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

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.


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;1Paradox of Liberty: Slavery at Thomas Jefferson’s Monticello, Monticello, []. a constitutional democracy that frequently allies with autocrats abroad;2See, e.g., Steven A. Cook & Martin Indyk, Council on Foreign Rels., The Case for a New U.S.-Saudi Strategic Compact (2022), []. a nation dedicated to liberty that imprisons a higher proportion of its population than any other country in the world.3United States Profile, Prison Pol’y Initiative, []. 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 The Declaration of Independence para. 2 (U.S. 1776) (“Governments are instituted among Men, deriving their just powers from the consent of the governed . . . .”).—would eventually try its hand at imperialism by acquiring colonies in the Caribbean and the Pacific.5Others have noted the paradox of American colonialism. See, e.g., José Javier Colón Morera, Las paradojas políticas en el centenario de la ciudadanía de Estados Unidos en Puerto Rico [Political Paradoxes on the Centenary of U.S. Citizenship in Puerto Rico], Op. Cit., 2016–2017, at 157, 162.

Puerto Rico is officially known as a U.S. commonwealth,648 U.S.C. § 2104(5) (defining “Puerto Rico” as “the Commonwealth of Puerto Rico”). or in Spanish as an estado libre asociado (freely associated state).7See P.R. Const. art. 1 (establishing the “Estado Libre Asociado de Puerto Rico”). Puerto Ricans are U.S. citizens,88 U.S.C. § 1402 (“All persons born in Puerto Rico on or after January 13, 1941, and subject to the jurisdiction of the United States, are citizens of the United States at birth.”). which entitles them to migrate to the U.S. mainland without restrictions,9D’Vera Cohn, Eileen Patten & Mark Hugo Lopez, Puerto Rican Population Declines on Island, Grows on U.S. Mainland, Pew Rsch. Ctr. (Aug. 11, 2014), []. participate in certain government benefits,10E.g., Original Medicare (Part A and B) Eligibility and Enrollment, Ctrs. for Medicare & Medicaid Servs., []; SNAP State Directory of Resources, USDA Food & Nutrition Serv., []. enlist in the military,11See Eligibility & Requirements, U.S. Army, []. and receive federal government protection whenever they travel abroad.12See Andrea Sachs, U.S. Embassies, at Your Service Around the Globe, Wash. Post (Mar. 1, 2014, 12:24 PM), []. But in reality, Puerto Rico is also the oldest and largest U.S. colony.13 José Trías Monge, Puerto Rico: The Trials of The Oldest Colony in the World 4 (1997); Steven Wilson, William Koerber & Evan Brassell, 2020 Population of U.S. Island Areas Just Under 339,000, U.S. Census Bureau (Oct. 28, 2021), []. As this Note shows, the benefits of U.S. citizenship have not disrupted colonial governance.14See infra Section I.A (discussing Supreme Court cases upholding Congress’s plenary authority to legislate on behalf of Puerto Rico).

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.15See, e.g., Ileana Ros Lehtinen, Opinion, La ciudadanía americana sigue a su bandera [American Citizenship Follows the Flag], El Nuevo Día (Feb. 9, 2023), [] (describing former Republican Congresswoman and statehood supporter Ileana Ros Lehtinen’s assertion that an independent Puerto Rico’s sovereignty would be threatened if it tolerated U.S. citizenship). In 2022, the U.S. House sought to clarify and close this debate by passing the Puerto Rico Status Act.16Puerto Rico Status Act, H.R. 8393, 117th Cong. (2022). 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.17Id. § 5(a)(2). Sovereignty in free association, distinct from the estado libre asociado (freely associated state or commonwealth), is a truly decolonial “middle ground” whereby the former colony becomes independent but negotiates a treaty with the former colonial power regarding trade, defense, migration, and economic assistance; the United States has a similar relationship with the Marshall Islands and Micronesia. The Status Act envisions that if Puerto Ricans vote for sovereignty in free association, Puerto Rico and the United States would determine the future of their bilateral relationship via treaty, which the Act calls the first Articles of Free Association. Id. § 210(d). The implications of this status are discussed further infra in Section I.C. It also committed Congress to enacting18Only Congress can modify Puerto Rico’s territorial status. See infra Section I.A. The Status Act responds to this by providing advance authorization for implementing whichever decolonial alternative wins the status plebiscite. H.R. 8393 §§ 107(a) (for independence), 205 (sovereignty in free association), 301 (statehood). 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.19H.R. 8393 § 5(a)(1)–(4). 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.20Id. §§ 5, 110, 208. 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.21Id. § 5. 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.22Id. §§ 5(b)(3)(D), 110(c), 208(c). Unfortunately, the Senate never debated the Status Act, and the bill died before ratification.23Nicole Acevedo, Bill to Resolve Puerto Rico’s Territorial Status Reintroduced in the House, NBC News (Apr. 20, 2023, 1:32 PM), []. The Puerto Rico Status Act passed the House with 217 Democratic and 16 Republican votes. 168 Cong. Rec. 195 (2022) (concerning Roll Call No. 529, the House’s roll call vote on H.R. 8393). Nonetheless, it represents a novel framework that will continue to influence future efforts to decolonize Puerto Rico.24See Press Release, Congressman Steny Hoyer, Hoyer, Grijalva, González-Colón, Velázquez, Soto, Ocasio-Cortez, Torres Introduce Puerto Rico Status Act (Apr. 20, 2023), [] (noting that leading House Democrats reintroduced an identical version of the Status Act at the beginning of the legislative session in 2023).

