Altering Puerto Rico's Relationship with the United States Through Referendum ( 2012 )

Altering Puerto Rico’s Relationship with
the United States Through Referendum
Legislation conditioning a change in Puerto Rico’s political relationship with the United
States on the results of one or more referenda by the Puerto Rican electorate, without
subsequent congressional action, would be constitutional, insofar as the referendum or
referenda presented voters in the territory with a limited set of options specified in
advance by Congress.
March 7, 2012
MEMORANDUM OPINION FOR THE
ASSOCIATE ATTORNEY GENERAL
In your role as co-chair of the President’s Task Force on Puerto Rico’s
Status, you asked us to consider whether “the President [may] support and
Congress enact legislation that triggers implementation of whichever
status outcome the citizens of Puerto Rico choose with no further action
by Congress (with the understanding that such legislation may not be
binding on future Congresses).” 1 This memorandum memorializes advice
we provided to you prior to the release of the Report by the President’s
Task Force in March 2011. 2 For the reasons given below, we concluded
that legislation conditioning a change in Puerto Rico’s political relation-
1 E-mail for Jonathan Cedarbaum, Deputy Assistant Attorney General, Office of Legal
Counsel, from Mala Adiga on behalf of Thomas J. Perrelli, Associate Attorney General,
Re: Puerto Rico Questions (June 14, 2010).
2 Report by the President’s Task Force on Puerto Rico’s Status (Mar. 2011), http://
www.whitehouse.gov/sites/default/files/uploads/Puerto_Rico_Task_Force_Report.pdf
(“2011 Task Force Report”). President Clinton established the President’s Task Force on
Puerto Rico’s Status by executive order on December 23, 2000. See Exec. Order No.
13183, 3 C.F.R. 340 (2001), reprinted as amended in 48 U.S.C. § 731 note (2006 & Supp.
IV 2010). As amended by subsequent executive orders, this order provides that the Task
Force is “composed of designees of each member of the President’s Cabinet and the
Deputy Assistant to the President and Director for Intergovernmental Affairs,” and is co-
chaired by the Attorney General’s designee and the Deputy Assistant to the President and
Director for Intergovernmental Affairs. Id. § 2; see Exec. Order No. 13517, 74 Fed. Reg.
57,239 (Oct. 30, 2009); Exec. Order No. 13319, 3 C.F.R. 267 (2004); Exec. Order No.
13209, 3 C.F.R. 765 (2002). The Task Force is responsible for, among other things, “en-
sur[ing] official attention to and facilitat[ing] action on matters related to proposals for
Puerto Rico’s status and provid[ing] advice and recommendations on such matters to the
President and the Congress.” Exec. Order No. 13183, § 3.
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36 Op. O.L.C. 93 (2012)
ship with the United States on the results of one or more referenda by the
Puerto Rican electorate, without subsequent congressional action, would
be constitutional, insofar as the referendum or referenda presented voters
in the territory with a limited set of options specified in advance by Con-
gress.
Congress generally may condition the legal effect of legislation on the
existence of future contingencies, including whether an affected constitu-
ency approves the legislation. Neither of the clauses of the Constitution
relevant here—the Territory Clause or the State Admission Clause—
restricts Congress’s authority to enact legislation that would condition a
change in a territory’s political relationship with the United States on the
outcome of a territorial referendum. Moreover, an extensive and long-
standing congressional practice of granting statehood or independence to
territories upon approval by the territory’s electorate and without the need
for subsequent congressional action confirms the constitutionality of this
method for changing a territory’s status. This Office and various Depart-
ment officials repeatedly have endorsed this view over the years, includ-
ing with respect to Puerto Rico.
We note at the outset that there are limitations on Congress’s authority
to provide for certain outcomes. The Executive Branch, for example, has
long taken the position that Congress may not constitutionally provide for
the so-called “enhanced commonwealth” status, to the extent that such
status would entail requiring the consent of the Puerto Rican people
before Congress could make any subsequent changes in Puerto Rico’s
political relationship with the United States. 3 In this memorandum, we
address only the constitutionality of a particular process by which a
change in Puerto Rico’s relationship with the United States might be
brought about: a process that would involve the passage of federal legis-
lation that would condition its own effects on the outcome of a vote by
Puerto Rico’s electorate and would not require any subsequent action by
Congress.
I.
The Supreme Court has described Puerto Rico as having “a relationship
to the United States ‘that has no parallel in our history.’” Califano v.
3 See 2011 Task Force Report, supra note 2, at 26.
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Altering Puerto Rico’s Relationship with the United States Through Referendum
Torres, 435 U.S. 1, 3 n.4 (1978) (per curiam) (quoting Examining Bd. of
Eng’rs, Architects & Surveyors v. Flores de Otero, 426 U.S. 572, 596
(1976)). The United States acquired Puerto Rico from Spain in 1898,
pursuant to the Treaty of Paris that concluded the Spanish-American War.
Over time, in successive organic statutes that established local govern-
mental institutions for the territory, Congress gave Puerto Rico increasing
degrees of autonomy. Puerto Rico acquired its current status as a self-
governing “commonwealth” through federal statutes passed in 1950 and
1952. The former authorized the Puerto Rican people to adopt a constitu-
tion for Puerto Rico’s local self-government, and the latter approved the
proposed constitution (subject to the inclusion of certain amendments).
See Pub. L. No. 82-447, 66 Stat. 327 (1952); Pub. L. No. 81-600, 64 Stat.
