Department of Justice Views On The Proposed Constitution Drafted By The Fifth Constitutional Convention of The United States Virgin Islands

34 Op. O.L.C. 1

DEPARTMENT OF JUSTICE VIEWS ON THE PROPOSED CONSTITUTION DRAFTED BY THE FIFTH CONSTITUTIONAL CONVENTION OF THE UNITED STATES VIRGIN ISLANDS

No. 10-2

United States Department of Justice

February 23, 2010

RONALD WEICH Assistant Attorney General for Legislative Affairs.

DEPARTMENT OF JUSTICE VIEWS ON THE PROPOSED CONSTITUTION DRAFTED BY THE FIFTH CONSTITUTIONAL CONVENTION OF THE UNITED STATES VIRGIN ISLANDS

The following memorandum was initially drafted in the Office of Legal Counsel at the request of the Assistant Attorney General for Legislative Affairs. It analyzes several features of the proposed constitution of the U.S. Virgin Islands ("USVI"), including: (1) the absence of an express recognition of United States sovereignty and the supremacy of federal law; (2) provisions for a special election on the USVI's territorial status; (3) provisions conferring legal advantages on certain groups defined by place and timing of birth, timing of residency, or ancestry; (4) residence requirements for certain offices; (5) provisions guaranteeing legislative representation of certain geographic areas; (6) provisions addressing territorial waters and marine resources; (7) imprecise language in certain provisions of the proposed constitution's bill of rights (8) the possible need to repeal certain federal laws if the proposed USVI constitution is adopted; and (9) the effect of congressional action or inaction on the proposed constitution.

MEMORANDUM OPINION FOR THE OFFICE OF MANAGEMENT AND BUDGET

This responds to the Office of Management and Budget's request for the views of the Department of Justice on the proposed constitution recently adopted by a constitutional convention in the U.S. Virgin Islands (“USVI”) and submitted to the President by the Governor of the USVI.^[1] Below we provide our analysis of several features of the proposed constitution that we believe warrant comment: (1) the absence of an express recognition of United States sovereignty and the supremacy of federal law; (2) provisions for a special election on the USVI's territorial status; (3) provisions conferring legal advantages on certain groups defined by place and timing of birth, timing of residency, or ancestry (4) residence requirements for certain offices; (5) provisions guaranteeing legislative representation of certain geographic areas; (6) provisions addressing territorial waters and marine resources; (7) imprecise language in certain provisions of the proposed constitution's bill of rights; (8) the possible need to repeal certain federal laws if the proposed USVI constitution is adopted; and (9) the effect of congressional action or inaction on the proposed constitution.

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. See infra part II.C. We conclude that the ten- and fifteen-year residence requirements for USVI Governors, Lieutenant Governors, and judges raise constitutional concerns, and we recommend that consideration be given to shortening the duration of these requirements. See infra part II.D. As explained below, the provision concerning territorial waters and marine resources appears to be inconsistent with governing federal law. We recommend that it be revised to remove any inconsistency and to make clear its recognition of Congress's plenary control over these matters. See infra part II.F [ 2]

I. Background

The USVI is an unincorporated territory acquired by the United States from Denmark in 1917. See 48 U.S.C. § 1541(a) (2006); Convention Between the United States and Denmark for Cession of the Danish West Indies, 39 Stat. 1706 (1916); see generally Isaac Dookhan, A History of the Virgin Islands of the United States 258-62 (1994). The USVI's government is established under the Organic Act of 1936, as amended, 48 U.S.C. §§ 1405-1406m (2006), and the Revised Organic Act of 1954, as amended, 48 U.S.C. §§ 1541-1645 (2006). See also 48 U.S.C. §§ 1392-1397 (2006). A 1976 Act of Congress, however, permits the USVI to propose a constitution for the local government of the Islands. See Act of Oct. 21, 1976, Pub. L. No. 94-584, 90 Stat. 2899, as amended by Pub. L. No. 96-597, tit. V, § 501, 94 Stat. 3477, 3479 (1980), codified as a note following table of contents of 48 U.S.C. ch. 12 (2006) (“Enabling Act”).

