Two bills on Puerto Rico’s future are deadlocked in Congress. Both aim to solve the same problem: Puerto Rico’s subordinate political status. As a U.S. territory, Puerto Rico is home to 3.2 million U.S. citizens who have no voting representation in the federal government. The island lacks full self-government and sovereignty of its own. It is, in other words, a colony of the United States. Puerto Ricans agree on the need for decolonization but disagree on how to get there. And now they are facing off in Congress with no clear way out.
The Puerto Rico Statehood Admission Act, introduced by Rep. Darren Soto (D-FL), responds to a November 2020 referendum there in which statehood won a Yes/No vote by 52.5%. It offers Puerto Rico admission contingent on a second referendum and requires the president to declare it a state if “yes” wins again. The Puerto Rico Self-Determination Act, introduced by Rep. Nydia Velázquez (D-NY), provides for a constitutional convention on the island to define all of Puerto Rico’s non-territorial status options followed by a ranked-choice plebiscite among them.
At first glance, both proposals look plausible. Yet the disagreement between the backers of each bill remains entrenched. The witnesses who testified at a recent congressional hearing expressed more than a mere difference of opinion. Each side seemed almost afraid of the other’s proposal. We can attest to it: The two of us testified on opposite sides.
Congress must help
To one of us, the Statehood Admission Act would offer statehood to a woefully under-informed public, risking dire and irreversible consequences. To the other, the Self-Determination Act would consign Puerto Ricans to the same futile status debate that has produced colonialism-by-stalemate for decades. Yet despite the apparent gridlock, we believe there is a path forward: a solution that combines the best features of each bill.
The key is to recognize that it is up to the people of Puerto Rico to choose their future, but it is up to Congress to offer them a choice— and the information they need to make it.
The Statehood Admission Act makes an offer, but includes only one option. The Self-Determination Act includes all options, but requires Puerto Ricans to make the offer. This gets it exactly backwards. A U.S. territory is in no position to decolonize itself. Puerto Ricans can shout statehood, independence or anything else from the housetops, yet Congress can simply ignore them. But if Congress offers Puerto Rico decolonization options, Puerto Ricans would have, for the first time ever, the real power to decolonize by choosing one.
Congress should enact legislation making Puerto Ricans an offer and empowering them to trigger implementation through their acceptance (as the Statehood Admission Act would do). It must include all decolonization options (as the Self-Determination Act would do). And it must provide voters the information that true self-determination requires — as only Congress can do.
Under domestic and international law, the options are statehood, independence and a status known as free association, in which Puerto Rico’s relationship to the United States would be governed by a treaty between them. The law defines their essential features. For statehood, they include equality and representation under the U.S. Constitution. For independence and free association, they include separate sovereignty under international law.
Beyond that, Congress must answer certain pressing questions about each option before asking Puerto Ricans to choose. Would federal taxation apply overnight with statehood? (A gradual phase-in is permissible.) Would the United States be willing to grant birthright U.S. citizenship to future generations under free association? (Perhaps, but a guarantee equivalent to the one statehood would provide is impossible.) Not every detail can be settled before a plebiscite. But the questions in need of answers before a vote have one thing in common: Only Congress can answer them.
Congress has the power — and the obligation — to put an end to Puerto Rico’s colonial limbo. It should do so without delay.
Rafael Cox-Alomar is a professor of law at the David A. Clarke School of Law of the University of the District of Columbia and visiting professor of law at Harvard Law School (Winter 2022). Christina D. Ponsa-Kraus is the George Welwood Murray Professor of Legal History at Columbia Law School. They testified as legal experts on opposite sides in a recent hearing on two bills on Puerto Rico’s political status before the House Committee on Natural Resources.