Puerto Rico Status in the Supreme Court

Reverse of Puerto Rico quarter

Puerto Rico has been in the news a lot recently on account of its debt crisis. But there’s another interesting issue percolating, and it will be argued in the Supreme Court shortly. Is Puerto Rico a sovereign separate from the United States, as the states of the United States are, such that a person acquitted of a crime in the Puerto Rico courts can be prosecuted for the same conduct in the federal courts? Or does Puerto Rico lack sovereignty, in which case a second prosecution is barred?

This, of course, is not a private international law question, but I want to bring it to your attention because I’ve published posts about Puerto Rico’s status before. It’s also of interest to me because it takes me back to graduate school—I was studying for a degree in political theory, spending a lot of time with Hobbes. Those were the days.

Anyway, the Fifth Amendment provides: “… nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb ….” As the Supreme Court has interpreted this Double Jeopardy Clause, the federal government cannot charge a person with the same crime twice, and a state government cannot charge a person with the same crime twice, but the federal government can charge a person with a crime that was also the subject of a prosecution by a state government, and vice versa, because, as the Court put it, both the states and the United States are sovereigns. Is Puerto Rico also a sovereign, such that this rule should apply to allow the Puerto Rican charge to go forward? Or does it lack sovereignty, in which case the only sovereign in the picture is the United States and the second charge is impermissible under the Fifth Amendment? The Puerto Rico Supreme Court decided that Puerto Rico is not a sovereign for these purposes, leading the Puerto Rico government to seek relief in the U.S. Supreme Court.

We don’t know what the Supreme Court will do—the case is to be argued tomorrow. But there is already an interesting development in the case, namely, the position the Solicitor General took in the United States’s amicus brief. According to the United States, Congress has permitted Puerto Rico to exercise self-government in local matters, and it has no intention of taking the reins back in its own hands, but nevertheless, as a matter of principle, because Puerto Rico was acquired from Spain and has not been admitted as a state, it is a territory of the United States governed by Article IV of the Constitution. The Constitution gives no independent political status to territories, and “[i]t has long been settled that there is no sovereignty in a Territory of the United States but that of the United States itself.” Needless to say, this caused some waves in Puerto Rico, though it says nothing more than the Puerto Rico Supreme Court has itself already said.

My own view is that this is a straightforward issue under Article IV. I think the amicus brief’s analogy to municipal law is apt. The Massachusetts Constitution, for example, gives cities and towns certain rights to self-rule. But that doesn’t make my own city, Boston, a sovereign, even though Boston’s citizens make up their own political community in a sense. Boston derives its municipal powers from the Massachusetts constitution, and by amending that constitution, the people of Massachusetts could change the laws of Boston or even abolish the city altogether. The same is true a fortiori of the relationship between Puerto Rico and the United States, since the United States authorized Puerto Rico to exercise self-rule not via the US Constitution, but via a simple statute.

The answer to the problem of sovereignty in Puerto Rico, it seems to me, is for Puerto Rico to make a clear decision about its future political status. Both major US political parties support Puerto Rican self-determination, so the decision is really Puerto Rico’s to make. The last plebescite suggested that statehood was the preferred option for the Puerto Rican people, and statehood would give Puerto Rico the same limited form of sovereignty as the fifty US states now have, but as I understand it, the Governor, who opposes statehood, did not transmit a petition for statehood to Congress. If for internal political reasons statehood is not what Puerto Rico wants to pursue, what about independence, which of course is another route to sovereignty? Independence was the least popular of all the choices presented to Puerto Rican voters. So it seems the choice is between statehood and sovereignty on the one hand, and the status quo, and a lack of sovereignty, on the other. The decision, it seems to me, is in the hands of the Puerto Rican people.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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