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Tag Archives: Puerto Rico
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).
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 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.)
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.