Tuesday, January 05, 2016

Puerto Rico v. Sanchez Valle: The Obama Administration Abandons Longstanding U.S. Positions on Puerto Rico's Legal Status

Rick Pildes

In an explosive Christmas-week filing with the Supreme Court, the Obama administration has inexplicably undermined nearly 70 years of the United States’ legal and political commitment about the status of Puerto Rico and the right of the people there to local self-government.  The specific issue in Puerto Rico v. Sanchez Valle, to be argued on Jan. 13th, is whether Puerto Rico is akin to the 50 States for purposes of the Constitution’s Double Jeopardy clause.  But beneath this legal issue is the existential question of the fundamental identity of Puerto Rico and its legal status vis a vis the United States.  

The Double Jeopardy (DJ) issue itself has been settled for settled for at least 30 years.  The United States consistently took the position before the courts that, just as the DJ clause does not bar federal and state governments, or the federal government and Indian tribes, from separate national and local prosecutions for the same underlying acts -- because federal and state law are distinct sources of law and each government has the right to enforce its own laws -- the DJ clause also permits the governments of Puerto Rico and the United States also to both prosecute someone for the same underlying acts.  

This is known as the "dual sovereignty" doctrine.  The First Circuit, the federal court of appeals that has developed much of the law concerning Puerto Rico's status, has long applied the dual sovereignty doctrine to Puerto Rico.  For roughly the last 30 years, the Puerto Rico Supreme Court did so too, until it abruptly reversed course in the decision the Supreme Court is now reviewing.

As the Obama administration acknowledges, it is now abandoning the position on the DJ issue the United States has taken before the courts for the last 30 years. The Obama brief does not exactly confront its own prior arguments and explain why the arguments the United States has made for the last decades are wrong.  But it concedes that it is walking away from the United States' prior position.

But beyond the DJ issue, the Obama administration has now dramatically raised the stakes in this case in the most profound way..  For in an even more significant change in position, the Obama administration has now announced to the Supreme Court that the United States views Puerto Rico as no more, in essence, than a colony – with the United States retaining the right, for example, to appoint the island’s Governor, Supreme Court, and legislature.   For an administration one would assume to be as resolutely against colonialism as any in American history, this position is stunning.

The United States government and the Supreme Court had long ago also rejected that position and recognized that Puerto Rico was transformed into a self-governing entity, much like the States, when the United States and Puerto Rico jointly created the “Commonwealth of Puerto Rico” in the aftermath of World War II.  Until the 1950s, Puerto Rico was indeed a mere “territory” of the United States and, in effect, a colony.  Until 1947, for example, the President of the United States appointed, with Senate consent, the Governor of Puerto Rico; any law enacted by the Puerto Rico legislature had to be submitted for approval to Congress.

But as the democratic movements for self-determination and anti-colonialism took hold in the wake of World War II’s struggle for democracy, the United States joined the United Nations Charter.  Under the Charter, the United States, like other countries, bound itself to “develop self-government” in the non-self-governing territories it held.  In 1946, the United States recognized the independence of the Philippines; in the late 1950s, the United States transformed the longstanding territories of Alaska and Hawaii into States.  And as part of this process of decolonization, the United States in the 1950s also transformed Puerto Rico from a territory into the self-governing Commonwealth of Puerto Rico.  That process did not make Puerto Rico a State, of course, but it recognized Puerto Rico’s right to self-governance over local matters.

Congress created the same process for letting the people of Puerto Rico decide whether they wanted to form the Commonwealth that Congress uses for letting the people of territories determine whether they want to become a State.  “Fully recognizing the principle of government by consent,” Congress by law in 1950 offered a “compact” through which Puerto Rico’s people would have the authority to “organize a government pursuant to a constitution of their own adoption.”  In accord with this law, the people in Puerto Rico, through popular referendum, then called a Constitutional Convention, which proposed a Constitution – established by “We, the people of Puerto Rico” -- that was then approved in another referendum.  Through this Constitution, Puerto Rico created the new, self-governing political entity, the Commonwealth of Puerto Rico.  In transmitting this Constitution to Congress, where it was approved, President Truman recognized that “full authority and responsibility of local self-government will be vested in the people of Puerto Rico.”

But the United States did not just make this commitment of self-governance to Puerto Rico – it made this commitment to the world, through the United Nations.  As part of the process of de-colonization, the Charter requires submission of annual reports regarding progress toward self-governance of the territories nation-states still held; the United States duly filed these reports for Puerto Rico.  But once the Commonwealth of Puerto Rico was formed, the United States represented to the General Assembly that we no longer needed to continue doing so – precisely because Puerto Rico had become self-governing in the way the States are.  As the culmination of the transformation of Puerto Rico’s status, the Supreme Court embraced the same legal understanding:  ever since the Commonwealth was created, the Supreme Court has recognized that “Puerto Rico, like a state, is an autonomous political entity, ‘sovereign over matters not ruled by the [federal] Constitution.’”

                Congress would have perpetuated “a monumental hoax” – in the words of the United States federal courts – if the creation of the Commonwealth had not transformed the status of Puerto Rico.  Yet it is precisely that monumental hoax that the Obama administration is now asking the Supreme Court to embrace, in taking the position that Puerto Rico is, in effect, a mere colony of the United States.  

The Supreme Court need not resolve the underlying question of Puerto Rico's fundamental legal status to re-affirm the longstanding law that Puerto Rico and the United States are distinct sources of lawmaking authority for purposes of the DJ clause.  The Court has recognized since the 1950s that Puerto Rico is legally akin to the States for many purposes, and can re-affirm that conclusion here, without addressing the extremely divisive and polarizing issue of Puerto Rico's fundamental legal status.  

But even so, the Obama administration’s abandonment of the United States' prior legal positions regarding Puerto Rico will have large political repercussions.  It will feed into the highly politicized debates among those who care about Puerto Rico's status, because it will now enable partisan actors to claim that the United States cannot be trusted in its relationship with Puerto Rico.  For if the Obama administration is correct, it would mean the United States could end self-government in Puerto Rico and go back to appointing its Governor, as well as taking over every other aspect of political life in Puerto Rico.   

Ever since President Truman first recognized the creation of the Commonwealth of Puerto Rico, the Democratic Party in the United States has supported the unique legal status of the Commonwealth. That makes the Obama administration's abandonment of the United States' prior positions, on both DJ and Puerto Rico's legal status more generally, all the more baffling.

[I am not involved in Sanchez Valle but in the interest of broad disclosure, I have represented Puerto Rico in the federal courts in other litigation and testified on Puerto Rico's legal status before a congressional committee and the President's Task Force on Puerto Rico's Status]

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