319 (1950) (codified at 48 U.S.C. §§ 731b–731e (2006)). 4
Today, Puerto Rico has extensive powers of self-government. In “many
respects,” its government “resembles that of a state,” in that it consists of
“an elected governor and legislature, and its legislature has powers akin to
those exercised by the states.” Trailer Marine Transp. Corp. v. Rivera
Vazquez, 977 F.2d 1, 7 (1st Cir. 1992); see also Examining Bd., 426 U.S.
at 594 (Puerto Rico possesses “the degree of autonomy and independence
normally associated with States of the Union”). Indeed, for many federal
administrative purposes, Puerto Rico is treated as the functional equiva-
lent of a State. In 1992, President George H.W. Bush issued a directive
that remains in force today, requiring:
all Federal departments, agencies, and officials, to the extent con-
sistent with the Constitution and the laws of the United States,
henceforward to treat Puerto Rico administratively as if it were a
State, except insofar as doing so with respect to an existing Federal
program or activity would increase or decrease Federal receipts or
expenditures, or would seriously disrupt the operation of such pro-
gram or activity.
4 See also Treaty of Paris, U.S.-Spain, Dec. 10, 1898, 30 Stat. 1754; Foraker Act, ch.
191, 31 Stat. 77 (1900); Jones Act (Puerto Rico), ch. 145, 39 Stat. 951 (1917); see gener-
ally Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 671–72 (1974) (discuss-
ing history of relations between Puerto Rico and the United States); United States v.
Sanchez, 992 F.2d 1143, 1151 (11th Cir. 1993) (same); Trailer Marine Transp. Corp. v.
Rivera Vazquez, 977 F.2d 1, 6–7 (1st Cir. 1992) (same).
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36 Op. O.L.C. 93 (2012)
Memorandum for the Heads of Executive Departments and Agencies, 57
Fed. Reg. 57,093 (Nov. 30, 1992), reprinted in 48 U.S.C. § 734 note
(2006).
For constitutional purposes, Puerto Rico nonetheless remains a territory
of the United States and is therefore subject to the Territory Clause and
the State Admission Clause—constitutional provisions that give Congress
the general authority to govern territories and the specific authority to
admit new territories as states, respectively. 5 See U.S. Const. art. IV, § 3.
The question thus becomes whether either of these two provisions, or any
other constitutional requirement, precludes Congress from changing
Puerto Rico’s relationship with the United States through legislation that
would condition the effect of that legislation on the results of a vote by
the Puerto Rican electorate.
As a general matter, Congress may enact legislation conditioning the
effectiveness of laws or regulations on approval by affected parties, 6 and
we conclude that neither the Territory Clause nor the State Admission
Clause prevents Congress from enacting such legislation to change Puerto
5 See, e.g., Examining Bd., 426 U.S. at 586 (discussing Congress’s “establishment of
the civil government in Puerto Rico in the exercise of its territorial power under Const.,
Art. IV, § 3, cl. 2”); Harris v. Rosario, 446 U.S. 651, 651–52 (1980) (per curiam) (de-
scribing Congress as “empowered under the Territory Clause of the Constitution” to “treat
Puerto Rico differently from States so long as there is a rational basis for its actions”);
Igartua-de la Rosa v. United States, 417 F.3d 145, 147 (1st Cir. 2005) (en banc) (holding
that Puerto Rico “is not a ‘state’ within the meaning of the Constitution”).
6 See, e.g., Currin v. Wallace, 306 U.S. 1, 15–16 (1939) (upholding law permitting
tobacco regulations to take effect only if approved by two-thirds of growers in a pre-
scribed referendum); United States v. Rock Royal Coop., Inc., 307 U.S. 533, 577–78 &
n.64 (1939) (upholding similar referendum provision based on Currin); Wickard v.
Filburn, 317 U.S. 111, 117–18 (1942) (rejecting challenge to referendum among wheat
growers on quotas proposed by Secretary of Agriculture); Lac Courte Oreilles Band of
Lake Superior Chippewa Indians of Wisc. v. United States, 367 F.3d 650, 653, 659–60
(7th Cir. 2004) (upholding requirement of state governor’s concurrence in federal offi-
cial’s determination because “[t]here is no ‘delegation of legislative authority’ to [an]
actor whose assent is a precondition to the execution of the law” (quoting Currin, 306
U.S. at 15)); Confederated Tribes of Siletz Indians of Ore. v. United States, 110 F.3d 688,
695 (9th Cir. 1997) (“[b]y requiring local approval, Congress is exercising its legislative
authority by providing what conditions must be met before a statutory provision goes into
effect”); Mutual Consent Provisions in the Proposed Guam Commonwealth Act, __ Op.
O.L.C. Supp. __, *14 n.13 (July 28, 1994) (concluding, based on Currin, that “approval of
federal legislation by” the government of a territory (in that case Guam) may be “a
legitimate condition for making that legislation applicable”).
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Altering Puerto Rico’s Relationship with the United States Through Referendum
Rico’s status. First, under the Territory Clause, Congress has “[p]ower to
dispose of and make all needful Rules and Regulations respecting the
Territory or other Property belonging to the United States.” U.S. Const.
art. IV, § 3, cl. 2. The Supreme Court has characterized this clause as
“grant[ing] Congress and the President the power to acquire, dispose of,
and govern territory.” Boumediene v. Bush, 553 U.S. 723, 765 (2008). It
has long been established that Congress’s authority to govern and dispose
of territories includes the authority to provide for changes in territories’
degree of self-government, 7 and to provide for even more fundamental
changes in their political relationship with the United States, including by
granting them independence. 8 Nothing in the text, structure, or purpose of
the Territory Clause limits Congress’s authority to provide for a change in
a territory’s governmental structure through the referendum process under
consideration here, nor are we aware of any judicial decisions articulating
such limits. In addition, nothing in the Clause would prevent Congress
from making any change in Puerto Rico’s status effective upon a favora-
ble vote by the territory’s electorate and without need for subsequent
congressional action.
Second, though the State Admission Clause places certain express limi-
tations on Congress’s authority to create new states, these limitations
would not apply to the admission of Puerto Rico. The Clause provides:
New States may be admitted by the Congress into this Union; but no
new State shall be formed or erected within the Jurisdiction of any
other State; nor any State be formed by the Junction of two or more
States, or Parts of States, without the Consent of the Legislatures of
the States concerned as well as of the Congress.
