While the mainstream English-language press continues to shed more light on Puerto Rico’s current economic crisis (see yet another New York Times editorial), a new Supreme Court amicus brief filed last week by the Obama administration has revisited the decades-long questions about the island’s current political relationship with the United States. In 1952, Puerto Rico officially became the Commonwealth of Puerto Rico, an entity with its own local constitution that is neither a state of the Union nor an independent nation. With the Supreme Court expected to hear January 13 oral arguments for Puerto Rico v. Sanchez Valle —a case which asks “whether the Commonwealth of Puerto Rico and the federal government are separate sovereigns for purposes of the Double Jeopardy Clause of the United States Constitution”— the Obama amicus brief repeats the long-held stances from previous administrations, arguing that Puerto Rico has never been separately sovereign and that Congress controls the fate of the island territory, home to about 3.5 million American citizens.
Here are some excerpts from the latest Supreme Court brief filed by the federal government:
What the Federal Government Says About Puerto Rico’s Current Political Status
Puerto Rico’s transition to local self-government was a significant development in its relationship with the United States, and it has yielded many benefits for Puerto Rico and the United States in a relationship of mutual respect. Congress has evinced no intention to revoke the local autonomy it has vested in the government of Puerto Rico. But as a constitutional matter, Puerto Rico remains a territory subject to Congress’s authority under the Territory Clause….Residents of Puerto Rico have voted several times on whether to seek a change in Puerto Rico’s constitutional status but have not sought statehood or independence from the United States.
The events of 1950-1952 did not transform Puerto Rico into a sovereign. Before 1950, Congress had progressively authorized self-government in Puerto Rico. As a further step, in 1950 Congress permitted the people of Puerto Rico to adopt a constitution, which Congress approved with revisions in 1952. Those events were of profound significance for the relationship between the United States and Puerto 8 Rico, but they did not alter Puerto Rico’s constitutional status as a U.S. territory. The United States did not cede its sovereignty over Puerto Rico by admitting it as a State or granting it independence. Rather, Congress authorized Puerto Rico to exercise governance over local affairs. That arrangement can be revised by Congress, and federal and Puerto Rico officials understood that Puerto Rico’s adoption of a constitution did not change its constitutional status. The ultimate source of sovereign power in Puerto Rico thus remains the United States.
Congress did not enter into an irrevocable “compact” with Puerto Rico, and as a constitutional matter, Congress cannot irrevocably cede sovereignty to Puerto Rico while it remains a U.S. territory. The designation of Puerto Rico as a “commonwealth” reflects Puerto Rico’s significant powers of self-government, but it does not denote a constitutional status. Puerto Rico’s autonomy over local affairs does not itself make Puerto Rico a sovereign.
Puerto Rico exercises significant local autonomy, with great benefit to its people and to the United States. But it remains a territory under the sovereignty of the United States and subject to the plenary authority of Congress.
Puerto Rico is a United States territory. It has been since 1898, when Spain ceded it to the United States…. Although Puerto Rico had significant autonomy before it became part of the United States, it was a Spanish colony, “under Spanish sovereignty….” And Puerto Rico did not become a sovereign when it came under United States jurisdiction, because it did so as a territory, not as a State…. (“The civil rights and political status of the native inhabitants of” Puerto Rico “shall be determined by the Congress.”). As a territory, Puerto Rico is subject to the “paramount” authority of Congress under the Territory Clause.
Puerto Rico’s transition to self-government did not change its constitutional status as a U.S. territory. The United States did not cede its sovereignty over Puerto Rico, and Puerto Rico did not become a State or an independent nation…. Rather, Congress, in an exercise of its authority under the Territory Clause, authorized Puerto Rico to pursue self-government, under which local officials would exercise power under a framework approved by Congress. Although Public Law 600 granted the people of Puerto Rico an unprecedented amount of control over internal affairs, it did not change Puerto Rico’s status under the U.S. Constitution.
Puerto Rico’s authority to issue its constitution emanated from Congress, and the constitution could not become effective without congressional approval….Congress did not accept the constitution as drafted. Instead, it deleted Section 20 of Article II of the proposed constitution (which included rights to obtain work; to food, clothing, housing and medical care; and to protection in sickness, old age or disability) and it prevented Puerto Rico from restoring those provisions later…. (requiring language specifying that any amendment or revision of the constitution must be consistent with, inter alia, Congress’s approving resolution); Congress’s oversight of Puerto Rico’s transition to local self-government is consistent with Puerto Rico’s status as a territory; it is not consistent with sovereignty.