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)25Immigration and Nationality Act (INA) of 1952, ch. 477, 66 Stat. 163, 236 (codified at 8 U.S.C. § 1401). 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 1898.26Treaty of Peace Between the United States and Spain, Spain-U.S., art. II, Dec. 10, 1898, 30 Stat. 1754. 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,27See, e.g., Treaty Between the United States of America and the French Republic, Fr.-U.S., art. III, Apr. 30, 1803, 8 Stat. 200 [hereinafter Louisiana Purchase Treaty] (“The inhabitants of the ceded territory shall be incorporated in the Union of the United States . . . .”); Treaty of Amity, Settlement, and Limits, Between the United States of America and His Catholic Majesty, Spain-U.S., art. 6, Feb. 22, 1819, 8 Stat. 252 (regarding Spain’s cession of Florida) (“The inhabitants of the territories which his Catholic Majesty cedes to the United States, by this treaty, shall be incorporated in the Union of the United States, as soon as may be consistent with the principles of the Federal Constitution . . . .”); Treaty of Peace, Friendship, Limits, and Settlement with the Republic of Mexico, Mex.-U.S., art. IX, Feb. 2, 1848, 9 Stat. 922 (regarding Mexico’s cession of the New Mexico territory consisting of California, Nevada, Utah, New Mexico, most of Arizona and Colorado, and parts of Oklahoma, Kansas, and Wyoming) (“Mexicans who, in the territories aforesaid, shall not preserve the character of citizens of the Mexican Republic, conformably with what is stipulated in the preceding article, shall be incorporated into the Union of the United States . . . .”). it made no such promise to Puerto Rico.28Christina Duffy Burnett [Ponsa-Kraus], Untied States: American Expansion and Territorial Deannexation, 72 U. Chi. L. Rev. 797, 798–99 (2005). 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.29See Sam Erman, Almost Citizens: Puerto Rico, the U.S. Constitution, and Empire 28–29 (2019); see also José A. Cabranes, Some Common Ground, in Foreign in a Domestic Sense: Puerto Rico, American Expansion, and the Constitution 39, 43 (Christina Duffy Burnett [Ponsa-Kraus] & Burke Marshall eds., 2001). 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?30Cabranes, supra note 29, at 42. 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.31See Erman, supra note 29, at 29. 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.32The Supreme Court had declared in United States v. Wong Kim Ark, 169 U.S. 649, 693 (1898), that the Citizenship Clause of the Fourteenth Amendment guaranteed U.S. citizenship for anyone born in the United States. Opponents of American imperial expansion also pointed to portions of Chief Justice Taney’s opinion in Dred Scott that both held that Congress could not govern territories without regard for fundamental rights and suggested that Congress could only govern territories temporarily while awaiting their admission as states. Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 446 (1857) (enslaved party), superseded in part by constitutional amendment, U.S. Const. amend. XIV; see also Erman, supra note 29, at 29.

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.33As several other scholars have noted, American imperialism was first directed towards subjugating American Indians living in the continental United States. See, e.g., Adam Burns, American Imperialism: The Territorial Expansion of the United States 1 (2017); Paul Frymer, Building an American Empire: The Era of Territorial and Political Expansion 155–67 (2017). 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 U.S. Const. art. I, § 8, cl. 1 (providing that “all Duties, Imposts and Excises shall be uniform throughout the United States.”). because Puerto Rico was an unincorporated territory that belonged to the United States and was “appurtenant thereto as a possession.”35Downes v. Bidwell, 182 U.S. 244, 342 (1901) (White, J., concurring). Scholars—and recently one Supreme Court justice—have criticized the Court’s distinction between “incorporated” and “unincorporated” territories, arguing that it had little basis in the text of the Constitution and was instead designed to facilitate overseas empire. See United States v. Vaello Madero, 142 S. Ct. 1539, 1554 (2022) (Gorsuch, J., concurring) (“The flaws in the Insular Cases are as fundamental as they are shameful. Nothing in the Constitution speaks of ‘incorporated’ and ‘unincorporated’ Territories.”); José A. Cabranes, Citizenship and the American Empire: Notes on the Legislative History of the United States Citizenship of Puerto Ricans, 127 U. Pa. L. Rev. 391, 440 (1978) (“The doctrine of territorial incorporation developed by the Court in the Insular Cases and the cases following was based on precisely the same considerations that determined the nature of the 1900 legislation for Puerto Rico: an apprehension that the peoples of the new insular territories were aliens and a belief that the United States ought not to try to deal with them as though they were Americans.” (footnote omitted)); Burnett [Ponsa-Kraus], supra note 28, at 802 (arguing that characterizing a territory as “unincorporated” also advanced empire by “[p]reserving the option of deannexation” from the United States). 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.”36Dorr v. United States, 195 U.S. 138, 146 (1904) (quoting Late Corp. of the Church of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1, 44 (1890)). 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.37Gonzales v. Williams, 192 U.S. 1, 12 (1904).

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 Jorge Duany, Puerto Rico: What Everyone Needs to Know 47–48 (2017). In 1917, Congress passed the Organic Act of Puerto Rico, better known as the Jones Act,39Jones Act, Pub. L. No. 64-368, 39 Stat. 951 (1917). 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.40Id. §§ 12, 25. 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.41Id. § 34. Congress also provided itself with unrestricted power to annul any Puerto Rican legislation for any reason.42Id.

While it restricted Puerto Rican sovereignty, the Jones Act also included a bill of rights and extended U.S. citizenship to all Puerto Ricans.43Id. §§ 2, 5. 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.44Cabranes, supra note 35, at 396–98, 472–73; see also Maye Lan Henning, The Empty Gift: Citizenship, Imperialism, and Political Development in Puerto Rico, Stud. Am. Pol. Dev., Aug. 15, 2022, at 1, 5, 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.45Balzac v. Porto Rico, 258 U.S. 298, 312–13 (1922). 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.46Id. at 305; see also U.S. Const. art. IV, § 3, cl. 2 (“The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.”). In situating Congress’s power to rule colonies within the Territorial Clause, the Balzac Court definitively rejected one of Chief Justice Taney’s arguments in Dred Scott, which was that the Territorial Clause did not grant Congress the power to “establish or maintain colonies . . . to be ruled and governed at its own pleasure.” Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 446 (1857) (enslaved party), superseded in part by constitutional amendment, U.S. Const. amend. XIV.