U.S. Const. art. IV, § 3, cl. 1. The State of Puerto Rico would neither be
formed within the jurisdiction of any other state nor formed by the junc-
7 See, e.g., United States v. Lara, 541 U.S. 193, 203–04 (2004) (noting that “[t]he po-
litical branches” historically have made “radical adjustments” in the “autonomous status
of . . . dependent entities,” including Puerto Rico); Calero-Toledo, 416 U.S. at 671(describing series of congressional enactments under which Puerto Rico progressed from
initial “military control” to appointed government to substantial self-governance); Clinton
v. Englebrecht, 80 U.S. (13 Wall.) 434, 441–45 (1871) (discussing enactments organizing
governments for the United States’ first territories).
8 See, e.g., Barber v. Gonzales, 347 U.S. 637, 638–39 & n.1 (1954) (discussing legisla-
tion that resulted in the independence of the Philippines).
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36 Op. O.L.C. 93 (2012)
tion of parts of two or more states. What is more, the Clause includes no
express limitation on Congress’s authority to condition the admission of a
state on an affirmative vote of a territory’s electorate without subsequent
congressional action. In fact, as described in detail below, Congress has
often admitted states through such means.
II.
A.
Congress has frequently admitted states to the Union through contin-
gent legislation. While the conditions Congress has imposed have varied,
contingent statutes have often made admission of a territory effective
upon the issuance of a presidential proclamation certifying that the statu-
tory conditions have been fulfilled, without any subsequent action by
Congress having been required. Congress has identified a vote by the
territorial electorate in favor of statehood or in support of a state constitu-
tion (or constitutional amendment) as the triggering event for admission
in many instances.
The two newest states—Alaska and Hawaii—were both admitted un-
der statutes that conditioned admission on a referendum of the territorial
electorate. In the case of Alaska, the statehood statute directed the gov-
ernor of the territory to submit three propositions to the territory’s voters.
Act of July 7, 1958, Pub. L. No. 85-508, § 8(b), 72 Stat. 339, 343–44.
One of these propositions asked voters: “Shall Alaska immediately be
admitted into the Union as a State?” Id., 72 Stat. at 344. The other two
sought Alaska voters’ consent to specific territorial boundaries and
certain other conditions of Alaska’s admission under the Act. Id. The
Act required the governor to “certify the results of said submission, as
. . . ascertained [by the Secretary of Alaska through a specified pro-
cess], to the President of the United States.” Id.
The statehood statute ultimately provided that, “[i]n the event any one
of the [specified] propositions is not adopted at [the designated] election
by a majority of the legal votes cast on said submission, the provisions of
this Act shall thereupon cease to be effective,” meaning that Alaska would
not become a state under the statute. Id. If the propositions were ap-
proved, however, the Act authorized admission of Alaska upon presiden-
tial proclamation, without further action by Congress. The Act provided:
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Altering Puerto Rico’s Relationship with the United States Through Referendum
If the President shall find that the propositions set forth in [the Act]
have been duly adopted by the people of Alaska, the President, upon
certification of the returns of the election of the [congressional Rep-
resentative and Senators] required to be elected [under the Act], shall
thereupon issue his proclamation announcing the results of said elec-
tion as so ascertained. Upon the issuance of said proclamation by the
President, the State of Alaska shall be deemed admitted into the Un-
ion as provided in section 1 of this Act.
Id. § 8(c), 72 Stat. at 344. Section 1 of the Act in turn provided “[t]hat,
subject to the provisions of this Act, and upon issuance of the proclama-
tion required by section 8(c) of this Act, the State of Alaska is hereby
declared to be a State of the United States of America[] [and] is declared
admitted into the Union on an equal footing with the other States in all
respects whatever.” Id. § 1, 72 Stat. at 339.
President Eisenhower signed the Alaska Statehood bill on July 7, 1958,
and said he was “pleased with the action of Congress admitting Alaska.”
Statement by the President Upon Signing Alaska Statehood Bill (July 7,
1958), 1 Pub. Papers of Dwight D. Eisenhower 525 (1958). On January 3,
1959, after Alaska voters had considered the propositions contemplated
by the statute, the President issued the required proclamation “find[ing]
and announc[ing] that the people of Alaska have duly adopted the propo-
sitions required to be submitted to them by the act of July 7, 1958 and
have duly elected the officers required to be elected by that act.” Procla-
mation No. 3269, 3 C.F.R. 16 (Supp. 1959), reprinted in 48 U.S.C. ch. 2
note following table of contents (2006). President Eisenhower thus “de-
clare[d] and proclaim[ed] that the procedural requirements imposed by the
Congress on the State of Alaska to entitle that State to admission into the
Union have been complied with in all respects and that admission of the
State of Alaska into the Union on an equal footing with the other States of
the Union is now accomplished.” Id.
Congress enacted Hawaii’s statehood statute several months after Alas-
ka’s admission and provided for a virtually identical admissions process.
Congress required Hawaii’s voters to answer three questions similar to
those specified in the Alaska referendum, including “Shall Hawaii imme-
diately be admitted into the Union as a State?” Pub. L. No. 86-3, § 7(b),
73 Stat. 4, 7 (1959). Congress also required the election of a congressional
Representative and Senators for Hawaii; directed the President to issue a
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36 Op. O.L.C. 93 (2012)
proclamation certifying when these conditions were satisfied; and provid-
ed that “[u]pon the issuance of said proclamation by the President, the
State of Hawaii shall be deemed admitted into the Union as provided in
section 1 of this Act.” Id. The Act, like the Alaska statute, established
that, “subject to the provisions of this Act, and upon issuance of the
proclamation required by [the Act], the State of Hawaii is hereby declared
to be a State of the United States of America[] [and] is declared to be
admitted into the Union on an equal footing with the other States in all
respects whatever.” Id. §§ 1, 7, 73 Stat. at 4, 7–8. Upon signing the Ha-
waii statehood bill, President Eisenhower observed that “[i]t has given me
great satisfaction to sign the Act providing for the admission of Hawaii
into the Union” and noted that, “[u]nder this legislation, the citizens of
Hawaii will soon decide whether their Islands shall become our fiftieth
State.” Statement by the President Upon Signing the Hawaii Statehood
Bill (Mar. 18, 1959), 1 Pub. Papers of Dwight D. Eisenhower 286 (1959).
