Analysis

It doesn’t happen often, but there are times when the very last words spoken by a lawyer during a Supreme Court argument sum up very clearly what the whole hour has been about. That happened on Wednesday, when a lawyer’s closing, plaintive comment was: “Please do not take the constitution of Puerto Rico away from the people of Puerto Rico.”

Actually, there does not seem to be any real risk of that, but the entire argument in Puerto Rico v. Sanchez-Valle had the rather morose quality of suggesting that Puerto Rico was about to slide back into the nineteenth-century status of a mere colony, not a proud Caribbean master of its own destiny. If it is true that Congress has as much power over the island as was suggested, especially by a federal government lawyer, the island’s dependent status is clearer than it has ever been for more than six decades.

That prospect was entirely opposite of what the current government leaders of Puerto Rico had sought in taking their case to the Supreme Court. They wanted a declaration that, at least up to a point, Puerto Rico was entitled to the dignity of “sovereignty.”

Part of the problem in achieving “sovereignty,” it appeared, is that the Court was not exactly sure what that word means. Justice Sonia Sotomayor, whose parents grew up in Puerto Rico, tried a definition, and others attempted some definition. Justice Stephen G. Breyer brought out the fact that the U.S. government stopped making reports to the United Nations about Puerto Rico as a dependent territory after it achieved its current, semi-autonomous status.

But the exploration of that basic political concept was so meandering that, fairly late in the argument, Justice Anthony M. Kennedy suggested that the Court just forget that, and find an alternative approach to deciding this case.

Kennedy was getting at the fact that the case, in some ways, is not at all about sovereignty. That comes up only because Puerto Rico’s basic goal in this particular case (although the larger implications are enormous for the island) is to be able to put on trial, under its own criminal law, two men whom it has charged with illegal gun possession.

The Puerto Rico Supreme Court has forbidden it to stage that prosecution; because the two men have already been convicted of the same crime in federal court, Puerto Rico cannot separately pursue its own charges without violating the constitutional ban on “double jeopardy.” According to that court, only separate “sovereigns” can prosecute the same person for the same crime, and Puerto Rico is not a sovereign, in that sense.

Kennedy noted that the Court has issued a series of decisions spelling out the “dual sovereignty” concept in a series of cases, and it is not about to overrule those. So, he asked, have any analysts suggested an alternative approach to deciding when to apply sovereignty notions to multiple prosecutions? He put it this way: “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?”

Puerto Rico’s lawyer in the case, Washington attorney Christopher Landau, is relying on several precedents for his basic argument that the source of power to prosecute for crimes in Puerto Rico is the island’s own constitution, which went into effect in 1952 when Congress invited the island into a relationship — new for a U.S. territory — with a large measure of self-governing autonomy, including the right to have its own constitution and to have its own legislature pass criminal laws.

Despite Kennedy’s doubts about the sovereignty aspect of “double jeopardy,” when Landau and another attorney — Adam G. Unikowsky of Washington, D.C., who represented the two accused men — were at the lectern, almost all of the back and forth with the bench was about what to make of sovereignty.

Landau repeatedly insisted that the Puerto Rican constitution went a long way to give the people the power of self-determination, not full sovereignty in a formal international sense but something short of that. Unikowsky insisted, however, that what Congress had done was simply to give it a measure of autonomy while delegating its powers to the island, perhaps only temporarily. His two clients, of course, want Puerto Rico to be treated as lacking in sovereignty, and sharing only in the sovereignty of the U.S. government, so that they could not be tried by each government separately.

But it remained for a federal government lawyer, Nicole A. Saharsky, an assistant to the U.S. Solicitor General, to go the furthest to diminish Puerto Rico’s current constitutional status. For all of her fifteen minutes at the lectern, she repeatedly cited authorities and history which suggested that Puerto Rico has never had anything like sovereignty.

The Court, she said, “has been very careful to guard who is a sovereign under the Constitution and who is not,” and has done so especially in deciding who could conduct multiple prosecutions without violating the ban on “double jeopardy.” For her main authority, though, she relied upon the Constitution’s sweeping grant of power to Congress to adopt laws and regulations to govern U.S. territories.

When Justice Sotomayor said that, when Congress allowed Puerto Rico to set up a self-governing constitution in 1952, it had given up the congressional power to veto laws passed by Puerto Rico’s legislature, Saharsky said she did not think that was right.

Justice Breyer asked her pointedly whether “Congress can take back” what it had given Puerto Rico in 1952, and she did not hesitate to say that it could. She went on: “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.” It is, she said almost mechanically, it is a territory.

The island’s attorney, Landau, had a few minutes for rebuttal, and framed the issue he thought central to the case this way: “What happened in 1950 to 1952, and is that constitutional?”

“It is shocking,” he said, that the lawyer for the two accused men and the United States government “are using the territorial clause as a restriction on power, a limitation on power of government.” Congress, he said, can use its power to come up “with inventive solutions,” including alternatives to the dependent status of a colony. Puerto Rico’s constitution, written by its own people, reflected just such a solution.

And, in a moment, he finished: “Please do not take the constitution of Puerto Rico away from the people of Puerto Rico.”

Recommended Citation: Lyle Denniston, Argument analysis: Puerto Rico — special no more?, SCOTUSblog (Jan. 13, 2016, 4:24 PM), https://www.scotusblog.com/2016/01/argument-analysis-puerto-rico-special-no-more/