history of Public Law 600 and Public Law 447 may lend support to this view of what Congress believed it was accomplishing when it enacted the legislation.1 The opposing theory is that the compact was actually an agreement which created mutual obligations and rights capable of being enforced, and was considered as such by the parties. Under this view Congress has agreed that henceforth Puerto Rico will govern its internal affairs under its own constitution, United States-Puerto Rican relations are to be governed by the Puerto Rican Federal Relations Act, or at least by its general principles, and, without the consent of Puerto Rico, Congress no longer has authority to enact legislation affecting Puerto Rico inconsistent with this general scheme." It would follow from this view that Congress has divested itself of at least part of its authority to govern Puerto Rico under the territorial clause or has limited that authority permanently." The effect of the grant of self-government in Public Laws 600 and 447 has been the subject of proceedings before the United Nations. Article 73 (e) of the United Nations Charter requires member states to submit information relating to economic, social and educational conditions in non-self-governing territories. In 1953 the United States notified the United Nations that it would cease submitting such information with respect to Puerto Rico. This was accomplished in a memorandum of the United States transmitted through Henry Cabot Lodge, Jr., U.S. representative to the United Nations, which stated:

"By the various actions taken by the Congress and the people of Puerto Rico, Congress has agreed that Puerto Rico shall have, under that constitution, freedom from control or interference by the Congress in respect of internal government and administration, subject only to compliance with applicable provisions of the Federal Constitution, the Puerto Rican Federal Relations Act and the acts of Congress authorizing and approving the constitution, as may be interpreted by judicial decision. Those laws which directed or authorized interference with matters of local government by the Federal Government have been repealed." It was not necessary for the United Nations General Assembly to determine the issue of irrevocability of the grant, nor was it, in the view of the United States, within the competency of the General Assembly to do so.8 The memorandum of the United States did not touch upon that issue. Nevertheless, a statement was made on the subject in the Committee on Information From Non-Self-Governing Territories, and certain states, largely Communist and Communist influenced, raised the question in debate before the Fourth Committee and before the General Assembly, whether, by reason of the possibility that Congress continued to have the power to revoke the grant of self-government to Puerto Rico, self-governing status actually existed. To this contention the U.S. representatives responded with several statements, of which the following is typical:

"The present status of Puerto Rico is that of a people with a constitution of their own adoption, stemming from their own authority, which only they can alter or amend. The relationships previously established also by a law of the Congress, which only Congress could amend, have now become provisions of a compact of a bilateral nature whose terms may be changed only by common consent.9

The courts have not thus far definitively determined the question of whether Public Laws 600 and 447 have resulted in a permanent divestiture by Congress of

For an exhaustive discussion of the legislative history, see Helfeld op. cit. supra ftn. 3.

For an expression of this point of view, see Mora v. Torres, 113 F. Supp. 309 (D.P.R. 1953) (dictum). 6 This view is said to derive support from the fact that two statutes passed by Congress since 1952 made their application to Puerto Rico conditional upon the consent of the Legislature of Puerto Rico. The statutes are sec. 109 of the Narcotic Control Act (70 Stat. 572, 26 U.S.C. (Supp. V) 4774) and section 5314(a) of the Internal Revenue Code of 1954 as enacted by the Excise Tax Technical Changes Act of 1958 (72 Stat. 1376, 26 U.S.C.A. 5314). This action is equally consistent with 2 explanations. Congress may have felt that such consent was required under the terms of the compact. On the other hand, it is just as plausible to argue that Congress inserted the consent clauses merely as a matter of courtesy. In this connection, it should also be noted that Congress has taken action which may be said to affect the compact without requesting Puerto Rico's consent. It has in terms amended sec. 9 of the Puerto Rican Federal Relations Act without obtaining such consent (Philippine Trade Agreement Revision Act of 1955 (69 Stat. 427, 48 U.S.C. (Supp. V) 734). This change may have been of a purely formal and technical nature. However, Congress also extended the estate and gift tax provisions of the Internal Revenue Code to certain residents of Puerto Rico unilaterally (Internal Revenue Code of 1954, secs. 2208 and 2501, as added by sec. 102 of Technical Amendments Act of 1958 (72 Stat. 1674, 26 U.S.C.A. 2208, 2501)).

7 28 Department of State Bull. 584-588 (Apr. 20, 1953).

