claims in the event of either Puerto Rican independence or sovereignty in free association. It argues that the existing derivative citizenship regime codified in the Immigration and Nationality Act (INA)²⁵ would do a better job than the Status Act’s bespoke derivative citizenship scheme at advancing both U.S. and Puerto Rican interests. This Note does not endorse any particular alternative to colonialism—statehood, independence, and sovereignty in free association each represent a definite improvement over the status quo. Nonetheless, it is crucial to understand the citizenship consequences if Puerto Ricans opt for a status change other than statehood, under which their U.S. citizenship would remain unaffected, because uncertainty about this issue has created an obstacle to moving on from colonial status. This Note submits that the Status Act’s novel scheme offers only hazy benefits while promising to confuse Puerto Rican voters and undermine the certainty the Status Act sought to provide in the first place.

Part I of this Note reviews the recent history of Puerto Rico as a U.S. territory, a status that has given rise to a persisting colonial relationship, and analyzes the Status Act’s three decolonial alternatives to territorial status. Part II describes how the Status Act proposed to manage citizenship claims if Puerto Ricans voted for independence or sovereignty in free association. Finally, Part III shows that the existing law is a simpler, and superior, mechanism for managing citizenship claims, should Puerto Ricans opt for independence or sovereignty in free association.

I. Puerto Rico’s History as a U.S. Colony Populated by U.S. Citizens

This Part outlines the early twentieth-century history of Puerto Rico’s constitutional status, charting the acquisition of Puerto Rico in 1898, the Insular Cases’ permissive framework for colonial governance, and the successful mid-twentieth-century movement to convert Puerto Rico into a self-governing commonwealth. But, as this Part will show, the “Commonwealth” of Puerto Rico remained a euphemism for “colony,” as Puerto Rico never stopped being subject to the plenary control of Congress. Unfortunately, Congress has a woeful record in governing Puerto Rico, which has created widespread dissatisfaction with commonwealth status on the island. This leaves Puerto Rico in a pickle: although Puerto Ricans are dissatisfied with their colonial status, only their colonizer can enact an alternative. What’s more, the implications of the decolonial alternatives to commonwealth status are poorly understood, particularly when it comes to consequences for Puerto Ricans’ citizenship rights.

A. Puerto Rico Becomes a U.S. Colony

Following Spain’s defeat in the Spanish-American War, Puerto Rico passed from one imperial power to the next, becoming a U.S. territory in 1898.²⁶ American celebrations, however, soon gave way to the pressing debate over how the United States would govern this new territory. Although the United States had set prior territories on a path to statehood,²⁷ it made no such promise to Puerto Rico.²⁸ Facing the possibility of an American territory with no path toward statehood, some worried that the Reconstruction Amendments might severely constrain the country’s ability to govern newly acquired territories without admitting them as states.²⁹ The rights and responsibilities of the people who lived in U.S. territories loomed perhaps even larger: In the shorthand of the time, did the Constitution follow the flag?³⁰ Notably, opponents of annexing Puerto Rico as a territory warned that the Reconstruction Constitution guaranteed U.S. citizenship for all people born in the United States or subject to its jurisdiction, which would seemingly make all Puerto Ricans U.S. citizens.³¹ And if Puerto Ricans were U.S. citizens, then the same Reconstruction Constitution might require the United States to respect the Bill of Rights and eventually admit Puerto Rico as a state.³²

In the Insular Cases—a series of cases brought between 1900 and 1922 to challenge colonial governance in Puerto Rico and the Philippines—the Supreme Court articulated a highly permissive framework for the nascent overseas American empire.³³ In one of the first of the Insular Cases, the Court held that Congress could charge tariffs on Puerto Rican exports without violating the Uniformity Clause of the Constitution³⁴ because Puerto Rico was an unincorporated territory that belonged to the United States and was “appurtenant thereto as a possession.”³⁵ Two years later, the Court held that, in governing unincorporated territories, Congress is only required to respect the “general spirit of the Constitution” and is not bound by “express and direct application of its provisions.”³⁶ The Court also proved unavailing when Puerto Rican advocates asked it to determine whether Puerto Ricans were entitled to U.S. citizenship. In Gonzales v. Williams (1904), the Court tersely rejected the government’s claim that Puerto Ricans were aliens while declining to declare affirmatively that Puerto Ricans were U.S. citizens.³⁷

While the Court proved unwilling to apply the Constitution in ways that might constrain American empire, Congress did eventually extend U.S. citizenship and a modicum of local control to Puerto Ricans.³⁸ In 1917, Congress passed the Organic Act of Puerto Rico, better known as the Jones Act,³⁹ which provided for an elected bicameral legislature in Puerto Rico and a governor, appointed by the U.S. president, to serve as the nominal head of the territory.⁴⁰ The presidentially appointed governor could veto laws—and if two thirds of both chambers of the Puerto Rican legislature overrode the governor, the U.S. president still enjoyed an absolute veto.⁴¹ Congress also provided itself with unrestricted power to annul any Puerto Rican legislation for any reason.⁴²

While it restricted Puerto Rican sovereignty, the Jones Act also included a bill of rights and extended U.S. citizenship to all Puerto Ricans.⁴³ Congress had several motivations in extending citizenship, chief among them a desire to solidify U.S. control over the island in the face of both a then-resurgent independence movement and anticipated German adventurism in the Caribbean.⁴⁴ And it soon became clear that U.S. citizenship, despite its benefits, did not entitle Puerto Ricans to self-governance. Soon after the passage of the Jones Act, Chief Justice Taft ruled that the Insular Cases established Congress’s plenary authority to govern the territories, and, while Puerto Rico remained unincorporated, Congress was required to apply only the Constitution’s fundamental guarantees to Puerto Ricans.⁴⁵ The fact that Congress had granted citizenship to Puerto Ricans meant little in the Court’s analysis: Congress retained wide discretion to govern the territory under the Territorial Clause of the Constitution.⁴⁶

