According to the Territorial Clause of the Constitution, “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” (Article IV, Section 3, Clause 2). Regarding Puerto Rico’s legal status, over the past 70 years, a debate has ensued in Puerto Rico and in Washington, DC, with some arguing that Puerto Rico is a territory and therefore is subject to the above Constitutional provision, granting Congress plenary power to legislate regarding Puerto Rico’s internal and external affairs. Others contend, however, that Congress, by allowing for the creation of a semi-autonomous local government in Puerto Rico in 1952, has entered into a compact/agreement with Puerto Rico, and by so doing has ceded authority to the local government.

For Discussion #3, please read the following blog, written by Constitutional scholar Christina D. Ponsa Kraus, which provides a recent summary of the constitutional debate surrounding Puerto Rico’s legal status:  Balkinization: The Battle Over Puerto Rico’s Future (Links to an external site.)

Then, answer the following questions:

1. Now that you know something about Congressional powers, why do you think US territorial possessions (i.e. land owned or claimed by the US, but not incorporated as part of a “state”) were originally placed under the authority of the Congress, and not within that of the Executive branch? Does it matter? Why or why not?

2. Ponsa Kraus discards the possibility of associations of Puerto Rico with the United States that don’t involve either a “territorial status” or “statehood” (though a non-association is also possible through political independence).

If she is correct, and Congress currently has plenary power over Puerto Rico, as it does over all territories, how do you think Congress should exercise its powers in Puerto Rico, given its territorial status?

In other words, should Congress exercise its powers differently in Puerto Rico because of Puerto Rico’s territorial status, than it does in the “states”, such as Florida?

If Congress should treat Puerto Rico differently, how so? And why should it treat Puerto Rico (and other territories differently)?

Or should Congress treat Puerto Rico (and other territories) the same way that it does the “states”? Why?

In your response, recall that Congress’s powers include taxing power, spending power, power to regulate commerce, power to declare war and maintain a military, investigatory power, eminent domain power, bankruptcy power, postal power, power to regulate citizenship, regulatory power over maritime affairs, and patent/copyright power.

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