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.47See Developments in the Law: The U.S. Territories, 130 Harv. L. Rev. 1616, 1661–62, 1673 (2017). The global decolonization movement, inspired by the U.N. Charter’s insistence on promoting the “self-determination of peoples,”48U.N. Charter art. 1, ¶ 2 (establishing that one of the purposes of the United Nations is to “develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples . . . .”). brought pressure on the United States and European powers to liberate their colonies.49See Developments in the Law: The U.S. Territories, supra note 47, at 1662; see also Thomas M. Franck, The Emerging Right to Democratic Governance, 86 Am. J. Int’l L. 46, 54 (1992). In 1947, Congress granted Puerto Ricans the power to directly elect the governor.50Act of Aug. 5, 1947, Pub. L. No. 80-362, 61 Stat. 770 (1947). 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.51Act of July 3, 1950, Pub. L. No. 81-600, 64 Stat. 319, 319 (1950) (codified at 48 U.S.C. § 731(b)). Compact Theory, as it has since become known,52See, e.g., Juan R. Torruella, One Hundred Years of Solitude: Puerto Rico’s American Century, in Foreign in a Domestic Sense, supra note 29, at 241, 244; Sam Erman, Status Manipulation and Spectral Sovereigns, 53 Colum. Hum. Rts. L. Rev. 813, 856 (2022). sought to transform Puerto Rico from a colony into a self-governing commonwealth via a multistage process.53See 48 U.S.C. § 731(b)–(e). First, in 1951, a commanding majority of Puerto Ricans voted in favor of entering a compact with the United States.54See Act of July 3, 1952, Pub. L. No. 82-447, 66 Stat. 327. Second, Puerto Rican delegates drafted a constitution, which Puerto Rican voters ratified in 1952.55 P.R. Const. And third, after mandating some edits, Congress ratified Puerto Rico’s constitution and declared the island a commonwealth.5666 Stat. 327. 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 1953.57Developments in the Law: The U.S. Territories, supra note 47, at 1664–65. Besides Puerto Rico, the United States has four other territories: Guam, the Northern Mariana Islands, the U.S. Virgin Islands, and American Samoa. All of the territories with the exception of American Samoa are guaranteed U.S. citizenship at birth by statute, while American Samoans are U.S. nationals who may travel to the U.S. mainland as nonimmigrants. Irina Manta & Cassandra Burke Robinson, Constitutional Citizenship in the U.S. Territories, Lawfare (July 27, 2022, 8:01 AM), []. Puerto Rico is distinguished by its population size (at more than three million, it is nearly twenty times the size of the next-largest territory, Guam) and by the fact that it was the only territory that the United States managed to convince the United Nations was truly self-governing—all other U.S. territories remain on the U.N.’s list of non-self-governing territories. Developments in the Law: The U.S. Territories, supra note 47, at 1674. Compare Puerto Rico Population Declined 11.8% from 2010 to 2020, U.S. Census Bureau (Aug. 25, 2021), [] (population estimate for Puerto Rico), with Wilson et al., supra note 13 (population estimates for other U.S. territories).

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.58Reid v. Covert, 354 U.S. 1, 14 (1957) (plurality opinion) (“[I]t is our judgment that neither the [Insular Cases] nor their reasoning should be given any further expansion.”); cf. Adriel I. Cepeda Derieux & Rafael Cox Alomar, Saying What Everyone Knows to Be True: Why Stare Decisis Is Not an Obstacle to Overruling the Insular Cases, 53 Colum. Hum. Rts. L. Rev. 721, 769 (2022) (arguing that there is still value in overturning the Insular Cases, even if they are a “doctrine of surplusage”). 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.59See United States v. Vaello Madero, 142 S. Ct. 1539, 1555 (2022) (Gorsuch, J., concurring). 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.60Rodriguez v. Popular Democratic Party, 457 U.S. 1, 7–8 (1982). The Court has also held that the Fourth Amendment61Torres v. Puerto Rico, 442 U.S. 465, 471 (1979). and the Equal Protection and Due Process Clauses62Examining Bd. of Eng’rs v. Flores de Otero, 426 U.S. 572, 600 (1976). apply in Puerto Rico.63See also Sarah H. Cleveland, Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth Century Origins of Plenary Power over Foreign Affairs, 81 Tex. L. Rev. 1, 241–43 (2002) (collecting cases). 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.64Pub. L. No. 600, 64 Stat. 319 (1950) (codified at 48 U.S.C. § 731(b)) (repealing Pub. L. No. 368, 38 Stat. 951 (1917), which had allowed Congress and the president to veto Puerto Rican legislation). Puerto Ricans may enact any law so long as that legislation is not preempted by federal statutes or the U.S. Constitution.65See P.R. Const. art. III; see also Duany, supra note 38, at 74. 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.66Déborah Berman Santana, Puerto Rico’s Operation Bootstrap: Colonial Roots of a Persistent Model for “Third World” Development, 124 Revista Geográfica 87, 89 (1998); Original Medicare (Part A and B) Eligibility and Enrollment, supra note 10; United States v. Vaello Madero, 142 S. Ct. 1539, 1542–43 (2022) (upholding Congress’s decision to allow Puerto Ricans to participate in Social Security but not Supplemental Security Income). Further, under commonwealth status, Puerto Ricans are not subject to United States income taxes unless they are employees of the federal government.6726 U.S.C. § 933.