B. The Emergence and Consequences of Commonwealth Status

Although the Court in the early twentieth century was amenable to colonial governance, by 1950, this openly colonial arrangement proved politically untenable for the United States.⁴⁷ The global decolonization movement, inspired by the U.N. Charter’s insistence on promoting the “self-determination of peoples,”⁴⁸ brought pressure on the United States and European powers to liberate their colonies.⁴⁹ In 1947, Congress granted Puerto Ricans the power to directly elect the governor.⁵⁰ In 1950, Congress “recogniz[ed] the principle of government by consent” and invited the people of Puerto Rico to form a “compact” with the U.S. government.⁵¹ Compact Theory, as it has since become known,⁵² sought to transform Puerto Rico from a colony into a self-governing commonwealth via a multistage process.⁵³ First, in 1951, a commanding majority of Puerto Ricans voted in favor of entering a compact with the United States.⁵⁴ Second, Puerto Rican delegates drafted a constitution, which Puerto Rican voters ratified in 1952.⁵⁵ And third, after mandating some edits, Congress ratified Puerto Rico’s constitution and declared the island a commonwealth.⁵⁶ This transformation proved sufficient to convince the United Nations that Puerto Rico was self-governing; the General Assembly removed the island from its list of non-self-governing territories in 1953.⁵⁷

For its part, since 1957, the Supreme Court has signaled that the Insular Cases are disfavored precedent that no longer justify failing to apply the text of the Constitution outside of the United States.⁵⁸ The Court’s recent jurisprudence does not distinguish between incorporated and unincorporated territories and recognizes a broad set of constitutional protections as “fundamental,” and thus universally applicable.⁵⁹ For example, in Rodriguez v. Popular Democratic Party, the Court held that voting rights apply with equal force in the United States and in its territories.⁶⁰ The Court has also held that the Fourth Amendment⁶¹ and the Equal Protection and Due Process Clauses⁶² apply in Puerto Rico.⁶³ The upshot is that the difference in individual rights enjoyed by Puerto Rican U.S. citizens compared to mainland U.S. citizens is far less stark today than it was in the early twentieth century when Puerto Rico first became a U.S. territory.

Bolstered by Congress and the Supreme Court, commonwealth status has conferred several benefits. Laws enacted by Puerto Rico’s legislature and signed by the governor are no longer subject to a veto by Congress or the president.⁶⁴ Puerto Ricans may enact any law so long as that legislation is not preempted by federal statutes or the U.S. Constitution.⁶⁵ Puerto Ricans have thus gained a measure of autonomy while maintaining their U.S. citizenship and access to some entitlement programs and economic development incentives.⁶⁶ Further, under commonwealth status, Puerto Ricans are not subject to United States income taxes unless they are employees of the federal government.⁶⁷

A major political defect of commonwealth status, however, is that it gives Puerto Ricans neither voting representatives in the U.S. Congress nor a say in the Electoral College.⁶⁸ Congress originally defended this arrangement by signaling that it would only enact legislation related to Puerto Rico with the explicit consent of the Puerto Rican people.⁶⁹ But in the past thirty years, Congress has abandoned this commitment and exercised its prerogative to govern Puerto Rico without such consent.⁷⁰ This is only possible because converting Puerto Rico into a commonwealth did not alter its ongoing status as a U.S. territory subject to the plenary power of Congress. As former First Circuit Judge Juan R. Torruella noted in 2001, “[t]he term commonwealth, regardless of what attributes one may choose to endow it with through hope or legislation, is not one which has direct constitutional reference.”⁷¹ “Commonwealth” has thus become an increasingly obvious euphemism for “colony” endowed by Congress, with certain rights that can be revoked at Congress’s discretion.

Unfortunately, the recent past indicates that Congress is not always a benevolent administrator. In 1996, Congress began to repeal tax exemptions for corporations operating in Puerto Rico⁷²—a benefit that had previously been instrumental in developing a manufacturing base on the island.⁷³ In 2006, the first full year without the favorable tax benefits, Puerto Rico entered a period of economic turmoil that endures to this day.⁷⁴ Successive Puerto Rican administrations have softened the blow of declining tax revenues by issuing additional bonds, but doing so has ultimately exacerbated the debt crisis on the island.⁷⁵ In 2015, Puerto Rico’s governor announced that the island was unable to service its more than $72 billion in debts. The island began defaulting on bond payments soon after.⁷⁶ Puerto Ricans are appropriately critical of decisions by a generation of leaders from the island’s two main political parties, who allowed the island to accumulate unsustainable debt.⁷⁷ But Congress deserves to share the blame for this crisis; it was Congress that exempted Puerto Rican bonds from all taxes and removed restrictions on public borrowing, thus encouraging excessive government debt.⁷⁸

To ameliorate this crisis, Puerto Rico’s elected government first sought to restructure its debts by passing a debt enforcement act that mostly mirrored the U.S. Bankruptcy Code and created a process for negotiating with creditors without pausing essential government services.⁷⁹ However, in 2016, a mainland bondholder challenged the Act’s validity, arguing that the federal bankruptcy code preempted Puerto Rico from creating its own. The Supreme Court agreed and struck down Puerto Rico’s Bankruptcy Code.⁸⁰ Specifically, the Court held that the U.S. Bankruptcy Code only allows state-chartered entities like municipalities to declare bankruptcy—territories like Puerto Rico are ineligible.⁸¹

