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Dan MacMeekin         Attorney at Law        Washington, DC, USA

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TORRUELLA, Circuit Judge (Concurring).   As I did in Igartúa I, I join the Court's opinion in this appeal because I believe it to be technically and, as the law now stands, legally correct in its conclusion that the Constitution does not guarantee United States citizens residing in Puerto Rico the right to vote in the national Presidential election. I also agree with the Court's indication that today's decision expresses no opinion with regard to the validity under Puerto Rico law of Law 403 of September 10, 2000, which is the subject of separate litigation and which I conclude is not properly before us. I am, however, compelled to write separately because I can no longer remain silent to the subjacent question, because from my perspective, there are larger issues at stake.

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I.

More than 100 years ago, at the conclusion of the Spanish-American War of 1898, Puerto Rico was ceded to the United States by Spain.² Despite lofty rhetoric at the time extolling the virtues of American democracy,³ the United States has since exercised almost unfettered power over Puerto Rico and the nearly 4,000,000 United States citizens who currently reside there.⁴ Although persons born in Puerto Rico are citizens of the United States at birth,⁵ and thereby "owe[] allegiance to the United States," Kawakita v. United States, 343 U.S. 717, 736 (1952), while residing in Puerto Rico they enjoy fewer rights than citizens of the United States that reside in the fifty States, see United States v. Verdugo-Urquídez, 494 U.S. 259, 268 (1990) (and cases cited therein), or even in foreign countries, see Reid v. Covert, 354 U.S. 1 (1957). Undoubtedly the most glaring evidence of this egregious disparity is the fact that they do not elect a single voting representative⁶ to a federal government that exercises almost absolute power over them.

This anomalous situation arises primarily as a result of the decisions of the Supreme Court in the Insular Cases,⁷ which established as early as 1901 the plenary power of Congress over Puerto Rico under the so-called "territorial" clause of the Constitution.⁸ In a series of narrowly divided decisions, the Court held that Puerto Rico was an "unincorporated territory," see Insular Cases, supra note 6, and as a result part of the United States for some purposes⁹ and not for others.¹⁰ As such, Congress was held to have plenary power over the internal and external affairs of the Island, subject not even to the Bill of Rights except insofar as those guarantees might be explicitly extended to the Island by Congress. See Downes, 182 U.S. at 286.

Between 1898 and 1917, persons residing in Puerto Rico were considered to be citizens of Puerto Rico¹¹ and "nationals" of the United States.¹² This condition was changed in 1917, however, when Congress granted United States citizenship en masse to the residents of Puerto Rico.¹³ Notwithstanding this apparent upgrading of the personal status of Puerto Rico's residents, the Supreme Court in 1922 in Balzac v. Porto Rico, 258 U.S. 298 (1922), established the inferior nature of the United States citizenship held by residents of Puerto Rico by concluding that the Constitution's protection of these new citizens was limited to those rights deemed by the Court to be "fundamental."¹⁴ Cf. Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886) (voting is "a fundamental political right, because [it is] preservative of all rights"); see also Reynolds v. Sims, 377 U.S. 533, 562 (1964).

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II.

Since Balzac the civil rights of United States citizens residing in Puerto Rico, particularly their national political rights, have remained dormant at best, subject to the vagaries of Congress, and the conspicuous inattention of the judiciary. The granting of so-called "Commonwealth" status in 1952,¹⁵ itself an enigmatic condition¹⁶ which merely allowed the residents of Puerto Rico limited self-government, did nothing to correct Puerto Rico's fundamental condition of national unempowerment, embodied most notably in the lack of voting representation in the Congress and the ineligibility to vote for President and Vice-President. The United States citizens residing in Puerto Rico to this day continue to have no real say in the choice of those who, from afar, really govern them, nor as to the enactment, application, and administration of the myriad of federal laws and regulations that control almost every aspect of their daily affairs.

On numerous occasions since 1952 Congress has turned a blind eye and a deaf ear to the continuing inequality to which United States citizens in Puerto Rico are subjected, and a perusal of the Congressional Record demonstrates the jealousy with which Congress has guarded its plenary power over the Island.¹⁷ The courts have supported this view. See Harris v. Rosario, 446 U.S. 651 (1980); Califano v. Torres, 389 U.S. 1 (1978).

