Zachary Price
The Supreme Court heard arguments last week in Commonwealth of Puerto Rico v. Sanchez Valle. The case, which Rick Pildes has blogged about here, presents the question whether Puerto Rico qualifies as a “separate sovereign” from the federal government for double-jeopardy purposes. Were Puerto Rico a state, double jeopardy would not apply because states are separate sovereigns from the federal government. But because the Constitution gives Congress authority to govern non-state territories, the Supreme Court’s century-old decision in Grafton v. United States suggests that double jeopardy does bar repeat prosecution.
In apparent frustration with the doctrine’s rigidity, Justice Kennedy asked at oral argument: “[I]s our argument so abstract that it doesn't acknowledge real practicalities of multiple prosecutions? . . . . Has there been any suggestion by commentators and so forth that this whole inquiry of sovereignty and source of power is a little bit misplaced?”
I published a 2013 article in the Columbia Law Review, “Dividing Sovereignty in Tribal and Territorial Criminal Jurisdiction,” that made precisely this argument. With respect to both territorial governance and Native American tribes, a number of key decisions such as Grafton have drawn sharp formal distinctions based on who is “sovereign” and whether the power being exercised is “inherent” or “delegated.” As Sanchez Valle illustrates, however, this doctrinal framing inadequately accounts for the practical realities of territorial and tribal governance.
With respect to so-called unincorporated territories like Puerto Rico—territories that might never become states—Congress’s plenary power to govern federal territories gives it ultimate authority. In that sense, territorial government authority is delegated from Congress, and Congress in principle can take back the delegation, just as it can do with respect to delegations to ordinary federal agencies. But exceptionally compelling normative and historical concerns support enabling unincorporated territories to govern themselves. Accordingly, congressional plenary power has been understood to enable unusually open-ended forms of delegation—delegations that enable autonomous self-governance.
It should follow logically that Puerto Rico qualifies as a double-jeopardy “separate sovereign,” no less than a state. In the federal-state context, dual-sovereignty doctrine’s best practical rationale is that it prevents one government from thwarting another’s prosecutions by winning the race to the courthouse. The functional autonomy of territorial legislative and prosecutorial decisions makes that concern equally applicable to Puerto Rico.
Anxious to preserve congressional plenary power, the Solicitor General argues to the contrary. But the SG’s view jeopardizes significant law enforcement interests. In this case, a federal firearms guilty plea would thwart separate (more punitive) Puerto Rican prosecution, but in a future case token territorial prosecution could conceivably bar a federal public corruption, narcotics, or human trafficking indictment.
Even more importantly, a rigid assertion of federal “sovereignty” here could place the broader structure of autonomous territorial governance at risk. If the authority exercised by local officials in Puerto Rico qualifies as federal government action for double-jeopardy purposes, it is hard to see why those officials are not officers of the United States who must be appointed by the President under the Appointments Clause. By the same token, if Puerto Rico’s elected officials qualify as territorial rather than federal officers, their prosecutorial decisions should likewise qualify as distinct from federal action for double-jeopardy purposes.
Both here and in the related contexts of federal Indian law (which is also before the Court this term), the Court should look beyond arid conceptions of “sovereignty” and “delegation” and craft a doctrine that better reflects modern realities. Earlier in our history, the Supreme Court’s embrace of plenary power enabled an ugly imperial expansion. But if the Court thus bent the Constitution out of shape in the past, it should not bend it back now at the expense of territorial self-governance.
Zachary Price is an Associate Professor at the University of California Hastings College of the Law. He clerked for Justice Kennedy during the 2005-2006 Term. You can reach him by email at pricez@uchastings.edu.