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.68See, e.g., 48 U.S.C. § 891. 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.69See 48 U.S.C. § 731(b). But see Developments in the Law: The U.S. Territories, supra note 47, at 1663 (quoting testimony by various Puerto Rican leaders that the Compact did not displace Congress’s plenary authority to legislate on behalf of the territories). But in the past thirty years, Congress has abandoned this commitment and exercised its prerogative to govern Puerto Rico without such consent.70See, e.g., PROMESA, 48 U.S.C. § 2121 (discussed further infra at notes 82–85). 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.”71Torruella, supra note 52, at 242 (emphasis omitted). “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 Rico72Small Business Job Protection Act of 1996, Pub. L. No. 104-188, § 1601(a), 110 Stat. 1755, 1827 (1996) (providing that tax credits for U.S. corporations operating in Puerto Rico would expire on January 1, 2006).—a benefit that had previously been instrumental in developing a manufacturing base on the island.73Samuel Issacharoff, Alexandra Bursak, Russell Rennie & Alec Webley, What Is Puerto Rico?, 94 Ind. L.J. 1, 27 (2019); Amelia Cheatham & Diana Roy, Puerto Rico: A U.S. Territory in Crisis, Council on Foreign Rels., [] (last updated Sept. 29, 2022, 11:40 AM). In 2006, the first full year without the favorable tax benefits, Puerto Rico entered a period of economic turmoil that endures to this day.74See Cheatham & Roy, supra note 73; see also Rashid Marcano-Rivera, Puerto Rico Can’t Pay Its Debt, and the United States Is Partly to Blame, Wash. Post (July 15, 2015, 11:30 AM), []. 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 Duany, supra note 38, at 101–02; Michael Corkery & Mary Williams Walsh, Puerto Rico’s Governor Says Debts Are ‘Not Payable, N.Y. Times (June 29, 2015), []; see also Ed Morales, Fantasy Island: Colonialism, Exploitation, and the Betrayal of Puerto Rico 78–94 (2019). 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.76Michael A. Fletcher, Debt-Plagued Puerto Rico Defaults on a Bond Payment for the First Time, Wash. Post (Aug. 3, 2015, 6:06 PM), []. 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.77See Morales, supra note 75, at 105. 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.78See Issacharoff et al., supra note 73, at 28; Morales, supra note 75, at 86–87.

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.79Puerto Rico Corporation Debt Enforcement and Recovery Act of 2014, Act No. 71, 2014 P.R. Laws 371. 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.80Puerto Rico v. Franklin Cal. Tax-Free Tr., 579 U.S. 115, 130 (2016). 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.81Id. at 117–22.

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.82PROMESA, Pub. L. No. 114-187, 130 Stat. 549, 553–55 (2016) (codified at 48 U.S.C. § 2101). 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.83Id. at 563–67, 603–09. The Supreme Court upheld PROMESA in Financial Oversight & Management Board v. Aurelius Investment, LLC, 140 S. Ct. 1649, 1665 (2020). 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.84Lorae Stojanovic & David Wessel, Puerto Rico’s Bankruptcy: Where Do Things Stand Today?, Brookings Inst. (Aug. 17, 2022), []. 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.85Christian G. Ramos Segarra, La Junta Fiscal ordena recorte de milliones y aumentos a la matrícula de la UPR [The Financial Oversight and Management Board Orders a Cut of Million and Increases in UPR Tuition], El Vocero (May 28, 2021), [].

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 2017.86Hurricanes Irma and Maria: Impact and Aftermath, Rand Corp., []. After the hurricanes, nearly the entire island lost power, running water, sewage, or cell service.87Id. Nearly 3,000 people died.88Id. Embarrassingly, Puerto Rico received comparatively less in disaster assistance than Florida and Texas received in 2017 after less severe hurricanes.89Charley E. Willison, Phillip M. Singer, Melissa S. Creary & Scott L. Greer, Quantifying Inequities in US Federal Response to Hurricane Disaster in Texas and Florida Compared with Puerto Rico, BMJ Global Health, Jan. 2019, at 1, []. Then, when the island was struck by earthquakes in early 2020, the fragile power grid collapsed again.90Patricia Mazzei, Ivan Penn & Frances Robles, With Earthquakes and Storms, Puerto Rico’s Power Grid Can’t Catch a Break, N.Y. Times (Jan. 11, 2020), []. The federally managed response to these natural disasters was frustratingly slow.91Id. 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 2022.92Paul McLeod, Puerto Rico’s Recovery from Maria Was Years Behind Schedule. Then Fiona Hit., Vanity Fair (Sept. 27, 2022), []. 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.93Jason Schachter & Antonio Bruce, Estimating Puerto Rico’s Population After Hurricane Maria, U.S. Census Bureau (Aug. 19, 2020), [].

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 Morales, supra note 75, at 168–96. 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 R. Sam Garrett, Cong. Rsch. Serv., R44721, Political Status of Puerto Rico: Brief Background and Recent Developments for Congress 5 (2022). 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.96See Morales, supra note 75, at 171–72; Erman, supra note 52, at 856. The PPD was founded by Luis Muñoz Marín,97 Duany, supra note 38, at 62. who led it to electoral success through the 1970s, when commonwealth status seemed a resounding success for Puerto Rico.98See Erman, supra note 52, at 856. 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 Duany, supra note 38, at 85–86. 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.100Issacharoff et al., supra note 73, at 13–14; Pedro Caban, Redefining Puerto Rico’s Political Status, Latin Am., Caribbean, & U.S. Latino Stud. Fac. Scholarship, 1992, at 23–25.