8 See Res. 742 (VIII) of the General Assembly, Nov. 27, 1953, GAOR, VIII, vol. V, Supp. No. 17 (A/2630), pp. 21-23; Res. 748 (VIII) of General Assembly, Nov. 27, 1953, GAOR, VIII, Supp. No. 17 (A/2630), pp. 25-26.

Statement of Hon. Frances P. Bolton, U.S. representative on the Committee on Information from NonSelf-Governing Territories, H. Rept. No. 1695, 83d Cong., 2d sess., p. 241. See also: Statement of Mr. Mason Sears, U.S. representative on the Fourth Committee; U.S. mission to the United Nations, press release No. 1741, Aug. 28, 1953; and statement of Dr. Antonio Fernós-Isern, Resident Commissioner from Puerto Rico, and U.S. special representative to the United Nations, U.S. Mission to the United Nations, press release No. 1791, Oct. 29, 1953.

its authority under the territorial clause of the U.S. Constitution. Although judges of the Supreme Court of Puerto Rico acting temporarily by designation as judges of the District Court of Puerto Rico have in dicta commented upon the ultimate effect of the compact, the Court of Appeals for the First Circuit, which reviews decisions of the district court and the Supreme Court of Puerto Rico, has so far avoided discussion of these issues. For example, in Mora v. Mejias (206 F. 2d 377 (C.A. 1, 1953)), affirming Mora v. Torres (113 F. Supp. 309 (D.P.R. 1953)), the court of appeals affirmed, on the narrow ground that there was no showing that the order was clearly confiscatory or arbitrary, a holding of the district court which declined to issue an injunction against enforcement of a local price control order. In the district court, however, the Honorable Benjamin Ortiz, justice of the Supreme Court of Puerto Rico acting temporarily by designation as judge of the U.S. District Court for Puerto Rico, had also commented upon the status of Puerto Rico. Judge Ortiz stated that "neither the Congress of the United States nor the people of Puerto Rico can unilaterally amend Public Law 600 nor the Puerto Rican Federal Relations Act without the consent and approval of the other party to the compact. ***"; (113 F. Supp. at 313), and "that Puerto Rico is no longer a dependency nor a territorial possession of the United States" (id. at 314).10

It has been argued that the first circuit court of appeals in Figueroa v. People of Puerto Rico, (232 F. 2d 615 (1st Cir., 1956)), impliedly recognized that a special status was conferred upon Puerto Rico by the compact when it stated at page 620:

"The answer to appellant's contention is that the constitution of the Commonwealth is not just another organic act of the Congress. We find no reason to impute to the Congress the perpetration of such a monumental hoax. Public Law 600 offered to the people of Puerto Rico a 'compact' under which, if the people accepted it, as they did, they were authorized to ‘organize a government pursuant to a constitution of their own adoption'."

This statement was made, however, in overruling appellant's contention that the first circuit had jurisdiction to review the holding of the Supreme Court of Puerto Rico with respect to the right to jury trial under the Puerto Rican constitution because this constitution was a law of the United States within title 28, United States Code, section 1293. The court of appeals merely concluded that the constitution of Puerto Rico, although approved by Congress, was not a law of the United States. Thus, the decision when fairly read would not purport to deal with fundamental questions relating to the status of Puerto Rico.

Nor has the permanent judge sitting in the U.S. District Court for Puerto Rico found it necessary to resolve the basic question of the status of Puerto Rico. In United States v. Figueroa Rios (140 F. Supp. 376 (D.P.R., 1956)) the district court judge held that the Federal Firearms Act (15_U.S.C. 901, 902), was inapplicable to the transportation of firearms within Puerto Rico. The opinion expressly stated that nothing contained therein should be understood as deciding that Congress could or did renounce its powers under the territorial clause or that Puerto Rico is no longer a territory within the meaning of the clause (id., at p. 382). The holding was based on the view that section 9 of the Puerto Rican Federal Relations Act (48 U.S.C. 734), interpreted in light of the compact, now operates to make certain prior enacted Federal statutes, so far as matters of purely local concern to Puerto Rico are involved, "locally inapplicable" to Puerto Rico. Similarly, in Trigo Bros. v. Davis (159 F. Supp. 841 (D.P.R., 1958)), the district judge held regulations issued under the Federal Alcohol Administration Act (27 U.S.C. 201 et seq.) inapplicable to wine bottled in Puerto Rico for sale, distribution, or consumption in Puerto Rico. The first circuit court of appeals has even avoided ruling on this view and reversed the Trigo case on grounds not here relevant. Davis v. Trigo Bros. Packing Corp. (266 F. 2d 174 (1st Cir., 1959)). In Dario Sanchez v. United States (256 F. 2d 73, 74 (1st Cir., 1958)), the court stated that because Puerto Rico clearly had manifested consent to the use of the taxing power by Congress to make criminal local transactions in marihuana, it need not decide whether Congress action was inconsistent with the compact. In general, the first circuit has been extremely reluctant to hold that Public Law 600 has repealed any existing statutes by implication. See Marquez v. Aviles 10 A somewhat similar position was taken by Acting Federal Judge A. Cecil Snyder, chief justice of the Supreme Court of Puerto Rico, sitting temporarily by designation, in Cosentino v. International Longshoremen's Ass'n Etc., 126 F. Sup. 420, 422 (D.P.R. 1954). In that case the Judge stated that "I am satisfied that Puerto Rico is no longer a territory in the sense that the term is used in the Constitution and the cases.' However, he also stated in the same opinion that "I don't propose to be bound by them [the statements he had made] in any other place or in this place in any other case. They are dicta on dicta, and spoken orally, although after many months of deliberation and study."