As Puerto Rico’s finances reached an impasse, Congress repudiated its commitment to Puerto Rican autonomy by passing PROMESA, the Puerto Rico Oversight, Management, and Economic Stability Act. PROMESA allowed Puerto Rico to enter bankruptcy, with the condition that the bankruptcy be managed by a Financial Oversight and Management Board appointed by the president and bipartisan leaders in Congress.⁸² The Act modified Puerto Rico’s territorial form of government by authorizing the Board to both override the fiscal preferences of Puerto Rico’s elected government and negotiate directly with Puerto Rico’s bondholders.⁸³ Finally, in early 2022, the Board finalized its plan to restructure Puerto Rico’s debts. The plan reduced external debt by 80 percent without reducing pension obligations, but the Board has not yet succeeded in restructuring the significant debt issued by Puerto Rico’s state electricity provider.⁸⁴ Accordingly, the Board has demanded steep cuts in funding for Puerto Rican public institutions, including a nearly 40 percent reduction in funding for the flagship University of Puerto Rico.⁸⁵

Recently, natural disasters have compounded the island’s troubles and further demonstrated the pitfalls of Puerto Rico’s commonwealth status. First, Puerto Rico was devastated by two catastrophic hurricanes in 2017.⁸⁶ After the hurricanes, nearly the entire island lost power, running water, sewage, or cell service.⁸⁷ Nearly 3,000 people died.⁸⁸ Embarrassingly, Puerto Rico received comparatively less in disaster assistance than Florida and Texas received in 2017 after less severe hurricanes.⁸⁹ Then, when the island was struck by earthquakes in early 2020, the fragile power grid collapsed again.⁹⁰ The federally managed response to these natural disasters was frustratingly slow.⁹¹ After allocating $28 billion toward rebuilding Puerto Rico’s power grid, the Federal Emergency Management Agency had spent only a fifth of that total by 2022.⁹² Puerto Ricans responded by voting with their feet: one year after Hurricane Maria devastated Puerto Rico, the U.S. Census Bureau estimated that the storm caused 123,399 people to migrate from Puerto Rico to the U.S. mainland.⁹³

These twin crises—fiscal collapse and natural disasters—laid bare many of the structural failures in Puerto Rico’s colonial governance, showing how a colonial commonwealth is unable to advance the aspirations of more than three million U.S. citizens. They also demonstrated the frustrating truth that the federal government retains final responsibility for Puerto Rican governance without any direct ways for those living on the island to hold federal officials accountable. But although the present is unsatisfying, alternatives to the status quo remain murky.

C. Inconclusive Status Debates

The status debate continues to define Puerto Rican politics. Historically the debate has been tripolar between advocates of independence, admission to the Union as the fifty-first state, and preservation of commonwealth status.⁹⁴ One of Puerto Rico’s two largest parties, Partido Popular Democrático (the Popular Democratic Party, or PPD), is one of the chief advocates for maintaining commonwealth status.⁹⁵ It was the PPD that, in collaboration with New Deal Democrats on the mainland, promoted Compact Theory as a way to strengthen self-governance and Puerto Rican culture and values without severing ties with the United States or forgoing U.S. citizenship.⁹⁶ The PPD was founded by Luis Muñoz Marín,⁹⁷ who led it to electoral success through the 1970s, when commonwealth status seemed a resounding success for Puerto Rico.⁹⁸ One of the strongest signals that commonwealth status is no longer popular is a decrease in support for the PPD, which has struggled to win island-wide elections in recent years.⁹⁹ And while the PPD has long advocated for a revised compact with Congress, which would result in greater local control for Puerto Rico, the U.S. Department of Justice has stridently rejected the possibility that one Congress could bind how future Congresses treat a territory like Puerto Rico.¹⁰⁰

The first alternative to commonwealth status is statehood, championed by the Partido Nuevo Progresista (New Progressive Party, or PNP).¹⁰¹ Statehood—with its promise of participation in U.S. federal politics, complete eligibility for social safety-net programs, and a constitutional guarantee of U.S. citizenship—is now the preference of a plurality of Puerto Rican voters.¹⁰² Statehood-supporting governors from the PNP have led Puerto Rico since 2017.¹⁰³ And since 2016, Puerto Rico’s resident commissioner in Washington (Puerto Rico’s nonvoting delegate to the U.S. Congress) has been PNP member Jenniffer González-Colón.¹⁰⁴ González-Colón was reelected in 2020; although she only won a plurality of votes (41%), she had a comfortable margin over Aníbal Acevedo Vilá from the commonwealth-supporting PPD.¹⁰⁵ The principal challenge faced by the PNP, however, is weak support for statehood within the U.S. Congress. Puerto Rico is rarely on Congress’s agenda, and Republicans largely oppose statehood, assuming that Puerto Ricans would vote for Democrats.¹⁰⁶

Historically, the second alternative to commonwealth has been independence. Puerto Rican nationalists contend, as they have for more than a century, that completely severing ties with the United States would best serve the island.¹⁰⁷ But unlike the PNP or PPD, Puerto Rico’s independence party—Partido Independentista Puertorriqueño (the Puerto Rican Independence Party, or PIP)—has never won a significant share in island-wide elections.¹⁰⁸

Yet even as status has dominated Puerto Rican politics for decades, Puerto Ricans remain intensely divided as to the best alternative to commonwealth status. They have voted in six referenda on the island’s status since first endorsing commonwealth status in 1953,¹⁰⁹ yet the results have failed to produce a political consensus.¹¹⁰ This is partly because each referendum was nonbinding¹¹¹ and organized by a Puerto Rican political party interested in presenting simplistic binaries to voters.¹¹² Further, Congress, the only entity capable of changing Puerto Rico’s status, has never committed to actually enacting the status option the majority of voters prefer on any of these referenda.¹¹³ These inconclusive referenda have produced a vicious cycle: Absent any sense that Puerto Rican voters have reached a consensus on status alternatives, Congress has continued to sit on its hands.¹¹⁴ Congressional inaction, meanwhile, has produced a stagnant status debate on the island, as Puerto Ricans evaluate status alternatives without a clear sense of what would be acceptable to a future Congress.¹¹⁵