After the territorial referendum, the President issued the required procla-
mation certifying Hawaii’s admission to the union on August 21, 1959.
Proclamation No. 3309, 3 C.F.R. 60 (Supp. 1959), reprinted in 48 U.S.C.
ch. 3 note following table of contents (2006).
Although Alaska and Hawaii are the only states whose admission was
conditioned on referenda that expressly addressed statehood, Congress
has admitted some ten other states pursuant to statutes that granted state-
hood once territorial voters had approved certain measures, without fur-
ther congressional action. Congress made the admission of Arizona and
West Virginia effective upon popular ratification of certain amendments
to the proposed state constitutions. 9 Similarly, Congress provided for the
admission of Oklahoma, Utah, Washington, Montana, South Dakota,
North Dakota, Colorado, and Nevada effective upon presidential procla-
mation, without further congressional action, once territorial voters had
approved state constitutions meeting specified criteria. 10
9 See S.J. Res. 57, § 7, 37 Stat. 39, 42 (Aug. 21, 1911) (Arizona); Proclamation of Feb.
14, 1912, 37 Stat. 1728 (noting approval of amendment); Act of Dec. 31, 1862, ch. 6, § 2,
12 Stat. 633, 634 (West Virginia); Proclamation of Apr. 20, 1863, 6 Compilation of the
Messages and Papers of the Presidents 167 (James D. Richardson ed., 1897) (“Messages
& Papers”) (noting compliance with condition).
10 See Pub. L. No. 59-234, § 4, 34 Stat. at 271 (Oklahoma); Proclamation of Nov. 16,
1907, 35 Stat. 2160 (Oklahoma); Act of July 16, 1894, ch. 138, § 4, 28 Stat. 107, 108–09
(Utah); Proclamation of Jan. 4, 1896, 29 Stat. 876 (Utah); Act of Feb. 22, 1889, ch. 180,
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Altering Puerto Rico’s Relationship with the United States Through Referendum
Congress also has passed contingent admission legislation for territo-
ries that were ultimately admitted under different, subsequent legislation,
in some cases because voters in the territory rejected the conditions im-
posed by Congress in the original contingent legislation. See, e.g., Pub. L.
No. 59-234, §§ 24, 26, 34 Stat. 267, 278, 280–81 (1906) (providing for
admission of State of Arizona following voter approval of constitution,
but only if voters in the territories of both Arizona and New Mexico
answered in the affirmative, “Shall Arizona and New Mexico be united to
form one state?”) 11; Act of Apr. 19, 1864, ch. 59, § 5, 13 Stat. 47, 48–49
(providing for admission of Nebraska upon voter approval of state consti-
tution) 12; Act of May 4, 1858, ch. 26, 11 Stat. 269, 270 (providing for
admission of Kansas upon voter acceptance of specified propositions) 13;
Act of Mar. 3, 1847, ch. 53, § 4, 9 Stat. 178, 179 (providing for admission
of Wisconsin upon voter approval of state constitution) 14; Act of Mar. 3,
§ 8, 25 Stat. 676, 678–79 (North Dakota, South Dakota, Montana, and Washington);
Proclamation of Nov. 11, 1889, 26 Stat. 1552 (Washington); Proclamation of Nov. 8,
1889, 26 Stat. 1551 (Montana); Proclamation of Nov. 2, 1889, 26 Stat. 1549 (South
Dakota); Proclamation of Nov. 2, 1889, 26 Stat. 1548 (North Dakota); Act of Mar. 3,
1875, ch. 139, § 5, 18 Stat. 474, 475, as amended by Act of Mar. 3, 1876, ch. 17,
19 Stat. 5 (Colorado); Proclamation of Aug. 1, 1876, 9 Messages & Papers n.s. 4346
(1897) (Colorado); Act of Mar. 21, 1864, ch. 36, § 5, 13 Stat. 30, 31–32 (Nevada);
Proclamation of Oct. 31, 1864, 13 Stat. 749 (Nevada). New Mexico’s admission became
effective once the territory had held a referendum on specified propositions, although
Congress did not require that the vote result in any particular outcome. See S.J. Res. 57,
§§ 3–6, 37 Stat. 39, 39–42 (Aug. 21, 1911) (requiring “as a condition precedent” to
admission that the New Mexico electorate vote on specified amendments to the New
Mexico constitution); Proclamation of Jan. 6, 1912, 37 Stat. 1723 (finding that vote was
held and thus deeming New Mexico admitted to Union); Robert W. Larson, New Mexico’s
Quest for Statehood: 1846–1912 296 (1968).
11 Arizona voters rejected this proposition. See John D. Leshy, The Making of the Ari-
zona Constitution, 20 Ariz. St. L.J. 1, 15–16 (1988).
12 A constitutional convention convened pursuant to this statute failed to approve a
constitution. 2 The Uniting States: The Story of Statehood for the Fifty United States 739–
40 (Benjamin F. Shearer ed., 2004). Nebraska was later admitted under a different statute.
See infra note 16.
13 Kansas voters rejected the pro-slavery constitution on which this admission statute
was based. Kansas was later admitted by statute with a different state constitution. See
Act of Jan. 29, 1861, ch. 20, 12 Stat. 126; 1 Uniting States, supra note 12, at 450–51.