Federal and Puerto Rico officials understood that Puerto Rico’s adoption of a constitution would not change its status under the federal Constitution.
How the Federal Government Views Puerto Rico’s Territorial Status
United States territories are not sovereigns. The Constitution affords no independent political status to territories but instead confirms that they are under the sovereignty of the United States and subject to the plenary authority of Congress.
This Court has consistently recognized that although Puerto Rico is locally self-governing, it remains a U.S. territory under the Constitution. For example, because Puerto Rico is a territory, it has “no sovereign authority” that could justify a border search under the Fourth Amendment…
The Executive Branch has recognized that Puerto Rico remains a U.S. territory subject to Congress’s authority. A 1994 Office of Legal Counsel opinion explained that Congress may not create a sovereign territory consistent with the Constitution, and since then, the Department of Justice has repeatedly stated the same view to Congress in connection with proposed legislation about Puerto Rico. Presidential task force reports in 2005, 2007, and 2011 have likewise confirmed that Puerto Rico is not a sovereign and that it could become one only if it were to attain statehood or become an independent nation. Those principles confirm that Puerto Rico is not a separate sovereign for purposes of the Double Jeopardy Clause.
Within the territory of the United States, the Constitution contemplates three sovereigns—the States, the United States, and the Indian Tribes. The Court has appropriately treated those entities, and only those entities, as domestic sovereigns under the Double Jeopardy Clause.
The Constitution neither recognizes nor affords independent sovereignty to territories but instead grants plenary authority to the United States: “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….” As a constitutional matter, “[a]ll territory within the jurisdiction of the United States not included in any State must necessarily be governed by or under the authority of Congress” because territories are “political subdivisions of the outlying dominion of the United States.”
More fundamentally, Congress cannot irrevocably cede sovereignty to Puerto Rico while it remains a U.S. territory.
Petitioner observes…that Congress could irrevocably cede authority over Puerto Rico by allowing it to become a State or gain independence. That is true. But Congress cannot cede sovereignty while Puerto Rico remains a U.S. territory. While nothing suggests that Congress intends to revoke its authorization of self-government in Puerto Rico, its power to do so is incompatible with Puerto Rico’s characterization of itself as a sovereign.
In a series of reports issued over two decades, the Executive Branch has rejected the view that Puerto Rico is, or could become, a sovereign territory. A 1994 Office of Legal Counsel opinion concluded that Congress may not cede sovereignty to a U.S. territory, absent statehood or independence, because all land under the sovereignty of the United States that is not a State is subject to “the authority of Congress,” and Congress may not irrevocably delegate its authority over such land.
Although Puerto Rico exercises significant local authority, with great benefit to its people and to the United States, Puerto Rico remains a territory under our constitutional system. Puerto Rico does not possess sovereignty independent of the United States, and its prosecutions cannot invoke the dual sovereignty doctrine under the Double Jeopardy Clause.
The very popular SCOTUS blog offers a comprehensive analysis about the amicus brief, concluding that the Obama administration has “thus challenged the island commonwealth’s claim that since 1952 it has had the status of a self-governing entity with its people free to have their own legislature write the island’s own laws, including criminal laws.”
What the Puerto Rican Government Says
Over the weekend, the Puerto Rican government officially reacted to the amicus brief in a letter governor Alejandro García Padilla wrote to the United Nations Secretary-General Ban Ki-moon. Here is the entire García Padilla letter (h/t @jayfonsecapr):
What the Puerto Rican Bar Association Says
Additionally, another brief submitted to the Supreme Court by the Puerto Rican Bar Association offers a different perspective from that of the Obama administration brief:
The Constitution is the supreme law of the Nation. But for more than three million U.S. citizens who live in Puerto Rico, only portions of our foundational document apply.
Pursuant to the Insular Cases —a series of decisions by this Court dating from 1901— Puerto Rico is undeserving of the full panoply of constitutional rights because the island is “inhabited by alien races, differing from us….” That holding reflects views from a bygone era. But while the views have long since disappeared from mainstream American thought, this Court’s racially motivated precedents remain in force, limiting the rights of millions of U.S. citizens living in the territories.
The complete 43-page brief from the Obama administration is below:
This is the 35-page brief from the Puerto Rican Bar Association: