STATEMENT OF ROBERT E. DALTON

ASSISTANT LEGAL ADVISER FOR TREATY AFFAIRS

U.S. DEPARTMENT OF STATE

BEFORE THE HOUSE RESOURCES COMMITTEE

REGARDING FOREIGN RELATIONS AND CITIZENSHIP ISSUES PRESENTED BY H.R.
4751 ON STATUS OF PUERTO RICO

WEDNESDAY, OCTOBER 4, 2000

Mr. Chairman and members of the Committee:

I am pleased to have this opportunity to discuss some aspects of H.R.
4751, the proposed legislation on the future status of Puerto Rico.

Specifically, I am here to testify on three points: 1) the foreign
relations aspects of the legislation, particularly the proposed
provisions regarding Puerto Rico\'s ability to enter into agreements
with foreign nations and participate in international organizations; 2)
the implications of the proposal that residents of Puerto Rico be
guaranteed U.S. citizenship; and 3) constitutional issues posed by the
legislation as drafted, with respect to executive branch prerogatives in
the conduct of foreign relations.

1\) [Foreign Relations Issues]{.underline}

As this Administration and previous ones have repeatedly stated, Puerto
Rico is free to opt, in its own discretion, to become an independent
nation or a nation in free association with the United States, and if
such choice were made the United States would handle its foreign
relations with Puerto Rico in much the same way it does with other
sovereign nations. Puerto Rico would have full control over the handling
of its foreign affairs, including decisions regarding whether to enter
into treaties and agreements with other nations, and to become a member
of international organizations.

The proposed legislation, however, would purport to make the
Commonwealth a nation legally and constitutionally and provide it with
many of the trappings of a sovereign nation, and yet at the same time
would retain or create links to the United States that are inconsistent
with sovereignty as that term is understood in international law. It is
this hybrid nature of the arrangement contemplated in the legislation
that renders the arrangement untenable as a functional matter. I will
now address some of the specific reasons for this conclusion.

Under our system of government, the conduct of foreign affairs is
constitutionally vested solely in the federal government. The exercise
of a parallel and co-existing foreign affairs authority by a sub-federal
unit of the United States would not only be unconstitutional, but
retrogressive and impractical as well. The existing U.S. territories and
commonwealths have different relationships with the Federal Government
in terms of the degree of autonomy they exercise in the conduct of
domestic affairs.

But a few general principles apply to all of them with respect to the
conduct of foreign affairs. Just as with the States of the Union, there
are many types of foreign activities in which a U.S. territory or
commonwealth may choose to engage. Indeed, activities such as trade
promotion and participation in cultural and sports events can be
beneficial to the United States as a whole. At the same time, however,
the Federal Government is responsible internationally for the affairs of
the territories and commonwealths in precisely the same manner as for
the States of the Union. The Federal Government is held responsible for
meeting commitments relating to them and for ensuring that the
obligations of other nations towards them are met. The efficacy of U.S.
international relations accordingly depends upon the foreign activities
of territories and commonwealths, as well as of the States, fitting
within the framework of an overall United States foreign policy. This
point was central in the recent Supreme Court decision in the case of
[Crosby v. National Foreign Trade Council]{.underline}, 530 U.S. \_\_\_
(2000), in which the Court struck down a Massachusetts state law that
barred state entities from buying goods and services from companies
doing business with Burma, on the grounds (inter alia) that such law
limited \"the plenitude of Executive authority\" by the federal
government in the implementation of sanctions against Burma.

Not every foreign commitment must always apply in identical fashion to
each of the territories and commonwealths as well as the States; there
are in some instances considerations of local interests, geography,
historical and cultural ties, and the like, which warrant application of
certain arrangements with foreign governments to one or more of the
territories or commonwealths and not to the States, or vice versa. But
what is essential ultimately is that the component parts of U.S. foreign
policy form a coherent and internally consistent whole. This cannot be
accomplished if areas that are within U.S. control, or that are
populated principally by U.S. citizens, conduct their own foreign
affairs. It benefits neither the United States as a whole nor the
territories and commonwealths if the United States is perceived as
speaking with many, inconsistent voices internationally.

The founding fathers \-- based on unhappy lessons learned under the
Articles of Confederation \-- wisely recognized this in framing our
Constitution. The conclusion of international agreements, for example,
is one of the most basic functions of foreign policy, and the framers
emphasized the exclusive authority of the Federal Government with
respect to foreign policy functions by inserting the following
prohibition in Article I, Section 10, Clause 1 of the U.S. Constitution:
\"No State shall enter into any treaty, alliance, or confederation.\"
Clause 3 of that Section further provides: \"No State shall, without the
Consent of the Congress, enter into any Agreement or Compact with
another State, or with a foreign power \....\"

The juxtaposition of the foregoing provisions of Article I and Article
IV, Section 3, Clause 2, of the Constitution concerning the power of the
Congress to "make all needful Rules and Regulations respecting the
Territory of the United States" raise a number of issues. Should the
rules with respect to making international agreements applicable to the
States be narrower than those made applicable to the territories by the
Congress? How broadly should the term "Agreement" in clause 3 of Article
I, Section 10 of the Constitution be read? Would the proposed
legislation insofar as it refers to making international agreements be
an unconstitutional delegation of authority by the Congress? These are
questions that the Executive Branch is not prepared authoritatively to
answer at this time.

The Department of State is concerned that a broad delegation of
authority to Puerto Rico to make international agreements with respect
to certain subjects could result in the simultaneous existence of
different \-- perhaps conflicting -- obligations to foreign countries.
Such cases could make it impossible for the United States to fulfill its
responsibility to guarantee that all of its constituent units comply
with U.S. treaty obligations. That is why a fundamental feature of the
various organic instruments establishing the relationship between the
Federal Government and the territories and commonwealths is that
ultimate authority over the conduct of foreign relations is retained by
the Federal Government.

This arrangement makes eminent sense, as one can envision the possible
consequences of allowing a territory, commonwealth, State, or other
political subdivision of the United States to enter into its own
agreements. Let me posit, as an example, a hypothetical case in which a
U.S. subdivision were to enter into an agreement to maintain information
or cultural offices in Saddam Hussein\'s Iraq. Such an agreement could
directly contradict, and interfere with, federal measures taken against
Iraq, and at a minimum could embarrass the United States.

Under the current arrangement with Puerto Rico, matters of foreign
relations and national defense are conducted by the United States, as is
the case with the States of the Union. Thus, any actions by Puerto Rico
that have implications on an international level must be consistent with
the foreign policy set and pursued by the Federal Government. As a
practical matter, this consistency is achieved through consultations
with the State Department. In that process, as appropriate, the
Department also obtains and coordinates the views of other Federal
departments and agencies which may have an interest in any particular
proposed activity. Where possible, the Department seeks to accommodate
such proposed activity, so long as it is compatible with U.S. foreign
policy.

Under the arrangement proposed in the legislation before us, however,
Puerto Rico would be granted foreign policy prerogatives that could
affect the foreign relations of the United States, and that could yield
inconsistent foreign policy commitments and measures of the sort
mentioned above. Although the framework calls for a \"common defense,
market, and currency\" (Sec. 2(1)), it also provides that \"the
Commonwealth may arrange commercial and tax agreements, as well as other
agreements, with other countries and belong to regional and
international organizations \....\" (Sec. 2(5); see also Sec. 3(17)).
And although this grant of authority to Puerto Rico in the foreign
affairs area is rendered subject to the \"defense and security interests
of the United States \...\" it is not likewise subordinated to the
United States\' foreign policy interests. Moreover, the legislation
contemplates that \"the Commonwealth shall control its international
trade \....\" (Sec. 3(16)), and it is unclear how this provision would
be compatible with having Puerto Rico be part of a common market with
the United States. The potential for trade policies and measures
inconsistent with those of the U.S., and possibly at odds with U.S.
treaty obligations, is patent.