14 Wisconsin voters rejected a constitution proposed pursuant to this Act, but Congress
later admitted Wisconsin by statute following the ratification of a different state constitu-
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36 Op. O.L.C. 93 (2012)
1845, ch. 48, §§ 2, 4, 5 Stat. 742, 743 (providing for admission of Iowa
upon popular approval of conditions, including specified boundaries for
the State, set forth in the act) 15; Act of June 15, 1836, ch. 96, §§ 2, 3, 5
Stat. 49, 49–50 (providing for admission of Michigan upon acceptance of
boundary conditions by popularly elected convention). 16
The historical record thus provides overwhelming support for the con-
clusion that Congress may adopt legislation that would authorize Puerto
Rico’s admission as a State, effective upon approval by the Puerto Rican
electorate.
B.
In addition to enacting contingent legislation to govern transitions to
statehood, Congress has relied on such legislation to accomplish other
tion. See Act of May 29, 1848, ch. 50, 9 Stat. 233; 3 Uniting States, supra note 12, 1344,
1346.
15 Iowa voters rejected these conditions, but Iowa was later admitted by statute with
adjusted boundaries. See Act of Dec. 28, 1846, ch. 1, 9 Stat. 117; Act of Aug. 4, 1846,
ch. 82, 9 Stat. 52; 1 Uniting States, supra note 12, at 424.
16 The first convention elected pursuant to this statute rejected the boundary condi-
tions, but a second convention accepted them and Congress admitted Michigan by statute,
declaring the conditions in its prior enactment satisfied. See Act of Jan. 26, 1837, ch. 6,
5 Stat. 144; 2 Uniting States, supra note 12, at 610–14.
In other cases, Congress has provided for admission of territories as States upon presi-
dential proclamation following satisfaction of conditions that did not necessarily involve a
referendum. See Act of Feb. 9, 1867, ch. 36, § 3, 14 Stat. 391, 392 (conditioning Nebras-
ka’s admission on the legislature’s declaration of assent to “the fundamental condition
that within the State of Nebraska there shall be no denial of the elective franchise, or of
any other right, to any person, by reason of race or color, excepting Indians not taxed”);
Proclamation of Mar. 1, 1867, 14 Stat. 820 (deeming condition satisfied and Nebraska
admitted as a state); J. Res. No. 1 of Mar. 2, 1821, 3 Stat. 645 (conditioning Missouri’s
admission upon the legislature’s assent, “by a solemn public act,” to the “fundamental
condition” that a provision in the proposed Missouri state constitution “shall never be
construed to authorize the passage of any law, and that no law shall be passed in conform-
ity thereto, by which any citizen, of either of the states in this Union, shall be excluded
from the enjoyment of any of the privileges and immunities to which such citizen is
entitled under the constitution of the United States”); Proclamation of Aug. 10, 1821,
2 Messages & Papers 95 (1896) (deeming condition satisfied and Missouri admitted); cf.
Act of Feb. 4, 1791, ch. 4, 1 Stat. 189 (deeming Kentucky admitted as of date some six-
teen months after enactment).
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changes in territories’ political relationship with the United States, includ-
ing transitions to independence.
In 1933 and 1934, for example, Congress passed contingent legislation
providing for the independence of the Philippines, which had become a
United States territory in 1898 after the Spanish-American War and
through the Treaty of Paris. Both statutes provided that the Philippines
would acquire independence upon issuance of a presidential proclamation,
without further congressional action, ten years after the formation of a
new Philippine government pursuant to a popularly ratified constitution
that satisfied certain requirements. 17 The Philippine legislature rejected
the terms of the 1933 Act, but the territory ultimately acquired independ-
ence under the 1934 Act. 18
In the 1934 Act, Congress authorized the Philippine legislature to pro-
vide for the drafting, by elected delegates, of a constitution that met the
Act’s requirements. Id. §§ 1–2, 48 Stat. at 456–58. The Act required that
the constitution be submitted for the President’s review within two years
of the Act’s enactment. If the President certified that the constitution
“conform[ed] substantially with the provisions of [the] Act,” the constitu-
tion was to be submitted “to the people of the Philippine Islands for their
ratification or rejection at an election to be held within four months after
the date of such certification.” Id. §§ 3–4, 48 Stat. at 458. Under the Act,
a majority vote in favor of the constitution was to be “deemed an expres-
sion of the will of the people of the Philippine Islands in favor of Philip-
pine independence.” Id. § 4. Following ratification of such a constitution,
the Governor General of the territory was to provide for an election of
officers under the new constitution, and upon certification of the results of
this election, the President was required to “issue a proclamation an-
nouncing the results of the election.” Id. § 4, 48 Stat. at 458–59. The Act
provided that “upon the issuance of such proclamation by the President
17 See Pub. L. No. 73-12, 748 Stat. 456 (1934) (“1934 Act”) (codified as amended at
22 U.S.C. §§ 1391–1395 (2006)); Pub. L. No. 72-311, 47 Stat. 761 (1933) (“1933 Act”);
Hooven & Allison Co. v. Evatt, 324 U.S. 652, 674–76 (1945) (discussing history of
congressional enactments relating to government of the Philippines), overruled on other
grounds by Limbach v. Hooven & Allison Co., 466 U.S. 353 (1984).
18 See generally Evatt, 324 U.S. at 675–76; Valmonte v. INS, 136 F.3d 914, 916–17 (2d
Cir. 1998); Rabang v. INS, 35 F.3d 1449, 1451 (9th Cir. 1994); Arnold H. Leibowitz,
Defining Status: A Comprehensive Analysis of United States Territorial Relations 54
(1989).
