The Procedures for Adding States to the Union

There has been renewed public interest in bringing Puerto Rico into the Union as a new state in recent years. While the statehood question has long structured territorial politics in Puerto Rico, Hurricane Maria in 2017 convinced many Puerto Rico and the United States citizens that territorial status was to blame for the perceived lackluster federal response. Meanwhile, increasing partisan hardball in Congress has many Democrats eyeing statehood for Puerto Rico (and Washington, DC) as an opportunity to shift the balance of power in the United States Senate and national politics.     

As a procedural matter, how are new states created?

The short answer is that Congress passes a federal law. The admission of new states is governed by Article IV, section 3 of the Constitution, which reads:

“New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

The Congress shall have power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.”

Although various detailed plans for structuring the statehood process were considered both before the adoption of the Constitution and as revisions to it in the 19th century, the Framers went with a plan that did not constitutionally constrain either the size of new states or set a population threshold required for admission. Nor did they require any supermajority procedures. In effect, they made it surprisingly easy to add new states. Creating a new state is arguably the only irreversible process in the entire Constitution. Yet, it requires no more than federal law to achieve it.

And it was immediately and always controversial. Throughout the 19th century, statehood played a prominent role in destabilizing American politics. New states' ability to alter the balance of political power in the federal government led to near-constant political jockeying over state admissions, as partisans sought to expand the Union as a mechanism of consolidating political power.  Frustration with the process led to routine calls for its reform, especially for the imposition of size and population threshold restrictions on Congress's ability to add states.

Bills that propose the admission of Puerto Rico are referred to the Natural Resources Committee in the House and to the Energy and Natural Resources Committee in the Senate. Various Puerto Rico statehood bills have been introduced in recent years; during the 116th Congress, H.R.1965 and H.R.4901 have been introduced and referred to the House Committee on Natural Resources. No further action has been taken on either bill. 

Statehood bills in Congress are considered as any other legislation. They are not privileged for floor consideration in the House or considered privileged business in the Senate. When the Washington, DC Admission Act (H.R.51) was considered in the House this year, it was brought to the floor under a special rule (H.Res.1017). Statehood measures reported from the Senate committee are placed on the Legislative Calendar, and debate would not be limited on either the motion to proceed or on the bill itself. Cloture to end debate on either would require 3/5 of the Senate under Rule XXII.

While the basic procedures for admitting states to the Union are straightforward and the constitutional constraints on admission minimal, Congress has used various legislative mechanisms to admit new states. In some cases, Congress has passed a straightforward law declaring a new state (see, for example, the 1850 California admission act). In other instances, Congress has passed what is typically called an "enabling act," which sets forth a process, which, if completed satisfactorily, will result in the proclamation by the president of the new state (see, for example, the 1894 Utah enabling act). 

These mechanisms reflect both normative ideals and positive realities of the statehood process. As a normative matter, Congress has long believed that no state should be admitted to the Union unless the people of the new state have affirmatively voted in favor of statehood. As a positive matter, Congress has to deal with the reality that creating a state involves more than just admitting it; most importantly, the new state must have specified boundaries.

Thus the politics of the statehood process involves the recognition of political communities, both by the new community itself and by Congress, and the geographic bounding of those communities. In both cases, it means that political actors in both Congress and the potential states will play an essential role in the process.

In practice, statehood has come up in Congress during various stages of this recognition and bounding process. Both congressional actors and settlers in the new communities tend to work toward these goals as they pursue their own political goals. Statehood is usually an instrumental strategy of political actors seeking other goals,  be it the admission of new slave/free states, the creation of territories to construct railroad lines, or the separation of a territory to forestall the political takeover of a rival faction in a growing area of the territory. 

For example, settlers on unorganized federal land might petition Congress to formally create a new territory (recognition); a territorial legislature or a separatist portion of a territory might petition Congress to divide a territory into two political communities (recognition and bounding); a territory might seek statehood for a portion of their existing territory (bounding), or a separatist portion of a territory might seek to avoid being part of a new state, preferring to create a new territory (recognition). 

Congress has added 37 states to the original Union. Of those 37 acts, nineteen were the admission of an entire territory, already bounded and recognized as a political community. Ten were the partial admission of a territory. Some territories became a state, and the residual portion of the territory was reorganized as a new community. One state (California) was created out of unorganized federal land. One state was formed from a bounded nation (Texas). And four states (Vermont, Kentucky, Maine, and West Virginia) were created from land legally held by existing states. 

In practice, the vehicle Congress chooses to admit a state depends on where the prospective states lies in the current politics of recognition and bounding, separate from where it lies legally. California, for instance, was federal land under military rule and residual Mexican rule in 1850. But the political leaders of the proto-state had already held a constitutional convention, approved a constitution, and set boundaries for their new state within the new Constitution. Congress simply ratified these decisions. In other cases, neither the final boundaries, nor the new state constitution, nor the plebiscite has taken place. In these cases, Congress is likely to produce an enabling act to structure those decisions.

Regardless, things can go wrong. Voters in the proto-state can reject the state constitution (Kansas). Congress might reject the Constitution (Kansas, again). The president might veto the act because he rejects the Constitution (Arizona). A political community most commonly might spend years seeking statehood, only to be ignored by Congress (many). Often, the proto-state will begin the process without Congress, holding a plebiscite, writing a state constitution, and even electing shadow Senators and representatives, in an effort to spur action in Washington. 

In the case of Puerto Rico, boundaries almost certainly will not be a question. Any statehood act is likely to include the admission of the entirety of the current territory. The political community is fully formed; it is unlikely any portion of Puerto Rico’s population will seek a partial admission to the Union at the exclusion of some parts of the territory or seek a separatist territory that is excluded from the admission as a state.

Puerto Rico also has a mature government structure that resembles a state government more closely than a traditional 19th-century territorial government. Most notably, it has an elected governor rather than a federally appointed one. 

Both H.R.1965 and H.R.4901 provide for Puerto Rico to be admitted to the Union with its current boundaries and with its current Constitution as the new state constitution.

The most important question for Puerto Rico statehood, however, is voter approval. Statehood is highly contested in Puerto Rico, with large numbers both in favor and opposed. There have been six plebiscites on the question since 1967, and another one is on the ballot in 2020. Both the 2012 and 2017 plebiscites were controversial. Statehood won narrowly in 2012. In 2017, it won convincingly, but the turnout was only 23 percent of the population, as the anti-statehood party boycotted the vote.

The two bills currently in Congress take different views on the plebiscite question. H.R.1965 provides for immediate admission, based on the 2017 plebiscite. H.R.4901 provides for admission contingent on statehood winning the 2020 plebiscite. Congress has never admitted a state to the Union against its will. It is highly unlikely Congress would admit Puerto Rico to the Union absent a bona fide majority vote in the territory in favor of statehood in the upcoming plebiscite.