In sum, the hybrid nature of the status proposed for Puerto Rico in H.R.
4751 would render it impossible for the United States to maintain a
unitary foreign policy with respect to all areas under its control or to
maintain cohesive overall control over laws and policies affecting the
entirety of the U.S. citizenry. For this reason, the Department of State
opposes the provisions of the proposed legislation relating to the
foreign affairs powers to be conferred on Puerto Rico, which would be
untenable functionally in the overall context of the proposed
arrangements for Puerto Rico\'s status.

2\) [Citizenship Issues]{.underline}

The Department of State opposes HR 4751's attempt to legislate dual
nationality

for residents of Puerto Rico. Our opposition is grounded in the
recognition that the conferral of that status upon the citizens of
another nation is wholly incompatible with the notion of sovereignty.

Moreover, our opposition is not based merely on conceptual difficulties
in reconciling dual nationality with sovereignty. The United States
takes seriously the protection of its citizens in other countries and
devotes considerable consular resources to assisting them. It is
difficult to overestimate the size or complexity of the undertaking that
would be necessary on the part of the United States Government to
provide consular protection to United States citizens in Puerto Rico in
the framework envisioned by this legislation. This is particularly true
in light of Sec. 3 para. 13 of H.R. 4751, which states that U.S.
citizens living in Puerto Rico would be "protected by all the rights,
privileges and immunities conferred upon them by the United States
Constitution" as well as the Constitution of Puerto Rico.

Under the proposed scheme, every action or decision of Puerto Rican
government officials would be scrutinized to assess its impact on U.S.
citizens, and, one could easily presume, challenged based upon
considerations of United States law. Our consular officials would be
asked to intervene in the day-to-day actions of local government. In
this untenable state of affairs, the U.S. Embassy in San Juan, were
there to be one, would function as a "shadow government," in effect,
ever watchful of the interests and concerns of the millions of U.S.
citizens in Puerto Rico.

In addition, given Sec. 3 para. 6 of the proposed legislation, which
mandates that all persons born in Puerto Rico receive U.S. citizenship,
the United States would be required to confer U.S. citizenship on
persons whose admission to Puerto Rico it apparently would not control.
This is an unacceptable surrender of sovereignty by the United States
with profound consequences since birth in Puerto Rico would guarantee
the right to enter, live, and work in any part of the United States.

3\) [Constitutional Issues]{.underline}

The proposed legislation makes reference to an agreement that the United
States would need to enter into with Puerto Rico. The bill indicates
that such agreement will not be subject to unilateral nullification or
change (see Sec. 1), and it also purports to dictate the structure and
size of the U.S. negotiating team (Sec. 3, para. 21), and the dispute
resolution mechanism that the parties would need to resort to if a
controversy between the parties to the negotiation do not admit of
solution (Sec. 3, para. 22). The Department believes that in this regard
the legislation would encroach unconstitutionally on the foreign affairs
prerogatives of the executive branch conferred on the President by
Article II of the U.S. Constitution. The negotiation of agreements with
foreign states (which is essentially what Puerto Rico would functionally
constitute at the point of the proposed negotiations), including issues
relating to the U.S. Government\'s negotiating team, and the
articulation of terms for dispute resolution mechanisms to resolve
controversies with foreign states, are essentially foreign relations
functions, within the province of the executive branch. The legislation
also directs the executive branch to support the entry by Puerto Rico
into international organizations, and to \"endorse Puerto Rico\'s
participation or membership in agreements \....\" Sec. 3, para. 17.

The Department of State therefore would oppose those provisions of the
legislation that purport to constitute mandatory stipulations regarding
the proposed agreement with Puerto Rico, the negotiation of such
agreement, and related issues, as well as the decision of whether or not
to endorse Puerto Rico\'s participation in particular international
organizations or agreements, as all of these are matters with respect to
which the U.S. Constitution confers responsibility solely on the
executive branch.

Thank you, Mr. Chairman. I would be pleased to answer any questions the
Committee members may have.

Drafted: L/WHA- PDiRosa

9/27/00 OpenDocs 85291 x7-6824

Cleared: L/T:RDalton-ok

L/LM- JBorek-ok

L/EAP-MComfort-ok

CA-EBetancourt-ok

H-TFaulkner-ok

DOJ/OLC-BTreanor-ok

OMB-OGonzalez-ok