Albéniz, I don’t see what that gets you. Wasn’t the issue in Nguyen that the court was not a district court in the sense the statutes meant and that the judges did not have life tenure? Neither thing is true in Puerto Rico. There is no necessary connection between the states and the judicial districts of the United States.

On the Article III issue, I just bumped into this: In Nguyen v. United States, 539 U.S. 69 (2003), the Supreme Court held that non-Article III federal judges from the Mariana Islands could not sit by designation in Ninth Circuit. Judges from the District of Puerto Rico (like those from DC) are treated as Article III judges and regularly sit by designation in the First Circuit. I wonder what (if anything) that means for your Article III statement that you “don’t think that the courts have defined either DC or Puerto Rico as a state for Article III purposes.” I’ll have to do some research on the matter.

Well, the Supreme Court authoritatively answered the DC question, right or wrong, in National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582 (1948), and though there was no theory that commanded a majority, three of the justices thought that DC diversity jurisdiction could be sustained under Article I (“Congress shall have Power … To exercise exclusive Legislation in all Cases whatsoever, over such District … as may … become the Seat of the Government of the United States”) even though DC is not a “state” under Article III. The same reasoning supports diversity jurisdiction in Puerto Rico under Article IV, Section 3 (“Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory … belonging to the United States …”), not Article III. See Americana of Puerto Rico, Inc. v. Samuel R. Kaplus and J. Kaplus & Sons, Inc., 368 F.2d 431 (3d Cir. 1966). So I think the premise of your comment is too simplistic. I don’t think that the courts have defined either DC or Puerto Rico as a state for Article III purposes. The bigger problem for my view is the First Circuit’s Eleventh Amendment jurisprudence, but as I say, I think the court was clearly wrong on that point.

This is an interesting discussion—thanks for keeping it going!

True, 28 USC § 1332(e) states that Puerto Rico is a “state” for diversity jurisdiction purposes. But, since Marbury v. Madison, it has been held that Congress may not broaden federal court jurisdiction beyond what’s provided for in the Constitution. See Erwin Chemerinsky, Constitutional Law: Principles and Policies 44 (2d ed. 2002) (“Marbury helped establish the principle that federal courts are courts of limited jurisdiction, and that Congress may not expand the jurisdiction granted in Article III of the Constitution.”).

Article III, § 2 provides that the federal judiciary’s diversity jurisdiction refers to “cases” and “controversies” “between citizens of different states”. The Supreme Court, the First Circuit and all other federal courts that I’m aware repeatedly state that they have to examine their own jurisdiction, even sua sponte. So, if the word “state” is so determinative for other purposes and should be consistently limited to “The 50 States”, doesn’t it follow that federal courts should evaluate whether Congress can actually declare Puerto Rico a “state” for purposes of federal court diversity jurisdiction? But this has never been a concern for the First Circuit. I think this inconsistency reflects a “political” judgment by the judiciary.

I think “regime of political apartheid” is an inappropriate characterization for lots of reasons, with all due respect to Judge Torruella, but strong feelings can lead to strong language.

You make a good point about the construction of the word “state” for diversity jurisdiction purposes, but I would point out that on that score, Puerto Rico is treated just like the District of Columbia. See 28 USC § 1332(e).

True, the First Circuit’s case law on Puerto Rico’s Eleventh Amendment immunity may be wrong. But I think that does not undermine (and rather reinforces) the point that the Court is very willing to stretch the word “state” as used in the Constitution unless the matter before it has to do with the regime of political apartheid that exists in Puerto Rico (as Judge Torruella labeled it in the U. Penn Journal of International Law). The Court simply picks and chooses when the Constitution’s use of the word “state” includes Puerto Rico (e.g., the Eleventh Amendment and federal court diversity jurisdiction) and when it doesn’t (representation in the federal government). (BTW, the plebiscite will be in the fall. And since many people believe that Congress doesn’t take these events very seriously, the outcome may be the result of local politics unrelated to the status issue.)

Thank you, Albéniz, for the comment!

You are right that the First Circuit holds that Puerto Rico is entitled to immunity under the Eleventh Amendment. I would turn your point around, though, and suggest that those cases are clearly erroneous. The origin of the First Circuit’s view, Ezratty v. Puerto Rico, 648 F.2d 770, 776 n.7 (1st Cir. 1981), is a footnote with no analysis. There’s no question, at least in my mind, that Puerto Rico has sovereign immunity at common law, though.

I don’t mean to suggest that Puerto Ricans shouldn’t have the right to full representation in Congress. It seems to me that the people of Puerto Rico will give their views on that question when they vote in this summer’s referendum on their political status, and I think the US should respect the wishes of the people of Puerto Rico, whether they vote for statehood, independence, or continuance of the status quo.