Nonetheless, it is clear that statehood is the preference of at least a plurality of voters: in the most recent 2020 referendum, 52.5 percent of voters supported statehood in an up-down vote in which 54.7 percent of the electorate participated.¹¹⁶ But opponents of statehood have responded that the three traditional options— statehood, independence, and commonwealth status—do not exhaust the alternatives available to Puerto Rico, so the numerous referenda do not actually reflect the informed will of voters. For example, it may be the case that a voter who favors independence, if asked to vote between statehood and the status quo, would vote for statehood because they still believe that statehood is superior to remaining a colony. But their choice might be different if offered a fuller array of decolonial alternatives.¹¹⁷

In response to these concerns about incomplete and ill-informed choices, Puerto Rican law professors in 2021 proposed an additional status alternative: sovereignty in free association.¹¹⁸ In free association, a former colony is granted total independence from the colonial power, but the newly sovereign country and former colonizer establish a treaty-bound relationship relating to mutual defense, economic assistance, free trade, and freedom of movement.¹¹⁹ This option has the benefit of precedent: the United States has also ratified Compacts of Free Association with two former territories: the Marshall Islands and Micronesia.¹²⁰

D. Status Reform in the 117th Congress

Status reform seemed possible in the 117th Congress (2021–2023). The Democratic Party won control of both the Presidency and Congress for the first time in a decade.¹²¹ Included in the Democratic Party’s pledge to “restor[e] and strengthen[] our democracy” was the declaration that “[t]he people of Puerto Rico deserve self-determination on the issue of status.”¹²² After lengthy negotiations, the House of Representatives passed the Puerto Rico Status Act of 2022.¹²³ The Status Act represented a compromise between supporters of Puerto Rican statehood and Democrats who have advocated for either commonwealth status or independence.¹²⁴

The Status Act would have required a binding referendum in Puerto Rico between three decolonial alternatives: (1) statehood, (2) independence, and (3) sovereignty in free association. If no option won majority support in the first round, a runoff would be held.¹²⁵ Notably, the Status Act acknowledged the “inherent limitations” of Puerto Rico remaining a United States territory and did not give Puerto Ricans the option of preserving commonwealth status.¹²⁶ Unlike past referenda, this election would have been binding; the Act provided advance authorization to enact whichever result secured majority support.¹²⁷ Finally, in an attempt to reduce the uncertainty that had paralyzed previous debates around status reform, the Status Act spelled out the implications of the change of status on the issues that the drafters believed were most important to Puerto Rican voters.¹²⁸ No issue within the Status Act received more attention than access to U.S. citizenship. Indeed, the drafters tinkered with the citizenship details until the final hours before the House passed the bill in December 2022.¹²⁹

Although the Status Act never became law, it represents a highly influential framework for decolonizing Puerto Rico that is likely to serve as the basis for future Congressional action. The Status Act was supported by the entire Democratic caucus in the House, the Democratic president, and a noteworthy minority of House Republicans.¹³⁰ Its lead sponsors continue to serve in the House and have introduced an identical version of the Status Act for consideration in the 118th Congress.¹³¹ The following Part will thus interrogate how the Status Act proposed to manage citizenship claims if Puerto Rico had stopped being a colony.

II. How Citizenship Continues to Challenge Decolonization Efforts

While there is strong evidence that a majority of Puerto Ricans are unsatisfied with their status as members of a U.S. territory,¹³² citizenship remains a potential stumbling block to decolonization. While everyone understands that Puerto Ricans would remain citizens under both statehood and commonwealth status, it is far less clear what would happen to Puerto Rico’s three million U.S. citizens if the island were to become independent or enter free association. The Status Act, laudably, clarified the expected impact of a change of status on Puerto Ricans’ U.S. citizenship claims. This Part analyzes how the Status Act proposed to regulate derivative access to U.S. citizenship in the event that Puerto Rican voters chose independence or sovereignty in free association, then submits that the drafters were mistaken in proposing restrictions on derivative citizenship for Puerto Ricans.

A. The Status Act’s Treatment of Postcolonial Citizenship Claims

The historical practice of the United States and other former colonial powers has been to eliminate their former colonial subjects’ claims to citizenship. The United Kingdom and France both curtailed their colonial subjects’ citizenship soon after granting independence.¹³³ Similarly, when the United States granted sovereignty to the Philippines, it did so with the express warning that Filipinos would not have any claim to U.S. citizenship after independence.¹³⁴ In recent decades, the United States has provided visa-free access to the United States for citizens of former U.S. territories in the Pacific.¹³⁵ In doing so, the United States accepted responsibility for rendering several islands uninhabitable through nuclear testing, forcing thousands of islanders to relocate to the United States for medical treatment.¹³⁶ Citizens of both countries are not U.S. citizens but may visit or work in the United States as nonimmigrants.¹³⁷

Indeed there are only a few examples of a former colony that has retained the citizenship of the colonial power well after becoming independent. For instance, the Cook Islands is an independent nation whose citizens are also entitled to citizenship from New Zealand.¹³⁸ Yet the Cook Islands’ experience suggests that perpetual dual citizenship may also undermine the former colony’s sovereignty—New Zealand has used the threat of withdrawing citizenship as a tool to influence Cook Islands’ foreign relations.¹³⁹ The Cook Islands’ experience demonstrates that the Status Act was wise to decide that birth in Puerto Rico would no longer be a primary basis for U.S. citizenship after a change in status. Perpetual dual citizenship in an independent or freely associated Puerto Rico could be revoked at Congress’ discretion, which would expose Puerto Rico to enormous pressure that would undermine its independence.