(252 F. 2d 715 (1958) (review of decisions of the Supreme Court of Puerto Rico by the first circuit)); Moreno Rios v. United States (256 F. 2d 68 (1958)) (authority of President to designate justices of Puerto Rican Supreme Court to sit as district judges in the U.S. district courts of Puerto Rico).

It may also be noted that the Court of Appeals for the Seventh Circuit has stated that Public Law 600 was not intended to affect the status of Puerto Rico as a territory. Detres v. Lions Building Corporation (234 F. 2d 596, 597–600 (C.A. 7, 1956)). In that case the court held that Puerto Rico was a territory within the meaning of title 28, United States Code, section 1332. That section authorizes suits in Federal courts between "citizens of different States" and defines the word "States" to include "the territories. ***."

2. The general structure of the bill

Section 4 of Public Law 600 continued the Jones Act in effect (except the sections of that act repealed by sec. 5 of Public Law 600) and redesignated it as the Puerto Rican Federal Relations Act. Section 1 of the bill would delete all of the existing language from section 4 of Public Law 600 and substitute the following: "SEC. 4. The relationships of the Commonwealth of Puerto Rico with the United States shall be subject to the following provisions, which shall be known and cited as the 'Articles of Permanent Association of the Commonwealth of Puerto Rico with the United States.'

There would follow 16 provisions, each designated as a separate article and dealing with a specific subject, such as taxation (art. III), commerce, trade and customs (art. IV), citizenship (art. V), etc. Some of these articles are discussed in greater detail below.

Section 2 of the bill would provide that "[t]he compact between the United States and the people of Puerto Rico is hereby further amended" by deleting the present language of section 5 of Public Law 600 and adding new language which would expressly repeal existing provisions of the Foraker and Jones Acts (now redesignated as the Puerto Rican Federal Relations Act) "and all laws or parts of law inconsistent with any of the provisions of this act or of the compact; However, the new language of section 5 would continue to bind Puerto Rico to the limitations upon its public indebtedness set forth in section 3 of the Puerto Rican Federal Relations Act until it amends its constitution to adopt such limitations.

Section 3 of the bill would provide that, after it is enacted by Congress, it shall become effective when approved by a majority of voters in a referendum to be held in Puerto Rico in accordance with the laws of the Commonwealth and upon proclamation by the President after receipt by him of a certification by the Governor of the results of the referendum.

3. Impact upon laws of Congress enacted in the past

Article XV of the bill would provide that nothing in the articles of association shall affect the validity or applicability of laws of Congress enacted in the past which are in conflict with the articles of association but to which Puerto Rico has given its express consent. So far as is known, this would affect only the two statutes referred to above.11 The impact of the proposed legislation upon statutes enacted in the past to which Puerto Rico has not expressly assented would be governed by section 2 and article IX(b). The appropriate interpretation of these provisions read together presents a problem which may require clarification. Section 2 of the bill would provide for the repeal of "all laws and parts of laws inconsistent with any of the provisions of" Public Law 600 "or of the compact.' However, article IX (b) would provide that:

"(b) Statutory laws of the United States heretofore enacted, insofar as they are consistent with this compact and are otherwise applicable, shall have force and effect in Puerto Rico to the extent that they could be applied if Puerto Rico were a member State of the Federal Union."

