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Pro-Statehood Lawyer: Puerto Rico Status Plebiscite is a Waste of Time

By on February 22, 2019

Editor’s note: The following originally appeared in the Feb. 21 -27, 2019, issue of Caribbean Business.

For years, pro-statehood lawyer Gregorio Igartúa has said Puerto Rico is an incorporated territory of the United States on the path to statehood, rejecting status votes as a way to convince Congress to make Puerto Rico a state.

After announcing recent plans to hold yet another status vote, Gov. Ricardo Rosselló threw his hat behind a letter Igartúa and Aguadilla Mayor Carlos Méndez sent to President Donald Trump asking for the island to be considered an incorporated territory. The letter coincided with a resolution approved by lawmakers in Washington to make the island an incorporated territory.

“I am in favor of any step that will eliminate the colonial status and make us the 51st state,” he recently said.

Igartúa—who has taken several cases to the courts to seek the granting of rights akin to a U.S. state to Puerto Ricans living on the island—says the local government is finally listening to him and steering way from the status vote method to achieve statehood.

“That is totally unnecessary. We do not need more referendums. Puerto Rico is already a ‘de facto’ incorporated territory. All [the governor] needs to do is to seek a declaration from Congress that Puerto Rico is an incorporated territory and, from there, there is no other choice but statehood,” Igartúa said.

He has published a book, “The ‘De Facto’ Incorporated U.S. Territory of Puerto Rico,” in which he offers evidence that the island is already incorporated. The problem, he said, is the ignorance about the congressional integration of Puerto Rico as an incorporated territory by judges, federal officials and politicians that has led to confusion and resulted in Puerto Rico being treated as an unincorporated territory in some cases and as an incorporated territory in others.

A sus órdenes incorporado

What is the difference between an incorporated and an unincorporated territory? “An incorporated U.S. territory is a specific area under U.S. jurisdiction over which Congress has determined the U.S. Constitution is to be applied to that territory’s local government and inhabitants in its entirety,” including citizenship and trial by jury, according to the U.S. Department of the Interior’s Office of Insular Affairs. The United States has not had any incorporated territories since Hawaii and Alaska were admitted as states in 1959.

Unincorporated territories, on the other hand, can be treated differently by Congress except for “abridging fundamental rights,” such as the right to privacy or same-sex marriage. This can be likened to the differences between Puerto Ricans residing on the U.S. mainland and those living in Puerto Rico. While Puerto Ricans are U.S. citizens, they are treated differently when they live on the island.

According to Igartúa, Puerto Rico has already been provided gradual legal, economic, political and social integration with the United States since 1898, making it a de facto incorporated territory on its way to statehood. In his book, he cites numerous cases to support his point and provides a historical perspective since the time Puerto Rico was acquired from Spain.

For instance, in U.S. v. Mercado Flores, a 2015 U.S. First Circuit ruling that states Puerto Rico is no longer a mere unincorporated territory of the United States and is between being incorporated and being a state. Another 2015 ruling stated that Puerto Rico was a state for purposes of the Sherman Act, an antitrust law that regulates competition among enterprises. In these cases, the U.S. Justice Department required full applicability of the U.S. Constitution to Puerto Rico. The problem is that in other cases, the U.S. Justice Department sought the nonapplicability of the U.S. Constitution or the nonincorporation theory.

In the 2016 Supreme Court ruling in the Commonwealth v. Sánchez Valle case, the U.S. Justice Department opposed the constitutional applicability of the double-jeopardy clause in Puerto Rico. “Another example of the discriminatory practice of cases related to Puerto Rico is to switch the U.S. Constitution on and off as it conveniently pleases them,” he said. The U.S. Supreme Court adopted a new territorial qualification of nonincorporation or “territorial sovereignty in sequence. In their view, Puerto Rico was acquired from Spain as if it were a colony, which justified federal unilateral control over Puerto Rico. None of the judges were advised that Puerto Rico was an overseas province of Spain, which had elected representatives to the Spanish parliament. Moreover, all lawyers in the Sánchez Valle case ignored to inform the court about the most recent cases supporting incorporation,” said Igartúa, who noted that the ruling was “very poorly decided.”

Using the principle of equal protection under the law, U.S. District Chief Judge Gustavo Gelpí recently ruled that a man who moved from New York to Puerto Rico should continue to receive supplemental social security benefits, which are only available to residents on the U.S. mainland. Igartúa warned about the economic consequences of treating Puerto Rico as a nonincorporated territory, which are financially devastating. “Discriminatory treatment to Puerto Rico will only be eliminated when Congress adopts a resolution certifying Puerto Rico as an incorporated territory, and in transit to statehood with a definite date of admission,” he said.


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