The Trump Era and My Puerto Rican Citizenship

I am a citizen of the United States at birth, but after today’s events I have resolved to carry my American passport whenever I travel — even domestically — for fear of what is to come under the Trump administration.

While this may be somewhat alarmist, I feel the precaution is wholly justified in light of the uncertainty Trump has ushered in. Along with millions of other Americans, I am a citizen of two nations but one state. I was born in the unincorporated territory of Puerto Rico.

In the aftermath of the Spanish American war in 1898, Spain ceded Puerto Rico to the United States via the Treaty of Paris. Two years later, Congress deemed all native-born Puerto Ricans (and their offspring) citizens of Puerto Rico by way of the Foraker Act, but did not extend U.S. citizenship to them until the passage of the Jones-Shafroth Act.

But not all citizenships are created equal. Puerto Ricans are U.S. citizens by statute, not by virtue of the Fourteenth Amendment to the Constitution, which reads in part:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”

High on new ideas about racial composition and political organization, the U.S. Supreme Court ruled through a series of Insular Cases, which literally cite “White Man’s Burden,” that the Constitution does not apply ex proprio vigore to Puerto Rico and its citizens there residing. The reasoning was that no polity so racially and politically distinct from the mainland could possibly deserve the same rights and privileges of full U.S. citizens. To this day, the Insular Cases remain good law.

What does this history lesson have to do with Trump? Well, it means that the Republican-controlled Congress, which has thus far kowtowed to Trump’s every whim, may unilaterally amend or revoke the terms of Puerto Ricans’ American citizenship. The Fourteenth Amendment does not safeguard my right to the privileges that come with American citizenship, ranging from travel within the country and any rights that, even while guaranteed by the Constitution, are not deemed “fundamental.”

The Supreme Court has interpreted the Privileges and Immunities Clause as guaranteeing the “fundamental right” to interstate travel. But neither the Constitution nor any jurisprudence explicitly extends this right to travel to and from unincorporated territories. After all, the Supreme Court has ruled that Puerto Rico need not be considered part of the “United States” for the purposes of the Uniformity Clause. This is why Congress has been able to levy tariffs in the past and why Puerto Rican residents do not generally need to file federal income tax returns.

What’s more, the Supreme Court has ruled that Congress still exercises plenary power over Puerto Rico through the Territory Clause and thus may treat Puerto Rico separately from the states so long as the law passes muster under the relatively weak rational basis review. National security, for instance, would likely be viewed as a rational basis upon which to amend freedom of movement to and from Puerto Rico.

So, it is entirely possible for Congress to amend the Immigration and Nationality Act to restrict movement to and from Puerto Rico. Could Trump do this unilaterally through an executive order? Probably not, as I cannot foresee a way to accomplish this without violating the terms of the INA. But we have elected a President who has demonstrated unparalleled contempt for Constitutional processes and has the power to appoint radical judges across the judicial system (including the highest Court). When President Jackson was determined to steamroll the Native Americans, the Supreme Court was powerless to stop him. He famously said, “John Marshall has made his decision; now let him enforce it!” Thousands of Cherokee were subsequently annihilated as they crossed the Trail of Tears.

I do not draw this comparison to warn of an impending genocide against Puerto Ricans. I do it to remind everyone that no political system is immune to decay.

The obvious conclusion from this is that none of the legal nuances I described matter in the end. I don’t adopt this view myself, but it does highlight an important practical implication of Trump’s presidency. My family has often joked about traveling to and from home without their passports and being held up by ignorant TSA agents who don’t realize Puerto Rico is part of the U.S. It was funny then, but now someone’s ignorance could lead to my own detention.

I also want to take the opportunity to underscore my immense privilege right now. Though my citizenship is second-class, it is citizenship nonetheless. This puts me in a drastically different position than visa holders or undocumented folk. I am also white. I speak English. I could afford a lawyer. I attend an elite university. My parents were born in the contiguous United States. The list goes on.

But I am still clinging to my passport because Trump is eroding the rule of law in this country to the point I do not have confidence in its uniform and non-discriminatory execution. On a personal note, it is unclear whether my parents’ status as natural-born U.S. citizens could protect me from a Trump-inspired citizenship change. For instance, a potential amendment to the INA might subject “citizens of Puerto Rico” to travel restrictions when travelling from Puerto Rico to a state of the Union. This would still capture my particular situation, along with those of millions of others born in Puerto Rico.

Notwithstanding all this fearmongering, enacting anything of the sort may incur backlash that even Trump couldn’t ignore. This would namely be due, I suspect, to the influence of the Catholic Church and Protestant denominations; we’re not Muslim after all! (Just kidding, I know just as many Puerto Rican Muslims as “American” ones, whatever that means.) And to be sure, I think there are a number of very solid legal rebuttals to the arguments I’ve laid out above.

But I’ll reiterate that this may not matter in the future. Complacency is dangerous and solidarity is key. Any Puerto Rican who doesn’t have any qualms with Trump’s new immigration policies should reflect long and hard about their own precarious situation. After all, one Puerto Rican in Illinois was detained for three days and nearly deported under the Obama presidency on suspicion of being an illegal immigrant. Such ignorance is growing as we speak and may be codified in the near future. I’m glad the Trump administration has been partly enjoined from enforcing this first round of “Muslim bans,” but this is only the beginning. Everyone must reject complacency and learn to empathize with fellow human beings from all walks of life.

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