The two provisions may raise the question whether any particular statute enacted in the past which affects Puerto Rico, but to which Puerto Rico has not assented, is to be regarded as repealed, or at least repealed so far as its impact upon Puerto Rico is concerned, or whether it is to be regarded as applicable to Puerto Rico "to the extent that" it "could be applied if Puerto Rico were a member State of the Federal Union." As noted above, in the past the Federal Firearms Act (15 U.S.C. 901, 903) was regarded as applicable to the transportation of firearms within Puerto Rico, and the Federal Alcohol Administration Act (27 U.S. C. 201 et seq.) was applicable to wine bottled in Puerto Rico for sale, dis11 See footnote 6, supra.

tribution and consumption there. However, in United States v. Figueroa Rios, (140 F. Supp. 376 (D.P.R., 1956)), and in Trigo Bros. v. Davis (159 F. Supp. 841 (D.P.R., 1958)), reversed on other grounds, Davis v. Trigo Bros. Packing Corp. (266 F. 2d 174 (C.A. 1, 1959)), the court held these statutes inapplicable to purely local activities that is, to activities so local in nature as not ordinarily to be regarded as affected by a Federal regulation of interstate commerce.

The language of article IX (b) would apparently codify the principle of these holdings by making the statutes involved inapplicable to wholly local activities, but would permit their continued applicability to activities involving Puerto Rico and the States or foreign nations. Conceivably, the provision for repeal "of all laws and parts of laws inconsistent with" Public Law 600 or the compact is intended merely to provide for a limited repeal to further effectuate the intent of article IX(b). However, section 2 may raise the question whether its intent is to go further, i.e., to repeal those statutes insofar as they have any effect whatsoever upon Puerto Rico and therefore to provide that they would have no impact on, for example, shipments of firearms from Puerto Rico to States or to foreign nations. This question might be clarified. If the intent of the bill is to treat Puerto Rico like a State so far as the impact of general Federal legislation enacted in the past is concerned, it might be appropriate to eliminate the language of section 2 here discussed.

Independent of the doubt it casts upon the interpretation of article IX(b), the general repealer contained in section 2 raises substantial questions as to exactly what its impact will be. For example, in 1958, amendments to the Internal Revenue Code extended the estate and gift tax provisions of the Internal Revenue Code to certain residents of Puerto Rico without it consent.12 It is unclear whether section 2 intends to repeal this legislation or not. Other legislation of which we are unaware may also be affected. Accordingly, it is recommended either that consideration be given to eliminating the general repeal language of section 2 from the bill entirely or that it be replaced by language further itemizing what specific legislation is intended to be repealed.

4. The authority of Congress to legislate with respect to Puerto Rico in the future The bill would attempt to establish a general scheme whereby Congress could, with certain exceptions described hereafter, legislate with respect to Puerto Rico on all matters about which it legislates with respect to the states. As to matters about which it could not legislate with respect to states, under the bill Congress would follow a procedure of obtaining the consent of Puerto Rico to such legislation The authority of Congress to legislate with respect to Puerto Rico in the future would largely be governed by article IX. Article IX (c) provides that any law enacted by Congress in the future shall not be deemed applicable with respect to Puerto Rico unless it makes specific "reference to Puerto Rico or to the Commonwealth of Puerto Rico, by name." Article IX (a) would provide that the Federal Government may exercise the same powers in respect to Puerto Rico that it has in respect of the States, but that any law respecting Puerto Rico which could not be enacted with respect to the states would be applicable only upon its acceptance by Puerto Rico. Article IX(a), however, excepts from the general scheme some of the provisions in articles III and IV of the bill.

Article III deals with various tax matters, including the retention of the present system under which residents of Puerto Rico are not taxed by the United States upon income earned within Puerto Rico.

Article IV deals with customs and matters relating to trade and commerce. It would retain the existing provisions of law providing that tariffs, customs, and duties collected in Puerto Rico shall be paid into the Commonwealth treasury. Article XVI would make some of the limitations on the power of Congress to legislate with respect to Puerto Rico, contained in articles III and IV and relating to tax and customs matters, temporary in nature. This article would provide for the termination by Congress of several subsections of articles III and IV at such time as the per capita income of Puerto Rico equaled that of any State.13

12 See footnote 6, supra.

13 Conceivably the impact of art. XVI would be to leave Congress free to legislate as it deems appropriate with respect to the subject matter of the provisions of arts. III and IV referred to in art. XVI at such time as Puerto Rico attains the required per capita income. On the other hand, it may be argued from its language that art. XVI is not intended to confer upon Congress authority to revise the existing tax and customs relationship unilaterally at that time; that if new customs and tax relations are to be established, Congress would only be authorized to consider proposals for revision "as may then be made by the Commonwealth of Puerto Rico" or other proposals which would have to be submitted to a plebiscite of the people of Puerto Rico before they could become effective.