The first alternative to commonwealth status is statehood, championed by the Partido Nuevo Progresista (New Progressive Party, or PNP).101See Morales, supra note 75, at 173. 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.102See Plebiscite: Island Wide Results, Comisión Estatal de Elecciones de Puerto Rico, [] (last updated Mar. 12, 2021, 10:58 AM) (showing that statehood won in Puerto Rico’s most recent status referendum); see also Morales, supra note 75, at 183–86 (describing the appeal of statehood for Puerto Ricans). Statehood-supporting governors from the PNP have led Puerto Rico since 2017.103See Governor: Island Wide Results, Comisión Estatal de Elecciones de Puerto Rico, [] (last updated Nov. 7, 2020, 8:17 PM); Governor: Island Wide Results, Comisión Estatal de Elecciones de Puerto Rico, [] (last updated Nov. 11, 2016, 1:02 AM). 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.104Biography, U.S. Congresswoman Jenniffer González-Colón, []. 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.105Resident Commissioner: Island Wide Results, Comision Estatal de Elecciones de Puerto Rico, [] (last updated Mar. 12, 2021) (reporting that Luis Roberto Piñero, the candidate for resident commissioner from the pro-independence Partido Independentista Puertorriqueño, earned 6.3 percent of the island-wide vote in 2020). 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.106See Erman, supra note 52, at 860–61 (arguing that the Republican Party’s tolerance of anti-Puerto Rican racism suggests the party would oppose statehood). But see Olivia Reingold, Is Puerto Rico the Next Senate Battleground?, Politico Mag. (Sept. 9, 2020, 11:55 AM), [] (expressing doubt as to whether Puerto Ricans would vote for Democrats in federal elections because, while Democrats have championed status reform in recent years, Puerto Rican partisan politics are complex).

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 Duany, supra note 38, at 78–79. 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.108See id. at 76–79. But see Morales, supra note 75, at 175 (arguing that independence is more popular than the PIP’s modest electoral support would indicate).

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 1953,109See Cristina Corujo, Puerto Rico Votes in Favor of Statehood. But What Does It Mean for the Island?, ABC News (Nov. 8, 2020, 11:21 AM), []. yet the results have failed to produce a political consensus.110See Garrett, supra note 95. This is partly because each referendum was nonbinding111Cristina Corujo, What to Know About Puerto Rico’s Divide over Its Territorial Status, ABC News (Apr. 27, 2021, 12:32 PM), []. and organized by a Puerto Rican political party interested in presenting simplistic binaries to voters.112See Erman, supra note 52, at 864 (reviewing inconclusive results from referenda in 2020, 2017, 2012, and 1993); Frances Robles, 23% of Puerto Ricans Vote in Referendum, 97% of Them for Statehood, N.Y. Times (June 11, 2017), []. 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.113See Garrett, supra note 110, at ii (“Although Congress may authorize a popular vote on status, Puerto Rico may hold, and has held, such votes without congressional preapproval.”). 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.114See Christina D. Ponsa-Kraus, The Battle over Puerto Rico’s Future, Balkinization Blog (Apr. 21, 2021, 9:30 AM), []; see also Erman, supra note 52, at 858–59. 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.115See Ponsa-Kraus, supra note 114 (noting that opponents of statehood have sometimes made illusory promises regarding congressionally accepted alternatives to the current compact).

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.116Plebiscite: Island Wide Results, Comisión Estatal de Elecciones de Puerto Rico, [] (last updated Mar. 12, 2021, 10:58 AM). 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.117See Joel I. Colón-Ríos, Of Colonies and Empires, IACL-AIDC Blog (June 1, 2021), [].

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.118José Julián Álvarez-González et al., Letter of Constitutional Law in Puerto Rico (Apr. 9, 2021), []. 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.119Id. 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.120Compact of Free Association, Micr.-U.S., May 14, 2003, T.I.A.S. No. 04-625; Compact of Free Association, Marsh. Is.-U.S., Apr. 30, 2003, T.I.A.S. No. 04-501 [hereinafter Compacts of Free Association with Micronesia and the Marshall Islands].

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.121Katherine Schaeffer, Single-Party Control in Washington Is Common at the Beginning of a New Presidency, but Tends Not to Last Long, Pew Rsch. Ctr. fig.1 (Feb. 3, 2021), []. 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 Democratic Party, 2020 Democratic Party Platform 55, 59 (2020), []. After lengthy negotiations, the House of Representatives passed the Puerto Rico Status Act of 2022.123The Puerto Rico Status Act passed the House with 217 Democratic and 16 Republican votes. All 191 votes against the Act came from Republicans. Roll Call 529 | Bill Number: H.R. 8393, Clerk of the U.S. House of Representatives (Dec. 15, 2022, 1:12 PM), []. The Status Act represented a compromise between supporters of Puerto Rican statehood and Democrats who have advocated for either commonwealth status or independence.124See Memorandum from Rafael Cox Alomar, David A. Clarke Sch. of L., & Christina D. Ponsa-Kraus, George Welwood Murray Professor of Legal Hist., Columbia L. Sch., to Raúl Grijalva, Chairman, House Comm. on Nat. Res., Proposed Compromise Status Legislation for Puerto Rico and Companion Memorandum with Background & Commentary (Oct. 1, 2021), [].