Under the 1976 Enabling Act, the USVI's legislature may “call [a] constitutional convention[] to draft, within the existing territorial-Federal relationship, [a] constitution[] for the local self-government of the people of the Virgin Islands.” Id. § 2(a). The proposed constitution must: (1) “recognize, and be consistent with, the sovereignty of the United States over the Virgin Islands . . . and the supremacy of the provisions of the Constitution, treaties, and laws of the United States applicable to the Virgin Islands, ” including provisions of the Organic Act and Revised Organic Act that “do not relate to local self-government”; (2) “provide for a republican form of government, consisting of three branches: executive, legislative, and judicial”; (3) “contain a bill of rights”; (4) “deal with the subject matter of” provisions of the Organic Act and Revised Organic Act that “relate to local self-government”; and (5) provide for a system of local courts consistent with the Revised Organic Act. Id. § 2(b).

The Enabling Act requires the Governor of the Virgin Islands to submit a proposed constitution to the President. See id. § 4 (“Such constitutions shall be submitted to the President of the United States by the Governor[] of the Virgin Islands”). The President “shall transmit such constitution together with his comments to the Congress” within sixty days of receipt. Id. § 5. Congress may approve, amend, or modify the constitution by joint resolution, but the constitution “shall be deemed to have been approved” if Congress takes no action within “sixty legislative days (not interrupted by an adjournment sine die of the Congress) after its submission by the President.” Id. Any constitution approved by Congress takes effect only if then approved by referendum in the USVI. See id.

A constitutional convention in the USVI proposed a constitution under the Enabling Act in 1978. The President transmitted this constitution to Congress with comments recommending certain changes. See Message from the President of the United States Transmitting the Proposed Constitution for the Virgin Islands, Pursuant to Section 5 of Public Law 94-584, H.R. Doc. No. 95-385 (1978). The constitution was then deemed approved under the Enabling Act because Congress took no action, but the USVI voters rejected it in a referendum. See Department of Justice Views on the Constitution Adopted by the Constitutional Convention of the Virgin Islands, 4B Op. O.L.C. 759, 760 n.1 (1980) (“DOJ Views”); S. Rep. No. 97-66, at 2 (1981). Another constitution was proposed in 1980. The President transmitted this constitution, too, providing comments and recommending changes based in part on a memorandum from the Department of Justice. See Message from the President of the United States Transmitting a [ 3] Proposed Constitution for the Virgin Islands, Pursuant to Section 5 of Public Law 94-584, H.R. Doc. No. 96-375 (1980) (“1980 Presidential Message” or “1980 Constitution”); DOJ Views, 4B Op. O.L.C. at 759. The USVI constitutional convention reconvened and proposed amendments to the constitution in response to Administration concerns, and Congress approved a modified version of the constitution by joint resolution. See Pub. L. No. 97-21, 95 Stat. 105 (1981); S. Rep. No. 97-66, at 2; H.R. Rep. No. 97-25, at 2 (1981); Fourth Constitution of the Virgin Islands: Hearing Before the Senate Committee on Energy and Natural Resources, 97th Cong., 173, 181 (1981) (“Hr'g on Fourth USVI Constitution”); Statement on Signing a Bill To Approve a Constitution for the United States Virgin Islands, 1981 Pub. Papers 617 (July 10, 1981). The USVI electorate, however, again rejected the constitution. See DOJ Views, 4B Op. O.L.C. at 759.

A constitutional convention in the USVI adopted the present proposed constitution at the end of May 2009, and the Governor of the USVI submitted it to the President on December 31, 2009. See Letter from Governor John P. de Jongh, Jr., to Hon. Barack H. Obama, President of the United States (Dec. 31, 2009). The Governor also forwarded a legal opinion on the draft constitution prepared by the Attorney General of the USVI. See Letter to the Hon. John P. de Jongh, Jr., Governor of the Virgin Islands, from Vincent F. Frazer, Esq., Attorney General (June 8, 2009) (“USVI AG Op.”). Both the Governor and the Attorney General expressed concerns that the proposed constitution is inconsistent with the Enabling Act and the U.S. Constitution.

II. Discussion

A. Recognition of U.S. Sovereignty and the Supremacy of Federal Law

The Enabling Act requires any proposed constitution for the USVI to “recognize” and “be consistent with” United States sovereignty and the supremacy of the applicable provisions of the Constitution, treaties, and laws of the United States. Enabling Act § 2(b)(1). The current proposed constitution, like the one initially proposed in 1980, does not include an express statement directly satisfying this requirement. Indeed, one provision of the current constitution states, without any reference to the U.S. Constitution or federal law, that “[t]his Constitution shall be the supreme law of the Virgin Islands ” see Constitution of the Virgin Islands of the United States, Fifth Constitutional...