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Whether or not it is desirable for Congress to establish this tax and customs relationship with Puerto Rico is a question on which the Department of Justice defers to the Department of the Treasury.

5. The effect of the amendments to the compact

In addition to the scheme described in articles III, IV, IX, and XVI with respect to the power of Congress to enact legislation affecting Puerto Rico in the future, it may be contended that the provisions of the bill as a whole, once enacted, may not be amended without the consent of the Commonwealth of Puerto Rico. This contention would follow from the theory, discussed above, of the effect of the compact in Public Law 600. The proponents of that theory might argue that since the compact was irrevocable, so, too, are the amendments contained in this proposed bill. It might also be contended that this theory is strengthened by certain provisions of the bill, including the preamble, which states that it is "to clarify, develop, and perfect its terms so as better to achieve fulfillment of its purposes," and section 1 of the bill, which indicates that the basic relationship between the United States and Puerto Rico shall be based upon the "Articles of Permanent Association of the Commonwealth of Puerto Rico With the United States."

Ob

It would follow from these contentions that the limitations in the bill on the powers of Congress in certain respects go beyond those stated in article IX. For example, article V deals with citizenship problems; article XIII, with the jurisdictions and proceedings of the U.S. District Court in the District of Puerto Rico; and article XIV, with the direct review by the Supreme Court of the United States of judgments and decrees of the Supreme Court of Puerto Rico. viously, in the exercise of powers which would be effective if exercised with respect to the States, Congress may legislate as to such matters. However, if the compact were construed to prevent Congress from amending it unilaterally, Congress would be limited in its legislative authority over some matters about which it may legislate with respect to the States.

To the extent that the bill may attempt to limit the power of Congress to legislate, with respect to Puerto Rico in the future, a question of constitutional law would be raised. This question would be whether without a grant of statehood or independence Congress could permanently dispose of part of its powers to legislate with respect to Puerto Rico under the territorial clause of the Constitution while retaining the balance of that power. The part retained would be the basis for legislating with respect to Puerto Rico to the extent the bill allows.

No case has been found in which the courts have passed on the question whether Congress may permanently divest itself of some powers under the territorial clause, yet retain other powers under that clause. Nor have any cases been found discussing the question in dictum. It is true that authority exists for the view that Congress has plenary authority over the territories and may at any time alter, revoke, or revise a grant of legislative authority to a territory (Hornbuckle v. Toombs, 85 U.S. 648, 655, 656-657 (1873); National Bank v. County of Yankton, 101 U.S. 129, 133 (1879); Harris v. Boreham, 233 F. 2d 110, 113-114 (C.A. 3, 1956); see also District of Columbia v. John R. Thompson Co., Inc., 346 U.S. 101, 106 (1953)). However, these cases deal with the effect of a congressional delegation of power to a territorial government and stand for the proposition that any such delegation may be modified or withdrawn. None deal with a clear and unequivocal attempt of Congress to effectuate a permanent divestiture, rather than a delegation, of part of its authority under the territorial clause. Similarly, general language which may be contended to support either view may be found in the cases dealing with the legal problems attendant to the grant of independence to the Philippine Islands (Cincinnati Soap Co. v. United States, 301 U.S. 308, 319 (1937); Hooven & Allison Co. v. Evatt, 324 U.S. 652, 675 (1945)). But these cases deal with the present impact of a future grant of independence, not with an attempt to effectuate a permanent partial divestiture of plenary powers.

The constitutional question also has been presented in terms of whether, if it so desires, one Congress can bind future Congresses in perpetuity. The general rule is that one Congress cannot abridge the powers of succeeding Congresses and that a suceeding Congress is competent to repeal any act that a former Congress was competent to pass. However, in at least two situations Congress can take action which cannot be undone by succeeding Congresses. Congress in effect makes a permanent disposition of sovereignty whenever it makes a territory a State, and whenever it grants a territory full independence.