Constitutionally Speaking, What is Puerto Rico?

by Michael Dorf

Yesterday's SCOTUS ruling in Puerto Rico v. Sanchez Valle decides a relatively narrow question: whether the United States and Puerto Rico are separate sovereigns for purposes of the Constitution's prohibition on double jeopardy, such that a prosecution by federal authorities for the same conduct that forms the basis for prosecution by Puerto Rican authorities is permitted? The Court, in an opinion by Justice Kagan, said no. For double jeopardy purposes, the U.S. and Puerto Rico are the same sovereign.

That ruling doesn't necessarily decide other questions about the legal status of Puerto Rico. To give a somewhat silly example, obviously it doesn't imply that Puerto Rico can't have its own Olympic team. But even while Sanchez Valle does not directly decide the status of Puerto Rico for all purposes, the reasoning of the case potentially does have implications for other issues.

Most immediately, the reasoning of Sanchez Valle could bear on whether Puerto Rico can create its own bankruptcy mechanism, which is the question presented in Puerto Rico v. Franklin California Tax-Free Trust, argued before the SCOTUS in March and still pending. Sanchez Valle suggests that Congress retains sufficient authority over Puerto Rico to preempt (via the federal bankruptcy law) Puerto Rico's efforts to address public debt. By contrast, in his concurrence in Franklin California Tax-Free Trust in the appeals court, Judge Torruella took a harder line, arguing that Puerto Rico's status as a Commonwealth limits the power of Congress to legislate directly for Puerto Rico. I do not think it was ever likely that the Court would endorse Judge Torruella's view, but the reasoning of Sanchez Valle makes that possibility even more remote.

In this post, I want to put aside the immediate practical implications of Sanchez Valle. With the SCOTUS Term nearly over, we will find out soon enough whether Puerto Rico's own bankruptcy mechanism is preempted. Meanwhile, yesterday the House of Representatives passed a bill with bipartisan support that would allow Puerto Rico to restructure its debt, subject to oversight by a financial control board. Even assuming passage by the Senate, given the precarious state of Puerto Rico's economy and the related serious challenge of population loss to the mainland, the scope of congressional power over Puerto Rico is likely to arise in various contexts in the medium term.

In Sanchez Valle, Justice Kagan says for the Court that for double jeopardy purposes, the question whether to treat Puerto Rico as a separate sovereign turns on whether "the 'ultimate source' of the power undergirding the respective prosecutions" is the same. She concludes that it is. She first notes that early 20th century cases held that the Philippines and Puerto Rico were not separate sovereigns from the U.S. for double jeopardy purposes, but acknowledges that mid-20th-century events might change that conclusion. However, she rejects that possibility for Puerto Rico. Here is the core of the argument:
Following 1952, Puerto Rico became a new kind of political entity, still closely associated with the United States but governed in accordance with, and exer­cising self-rule through, a popularly ratified constitution. The magnitude of that change requires us to consider the dual-sovereignty question anew. And yet the result we reach, given the legal test we apply, ends up the same. Puerto Rico today has a distinctive, indeed exceptional, status as a self-governing Commonwealth. But our ap­proach is historical. And if we go back as far as our doc­trine demands—to the “ultimate source” of Puerto Rico’s prosecutorial power . . . we once again discover the U.S. Congress.
Justice Kagan says that the events of the early 1950s--congressional authorization of Puerto Rico's adoption of a constitution creating a Commonwealth, which was then approved by Congress--suffice to create Puerto Rico's commonwealth status, but that for double jeopardy purposes the key is that the act of Congress set the process in motion. However, as Justice Breyer argues in dissent, this cannot be taken literally. Congress admits new states to the Union but those states are then separate sovereigns for double jeopardy purposes. To be sure, that could be a consequence of the equal-footing doctrine, but Justice Breyer also gives the killer example of the Philippines. It took an act of Congress to convert the Philippines from a territory (and thus not a separate sovereign) into a sovereign nation--and yet everyone acknowledges that the Philippines today is a separate sovereign for double jeopardy (and all other) purposes.

But if Justice Kagan does not--or cannot logically--mean what she says, then what does she mean? I don't have a definitive answer, but I have a suspicion. Despite the fact that Justice Kagan's opinion pays lip service to Felix Frankfurter's idea that "creative statesmanship" validates Puerto Rico's unique status, it appears that she regards Puerto Rico as, at bottom and at least for double jeopardy purposes, just a territory.