Nonetheless, Puerto Rico’s decolonization poses additional challenges because, unlike the residents of other former U.S. territories, Puerto Ricans have been U.S. citizens for more than a century. And the Supreme Court has prohibited involuntary denationalization of U.S. citizens in all but the most narrow cases.¹⁴⁰ While some scholars maintain that it would be constitutional to require Puerto Ricans to relinquish their U.S. citizenship as a consequence of acquiring sovereignty,¹⁴¹ the drafters of the Status Act chose not to test this authority. They instead provided that no one who was born in Puerto Rico before a change in status would lose their U.S. citizenship as a consequence of Puerto Rico becoming independent or entering free association.¹⁴² Furthermore, the Status Act guaranteed that if Puerto Rico opted for independence or free association, Puerto Rican citizens would face minimal restrictions when seeking to live, work, or study in the United States.¹⁴³ If voters opted for independence, the Status Act provided for a twenty-five-year period during which natural born or naturalized Puerto Rican citizens would be allowed to “enter, lawfully engage in occupations, and establish residence as . . . nonimmigrant[s] in the United States and its territories and possessions.”¹⁴⁴

Yet the Status Act proposed to modify the Immigration and Nationality Act (INA) to make it more difficult for Puerto Rican children born after a change in status to derive U.S. citizenship from their U.S. citizen parents. Under current law, a child born overseas to two U.S. citizens is a U.S. citizen so long as one of the parents had been a resident of the United States prior to the child’s birth.¹⁴⁵ If only one of the parents is a U.S. citizen, the child is entitled to U.S. citizenship if that parent had lived in the United States or one of its territories for at least five years (including two years before the age of fourteen) prior to the child’s birth.¹⁴⁶ In addition to these residency requirements, the INA restricts derivative citizenship when a child is born out of wedlock: if a U.S. citizen father seeks to pass on his citizenship to his child born out of wedlock, he must prove the blood relationship by clear and convincing evidence, commit to providing financial support for his child until the child turns eighteen, and acknowledge paternity under one of three statutorily defined processes.¹⁴⁷ U.S. citizen mothers who have a child out of wedlock, in contrast, need not prove a blood relationship or demonstrate financial support in order for their child to derive U.S. citizenship.¹⁴⁸

As a result, the unmodified INA would allow the first generation of children born in Puerto Rico to derive U.S. citizenship from one or both of their parents.¹⁴⁹ Nearly any person born in Puerto Rico before a change of status who has a child after a change in status would satisfy the INA’s requirements because the parent’s birth and residency in commonwealth-era Puerto Rico would satisfy the INA’s U.S. citizenship and U.S. residency requirements.¹⁵⁰ However, the Status Act disrupted this progression by proposing that, if Puerto Rico becomes independent, a Puerto Rican-born U.S. citizen would not be able to pass on their U.S. citizenship to children born after the proclamation of independence.¹⁵¹ The same rule would apply if Puerto Rico entered free association but would be modified during the first Articles of Free Association, the term the Status Act uses to refer to the treaty that would be negotiated between Puerto Rico and the United States.¹⁵² During the first Articles, the child of a Puerto Rican-born U.S. citizen would be a U.S. citizen.¹⁵³ But derivative citizenship claims for births after the first Articles expire would be addressed in the negotiations for future Articles of Free Association.¹⁵⁴ The Status Act does not determine the length of the first Articles.

The relevant provisions of the Status Act discussed above are summarized in the following table:

Table 1

Commonwealth

(Status Quo)

Statehood

Sovereignty in Free Association

Independence

Born in Puerto Rico before change of status

U.S. citizen under 8 U.S.C. § 1402

U.S. citizen under Fourteenth Amendment

U.S. citizen under Status Act § 5(b)(3)(C)

Born in Puerto Rico, after change in status, to at least one U.S. citizen parent if the one parent has lived in the United States or one of its outlying possessions for at least five years

U.S. citizen under 8 U.S.C. § 1402(c)

U.S. citizen under Fourteenth Amendment

First Articles of Free Ass’n: U.S. citizens under Status Act § 208(c)(2); afterwards not citizens unless agreed through second Articles of Free Ass’n

Not a U.S. citizen under Status Act § 110(c)

Born in Puerto Rico, after change in status, to two noncitizens

U.S. citizen under 8 U.S.C. § 1402(c)

U.S. citizen under Fourteenth Amendment

Not a U.S. citizen under Status Act § 208

Not a U.S. citizen under Status Act § 110(c)

Restrictions on entry into the United States

No restrictions (by virtue of citizenship granted by statute in 8 U.S.C. § 1402(c)); no passport required to travel between mainland and Puerto Rico

No restrictions (by virtue of citizenship granted by the Fourteenth Amendment); no passport required to travel between mainland and Puerto Rico

During the implementation of the first Articles of Free Ass’n: No restrictions for U.S. citizens and Puerto Rican citizens can enter without restrictions as nonimmigrants according to Status Act § 208

No restrictions for U.S. citizens. Any Puerto Rican citizen can enter the U.S. as a nonimmigrant for twenty-five years after independence; passport required for travel between independent Puerto Rico and United States according to Status Act § 110(c)

Stability

Congress can change statute providing citizenship for any reason under the U.S. Constitution, Article 1, § 8. But likely difficult to denaturalize current U.S. citizens

