Tag Archives: Puerto Rico

The Supreme Court this Week — Puerto Rico and Signs

We are nearing the turn for home of the current Supreme Court term.  This upcoming week is the last week of arguments for the term.  After the upcoming Friday conference, the Supreme Court will take its last two-week recess which will be followed by several weeks of issuing opinions until all of the opinions are done.

Thursday saw the first large opinion dump from the Supreme Court.  This post will focus on the two with the most political significance.

First up is the latest on Puerto Rico.  The U.S. Constitution implicitly assumes that territorial status is temporary with Congress having ultimate control over the territory and the laws that apply in the territory until it can become a state.  On the other hand, once a territory becomes a state, it has equal status to other states. Continue Reading...

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The Unfinished Civil Rights Agenda — The Commonwealth of Douglass and the State of Puerto Rico

Today, we celebrate the legacy of the Reverend Martin Luther King, Jr.  And appropriately, later this month, we will see one of his successors, the Reverend Raphael Warnock sworn in as a United States Senator from Georgia.

But there is a lot of work still to be done.  And while I could probably write a much longer essay on the full civil rights agenda, I am going to limit this post to a very key symbolic part of the agenda.  Voting Rights was a key part of the King agenda.  And, while other parts of the voting rights agenda are important, today — over 4 million Americans are being denied the most basic of rights, voting representation in the House and the Senate.

At the time of the framing, the United States had vast, mostly unsettled territories.  Even in the states, the settlements were mostly limited to the coasts.  However, between 1784 and 1787, the original Congress under the Articles of Confederation adopted a series of ordinances related to the Northwest Territories (what are currently the states of Ohio, Michigan, Indiana, Illinois, and Wisconsin) that governed the settlement of those territories and their ultimate admission to statehood.  Under those ordinances, a territory was eligible for statehood when it had population in excess of sixty thousand people. Continue Reading...

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Election Night Preview — Part 7 (Referendums)

The first six posts in this series have focused mostly on federal elections with a handful of Governor’s races.  Of course, there are also state legislative races, some local (mostly county) races, and referendums.

While I am sure that somebody has a complete list of every local bond issue or city charter issue, this post will focus on the state-wide issues.  More specifically, this post will focus primarily on the changes that will make structural changes to the political system.  It’s not that votes on legalization of marijuana or changes to the criminal justice system are unimportant, it’s just that many of these referendums are the results of the failure of the elected politicians to address these issues.  and it’s the structural changes that may (or may not) make legislatures more responsive to these types of issues.

Several states are considering changes to the structure of elections  In Massachusetts, voters will have the option of following in Maine’s footsteps by adopting ranked-choice voting for most state and federal elections (except for President). Continue Reading...

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What about Puerto Rico

June tends to be a flood of major opinions at the U.S. Supreme Court.  Before COVID-19, most justices spent July and August giving speeches or teaching seminars abroad for law schools or just taking a summer vacation.  Traditionally, that has meant a deadline of July 3 to get everything done.  In turn, that means that — besides the cases argued near the end of the term — the justices have to accept that the current drafts on opinions are good enough and another round of changes to the majority opinion and to the other opinions are not going to make the opinions better are change anybody’s mind.

One of the opinions that folks have been waiting for is the case involving Puerto Rico’s finances.  Back before the last presidential election, Puerto Rico was in a financial jam.  It lacked the power to declare bankruptcy, and the Supreme Court had ruled against the solution that Puerto Rico had devised to get around that problem.  So Congress passed a law that created a financial oversight board for Puerto Rico and gave that board the power to take Puerto Rico into bankruptcy.

That law created its own problem.  The board was to be appointed by the President (although from lists created by the congressional leadership) without Senate Confirmation.  This led to a new case challenging the board’s actions claiming that the structure violated the Appointments Clause of the Constitution.  Today, we got the opinions on that case.  On the one hand, the Supreme Court was unanimous on the result, holding that the board was validly appointed.  But, the Supreme Court split 7-1-1 on the reasoning (explaining why the case has taken so long to resolve).  The minor split was between the majority (written by Justice Breyer) and the concurrence (written by Justice Thomas).  The majority describes the Appointments Clause as covering officers with federal duties and do not cover territorial officers with local duties.  Justice Thomas would prefer to simply distinguish between Article I, Article II, and Article III officers (federal officers subject to the Appointments Clause) and Article IV officers (territorial officers who can be picked in whatever matter Congress designates).  At the end of the day, this difference may not alter the result in a single case. Continue Reading...

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Supreme Court Term Preview — October 2019 Term (Part I)

It’s that time of year again.  October 7 is the First Monday in October meaning that the Justices of the United States Supreme Court will be back in D.C. for another term of arguments.  This term is a little bit unusual for recent terms in that — when the Supreme Court had left for the summer — they had already granted review in enough cases to fill the first four (October, November, December, and January) argument sessions.  Recently, the Supreme Court has had trouble granting enough cases to fill the first three argument sessions and have had (at most) one or two cases left over for January when they meet at the end of September to begin adding cases.

