Obama sends draft VI Constitution to Congress

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Obama sends draft constitution to Congress
Justice Department report recommends changes
By ALDETH LEWIN
Wednesday, March 3rd 2010

ST. THOMAS - President Barack Obama has forwarded the draft V.I. constitution to Congress along with an U.S. Department of Justice analysis that recommends many items - specifically the provisions granting special rights to Virgin Islanders based on birth or ancestry - be removed from the document.

After a court order mandated him to do so, Gov. John deJongh Jr. sent the draft constitution - approved by the Fifth Constitutional Convention in May - to Obama on Dec. 31.

Federal law states that after the president receives the proposed constitution, he has 60 days to review it, comment if he chooses and submit it to Congress. Congress then has 60 days to review the document and make amendments or changes before returning it to the territory for a referendum vote by the people of the Virgin Islands.

Obama wrote in his transmittal letter to Congress that after receiving the draft constitution, he asked the U.S. Department of Justice - in collaboration with the Department of the Interior - to review the document.

Justice responded with an 18-page analysis that lists legal concerns and makes multiple recommendations to change the draft. The analysis details nine concerns:

The law granting the Virgin Islands the right to draft its own constitution specifies that any constitution must recognize and be consistent with U.S. sovereignty and the supremacy of federal law.

“The current proposed constitution, like the one initially proposed in 1980, does not include an express statement directly satisfying this requirement,” the Justice report said.

In fact, the V.I. constitution indicates that it - with no mention of the U.S. Constitution - will be the supreme law in the Virgin Islands, Justice officials said. The report said that while it would be preferable to include a statement recognizing U.S. sovereignty in the V.I. constitution, the document as drafted is in “substantial” compliance.

In the V.I. constitution draft, there is a provision that allows for a special election for Virgin Islanders to answer questions of status for the territory - whether the people want to consider statehood, free association or independence from the U.S.

Justice officials said Congress gave the territory the ability to write its own constitution for “local self-government” only. That self-governance must be kept within the existing relationship between the territory and the federal government, the report said. Justice said the constitution is not meant to be a status document, and questions about status should not hold up the implementation of a constitution. Nonetheless, Justice officials said including the special election to consider status is not in direct violation of the original enabling legislation allowing the territory to draft a constitution.

The proposed constitution defines several categories of Virgin Islanders, but Justice officials said the categories raise concerns about equal protection guaranteed by the U.S. Constitution.

One of the most contentious provisions in the proposed constitution gives property tax exemptions for “ancestral native Virgin Islanders” - which is defined in the draft as someone who was either born or living in the V.I. before June 28, 1932, or is a descendant of such a person.

The Justice report said while the Supreme Court upheld a real property valuation system in California that favored long-time residents to preserve the stability of local neighborhoods, this would not apply for the ancestral Virgin Islander definition.

Under the definition, someone who was born before the June 28, 1932, cutoff date could have lived outside out of the territory for 50 years, come back, buy property and be exempt from paying taxes on that property. Meanwhile, someone who was born after 1932 and who lived here their whole life would have to pay taxes.

“How a system permitting this kind of discrimination could be said to further neighborhood stability or reliance interests of long-time property owners is unclear,” the report said.

It is unclear how the provision would serve the V.I. government’s interest, the report said.

“Because we find it difficult to discern a legitimate governmental purpose that would be rationally advanced by the provisions conferring legal advantages on certain groups defined by place and timing of birth, timing of residency, or ancestry, we recommend that those provisions be removed from the proposed constitution,” the Justice report said.

The U.S. Department of Justice also questioned the 15-year residency requirements for the governor and lieutenant governor and one-year district residency for senators which is included in the draft. The Justice report said requiring more than five years may violate the U.S. Constitution. Justice recommended shortening the residency requirements.

The proposed constitution defines electoral districts for senators - splitting St. Croix and St. Thomas into four districts, two on each island. In the constitution, voters would elect six at large senators, three of whom must be from St. Thomas or St. John; two senators from each of the two St. Croix sub-districts; two senators from each of the St. Thomas sub-districts and one senator elected from St. John.

Justice officials said districts should be based on population, not geographical location. The report did not recommend specific changes to the provision, but warned that there is potential litigation risk if it moves forward.

The Justice analysis said the draft constitution’s provisions about V.I. control over territorial waters and marine resources may be inconsistent with federal law and should be clarified.

Imprecise language in certain provisions of the proposed constitution’s bill of rights was another concern of the Justice Department. The report said the document’s bill of rights must be consistent with federal law.

Justice also pointed out to Congress and Obama that if a V.I. constitution is passed, Congress may have to repeal all or part of the Revised Organic Act of 1954, which was drafted by Congress and has served as the territory’s constitution.

Justice noted that by law, if Congress takes no action within the 60 days, the document is automatically adopted and will be put to a referendum vote in the territory without changes.

Tuesday, V.I. Delegate to Congress Donna Christensen said that the House of Representatives Subcommittee on Insular Affairs - of which she is a member - is set to hear the proposed constitution March 17 in Washington.

She said the subcommittee has reached out to its counterpart in the U.S. Senate to see if a joint hearing could be held, but nothing has been worked out yet. If there is no joint hearing, the constitution - as a bill - will be voted out of committee to the House floor. A mirrored process will take place in the Senate. The constitution can be amended by both the House and the Senate before it is returned to the territory.

Once it comes back to the Virgin Islands, it will be put to a referendum vote by the territory’s voters.