Can only be changed by amending the Fourteenth Amendment

The U.S. avoids breaching treaties but may do so. The process to breach a treaty is complicated and may or may not require Congressional approval according to Goldwater v. Carter, 444 U.S. 996, 1003 (1979)

Congress can change statute providing citizenship for any reason under the U.S. Constitution, Article 1, § 8, but likely difficult to denaturalize current U.S. citizens

B. Constitutional Challenges to Derivative Citizenship Restrictions

Congress has amended the rules for derivative citizenship several times since 1790.¹⁵⁵ In crafting the framework for derivative citizenship, Congress has often been motivated by nativist and racist fears of the nonwhite children of U.S. citizens born overseas.¹⁵⁶ In the past, Congress assumed American men who father children overseas would be absentee parents, so Congress made it harder for the children of U.S. citizen fathers to derive U.S. citizenship than for the children of U.S. citizen mothers.¹⁵⁷ Scholar Kristin Collins posits that these restrictions served another purpose: limits on derivative citizenship provided a tool for policymakers interested in reducing the nonwhite population of the United States.¹⁵⁸ In recent years, the Supreme Court has been attentive to this critique and has invalidated one particular gender-based restriction on derivative citizenship.¹⁵⁹

The Status Act’s limits on derivative citizenship attracted considerable commentary, with some suggesting that these limits violate the U.S. Constitution’s guarantee of equal protection¹⁶⁰ by restricting derivative citizenship on the basis of nationality.¹⁶¹ Such a classification would be subjected to strict scrutiny if the law were challenged in court, which would require the government to prove that its nationally discriminatory solution is narrowly tailored to a highly compelling need.¹⁶²

Under existing precedents, however, such a constitutional challenge to the Status Act would be unlikely to succeed. First, the Supreme Court has ruled that Congress has “broad authority to legislate” for Puerto Rico and other U.S. territories under the Territorial Clause of the Constitution.¹⁶³ This suggests that Congress has similarly broad discretion to legislate the terms of exit for territories. Second, the Court has declined to classify Puerto Rican identity as a suspect classification for equal protection analysis, which means that Congress may exclude Puerto Rico from government programs so long as it has a rational basis for doing so.¹⁶⁴ Most recently, in United States v. Vaello Madero, the Supreme Court upheld a benefits program that excluded residents of Puerto Rico. Under the deferential rational review analysis, eight of the nine justices concluded that Congress could reasonably exclude Puerto Rico from certain benefits because Puerto Ricans are not taxed at the same rate as U.S. citizens on the mainland.¹⁶⁵And third, the Court has held that derivative citizenship for children born overseas is not a fundamental right, meaning it can be restricted without a compelling government interest.¹⁶⁶

Thus, there is strong authority for Congress to use discriminatory means of restricting derivative citizenship in Puerto Rico, even when it has only a theoretical basis for doing so. Such a theoretical basis could, for example, be that U.S. citizenship would undermine the formation of Puerto Rican national identity or expose Puerto Rico to unwanted pressure from the United States.

C. Policy Arguments for Restricting Derivative Citizenship

U.S. citizenship entitles Puerto Ricans to visit and work in the United States without restrictions¹⁶⁷ while allowing Puerto Ricans to participate in some benefits programs.¹⁶⁸ Nonetheless, the drafters of the Status Act attempted to restrict the ability of children born after a change in status to derive U.S. citizenship from their parents.¹⁶⁹

The Status Act’s drafters’ key premise for restricting derivative citizenship is that a freely associated or independent Puerto Rico would suffer if Puerto Ricans are able to pass on U.S. citizenship to their children.¹⁷⁰ Professor Christina Ponsa-Kraus, an expert on Puerto Rico who advised the drafters of the Status Act,¹⁷¹ has suggested that the drafters were concerned that, in the long term, dual citizenship obtained through derivative citizenship would imperil Puerto Rican sovereignty by exposing Puerto Rico to more U.S. influence than is typical of an independent country.¹⁷² But it is difficult to reconcile this concern with the other provisions within the Status Act, which would have allowed all Puerto Ricans alive at the time of change of status to retain their U.S. citizenship.¹⁷³ Even if the drafters had no choice but to permit widespread dual citizenship at the time Puerto Rico becomes independent or enters free association, it seems harsh to impose new, restrictive provisions aimed narrowly at preventing those born after a change in status from deriving citizenship from their parents. Nonetheless, it is not unreasonable to worry about the role that the United States may assert for itself in pursuit of guarding the interests of U.S. citizens living in a Puerto Rico that is independent or in free association. One example to bolster this concern is the fact that, in the not-too-distant past, the United States invaded and interfered in the internal affairs of Grenada under the pretext of securing the safety of U.S. citizens.¹⁷⁴

The United States would also be able to provide robust consular assistance to dual Puerto Rican-U.S. citizens in a freely associated or independent Puerto Rico; but there is little reason to expect this consular assistance would undermine Puerto Rico’s independence. If Puerto Rico became independent or entered free association, the two countries would maintain diplomatic relations and the United States would almost certainly establish an embassy with consular services in Puerto Rico.¹⁷⁵ While U.S. consular services are very robust,¹⁷⁶ Puerto Rico would not be powerless in determining the scope of U.S. consular relations: under the Vienna Convention on Consular Relations, the United States could only establish consular relations in an independent or freely associated Puerto Rico with the express consent of the Puerto Rican government, which could also regulate the consular services’ terms.¹⁷⁷

Despite the foregoing concerns, restricting dual citizenship would not insulate Puerto Rico from the most insidious forms of U.S. intervention. An assertive U.S. government can draw on many other tools to influence Puerto Rico that have nothing to do with U.S. citizenship. The United States would still be able to leverage its economic and military might to pressure Puerto Rico on trade, climate, and defense agreements. U.S.-based investment funds hold a large portion of Puerto Rican bonds;¹⁷⁸ these economic interests would undoubtedly influence the posture that the U.S. government assumes toward Puerto Rico. The United States would also have significant sway over the terms of Puerto Rico’s entrance into major intergovernmental organizations like the International Monetary Fund.¹⁷⁹ If Puerto Rican voters opt for free association, they will not be done dealing with the U.S. government—none of these points of leverage depend on the citizenship of Puerto Ricans.

