Richard Pildes, Sudler Family Professor of Constitutional Law, spoke before the President’s Task Force on Puerto Rico’s Status at a public hearing on May 25 in Washington, D.C.

In his testimony, Pildes addressed Puerto Rico’s political status as an unincorporated territory of the United States—specifically, the legal question of “whether there’s anything in the U.S. Constitution that would deny the Congress and the president of the United States, acting jointly based on some conception of U.S. domestic and international interests, to enter into a mutually binding compact concerning Puerto Rico’s legal status.” That status, he said, could take various forms, such as “a commonwealth, an expanded commonwealth, or a sovereign association with the United States.”

A 2005 report by the task force had concluded that future Congresses could not be bound by “any particular arrangement for Puerto Rico as a commonwealth” under the Constitution, and limited Puerto Rico’s options to continuing territorial status, statehood, or independence. But Pildes argued that, while the non-binding concept might apply to ordinary regulatory legislation, instances in which Congress enacts transformations of political status using its power granted by the Constitution’s territories clause fall into a separate category. Puerto Rico, he said, had a wider range of status options than the report claimed.

“It seems to me to be quite perverse to conclude that Congress had the power to create the form of unincorporated territory, but not to create a form of political status that respects the self-governance rights of Puerto Rico going forward,” Pildes said, pointing to a long U.S. history of mutually binding political-status covenants involving territories.

Pildes urged the task force to clarify the constitutional question about what mutually binding arrangements were possible between the U.S. and Puerto Rico. “In my experience, many people who might prefer some form of status in between statehood and independence, and who are comfortable with the notion that the United States government has never gone back on its commitment to respecting Puerto Rico’s status since the compact of the 1950s was created, nonetheless are troubled by the fear that it is possible the United States could change its mind tomorrow and start appointing the governor of Puerto Rico or the legislature of Puerto Rico,” he said. “I think clarifying that the United States can enter into a mutually binding agreement about political status, and that nothing in the Constitution stands in the way of that, would reduce a great deal of uncertainty about what the different status options mean.”

Since 2004 Pildes has been involved in four cases regarding Puerto Rico's legal status, including two cases at the Supreme Court level and two cases in the appellate courts. He testified on the matter before the House Subcommittee on Insular Affairs in 2007.

Posted on May 28, 2010