(For a little explanation of what I mean about argument sessions and filling them.   From October through April, the Supreme Court has seven argument sessions.  Each session consists of arguments on Monday, Tuesday, and Wednesday — excluding any federal or religious holidays.  A “normal” argument day consists of two arguments on two cases.  Ech argument is one hour split evenly between the two-sides although time is often allocated to the Solicitor General to express the government’s position.  Typically, there is a two-week gap between each argument session except for longer breaks after the December and maybe January session.  A Supreme Court case has two rounds of written arguments.  The first round is an application to the Supreme Court to take a case — officially called a petition for writ of certiorari.  These pleadings have relatively short page limits and are designed mostly to explain why the case is important enough for the court to take.  While there are time limits on these pleadings, the Supreme Court is relatively liberal about granting extensions.  If the Supreme Court decides to grant review, there is a second round of written arguments on the merits of the case followed by the oral argument.    The time limits to complete the second round of written arguments is approximately 105 days or 10 days before oral argument whichever is earliest — and extensions are almost unheard of.  Thus, oral argument has to be at least three months after the case is accepted for full briefing and argument — and four is better.  So, any case heard in the first three months has to be accepted before the Supreme Court recesses at the end of June,  And once the Supreme Court returns, any January cases have to be accepted by the end of the October session, etc. until all of the cases for this year’s term have to be accepted by the end of the January session.  Any case accepted after January is for the next year’s term barring an unusual case in which the Supreme Court orders accelerated briefing like what happened last term on the Census case.)

At this point in time, the Supreme Court has issued its argument calendars for the October, November, and December argument sessions.  While it has not yet released the calendar for the January session, it is likely that most of the remaining accepted cases will be heard in January (although some add-ons from cases accepted in October is possible).  Each of the first three parts of this series will focus on one argument session with the fourth part focusing on the cases left over for likely January argument and possible cases that might be granted for the rest of the term.  Any attempt to guess what is likely to be granted is highly speculative.  The Supreme Court accepts about 1% of the cases for actual full review.  Even weeding out the significant amount of long shot petitions, the strongest cases have — at most — a 1 in 10 shot at being granted review. Continue Reading...

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The Supreme Court and Puerto Rico — Part Two

As noted in Part One, the Supreme Court had two cases involving Puerto Rico this term.  The first, decided, last Thursday was the more philosophical of the two cases — focusing on Puerto Rico’s status under the Constitution.  The ink was barely dry on that opinion when the Supreme Court issued the second opinion — dealing with the more immediately practical question of how bankruptcy law applies to Puerto Rico’s debt.

As a general matter, the Constitution gives Congress the power to enact a “uniform” law governing bankruptcy — a process that allows private individuals, businesses, and even government to restructure (and in some cases partially reduce) their debts.  As the fact that it is one of the enumerated powers in the original text of the Constitution shows, bankruptcy is not a new concept and predates the United States.  The Bankruptcy Code (Title 11 of the United States Code) is divided into chapters with different chapters applying to different entities and the circumstances of that entity — one for businesses that just want to wind up their affairs, one for businesses that want to try to continue, one for private individuals, and one (which applies here) governing the debts of municipalities (Chapter 9).

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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.

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Delegate Math — Week of May 30th

The primary campaign enters the home stretch.  Depending upon which count you use, Donald Trump either has or is about to clinch the Republican nomination.  (The counts differ in their estimate of how many of the officially “uncommitted” delegates have pledged to support Trump.  Trump is 139 short by the “bound” delegate count.)  Because there are no Republican contests this week, the only thing that can change between now and the next (and final) Republican contests on June 7 will be additional pledges from uncommitted delegates.

This week the action is all on the Democratic side in the Virgin Islands and Puerto Rico.  Between now and the Virgin Island’s contest, there will be some minor adjustments as results are certified from the April states and as superdelegates announce their support for one of the candidates.  However, barring a large number of superdelegates endorsing Clinton, the delegates up for stake this week should not be enough to clinch the nomination.  At the present time, Clinton is approximately 100 delegates short of clinching the nomination.

The Virgin Islands contest on June 4 is a little bit unusual.  At the territorial mass meeting, attendees from St. Croix will select three delegates.  Attendees from the other islands will select four delegates.  Assuming that both candidates meet the fifteen percent threshold, St. Croix will almost certainly split 2-1.  The other four delegates will either split 3-1 or 2-2.   As a result, the most likely outcomes are either a 5-2 or a 4-3 split (most likely in favor of Clinton).  At this stage of the race, the results in the Virgin Islands will not make much of a difference in the delegate count.  At most the Virgin Islands will play into any “momentum” argument that the Sanders campaign wants to make to the superdelegates.  (That argument is the same reason why Sanders is considering a recount in Kentucky even though such a recount would probably only change one delegate at most.) Continue Reading...

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Supreme Court Term 2015-16:Part Two

When the Supreme Court meets on Monday in what is commonly referred to as the “long conference” (because it covers three months worth of petitions that have piled up during the summer), it will begin the process of filling the second half of its argument schedule — cases that will be decided by the end of June.  As with the cases already set for argument this fall, there will be a mix of criminal cases, routine matters of statutory interpretation, and the politically explosive.  While the criminal cases and the statutory cases are important to practitioners and businesses, it is the politically explosive cases that I will focus on for this blog.

In recent years, the Supreme Court has changed how it grants cases.  In the past, the Supreme Court tended to accept or reject a case immediately (at its initial conference).  However, after several cases had hidden problems (preliminary issues that had to be addressed before the Supreme Court could reach the issue presented in the petition), the Supreme Court has tended to “relist” (postpone consideration to a later conference) the cases that it is seriously considering granting to take a closer look for such potential problems.  In addition, even putting aside the large number of petitions with little or no chance of being granted, there are more cases that raise significant issues than the Supreme Court is inclined to take.

In the current conference, one potentially interesting case involves a criminal prosecution from Puerto Rico.  Generally, federal law recognizes a “dual sovereign” exception to the rule against double jeopardy (that you can’t be tried twice for the same offense).  Thus, for the same course of conduct, a person can be charged by multiple states or by a state and the federal government.  The issue in this case is whether Puerto Rico is a separate sovereign from the federal government.  While legally, this case is probably not a close issue, the impact of the Supreme Court explaining Puerto Rico’s current status (essentially a territory of the U.S. with any home rule being by grace of Congress) could crystalize the debate over Puerto Rico’s status. Continue Reading...

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