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This is not a totally unpredicted scenario. As far back as 1901, in the first of the Insular Cases, De Lima v. Bidwell, 182 U.S. at 196-97, the Court expressed its concern with the possibility that Congress might hold Puerto Rico in limbo indefinitely:

The theory that a country remains foreign with respect to the tariff laws until Congress has acted by embracing it within the Customs union, . . . presupposes that territory may be held indefinitely by the United States; that it may be treated in every particular, except for tariff purposes, as domestic territory; that laws may be enacted and enforced by officers of the United States sent there for that purpose; that insurrections may be suppressed, wars carried on, revenues collected, taxes imposed; in short, that everything may be done which a government can do within its own boundaries, and yet that the territory may still remain a foreign country. That this state of things may continue for years, for a century even, but that until Congress enacts otherwise, it still remains a foreign country. To hold that this can be done as matter of law we deem to be pure judicial legislation. We find no warrant for it in the Constitution or in the powers conferred upon this court . . . . (Emphasis provided).

See also Downes, 182 U.S. at 379-80 (Harlan, J. dissenting).

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The present conundrum cannot be justified or perpetuated further under the subterfuge of labeling it a "political question." Undoubtedly, this situation is "political" in the sense that it involves the political rights of a substantial number of United States citizens. It is also "political" because it is one that should, in the normal course of things, be resolved by the political process and the political branches of government. But in the final analysis, this problem is no more "political" than that presented to and resolved by the Supreme Court in Brown v. Board of Education, 347 U.S. 483 (1954), one that required corrective judicial action even in the face of longstanding legal precedent.¹⁸ In Brown, the Court recognized that, as the ultimate interpreter and protector of the Constitution, it must at times fill the vacuum created by the failure or refusal of the political branches to protect the civil rights of a distinct and politically powerless group of United States citizens. See also United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938) (famously suggesting that "prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and . . . may call for a correspondingly more searching judicial inquiry").

The United States citizens residing in Puerto Rico are caught in an untenable Catch-22. The national disenfranchisement of these citizens ensures that they will never be able, through the political processes, to rectify the denial of their civil rights in those very political processes. This uninterrupted condition clearly provides solid basis for judicial intervention at some point, one for which there is resounding precedent. See Brown v. Board of Education, supra.

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III.

In this 211th year of the United States Constitution, and 102nd year of United States presence in Puerto Rico, United States citizenship must mean more than merely the freedom to travel to and from the United States. See Balzac, 258 U.S. at 308. This citizenship should not, cannot, be devalued to such a low scale.

After more than a century of United States possession of Puerto Rico, there continues to be tremendous debate over the status of the Island and the nature of its relationship with the United States. Certainly the citizens of Puerto Rico are divided on the issue, a condition which has permitted the federal government to externalize this question. What is established, for the time being at least, is that the federal courts continue to recognize the almost absolute power of Congress to unilaterally dictate the affairs of Puerto Rico and her people. So long as that is the case, the practicality of the matter is that Puerto Rico remains a colony with little prospect of exerting effective political pressure on the elected branches of government to take corrective action.

The contemporary society of United States citizens residing in Puerto Rico hardly deserves colonial treatment by the United States, assuming that such treatment is ever justified. Puerto Rico is home to a vibrant intellectual and cultural community which includes many institutions of higher education and other indicia of modern society, as well as a solid economic foundation which is wholly integrated into the National framework. Most importantly, its citizens have contributed in full measure, and at times beyond, to the defense of our Country.¹⁹

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The perpetuation of this colonial condition runs against the very principles upon which this Nation was founded. Indefinite colonial rule by the United States is not something that was contemplated by the Founding Fathers nor authorized per secula seculorum by the Constitution. See Downes, 182 U.S. at 380 (Harlan, J., dissenting) ("The idea that this country may acquire territories anywhere upon the earth, by conquest or treaty, and hold them as mere colonies or provinces,--the people inhabiting them to enjoy only those rights as Congress chooses to accord to them,--is wholly inconsistent with the spirit and genius, as well as with the words, of the Constitution."). And far from being a matter of local concern to the United States citizens in Puerto Rico only, the inequality to which these citizens are subjected is an injury to every American, because as surely as the current situation causes irreparable harm to United States citizens residing in Puerto Rico, it just as powerfully denigrates the entire Nation and the Constitution.

Although this is not the case, nor perhaps the time, for a federal court to take remedial action to correct what is a patently intolerable situation, it is time to serve notice upon the political branches of government that it is incumbent upon them, in the first instance, to take appropriate steps to correct what amounts to an outrageous disregard for the rights of a substantial segment of its citizenry. A failure to do so countenances corrective judicial action. See Brown v. Board of Education, supra. It may be that the federal courts will be required to take extraordinary measures as necessary to protect discrete groups "completely under the sovereignty and dominion of the United States." Cherokee Nation v. Georgia, 30 U.S. 1, 17 (1831) (Marshall, C.J.).

My concurrence in today's decision, of course, indicates that I do not consider this the appropriate case for such intervention, largely because the particular issue of the presidential vote is governed by explicit language in the Constitution providing for the election of the President and Vice-President by the States, rather than by individual citizens. But I, for one, am of the view that my vote today is not equivalent to a carte blanche.

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