The Supreme Court and Puerto Rico — Part One

This year, in a somewhat unusual turn of events, the status of Puerto Rico has been a significant part of national politics — at least at the actual level of governing.  Both the Supreme Court and Congress are considering Puerto Rico’s public debt.  Congress with legislation to fix it; the Supreme Court looking at the legal effect of Puerto Rico’s own efforts to fix it.  While technically these two are not directly related, the Supreme Court is still working on its decision on its case; and nobody knows whether the Supreme Court is keeping one eye on what is working through Congress in writing that opinion.  (The opinion is likely being written by Justice Thomas or Justice Alito).

The Supreme Court also had under review a second case involving Puerto Rico.  Technically, the case was about double jeopardy — the right of a person not to face the same charges twice.  However, there are some exceptions to this general rule and one of them involves what is called the “dual sovereign” exception.  Stripped to its bare bones, this exception recognizes that — under the Constitution — states and tribes retain some vestige of sovereignty.  Because of this legal separateness, two states or two tribes or a state and the federal government can file similar charges against the same individual arising from the same incident without running afoul of the ban on double jeopardy.  However, because a territory does not have the same vestiges of sovereignty, it violates double jeopardy for a territory and the federal government to both file similar charges.  (Similarly, a city within a state and that state may not both file similar charges.)  In the pending case, both the United States and Puerto Rico had filed charges.  The issue presented was whether Puerto Rico’s current status made it more like a state than a territory for double jeopardy purposes.

The political problem for this case is the use of the term “sovereign” in the “dual sovereign” exception.  For lawyers and political scientist, sovereign and sovereignty is one of those ambiguous terms that attempt to put a single label on a whole bundle of related issues.   As a young lawyer fresh out of law school, I wrote a series of law review articles on how both the federal and state governments are not truly sovereign with the sovereign power actually resting in the people of the United States with some delegates sovereign powers to the people in the individual states.  However, because the concept of state sovereignty is still bandied about and sovereignty is significant in international relationships, how sovereignty applies to the status of  Puerto Rico is a nice can of worms.  (Similar concerns apply in the debt case.)

In the old days (pre-Spanish-American War), territorial status was a temporary status — a holding place until there was enough population to merit admission into the Union as a state.  While territories had legislatures, the governor was appointed by the President and was responsible to the national government.  After World War II, the United States had several territories (including Puerto Rico) which were unlikely to become states at any time in the foreseeable future.  The United Nations Charter, however, imposed burdens on countries that maintained control over territories that were not fully incorporated into that country.  As a result, starting with Puerto Rico, Congress changed the structure of territorial government to give the territories greater home rule.  In the case of Puerto Rico, this includes a territorial constitution that transformed Puerto Rico into the “Commonwealth of Puerto Rico” with an elected governor (which all of the territories now have, although in D.C., the equivalent position is the Mayor of Washington.)  For international purposes, the U.S. has presented this status as conveying sufficient sovereignty to Puerto Rico that the U.S. does not need to regularly report on its efforts to permanently resolve the status of Puerto Rico.

The position taken by the Supreme Court of Puerto Rico (and supported by the U.S. in its brief in this case) seemed to undermine these previous statements about the significance of the changes in Puerto Rico’s status after World War II.  While the U.S. Supreme Court ultimately agreed with the bottom line conclusion of the Supreme Court of Puerto Rico regarding the inapplicability of the dual sovereign exception, the majority opinion by Justice Kagan included a substantial discussion emphasizing the many ways in which Puerto Rico’s commonwealth status does convey “sovereign” power to Puerto Rico.   The bottom line remained, however, that the grant of that power comes from Congress (and, theoretically, could be taken away by Congress as the folks of D.C. see with regular intervention by Congress into D.C. government despite D.C.’s home rule status.)

This case (and the companion debt case), while legally significant, are more important as expressions of Puerto Rico’s current status.   Puerto Rico’s commonwealth status comes with some benefits, but also some diminished rights (e.g., not having Senators in Congress or a vote for president in the general election.)  This case expresses another way in which Puerto Rico’s status is something less than statehood.  The debt case will probably demonstrate another negative aspect of commonwealth status (as does the likely rules contained within the present debt bill).  The issue when the next several weeks have passed will be what do the people of Puerto Rico think about this lesser status and what, if anything, will be done to change it.

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