The astonishingly flawed logic of our former governor is that U.S. citizens in Puerto Rico should tolerate discriminatory federal practices because equal rights, like voting for our national leaders and proportional voting representation in Congress, would also mean eventually paying the same federal taxes as citizens in the states (as opposed to paying only some federal taxes under commonwealth at this time). The inescapable conclusion that must be drawn from his own words is that full federal taxation is an intolerable duty of equal national citizenship, but somehow sending more of our sons and daughters to war than 49 states is a sacrifice he finds tolerable.

There is a chilling ideological opportunism in the logic of a partisan agenda that places more value on money than blood. Yet, it is clear that the noble patriotic sacrifice of our people, defending America while we remain in a less than equal status, creates political leverage the former governor and his political party exploit to seek, not equal rights, but substitute special rights. They see the archaic imperialist policy of indefinite U.S. sovereignty, without either full integration through incorporation leading to statehood or transition to separate sovereign nationhood, as a favorable political context for the commonwealth party’s status formula combining features of both statehood and nationhood.

Thus, commonwealth party platform has a paradoxical symbiotic ideological connection to the injustice of the Insular Cases, now the predicate for its flawed quasi-sovereign autonomous status, based on neo-confederacy instead of political union on equal footing with the states. Not only do commonwealth party leaders accept territorial non-incorporation doctrine as it applied to U.S. nationals in Puerto Rico in 1901 when the Insular Cases were decided, the party accepts application of the Insular Cases non-incorporation policy as a permanent status after Congress conferred U.S. citizenship in Puerto Rico in 1917.

It was the 1922 case of Balzac v. Puerto Rico that deviated from the tradition of extending the federal constitution to territories with U.S. citizen populations. The Balzac ruling made possible nine decades of federal territorial policy denying equal rights of national citizenship under the U.S. Constitution to a population of U.S. citizens in Puerto Rico larger than the populations of 25 states of the union. Balzac left it to Congress and the federal courts to determine what “fundamental rights” would apply in the territories. Since the federal statute establishing commonwealth limited self-government under a local constitution to purely local matters not governed by federal law, this meant indefinite disenfranchisement for a less than equal political subclass of U.S. citizens in Puerto Rico.

Former governor Hernandez Colon now touts the “constitutional significance” of other federal court cases addressing Puerto Rico’s legal and political status, but the cases he cites (e.g. Mora v. Mejias, PDP v Rodriguez, Flores de Otero) also limit “fundamental rights” essentially to the local sphere, including, for example, the process to fill vacancies in our local legislature, and equal protection of law in local professional licensing. But in every major case where federal and local law conflict, “fundamental rights” and local autonomy are trumped by federal law, which remains supreme and supersedes commonwealth law. Federal cases affirming federal supremacy include rulings on the death penalty, wire-tapping, denial of equal federal benefits (despite local payment of federal payroll taxes), double-jeopardy and the denial of federal voting rights (Acosta Martinez, Quinones, Romeu, Harris v. Rosario).

Yet, commonwealth party leaders have an ideological codependence on the very federal court territorial rulings, including the Insular Cases and Balzac, which have enabled Congress and the federal courts to narrowly restrict the “fundamental rights” of Americans in Puerto Rico for nine decades since Balzac was decided. We can not wait for the federal courts or commonwealth party leaders to deliver on equality of citizenship rights under the federal constitution relying on cases that RHC cites, because there is no light at the end of that juridical tunnel.

Equal national citizenship can be achieved only through free and informed self-determination based on constitutionally valid non-territorial status choices - including statehood, independence and free association as defined by U.S. and international law. If the current territorial status with the undemocratic “commonwealth” system of local government is to continue even temporarily, it must be based on majority consent in a federally sponsored referendum that includes all options compatible with the U.S. Constitution and federal law. That is the only status resolution policy that can be sustained legally, politically and morally.

The ruling of the 9th Circuit Court of Appeals in United States v. Liu, 06-10758, is another blow to the concept of “mutual consent” as an enforceable form of autonomy for a territorial commonwealth. In that case the court ruled that Congress can apply federal criminal statues to the Commonwealth of the Northern Mariana Islands without its consent, under its territorial clause powers reserved to Congress by the U.S. Constitution.

By way of explanation, the NMI commonwealth covenant actually contains a “mutual consent” clause applicable to its provisions defining local self-government, purporting to make those provisions unalterable except by mutual agreement. However, in the 1993 case of Richards v. Leon Guerrero the 9th Circuit basically ruled that the mutual consent provision is merely a statutory policy the courts will look to as long as it is in effect. On that basis, under Richards the courts balance the federal versus local interest to determine whether a particular federal action advances a federal interest that outweighs the local interest in a zone of internal self-government.

Richards is really a thinly veiled affirmation of the doctrine of federal supremacy implemented in light of a statutory policy of federal restraint with respect to pure local affairs that is a discretionary policy of Congress not a constitutional right or even a vested statutory right of the CNMI. Rather, as implemented by the court it is a policy of balancing federal and local interest that Congress has allowed without altering the constitutional principle of federal supremacy.