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36 Op. O.L.C. 93 (2012)
the existing Philippine government shall terminate and the new govern-
ment shall enter upon its rights, privileges, powers, and duties, as provid-
ed under the constitution.” Id. The Act required the President to issue a
further proclamation surrendering United States control of the territory
and recognizing Philippine independence on July Fourth, ten years after
the inauguration of this new government. Id. § 10, 48 Stat. at 463; see
also J. Res. of June 29, 1944, § 3, 58 Stat. 625, 626 (authorizing the
President “to advance the date of the independence of the Philippine
Islands by proclaiming their independence as a separate and self-
governing nation prior to July 4, 1946”).
In accordance with the terms of this Act, President Roosevelt recog-
nized, by proclamation effective November 15, 1935, the formation of a
new constitutional government for the Philippines. On July 4, 1946,
President Truman proclaimed the independence of the Philippines. See
Proclamation No. 2148, 49 Stat. 3481 (1935); Proclamation No. 2695,
3 C.F.R. 86, 86 (1946), reprinted in 60 Stat. 1352 (1946), and in 22
U.S.C. § 1394 note (2006).
More recently, the United States altered its political relationship with
Palau through legislation that conditioned the change on a vote by the
territorial electorate. After World War II, Palau became part of a “trust
territory” of the United States under the United Nations Charter. See,
e.g., Morgan Guar. Trust Co. of N.Y. v. Republic of Palau, 924 F.2d
1237, 1237–40 (2d Cir. 1991). In the 1980s, the United States negotiated
a “Compact of Free Association” with the territory, according to which
Palau would become a sovereign republic while maintaining extensive
ties with the United States. See Compact of Free Association, Pub. L. No.
99-658, § 201, 100 Stat. 3672, 3678–79 (1986); see generally Stanley K.
Laughlin, Jr., The Law of United States Territories and Affiliated Juris-
dictions 461–78 (1995) (“Laughlin”). The compact provided that it would
take effect only upon approval by the United States and Palau govern-
ments according to each government’s constitutional processes, and
approval by Palau’s voters in a plebiscite. See Compact of Free Associa-
tion § 411, 100 Stat. at 3698.
Congress initially approved this compact in a 1986 statute that re-
quired enactment of a further joint resolution before the compact could
take effect. Pub. L. No. 99-658, § 101(a), (d)(1)(B), 100 Stat. at 3673,
3674. But in 1989, Congress passed a second statute authorizing “entry
into force” of the compact, following a specified period of notice to
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Altering Puerto Rico’s Relationship with the United States Through Referendum
Congress, “subject to the condition that the Compact, as approved by the
Congress in [the first statute], is approved by the requisite percentage of
votes cast in a referendum conducted pursuant to the Constitution of
Palau, and such approval is free from any legal challenge.” Pub. L. No.
101-219, § 101, 103 Stat. 1870, 1870 (1989). 19 Palau voters approved
the compact by plebiscite on November 9, 1993, and on September 27,
1994, President Clinton issued a proclamation deeming the compact
effective as of October 1, 1994. The proclamation declared that “Palau
will thereafter be self-governing and no longer subject to [United States]
Trusteeship.” Proclamation No. 6726, 3 C.F.R. 104, 105 (1994), reprint-
ed in 108 Stat. 5631, 5632 (1994). Palau thus gained full independence
under legislation that authorized the change in status upon the occurrence
of a future contingency—voter approval in a plebiscite—without further
action by Congress. 20
Even Puerto Rico itself previously has undergone a significant change
in its political relationship with the United States as a result of self-
executing contingent legislation. In 1950, in Public Law 81-600, Congress
established a process through which Puerto Rico’s voters could adopt a
constitution for the local government of the territory. The statute, howev-
er, made the drafting of a new constitution contingent upon approval of
the Act’s terms by a majority of voters participating in “an island-wide
referendum to be held in accordance with the laws of Puerto Rico.” Id.
§ 2, 64 Stat. at 319. Moreover, Public Law 81-600 provided that a consti-
tution drafted and approved in accordance with the Act’s procedures
would “become effective” only “[u]pon approval by the Congress,” id.
19 The Palau Supreme Court ruled initially that a provision in Palau’s constitution re-
garding nuclear materials on the island necessitated seventy-five percent approval for
ratification of the compact, a decision that resulted in several failed votes to ratify the
compact. Palau’s constitution was eventually amended to allow approval of the compact
by majority vote. See Chimene I. Keitner & W. Michael Reisman, Free Association: The
United States Experience, 39 Tex. Int’l L.J. 1, 50–51 (2003); Laughlin at 98–100, 477–78.
20 Two other states formed from the Trust Territory of the Pacific Islands—the Repub-
lic of the Marshall Islands and the Federated States of Micronesia—also entered into
compacts of free association with the United States. These territories, however, approved
the compacts in plebiscites prior to approval of the compacts by Congress. See Proclama-
tion No. 5564, 51 Fed. Reg. 40,399 (Nov. 3, 1986) (describing plebiscite in Federated
States of Micronesia on June 21, 1983, and in the Marshall Islands on September 7,
1983), reprinted in 48 U.S.C. § 1801 note (2006); Pub. L. No. 99-239, 99 Stat. 1770
(1986) (providing congressional approval of compacts for these territories).
