SCOTUS Asked to Give Puerto Rico a Sovereignty Boost

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By Lance J. Rogers

Jan. 13 — Addressing the question of whether Puerto Rico is a separate entity from the United States for purposes of the double jeopardy clause, some of the justices of the U.S. Supreme Court Jan. 13 showed little appetite for making any sweeping announcements about the legal status of that island commonwealth.

“If we simply write an opinion and it says, Puerto Rico is sovereign, that has enormous implications,” said Justice Stephen G. Breyer.

So too, he said, would an opinion that says it's “just a territory.”

“The political implications, I'll just stay away from,” he added.

Any decision that touches on Puerto Rico's legal status will have a big impact on a host of related issues, including the push for statehood and whether Puerto Rico may claim other rights normally reserved to the states—like sovereign immunity under the Eleventh Amendment

Moreover, some of the same issues about sovereignty may crop up again later this term when the justices take up another case that touches on Puerto Rico's power to self-govern when it comes to debt-relief. In December, the court agreed to hear arguments on the question of whether Chapter 9 of the federal Bankruptcy Code, which doesn't apply to Puerto Rico, nonetheless preempts a Puerto Rico law that creates a mechanism for the commonwealth's public utilities to restructure their debts.

‘Source of Power' Analysis

Arguing in favor of according Puerto Rico sovereign status so it can take advantage of the “dual sovereignty” exception to the double jeopardy clause, Christopher Landau, of Kirkland & Ellis LLP, Washington, urged the court not to get too bogged down trying to define what is and isn't a “sovereignty.”

Instead, Landau pressed the court to embrace a “source of power” analysis that examines the provenance of the laws in question. If the laws have distinct sources, he said, then the entities are distinct for purposes of double jeopardy.

I understand that stance, Justice Antonin Scalia said, but isn't it essential to your case that we recognize Puerto Rico as a sovereign?

Perhaps, Landau replied, but it isn't essential for the court to recognize Puerto Rico as a sovereign “with a capital S.”

Landau stressed repeatedly throughout the argument that Puerto Rico is different from the other “home rule” U.S. territories because the laws of Puerto Rico emanate from authority delegated by the people of Puerto Rico when they voted to adopt a constitution in a 1952 referendum.

Congress not only “invited” Puerto Rico to exercise greater autonomy, Landau said, but it put its stamp of approval on the process by passing legislation expressly approving the territory's constitution.

Overlapping Weapons Charges

The context of the debate is the Puerto Rico supreme court's ruling that the Fifth Amendment's double jeopardy clause blocks commonwealth courts from prosecuting Luis M. Sanchez Valle and James Gomez Vazquez for weapons crimes because the two men already pleaded guilty to those offenses in federal court.

That decision overturns a 1988 ruling in which it held that Puerto Rico is a separate sovereign for purposes of a double jeopardy analysis and also runs contrary to a 1987 First Circuit decision.

The lawyer for the two men, Adam G. Unikowsky, of Jenner & Block, Washington, told the justices that the case may be nuanced but it still boils down to one fact: “States are sovereign and territories are not.”

“Although Puerto Rico has indisputedly achieved a historic degree of autonomy, it remains a territory,” he said.

A territory owes its existence to the federal government, but states do not, he added.

But the justices didn't seem receptive to that simplistic dichotomy, as they interrupted Unikowsky repeatedly with questions about Puerto Rico's unique independent status and discussed the difference between Puerto Rico and other territories, like the Virgin Islands and Guam.

It seems that Congress has given Puerto Rico about as much autonomy as possible short of making it a state, Justice Elena Kagan said.

That may be true, Unikowsky replied, but there is “a meaningful constitutional difference” between delegating power to a territory and conferring sovereignty to it.

What Is Sovereignty?

Both Chief Justice John G. Roberts Jr. and Kagan pressed Landau to concede that the “source of power” argument cuts both ways. You say the source of authority is the Puerto Rican people, Kagan said, but isn't their authority in turn drawn from a congressional act?

“If you go back, the ultimate source of authority is Congress,” she said.

Landau also faced tough questioning from Justice Antonin Scalia, who didn't appear sold on the idea that Congress granted sovereignty just because it gave Puerto Rico the power to pass its own laws.

Other territorial legislatures have the power to pass laws, he observed, so what's difference here? It seems to me, he said, that a territorial legislature can be a “source of power” too.

Justice Anthony M. Kennedy wondered whether the word ‘sovereignty” was just too “slippery” to be of much technical use.

“That's why the framers didn't use it in the constitution,” he observed.

Congress Makes the Rules

Making an amicus appearance on behalf of the federal government, Assistant to the U.S. Solicitor General Nicole A. Saharsky made two simple points: “Territories belong to the United States” and ‘Congress is the one who makes the rules.”

Saharsky compared a territory's relationship with the federal government to the relationship a municipality has with a state, pointing to a 1970 U.S. Supreme Court decision which analogized the relationship between a territory and the U.S. to the relationship between municipal and state governments.

She also spotlighted a 1907 case where the court held that a prosecution in a federal court is a bar to a subsequent prosecution in a territorial court.

Justice Ruth Bader Ginsburg pointed out that the government had changed its stance on this point. Saharsky conceded that it had, over the years, revisited the issue and executed an about-face, but she said the change of course only came after numerous discussions within the Department of Justice and other agencies.

Jurisdictional Problem?

There is an outside chance that the court could steer clear of the debate entirely, at least for now, because there is some question about whether the court even has jurisdiction to hear the case.

Just days before the argument, the court sent the lawyers in the case a letter asking them to be prepared to discuss “whether this Court has jurisdiction to review the ruling of the Supreme Court of Puerto Rico under 28 U.S.C. 1258,” which says the U.S. Supreme Court may only review commonwealth decisions interpreting a federal statute or that are in conflict with federal rights.

None of the justices, however, asked any questions about jurisdiction.

To contact the reporter on this story: Lance J. Rogers in Washington at

To contact the editor responsible for this story: C. Reilly Larson at