Anyway, in rejecting the argument that federal law only applies into the CNMI based on consent to its application the court United States v. Liu upheld the ruling in the 1993 Richards case and slam dunked the theory of sovereign or legally enforceable territorial autonomy once again. This is consistent with landmark 2002 case of U.S. v. Acosta-Martinez, applying the federal death penalty in Puerto Rico based on supremacy of federal law superseding a ban on the death penalty in the Constitution of the Commonwealth of Puerto Rico.

All of this follows the May 5, 2008, enactment by the Democrat controlled Congress and signature of the Republican President of a federal statute altering the legal and political terms for implementing the 1976 “Covenant to Establish the Commonwealth of the Northern Mariana Islands.” This “Covenant” is actually a federal statute that authorized adoption of a local constitution, and also approved agreed terms for the Northern Mariana Islands (NMI) to make the transition from its status as a U.N. trust territory administered by the United States to that of an unincorporated U.S. territory.

The terms of the “Covenant” included provisions for local self-government in the territory’s internal affairs. This was based on a statutory policy that local self-government under the “Commonwealth” system of territorial government would not be altered by Congress without “mutual consent” of the NMI. At least in principle, this was intended to give the NMI “autonomy” in its internal affairs.

In addition, the NMI was given a provisional grant of even greater autonomy in the form of a statutory exemption from the application of federal immigration, wage and labor laws. This provision was not within the scope of purely local matters that in principle would not change without mutual consent. However, once the NMI implemented its own immigration, labor and wage laws, local political leaders argued that local control over these matters was indispensable to the NMI’s political and economic success.

Thus, the NMI asserted than any exercise of federal power over immigration, wage or labor policy would be an “intrusion” on NMI autonomy, and would amount to a “federal takeover” of matters within the sphere of NMI “sovereignty”. Even though the NMI had no legal basis for this position, the NMI government and local commercial interests exploiting the exemptions mounted an effective political lobbying campaign in Congress to preserve the status quo.

The original immigration, wage and labor exemptions were allowed by Congress in 1976 based on NMI pleas for local control, supposedly to prevent loss of the NMI’s unique culture and identity. However, instead of becoming the “New Hong Kong” predicted by local politicians and company bosses prospering under the status quo, the NMI soon became more like the American “Wild West”.

The territory became a haven for ruthless sweatshop operators exploiting imported labor from the Philippines and Asia, abusing “autonomy” in a scheme to produce “Made in USA” garments using exploited foreign workers. After two decades of this so-called “autonomy” there were twice as many imported workers in the NMI than the original local resident population.

National network news stories revealed virtual indentured servitude, sex slavery, organized crime, and infiltration of the labor pool by workers from communist China, including members of the People’s Liberation Army. Still, it took years of federal investigations and glaring press reports of corruption, as well as 9/11, to convince Congress to reverse the mistake Congress made in 1976 by granting the original exemptions.

Restoration of federal rule of law and American social values has begun with passage of NMI reform statutes by the current Congress. This includes not only the most recent law extending federal immigration law to the NMI, but also earlier extension of federal minimum wage law, which begins the transition to conformity with minimal federal standards of social justice.

These reforms have been achieved with bipartisan support, and based on consultations with NMI leaders federal standards will be phased in by 2014, in order to allow a smooth transition to sustainable practices. I applaud the current leadership of Congress, including Insular Affairs Subcommittee Chair Donna M. Christensen, as well the leaders and members of both parties who supported these important territorial policy reforms.
The lessons for Puerto Rico in the NMI experience are obvious. Like the 1952 “Compact” for approval of a local constitution by Congress and the residents of the territory, the NMI “Covenant” was an attempt by Congress in 1976 to provide the greatest possible degree of autonomy to an unincorporated territory.

Just as the federal courts attempted in good faith to respect the statutory policy goal of local autonomy for the Commonwealth of Puerto Rico, federal judicial rulings have balanced local and federal interests in the NMI consistent with current federal law. Even though the federal courts still hold that the U.S. Constitution does not apply to these territories by its own force, some constitutional provisions have been held applicable under current statutory policies for territorial governance.

However, in both the NMI and Puerto Rico the federal courts have recognized that all statutory territorial policy continues to be subject to the territorial power of Congress, and the supremacy of federal law in all matters whatsoever. These constitutional powers can not be restricted by mere statutory policy, and Congress can alter by statute any local governing arrangements it makes by statute.

Also, just as the U.N. acceded in 1953 to the U.S. request to end U.N. oversight, and rely on U.S. domestic legal and political processes for completion of the decolonization process, in 1994 the U.N. accepted the sufficiency of U.S. procedures beginning in 1986 for ending U.N. responsibility for the NMI.

Finally, some political leaders and commercial interests in NMI and Puerto Rico, who thrive of the status quo, have tried to exploit the legal ambiguity of federal “autonomy” policy for territories to assert a legally enforceable “right” to “mutual consent” for any change of current federal-territorial relations.

The record is now clear, “mutual consent” is a statutory policy to promote the principle of autonomy for a territory that does not have full democracy or true sovereignty, but it is not legally enforceable and does not make “Commonwealth” a non-colonial and non-territorial status. Without full and equal democratic rights at the national level or an ability of each government concerned to end a political association, there is no real sovereignty or decolonization.

That is the legal and political reality of “commonwealth” and “autonomy” for both the NMI and Puerto Rico.