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36 Op. O.L.C. 93 (2012)
§ 3, 64 Stat. at 319, and Congress ultimately provided such approval only
in further contingent legislation. Specifically, in 1952, Congress approved
a locally adopted constitution for Puerto Rico, but provided that certain
provisions would have “no force and effect” until specified amendments
were adopted “by the people of Puerto Rico.” Congress also provided that
the constitution as a whole would “become effective” only “when the
Constitutional Convention [that drafted the constitution] shall have de-
clared in a formal resolution its acceptance in the name of the people of
Puerto Rico of the conditions of approval herein contained, and when the
Governor of Puerto Rico, being duly notified by the proper officials of the
Constitutional Convention of Puerto Rico that such resolution of ac-
ceptance has been formally adopted, shall issue a proclamation to that
effect.” Pub. L. No. 82-447, 66 Stat. at 327–28. In accordance with the
terms of this statute, the Puerto Rican Constitutional Convention adopted
the required resolution, and the Governor of Puerto Rico deemed the
constitution effective in a proclamation issued on July 25, 1952. 21
Considered in combination with Congress’s longstanding and repeated
use of contingent legislation to admit territories as states, these examples
of the Philippines’ and Palau’s transitions to independence and Puerto
Rico’s acquisition of commonwealth status present a powerful historical
case for the permissibility of legislation that authorizes an alteration of
Puerto Rico’s status as triggered by a vote of the Puerto Rican electorate.
See, e.g., Mistretta v. United States, 488 U.S. 361, 401 (1989) (“‘tradi-
tional ways of conducting government . . . give meaning’ to the Constitu-
tion”) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579,
610 (1952) (Frankfurter, J., concurring)); The Pocket Veto Case, 279
U.S. 655, 689 (1929) (“[l]ong settled and established practice is a con-
sideration of great weight” in constitutional interpretation); Whether
Uruguay Round Agreements Required Ratification as a Treaty, 18 Op.
O.L.C. 232, 233 (1994) (“a significant guide to the interpretation of the
Constitution’s requirements is the practical construction placed on it by
the executive and legislative branches acting together”).
21
See 48 U.S.C. § 731d note (2006); Resolution 34, Constitutional Convention of
Puerto Rico (July 10, 1952), reprinted in Documents on the Constitutional History of
Puerto Rico 196–97 (Office of the Commonwealth of Puerto Rico ed., 2d ed. 1964);
Establishment of the Commonwealth of Puerto Rico, Proclamation by the Governor of
Puerto Rico (July 25, 1952), reprinted in Documents on the Constitutional History of
Puerto Rico at 198.
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Altering Puerto Rico’s Relationship with the United States Through Referendum
III.
In accord with the analysis offered above, this Office and the Depart-
ment of Justice have indicated on many occasions that Congress may
provide for a change in Puerto Rico’s status, contingent upon actions by
the Puerto Rican electorate, without the need for subsequent congressional
action.
In 1959, this Office reviewed a bill that would have provided for ad-
mission of Puerto Rico as a State upon presidential proclamation, without
further congressional action, following ratification of a state constitution
and election of congressional representatives by Puerto Rico voters. See
Memorandum for Lawrence E. Walsh, Deputy Attorney General, from
Robert Kramer, Assistant Attorney General, Office of Legal Counsel, Re:
H.R. 7003, 86th Cong., 1st Sess., a bill “To provide for a referendum in
Puerto Rico on the admission of Puerto Rico into the Union as a State,
and to establish the procedure for such admission if the people of Puerto
Rico desire it” (Oct. 12, 1959) (“Kramer Memo”); H.R. 7003, 86th Cong.
§ 206(a) (as introduced in House, May 7, 1959). We questioned the pro-
priety of “using this procedure in the case of Puerto Rico,” because it
would have provided for admission of Puerto Rico without prior congres-
sional review of the state constitution to be adopted by the territory, thus
reducing congressional “control” over the procedure. But we expressed no
uncertainty about the constitutional permissibility of the procedure in the
bill. On the contrary, we noted that it was “patterned upon one of the
methods frequently used to admit states to the Union” and that “a great
many territories [had] secured admission as the result of a single act
passed by the Congress” establishing similar preconditions. Kramer
Memo at 2, 3.
Thirty years later, our Office provided advice regarding “the general
legal requirements for admitting Puerto Rico to the Union.” Memorandum
for Thomas M. Boyd, Assistant Attorney General, Office of Legislative
Affairs, from John O. McGinnis, Deputy Assistant Attorney General,
Office of Legal Counsel, Re: Statehood for Puerto Rico at 1 (Mar. 3,
1989). Explaining that “Congress has employed a variety of methods to
admit new States into the Union,” we gave a summary description of
some of the types of contingent legislation Congress has used to grant
statehood, including making admission effective upon the results of a
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36 Op. O.L.C. 93 (2012)
territorial vote following adoption of a constitution. “Congress . . . may
set conditions for a territory to meet before it becomes a state,” we ex-
plained, so long as the conditions do not “violate some other textual
provision of the Constitution or . . . interfere with essential aspects of
state sovereignty, such as dictating the location of the state capital.” Id. 22In the same year, this Office and the Department commented on S. 712,
a bill that would have provided for self-executing changes in Puerto
Rico’s status based on the results of a plebiscite. 23 Although the Depart-
ment expressed concerns about other aspects of the bill, including con-
cerns related to the proposed referendum process, it did not suggest that
Congress lacked authority to provide for a change in Puerto Rico’s politi-
cal relationship with the United States contingent on a referendum in
Puerto Rico. 24 On the contrary, the Acting Deputy Attorney General
stated in testimony that “[t]he Administration strongly supports the right
of the people of Puerto Rico to choose their political status by means of a
referendum,” and that “the referendum can present options that, if select-
22
The Supreme Court has found the so-called “equal footing” doctrine implicit in the
terms “State” and “Union” in the provisions governing admission of States. According to
the doctrine, all states in the Union must stand on terms of “constitutional equality” with
all other states regardless of when they were admitted, and Congress, therefore, may not
“deprive[]” a new state of “any of the power constitutionally possessed by other States.”
Coyle v. Smith, 221 U.S. 559, 570, 580 (1911); see also, e.g., Minnesota v. Mille Lacs
Band of Chippewa Indians, 526 U.S. 172, 203–04 (1999). At the same time, the Court has
recognized that Congress “may require, under penalty of denying admission,” that a
territory seeking admission as a State satisfy certain conditions before being admitted to
the Union. Coyle, 221 U.S. at 568.