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.125Puerto Rico Status Act, H.R. 8393, 117th Cong. § 5(a) (2022). 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.126Id. § 3. Unlike past referenda, this election would have been binding; the Act provided advance authorization to enact whichever result secured majority support.127Id. §§ 107(a) (for independence), 205(a) (sovereignty in free association), 301 (statehood). 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.128Cf. Erman, supra note 52, at 817 (arguing that uncertainty around competing approaches to decolonization is a hallmark of American imperialism). 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 2022.129The sole amendment accepted after the House Natural Resources Committee approved the text of the bill in July 2022 loosened the criteria under which—if voters opt for free association—Puerto Ricans would pass on their U.S. citizenship during the term of the first Articles of Free Association. Compare H.R. 8393 § 208(c)(2) (as reported by H. Comm. on Nat. Res., Dec. 14, 2022) (“[A]n individual born in Puerto Rico to two parents who are citizens of the United States shall be a United States citizen at birth . . . .” (emphasis added)), with H.R. 8393 § 208(c)(2) (as passed by H., Dec. 15, 2022) (“[A]n individual born in Puerto Rico to at least one parent who is a citizen of the United States shall be a United States citizen at birth . . . .” (emphasis added)).

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.130Roll Call 529 | Bill Number: H.R. 8393, Clerk of the U.S. House of Representatives (Dec. 15, 2022, 1:12 PM), []; Statement of Administration Policy, Off. of Mgmt. & Budget, H.R. 8393–Puerto Rico Status Act (Dec. 15, 2022) (urging House passage of the Puerto Rico Status Act). 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.131Puerto Rico Status Act, H.R. 2757, 118th. Cong. (2023); Press Release, Congressman Steny Hoyer, supra note 24.. 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,132See supra Section I.C. 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.133See generally Satvinder S. Juss, The Slow Death of Citizenship Rights, 18 King’s L.J. 95 (2007) (describing practices depriving individuals of British citizenship rights); Muriel Cohen, Post-Colonial Algerian Immigration: Putting Down Roots in the Face of Exclusion, 258 Le Mouvement Social, no. 1, 2017, at 29 (analyzing treatment of Algerian migrants in France as a result of colonial history). 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.134Philippine Independence Act, Pub. L. No. 73-127, § 8(a), 48 Stat. 456, 462 (1934). 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.135Dan Diamond, ‘They Did Not Realize We Are Human Beings, Politico Mag. (Jan. 26, 2020, 6:50 AM), []. 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.136Id. Citizens of both countries are not U.S. citizens but may visit or work in the United States as nonimmigrants.137Compact of Free Association Amendments Act of 2003, Pub. L. 108-188, 117 Stat. 2720.

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.138About Cook Islands, N.Z. Ministry of Foreign Affs. & Trade, []. 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.139Pete McKenzie, U.S. Recognition of Tiny Pacific Country Reshapes Its New Zealand Ties, N.Y. Times (Dec. 7, 2022), []. 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.140Afroyim v. Rusk, 387 U.S. 253, 257 (1967) (“First we reject the idea . . . that, aside from the Fourteenth Amendment, Congress has any general power, express or implied, to take away an American citizen’s citizenship without his assent.”). One narrow case where citizenship can be revoked is if a naturalized citizen made material misrepresentations in their naturalization application. 8 U.S.C. §§ 1425, 1451(e). See generally Maslenjak v. United States, 137 S. Ct. 1918, 1923 (2017) (“[W]hen someone is convicted under § 1425(a) of unlawfully procuring her own naturalization, her citizenship is automatically revoked.” (emphasis omitted)). 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,141Brief of Citizenship Scholars as Amici Curiae in Support of Plaintiffs-Appellees and Affirmance at 26–31, Fitisemanu v. United States, 1 F.4th 862 (10th Cir. 2021) (Nos. 20-4017, 20-4019) (arguing that the Constitution should be interpreted to incorporate the common law tradition that—absent affirmative steps by an individual—a change in sovereignty over territory also leads to a change in citizenship, as when former British subjects became United States citizens at the time of the founding). 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.142Puerto Rico Status Act, H.R. 8393, 117th Cong. § 5(b)(2)(C), 5(b)(3)(C) (2022). 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.143Id. §§ 110(d)(1)(A), 208(d). 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.”144Id. § 110(d)(1)(A), 110(d)(3).

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.1458 U.S.C. § 1401(c). 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.146Id. § 1401(g). 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.147Id. § 1409(a). 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.148Id. § 1409(c), as modified by Sessions v. Morales-Santana, 582 U.S. 47, 73–76 (2017) (holding that Section 1409(c)’s reduced one-year residency requirement for U.S. citizen mothers violated equal protection and imposing Section 1401(c)’s five-year residency requirement for all children born to a U.S. citizen and an alien).

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.149Id. § 1401(g). 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.150Nor would Section 1409’s out-of-wedlock provisions block Puerto Ricans born after a change in status from deriving U.S. citizenship from one or both of their parents. If a Puerto Rican couple has a child out of wedlock after a change in status, that child would still derive U.S. citizenship from their mother so long as the mother has been a resident in Puerto Rico or the United States for five years, meaning the child would not be required to satisfy the paternal recognition and support tests mandated by Section 1409(a). See id. §§ 1401(g), 1409(c). Section 1409’s restrictions would only bar a child from deriving U.S. citizenship from their parent in the narrow case where a Puerto Rican fathers a child out of wedlock with a noncitizen mother and is unwilling or unable to recognize paternity or provide financial support to his child. Id. §§ 1401(g), 1409(a). 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.151Puerto Rico Status Act, H.R. 8393, 117th Cong. § 110(c) (2022). 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.152See id. §§ 208, 210. During the first Articles, the child of a Puerto Rican-born U.S. citizen would be a U.S. citizen.153Id. § 208(c). But derivative citizenship claims for births after the first Articles expire would be addressed in the negotiations for future Articles of Free Association.154Id. § 210(d). 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



(Status Quo)


Sovereignty in Free Association


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)

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)