Further, analysts have argued that Puerto Rico must curtail derivative citizenship if it seeks to foster a Puerto Rican national identity.¹⁸⁰ Indeed, many other former colonies have sought to constrain dual citizenship under the assumption that permitting it would frustrate national cohesion.¹⁸¹ It is plausible that dual citizenship would exacerbate migration from an independent or freely associated Puerto Rico, leading talented Puerto Rican scientists, artists, and professionals to take advantage of their U.S. citizenship to pursue higher-paid opportunities in the United States.

But there are three key challenges with the national identity argument. First, as noted earlier, the Status Act already guarantees that the entire Puerto Rican population at the time of a status change will retain their U.S. citizenship.¹⁸² It thus seems harsh to impose special restrictions focused narrowly on those born after a change in status. Second, advocates for curtailing derivative citizenship have strikingly little empirical evidence for how or why dual citizenship would undermine national identity. Indeed, Puerto Rican national identity remains robust after a century of universal access to U.S. citizenship.¹⁸³ Puerto Ricans have maintained their distinctive accent and vocabulary in Spanish,¹⁸⁴ and Puerto Rican artists produce globally acclaimed works.¹⁸⁵ And third, perhaps the strongest rejoinder to those who seek to curtail derivative citizenship to preserve Puerto Rico’s national identity is that nothing within the Status Act would prevent Puerto Rico’s government from imposing its own restrictions on dual citizenship. Puerto Rico could, for example, require that citizens of Puerto Rico relinquish their U.S. citizenship as a condition of serving in public office. Or Puerto Rico could simply prohibit Puerto Rican citizens from holding any other citizenship. It should be the prerogative of Puerto Rico—not the United States—to determine what is best for national cohesion.

III. A Proposal to Improve Future Status Reform Efforts

The Status Act died at the end of the 117th Congress.¹⁸⁶ While it was a welcome effort to provide certainty to the debate around decolonial alternatives to commonwealth status, it erred in seeking to replace the existing model for derivative citizenship with novel, place-based restrictions only for Puerto Rico. This Part shows that the INA provides a better framework for Puerto Ricans’ citizenship claims.

A. Reasons to Retain U.S. Citizenship

As U.S. citizens, Puerto Ricans enjoy an unhindered right to visit or migrate to the United States.¹⁸⁷ This unrestricted right to migrate would be critical if Puerto Rico were struck by another natural disaster or economic downturn. Once they establish residency in the United States, Puerto Ricans may vote in state and federal elections¹⁸⁸—Puerto Ricans already constitute an important voting bloc in several key states.¹⁸⁹ Furthermore, under current law, Puerto Ricans who retain U.S. citizenship following a change in status would be eligible to enroll in U.S. entitlement programs like Medicare and the Supplemental Nutrition Assistance Program (SNAP) when they establish residency in the mainland United States.¹⁹⁰ And Puerto Ricans who retain U.S. citizenship could continue to enlist in the U.S. military;¹⁹¹ Puerto Ricans have historically enlisted at rates roughly twice the U.S. average, and it is likely that they would continue to do so unless the Puerto Rican government restricted enlisting.¹⁹²

U.S. citizenship may also strengthen Puerto Rico’s bargaining power. While citizenship currently does not entitle Puerto Ricans to autonomy or full participation in all government entitlement programs,¹⁹³ Puerto Ricans and U.S. officials do use citizenship as a discursive tool.¹⁹⁴ Even if this tool has not convinced U.S. lawmakers to decolonize Puerto Rico, citizenship resonates with a popular understanding of the basic democratic social contract: a citizen is entitled to protection from the government and is linked by this status with all other Americans. This discursive tool may continue to be valuable as a decolonized Puerto Rico orders its relations with the United States. Puerto Rican leaders would be able to invoke their shared U.S. citizenship in negotiating for development assistance, defense, or other matters critical to the U.S.-Puerto Rico relationship. There is little reason to deprive Puerto Rico of this tool.

B. Alternative Mechanisms for Regulating Derivative Citizenship

My proposal does not advocate continuing to treat birth in Puerto Rico as a basis for U.S. citizenship after a change in status. Instead, this Note argues that the Status Act erred in proposing place-based restrictions on derivative citizenship for Puerto Ricans. The existing derivative citizenship framework would do a better job of providing stable and widespread access to U.S. citizenship for the first generation of children born after a change in status in Puerto Rico, with access gradually curtailing thereafter.

Under my proposal, derivative citizenship claims for Puerto Ricans would be subject to the same requirements the INA imposes for every U.S. citizen who seeks to pass on their citizenship to a child born outside of the United States.¹⁹⁵ The vast majority of children born in Puerto Rico in the years after a change in status would be U.S. citizens so long as one of their parents had established residency in the United States or one of its territories prior to their birth.¹⁹⁶ If only one parent is a U.S. citizen, their child would still receive U.S. citizenship so long as the U.S. citizen parent had been a U.S. resident for at least five years, including for at least two years after turning fourteen.¹⁹⁷ The Status Act’s provisions for free association during the first Articles of Free Association would produce the same result.¹⁹⁸ But my proposed reform would be more generous than the Status Act’s provisions for independence; whereas the Status Act provided that no child whose U.S. citizen parent was born in Puerto Rico before a change in status would derive U.S. citizenship, the INA allows U.S. citizens to pass on their citizenship to their children born anywhere in the world.¹⁹⁹

