On Wednesday, January 13, 2016, the United States Supreme Court heard arguments in the case of Commonwealth of Puerto Rico v. Sanchez Valle, et al. (No. 15-108), which posed the question of whether Puerto Rico is a separate sovereign for the purposes of the Double Jeopardy Clause under the United States Constitution. For a description of each of the party’s claims, see the related post on this blog from January 12, 2016.
At argument, much of the discussion, at least at first, centered on what the word “sovereignty” really means. Justice Sotomayor suggested that it means “one, that the separate entity possesses the authority to determine what shall be an — an offense against their peace and dignity; two, can enact laws without the interference of the other; and, three, draws authorities to punish the offender . . . from a distinct source of power from the other sovereign.” While Petitioner’s counsel appeared somewhat amenable to this definition, the other justices did not seem to agree. Ultimately, they appeared unable to move past the broad implications of specifically defining such a term in the context of this case.
Justice Breyer, recognizing this, suggested that the Court look for some middle ground in awarding Petitioner some relief in its quest for the recognition of sovereignty. “If we simply write an opinion and it says, Puerto Rico is sovereign, that has enormous implications. . . . On the other hand, if we write an opinion that says it’s just a territory, that has tremendous implications. . . . So either way, between those two, the implications in law and in politics and everything else are overwhelming. Therefore, you argue a third and middle position. Your position pointing to four cases in this Court, so you have very good authority. It’s for Double Jeopardy purposes. There is a different question. The question is what are the sources of law?”
Justice Breyer’s analysis lent itself well to the point that petitioner emphasized throughout argument: that the power of Puerto Rico to put its own citizens on trial under its own criminal law emanates from its own constitution, which is by the Puerto Rican people, and for the Puerto Rican people – not Congress.
Counsel for Respondent argued in response that the Puerto Rican Constitution was merely the delegation of some powers to Puerto Rico by Congress; in other words, it was only a small measure of autonomy, in no way, shape or form near the measure of autonomy awarded to States. Most of the Court seemed receptive to this argument, except for Justices Sotomayor and Breyer, who continued to search for a fitting definition of sovereignty that would recognize the level of autonomy championed by Petitioner.
The biggest blow to Petitioner’s case came with the presentation of argument by counsel for the U.S. Solicitor General’s Office. She consistently maintained that the United States Constitution grants Congress the power to adopt laws and regulations to govern United States territories, including Puerto Rico. When Justice Sotomayor stated that when Congress had allowed Puerto Rico to establish its own constitution in 1952, it had given up the congressional power to veto laws passed by Puerto Rico’s legislature, counsel disagreed and said she did not think that was right. When Justice Breyer asked her whether Congress can “take back” the measure of authority it had given Puerto Rico by way of its constitution in 1952, she responded without hesitation that it could. Specifically, she stated: “Could Congress revise the arrangements it has with Puerto Rico? We think the answer is yes, and that that follows from the structure of the Constitution and its history.” This meant, she stated, that Congress can define and change the laws in Puerto Rico, including defining what a crime is and whether it is a crime in Puerto Rico. On a side note, this point is of particular interest because as a territory, Puerto Rico has no voting representation in Congress. The implications of the DOJ’s position is therefore that Puerto Rico has no voice in the body of elected representatives that has veto power over its laws.
The issue of subject matter jurisdiction was not raised by any of the justices, although it will be interesting to see whether it is a part of the Court’s decision. It seems after arguments that the Court is leaning towards affirming the judgment of the Puerto Rico Supreme Court, but of course, only time will tell. The decision will likely be announced by the end of the June term.