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 1790.155See Act of Mar. 26, 1790, ch. 3, § 1, 1 Stat. 103, 104 (repealed 1795) (providing that “the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States . . . .”). 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.156See, e.g., Michael G. McFarland, Note, Derivative Citizenship: Its History, Constitutional Foundation, and Constitutional Limitations, 63 N.Y.U. Ann. Surv. Am. L. 467, 481 (2007). 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.157Kristin A. Collins, Illegitimate Borders: Jus Sanguinis Citizenship and the Legal Construction of Family, Race, and Nation, 123 Yale L.J. 2134, 2203 (2014). 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.158Id. at 2137. In recent years, the Supreme Court has been attentive to this critique and has invalidated one particular gender-based restriction on derivative citizenship.159Sessions v. Morales-Santana, 582 U.S. 47, 72 (2017). The challenged provision of the Nationality Act provided only that an unwed U.S. citizen mother have been a resident for one year in the United States to pass on U.S. citizenship to her children born abroad; an unwed U.S. citizen father, in contrast, needed to have been a resident for five years to pass on his citizenship. Id. at 51. Justice Ginsburg, writing for a six-justice majority, concluded that this sex-based classification did not withstand heightened scrutiny. Id. at 72.

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 protection160See, e.g., Charles R. Venator Santiago, Opinion, La propuesta de ciudadanía de segunda clase: la opción soberanista [Sovereignty in Free Association: A Second-Class Proposal], El Nuevo Día (June 9, 2022), [] (suggesting that the absence of a long-term guarantee of U.S. citizenship under sovereignty reflects a conscious decision by the drafters to favor statehood); Manuel Rivera, Opinion, El reto constitucional del Puerto Rico Status Act [The Constitutional Challenge of the Puerto Rico Status Act], El Nuevo Día (July 18, 2022), [] (arguing that the Status Act’s citizenship provisions would be subjected to strict scrutiny). by restricting derivative citizenship on the basis of nationality.161Rivera, supra note 160. 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.162See City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493–94 (1989) (“The highly suspect nature of classifications based on race, nationality, or alienage is well established.” (quoting San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 105 (1973) (Marshall, J., dissenting))).

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.163United States v. Vaello Madero, 142 S. Ct. 1539, 1541 (2022); see also Puerto Rico v. Sanchez Valle, 136 S. Ct. 1863, 1876 (2016) (“We agree that Congress has broad latitude to develop innovative approaches to territorial governance . . . .”). 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.164See Vaello Madero, 142 S. Ct. at 1543. 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.165Id. Justice Sotomayor was the sole dissenter, arguing there could be no rational basis for excluding U.S. citizens in Puerto Rico from an important government benefit. Id. at 1557–62 (Sotomayor, J., dissenting).And 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.166See Nguyen v. INS, 533 U.S. 53, 56–59, 68 (2001); San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 29 (1973).

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 restrictions167See infra Section III.A.; 48 U.S.C. § 737; 8 U.S.C. § 1324b(a)(1)–(3) (prohibiting discrimination by U.S. employers against U.S. citizens). while allowing Puerto Ricans to participate in some benefits programs.168See supra note 10. 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 H. Comm. on Nat. Res., 117th Cong., H.R. 8393, The Puerto Rico Status Act Citizenship Provisions Explained.

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.170See id. Professor Christina Ponsa-Kraus, an expert on Puerto Rico who advised the drafters of the Status Act,171Memorandum from Rafael Cox Alomar & Christina D. Ponsa-Kraus to Raúl Grijalva, supra note 124, at 1. 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.172Interview by author with Christina D. Ponsa-Kraus, Professor of L., Columbia L. Sch. (Oct. 6, 2022); Email from Christina D. Ponsa-Kraus, Professor of L., Columbia L. Sch., to author (Jul. 14, 2023) (on file with author). 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.173Puerto Rico Status Act, H.R. 8393, 117th Cong. § 5(b)(2)(C), 5(b)(3)(C) (2022). 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.174See, e.g., Andrew Glass, United States Invades Grenada, Oct. 25, 1983, Politico (Oct. 25, 2017, 12:02 AM), [] (“Citing the threat posed to American nationals on the Caribbean nation of Grenada by that nation’s pro-Marxist regime, on this day in 1983 President Ronald Reagan ordered U.S. forces to invade the island and to secure their safety.”).

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.175Compare Bureau of Intel. & Rsch., Independent States in the World, U.S. Dep’t of State (Apr. 4, 2023), [], with Official List of Embassies from the U.S. Department of State,, [] (indicating together that the U.S. has an embassy in nearly every state it recognizes). While U.S. consular services are very robust,176Sachs, supra note 12. 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.177Vienna Convention on Consular Relations arts. 2, 5, Apr. 24, 1963, 21 U.S.T. 77.