Justice Breyer's example of the Philippines tells us that the mere fact that an act of Congress was the necessary condition for Puerto Rican self-rule is an insufficient basis for concluding that such self-rule falls short of sovereignty. There must be something different. The crucial thing is undoubtedly that Congress acted differently with respect to Puerto Rico than with respect to the Philippines. It fully relinquished U.S. sovereignty over the Philippines, whereas it "only" conferred commonwealth status on Puerto Rico.

Now the crucial point here can't be the word Congress used. Kentucky, Massachusetts, Pennsylvania, and Virginia call themselves commonwealths and yet, as states of the Union, they are separate sovereigns for double jeopardy purposes. So the question now is why do Justice Kagan and the rest of the majority in Sanchez Valle think that the Commonwealth of Puerto Rico does not have the right kind of status to make it a separate sovereign for double jeopardy purposes.

Is it the fact that the Constitution (to the extent required by the Insular Cases) and acts of Congress apply of their own force in Puerto Rico, and, per the Supremacy Clause, preempt Puerto Rican law? That certainly distinguishes Puerto Rico from the Philippines, but it doesn't distinguish Puerto Rico from states of the United States, which are separate sovereigns.

Although Justice Kagan doesn't come right out and say it expressly, there are hints in her opinion that the self-rule that Puerto Rico enjoys is less secure than that of either the reserved powers of the states or the sovereign powers of an independent sovereign like the Philippines. At one point, for example, she says that "a municipality can­ not count as a sovereign distinct from a State, because it receives its power, in the first instance, from the State." By suggesting that Puerto Rico stands in the same relation to the United States as a municipality stands in relation to a state, Justice Kagan suggests that the U.S. could still legislate directly for Puerto Rico, just as a state could repeal the authority it had previously given to a municipality to enact its own local laws. She also refers to Congress as the "delegator" of Puerto Rican self-rule. Insofar as this is meant to distinguish Puerto Rico from the Philippines, there is at least a hint that as the delegator, Congress could also undelegate the power of self-rule from Puerto Rico.

To be clear, I don't read the Court as deciding the matter. Much of the rhetoric of Sanchez Valle treats the events of the early 1950s as having irrevocably conferred the power of self-rule (subject to preemption) on Puerto Rico. My point, however, is that if that is so, then, as Justice Breyer argues, it's hard to see how the Court is distinguishing both the states and the now-fully-sovereign nation of the Philippines.

I also want to be clear that there is a plausible argument for the proposition that Congress can revoke Puerto Rico's self-rule, notwithstanding the events of the 1950s. The argument begins by noting that the Constitution only recognizes a limited set of entities as sovereign or quasi-sovereign: the United States itself; states of the Union; Indian tribes; and foreign sovereigns. Territories are a separate category and as to them, Congress has plenary power. Under the argument I am imagining, Puerto Rico only fits into the constitutional scheme as a territory, and as such, it can be delegated self-rule by Congress, but that delegation can be modified or repealed by Congress. It might be a very bad idea for Congress to revoke Puerto Rican self-rule without an amendment to the Puerto Rican Constitution approved by the people of Puerto Rico, just as it would be a very bad idea for Congress to revoke home rule for the District of Columbia. But it would be within the power of Congress.

The argument I have sketched in the prior paragraph is contrary to some language in prior cases, especially the 1985 First Circuit opinion in United States v. Quiñones, which states that
in 1952, Puerto Rico ceased being a territory of the United States subject to the plenary powers of Congress as provided in the Federal Constitution.  The authority exercised by the federal government emanated thereafter from the compact itself.  Under the compact between the people of Puerto Rico and the United States, Congress cannot amend the Puerto Rico Constitution unilaterally, and the government of Puerto Rico is no longer a federal government agency exercising delegated power.
Justice Kagan's opinion in Sanchez Valle does not expressly repudiate that sort of view, and even suggests that in non-double-jeopardy contexts it continues to be true. My point, however, is that without relying on an argument that is contrary to the spirit of Quiñones, there is no good answer to Justice Breyer's dissent. Whether that portends a weakening of Puerto Rican quasi-sovereignty relative to Congress in other contexts remains to be seen. The bill passed by the House yesterday does not purport to change the status of Puerto Rico, but one could imagine an even more dire economic future in which Congress attempted to do so over the objection of Puerto Ricans. At that point, the ultimate constitutional status of Puerto Rico might be tested.

Postscript. I am grateful to my former students Adam McCall and Michael Phelan for much of the background information I needed to write this post. During the last academic year, each of them wrote a seminar paper related to the Puerto Rican debt crisis that delved into the interesting story of Puerto Rico's legal status.