23 See Memorandum for Edith E. Holiday, General Counsel, Department of Treasury,
from John O. McGinnis, Deputy Assistant Attorney General, Office of Legal Counsel, Re:
S. 712 Puerto Rico Status (July 6, 1989); see also S. 712, 101st Cong. (as introduced in
Senate, Apr. 5, 1989); S. 712, 101st Cong. (as ordered reported by Senate Committee on
Energy and Natural Resources, Sept. 6, 1989); S. Rep. No. 101-481 (1990) (report of
Senate Finance Committee); S. Rep. No. 101-120 (1989) (report of Senate Energy and
Natural Resources Committee).
24 See, e.g., Puerto Rico’s Political Status: Hearing on S. 712 Before the S. Comm. on
Finance, S. Hrg. No. 101-557, pt. 1, at 6 (1989) (statement of Shirley D. Peterson,
Assistant Attorney General, Tax Division); Political Status of Puerto Rico: Hearings on
S. 710, 711, and 712 Before the S. Comm. on Energy & Nat. Resources, S. Hrg. No. 101-
198, pt. 3, at 13 (1989) (statement of Edward S.G. Dennis, Acting Deputy Attorney
General).
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Altering Puerto Rico’s Relationship with the United States Through Referendum
ed by a majority of the voters in Puerto Rico, can immediately be imple-
mented.” 25
In the following Congress, the Attorney General raised concerns about
legislation similar to S. 712 that was not self-executing, but rather called
for specified House and Senate Committee Chairmen to introduce legisla-
tion, with terms prescribed by the bill, that would have enacted a particu-
lar outcome upon approval by voters in Puerto Rico through a referen-
dum. See S. 244, 102d Cong. § 101(e)–(f) (as introduced in Senate, Jan.
23, 1991). Attorney General Thornburgh observed that, “[i]f Congress
intends to truly commit itself to implement whatever status option re-
ceives a majority in accordance with [the bill], it should return to the self-
executing approach and language of S. 712.” Political Status of Puerto
Rico: Hearings on S. 244, to Provide for a Referendum on the Political
Status of Puerto Rico Before the S. Comm. on Energy & Nat. Resources,
102d Cong. 195 (1991) (prepared statement by Attorney General Richard
Thornburgh) (second emphasis added); see also H.R. 4765, 101st Cong.
(as passed by House, Oct. 10, 1990); H.R. Rep. No. 101-790, pts. 1 & 2
(1990).
These past statements by the Justice Department provide further sup-
port for the constitutionality of legislation conditioning a self-executing
change in Puerto Rico’s political relationship with the United States on
the results of a referendum in Puerto Rico.
IV.
In light of the permissibility of contingent legislation and the numerous
historical precedents for legislation that conditions both statehood and
independence on votes by territorial electorates without the need for
subsequent congressional action, we think it clear that Congress may
provide that a change in Puerto Rico’s political relationship with the
United States will take effect upon approval of the change by Puerto
Rico’s voters.
25S. Hrg. No. 101-198, supra note 24, pt. 3, at 22 (statement of Edward S.G. Dennis,
Acting Deputy Attorney General) (emphasis added); see also id. at 13 (testimony of
Edward S.G. Dennis, Acting Deputy Attorney General) (“the President is very much in
favor of the approach of having the referendum process be one through legislation that
would be self-executing”).
109
36 Op. O.L.C. 93 (2012)
We recognize that the legislation currently being contemplated, like
some of the prior bills concerning Puerto Rico’s status discussed in Part
III, may provide voters in Puerto Rico with more than two status options
from which to choose; the legislation might include statehood, independ-
ence, and a modified commonwealth relationship as alternatives. See, e.g.,
S. 712, 101st Cong. § 2 (as introduced in Senate, Apr. 5, 1989) (providing
for options of “statehood,” “independence,” or “commonwealth” to take
effect, in accordance with terms and procedures set forth in the bill,
following approval by a majority of voters in an initial referendum or
runoff referendum). In this respect, the legislation would depart from the
historical practice we have reviewed, where contingent legislation provid-
ed territorial voters with only two status options. This divergence might
form the basis of an argument that a referendum offering voters more than
two status options would cross a constitutional line by impermissibly
delegating Congress’s authority to territorial voters.
In our judgment, however, this potential, limited divergence from his-
torical practice is immaterial to our constitutional analysis. Congress
historically has offered to territorial electorates two choices—statehood
(or in some cases independence) on the one hand, and continued territorial
status on the other—each of which was acceptable to Congress, and each
of which came with different legal and policy implications. Congress thus
has given territorial electorates ultimate control over whether their territo-
ries have become states (or occupied some other status), as would be the
case with a referendum that offered Puerto Rico voters three choices. As
we note above, see supra note 6 and accompanying text, Congress may
enact legislation conditioning the effectiveness of a law on approval by
affected parties. 26 In our view, as long as Congress offered Puerto Rico
voters a limited range of options specified in advance, it would make no
meaningful constitutional difference whether those options numbered two
26 The outcome of voting on referenda that specify a limited set of options remains
simply a “condition[]” that Congress has “exercise[d] its legislative authority” to “pre-
scribe[e] [as] the condition[] of [the statute’s] application.” Currin, 306 U.S. at 16; see
also Clinton v. City of New York, 524 U.S. 417, 443–44 (1998) (indicating the permissi-
bility of legislation that makes specified results “contingent upon a condition that did not
exist when the [statute] was passed,” requires executive officials to effectuate that result
upon occurrence of the contingency, and provides for execution of a “policy that Congress
had embodied in the statute”).
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or three, and the process for resolving Puerto Rico’s status would not
present delegation concerns. We therefore conclude that the present
proposals for referenda would be lawful.
CRISTINA M. RODRÍGUEZ
Deputy Assistant Attorney General
Office of Legal Counsel
111