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;178See Mary Williams Walsh, The Bonds That Broke Puerto Rico, N.Y. Times (June 30, 2015), [] (indicating that prior to restructuring, 75 percent of the mutual funds tracked by Morningstar held some Puerto Rican debt); Puerto Rico Formally Exits Bankruptcy Following Largest Public Debt Restructuring, NBC News (Mar. 17, 2022, 12:44 PM), [] (noting that Puerto Rico exited bankruptcy with .4 billion in outstanding debt). 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.179See International Monetary Fund, U.S. Dep’t of the Treasury, [] (“The U.S. is the largest shareholder in the Fund.”). If Puerto Ricans vote for sovereignty in free association, these issues would be regulated through the first Articles of Free Association. See Puerto Rico Status Act, H.R. 8393, 117th Cong. §§ 210–12 (2022). 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.180See, e.g., José Alfredo Hernández Mayoral, Opinion, Ciudadanía americana y la independencia en libre asociación [American Citizenship and Independence in Free Association], El Nuevo Día (July 15, 2022), []. Indeed, many other former colonies have sought to constrain dual citizenship under the assumption that permitting it would frustrate national cohesion.181See Thomas Faist & Jürgen Gerdes, Migration Pol’y Inst., Dual Citizenship in an Age of Mobility (2008), []. 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.182H.R. 8393 § 5(b)(2)(C), 5(b)(3)(C). 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 Duany, supra note 38, at 75–76 (discussing Puerto Rican cultural identity). Puerto Ricans have maintained their distinctive accent and vocabulary in Spanish,184QuickFacts Puerto Rico, U.S. Census Bureau (2022), [] (reporting that about 95 percent of Puerto Ricans speak a language other than English at home); see also Características Lingüísticas [Linguistic Characteristics], Centro Virtual Cervantes, [] (describing major distinguishing features of Puerto Rican Spanish). and Puerto Rican artists produce globally acclaimed works.185See, e.g., Puertorriqueño Eduardo Lalo gana premio Rómulo Gallegos [Puerto Rican Eduardo Lalo Wins the Romulo Gallegos Award], El Universo (June 7, 2013), [] (noting that a Puerto Rican author had won the most prestigious prize for Latin American novels for the first time in 2013). 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.186See All Actions: H.R.8393 — 117th Congress (2021-2022),, []. 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.187Nguyen v. INS, 533 U.S. 53, 67 (2001); see also Worthy v. United States, 328 F.2d 386, 394 (5th Cir. 1964). 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 elections188See 52 U.S.C. §§ 10101(a)(1) (providing that “[a]ll citizens of the United States who are otherwise qualified by law to vote . . . shall be entitled and allowed to vote at all such elections”), 10502(d) (prohibiting states from imposing residency requirements greater than thirty days for voters).—Puerto Ricans already constitute an important voting bloc in several key states.189See Victoria Moll-Ramirez, Imtiyaz Delawala, Brendan Rand & Haley Yamada, Puerto Rican Vote Becomes Essential as Early Voting Begins in Florida, a Battleground State, ABC News (Oct. 19, 2020, 10:54 PM), []; Laura Barrón-López & Holly Otterbein, The Demographic That Could Tip Pennsylvania, Politico (Oct. 27, 2020, 4:30 AM), []. 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.190See Soc. Sec. Admin., Pub. No. 05-10043, Medicare 3 (2023), []; SNAP State Directory of Resources, supra note 10. And Puerto Ricans who retain U.S. citizenship could continue to enlist in the U.S. military;191See, e.g., Eligibility & Requirements, supra note 11. 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.192Harry Franqui-Rivera, Voices: Too Many of Puerto Rico’s Veterans Are Moving Away, NBC News (May 28, 2017, 11:43 AM), [].

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,193See United States v. Vaello Madero, 142 S. Ct. 1539, 1544 (2022) (upholding Congressional decision to restrict Puerto Ricans from participating in Supplemental Security Income). Puerto Ricans and U.S. officials do use citizenship as a discursive tool.194See, e.g., Yarimar Bonilla, Opinion, For Puerto Ricans, Another Reminder That We Are Second-Class Citizens, N.Y. Times (May 19, 2022), []; Press Release, Congresswoman Jenniffer González-Colón, Members of Congress Commemorate the 105th Anniversary of U.S. Citizenship to the People of Puerto Rico (Mar. 2, 2022), [] (“Today marks 105 years since Puerto Rico residents became U.S. citizens. Despite their numerous and substantial contributions to our country, our fellow American citizens living in Puerto Rico have not been granted the same respect and equal treatment as all Americans.” (quoting U.S. Senator Martin Heinrich at press event)). 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.195See supra Section II.A. 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.196See 8 U.S.C. § 1401(c); see also id. § 1409 (imposing additional limitations where child seeking to derive U.S. citizenship was born out of wedlock). 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.197See id. § 1401(g). U.S. citizens who father a child out of wedlock with a noncitizen must also prove the blood relationship, commit to providing financial support to their child, and recognize paternity in order for their child to derive U.S. citizenship. Id. §§ 1401(g), 1409(a). The Status Act’s provisions for free association during the first Articles of Free Association would produce the same result.198Puerto Rico Status Act, H.R. 8393, 117th Cong. § 208(c)(2) (2022). 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.199Compare id. § 110, with 8 U.S.C. § 1401(c).

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.200H.R. 8393 § 110. 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.201See id. § 208(c)(2). 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.202See 8 U.S.C. § 1401. 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.203See id. § 3. While status reform is inescapably complicated given the length and scope of the American-Puerto Rican colonial relationship,204See supra Part I (discussing Puerto Rico’s history as a U.S. colony). 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.205See H.R. 8393 § 208(c)(2) (failing to specify duration of first Articles of Free Association). Although the Status Act envisions a nonpartisan voter education campaign prior to a status referendum,206Id. § 6. 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.207See, e.g., Compact of Free Association Amendments Act of 2003, Pub. L. No. 108–88, § 141, 117 Stat. 2760–64 (2003). 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.


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.208Developments in the Law: The U.S. Territories, supra note 47, at 1690. 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.209See, e.g., Philip Bump, Puerto Rico Statehood Would Dilute Whose Power Exactly, Sen. Graham?, Wash. Post (Nov. 8, 2022, 11:05 AM), []; Bryan Metzger, All But 16 House Republicans Vote Against Bill to Allow Puerto Rico to Decide Its Future, Bus. Insider (Dec. 15, 2022, 2:21 PM), []; Venator Santiago, supra note 158. 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.”210José A. Delgado, Jenniffer González sobre el proyecto de status: “No está escrito en piedra” [Jenniffer González on the Status Project: “It Is Not Written in Stone”], El Nuevo Día (Apr. 29, 2023, 11:40 PM), []. 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.