A major change, however, would be felt by Puerto Rican parents born after a change in status. Here, the existing INA offers more certainty than does the Status Act. Recall that the Status Act prohibits derivative citizenship in the case of independence.²⁰⁰ And while the Status Act allows that—in free association—derivative citizenship will be preserved during the first Articles of Free Association, it does not specify the duration of the first Articles or guarantee that this benefit would be renewed in any successor agreement.²⁰¹ In contrast, the INA provides that derivative claims would depend solely on whether Puerto Rican parents born after a change in status ever established residence in the United States.²⁰² If neither parent had established residence in the United States, then their child would not be a U.S. citizen. But if at least one parent had been a resident in the United States, then their child would be able to receive U.S. citizenship. The upshot is that Puerto Ricans’ U.S. citizenship would be subject to a “use it or lose it” approach. Puerto Ricans who studied, worked, or lived in the United States would be able to pass on their U.S. citizenship. Those who had never been U.S. residents, though, would not be able to. This gradual mechanism would allow Puerto Ricans to continue “using” their citizenship in the event of a crisis on the island but would also avoid the prospect of an independent or freely associated Puerto Rico being perpetually inhabited by U.S. citizens.

This modification would make it far easier for Puerto Ricans to assess the decolonial status alternatives that advance their interests in the short and long terms. A key premise of the Status Act is that the territorial status quo has been preserved in part through confusion about the consequences of decolonial alternatives.²⁰³ While status reform is inescapably complicated given the length and scope of the American-Puerto Rican colonial relationship,²⁰⁴ the Status Act’s drafters erred by adding unnecessarily dense and unprecedented derivative citizenship provisions to the mix. The Act’s current provisions are especially complex for the free association alternative because the Act envisions one set of requirements during the first Articles of Free Association but is noncommittal about citizenship in subsequent agreements.²⁰⁵ Although the Status Act envisions a nonpartisan voter education campaign prior to a status referendum,²⁰⁶ such a campaign will undoubtedly be less successful if the Status Act’s citizenship provisions remain difficult to parse or deliberately vague.

My approach recognizes that if Puerto Rico becomes independent or enters free association, the Puerto Rican government—not the U.S. government—will be the best authority for determining whether Puerto Rican sovereignty is imperiled by dual citizenship. There is immense uncertainty in creating a binding solution now for the more than three million people living today, along with the generations of children born after a change in status, on an island that has been subject to colonial status for more than half a millennium. My proposal gives Puerto Ricans a longer window to enjoy the benefits of U.S. citizenship and ensures that the Puerto Rican government can manage any unforeseen problems.

Finally, this approach is consistent with past efforts by the United States to bear a special responsibility for the development and wellbeing of its former territories. After extensive nuclear testing that seriously jeopardized the Marshall Islands and Micronesia, the United States has committed since 1983 to grant citizens of those countries preferential access to the U.S. mainland.²⁰⁷ Puerto Ricans deserve similar preferential treatment precisely because they have been U.S. citizens for more than a century: if they choose to leave the United States, they deserve to be able to benefit from U.S. citizenship for as long as they see fit to “use” it.

Conclusion

In a country filled with contradictions, the United States’ colonial domination of Puerto Rico remains an especially embarrassing reminder of the dearth of democracy in what is supposed to be the world’s oldest constitutional democracy. The 2022 Puerto Rico Status Act proposed a thoughtful formula for reforming Puerto Rico’s territorial status, and it offered a nearly comprehensive approach to managing citizenship under each of the potential reforms to Puerto Rico’s status. And while Puerto Rico is the largest U.S. colony whose entire population enjoys U.S. citizenship, it is not the only one: Guam, the U.S. Virgin Islands, and the Northern Mariana Islands are also territories populated by U.S. citizens.²⁰⁸ To the extent that these territories seek decolonization as well, the Status Act offers a compelling framework for ensuring that U.S. citizenship does not impede decolonization.

Nonetheless, the Status Act was based on a flawed assumption; rather than a threat to Puerto Rico’s interests, derivative citizenship would offer far more benefits than detriments if Puerto Rico becomes independent or enters free association. There is no need to create a bespoke arrangement to limit derivative citizenship for the children of Puerto Rican U.S. citizens. Instead, Congress should use the existing INA when it next attempts to reform Puerto Rico’s colonial status. This reform may even improve the Status Act’s likelihood of passage: Republicans and some Puerto Rican commentators criticized the Status Act as a partisan bill designed to guarantee Puerto Rican statehood.²⁰⁹ Although this Note does not agree that the Status Act was biased towards statehood, my reform presents an opportunity for the drafters to demonstrate that the Status Act is just as responsive to citizenship rights for independence and free association as in statehood.

Puerto Rico’s resident commissioner in Washington, in announcing the reintroduction of the Status Act, noted its framework was “not written in stone.”²¹⁰ Indeed. Let the derivative citizenship proposal be the first modification.

* J.D. Candidate, May 2024, University of Michigan Law School. This work would not have been possible without the support of my community. Sam Erman advised and mentored me in every stage of this project. Christina D. Ponsa-Kraus, Nina Mendelson, Rebecca Eisenberg, and the participants in the Michigan Law Student Scholarship Workshop provided incisive and timely feedback on multiple drafts. Rafael Cox Alomar generously shared his perspective on the politics of status reform. And the wonderful editors on MLR’s Notes Office elevated this Note with their revisions. I remain especially indebted to my friends Daniela Crespo-Miró and Javier Piñeiro, who enriched immeasurably my appreciation of Puerto Rican history. Thank you all. Any remaining errors are my own.