The Obama administration, relying on legal precedents going back more than a century, has urged the Supreme Court to rule that Puerto Rico remains a dependent U.S. territory and does not govern itself as an independent “sovereign.” It 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.
The Court has agreed to review the constitutional status of Puerto Rico, and will hold a hearing on that issue in Puerto Rico v. Sanchez Valle on January 13 in a case on the power of its criminal prosecutors. That will be the first of two cases on Puerto Rico’s status, with a second case coming up later in the Term on how it can handle its current debt crisis (Puerto Rico v. Franklin California Tax-Free Trust).
In the Sanchez Valle case, Puerto Rico is seeking treatment as a self-governing entity so that it would be free to prosecute two individuals for gun crimes even though they previously were convicted in federal court of crimes based on the same incidents. Ordinarily, two prosecutions for the same crime would violate the Constitution’s ban on “double jeopardy.” But the Supreme Court has ruled that the ban does not apply if the same crime is punished in the courts of separate “sovereign” entities — in the usual case, that would be the federal government and a state government.
Puerto Rico has no authority to stage its own prosecution after a federal conviction, the government argued in a new amicus brief filed on Wednesday. It could become a sovereign only if it could acquire U.S. statehood, or be split off as a separate nation. The federal government conceded, as the Supreme Court has previously said, that Puerto Rico has had a measure of self-government “comparable to that possessed by the states.” But it remains a territory, subject to Congress’s control under the Territories Clause in the Constitution, the federal government said in the new filing.
While Congress gave it permission to write a new constitution and achieve a degree of self-government in 1950 — carried out two years later — that did not confer upon its people the degree of independent autonomy that the U.S. states have. This degree of self-government, the federal government contended, has yielded many benefits to the island’s people, and there is no indication that Congress is prepared to cut back on that governing authority. The federal government chose to enter the case as a supporter of the two men Puerto Rico prosecutors want to charge with gun crimes. The federal government said that, because it has many dealings with Puerto Rico, it has a keen interest in its legal status.
It noted that the people of the island have voted several times on whether to seek a change in its constitutional status, but they have not sought statehood or an opportunity to be spun off as a separate nation. The Commonwealth in its appeal is seeking to have the Justices overturn a ruling by its own supreme court against the sovereignty claim.
The federal government, in urging the Court to uphold the island supreme court on the constitutional point, recounted the history of Puerto Rico since the U.S. took it over from Spain in 1898 as one of the prizes of the Spanish-American War. That came at a time when the U.S., until then mostly an isolated entity in the global community, first began to have ambitions to become a colonial power like Britain and Spain. That period is important in U.S. constitutional history partly because the Court, in a series of rulings early in the 1900s called the Insular Cases, began developing doctrine on whether the U.S Constitution would apply in the newly acquired possessions abroad.
In fact, the government repeatedly cites the Court’s ruling in 1907 in Grafton v. United States, declaring that the Double Jeopardy Clause applied to territories because they were not sovereigns separate from the U.S. government. That case involved the Philippine Islands.
The government contrasted the constitutional status of Puerto Rico with that of the fifty states and of Indian tribes in the United States. The states were sovereign following Independence, and retained that status after the Union was formed, and tribes had their own sovereign status as Indian nations before the U.S. government took them in under its own protection, and they remain sovereign. the brief noted.
In a footnote, the government said that the Justice Department had taken the position in briefs filed in federal courts “two decades ago” that Puerto Rico was sovereign for purposes of the Double Jeopardy Clause. Those briefs, it commented, “do not reflect the considered view of the Executive Branch.” That appears to suggest that the remainder of the new brief explores that question more fully.