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Puerto Rican Sovereignty Questioned in Supreme Court

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By Casey C. Sullivan, Esq. on January 14, 2016 2:46 PM

The status of Puerto Rico was front and center in the Supreme Court on Wednesday, as the justices heard arguments in Puerto Rico v. Valle. On its face, the case is about whether the Commonwealth of Puerto Rico can prosecute a criminal, already tried by the federal government, without violating the Constitution's prohibition on double jeopardy. Puerto Rico says yes. The federal government and Luis M. Sanchez Valle, who faced federal and Puerto Rican charges related weapons trafficking, say no.

More broadly, however, the case is about how Puerto Rico fits into the American system of government. Is it a semi-independent sovereign, not wholly unlike the federal states, capable of pursuing justice under its own laws, drawn from the consent of its own people? Or simply a semi-colonial territory, under the control of the federal government? After Wednesday's oral arguments, things don't look too good for la isla del encanto.

A Special Place for Borinquen?

When the Commonwealth of Puerto Rico sought to prosecute Sanchez Valle after he had already been convicted in federal court, the Supreme Court of Puerto Rico ruled that it could not, "pursuant to the constitutional protection against double jeopardy, and because Puerto Rico is not a federal state."

Under the Supreme Court's dual sovereign doctrine, the federal government and states may both prosecute someone for a crime so long as they do so under their own, separate laws. In the U.S. Supreme Court, Puerto Rico argued that it was entitled to the same rights under the doctrine.

Unlike Guam or the U.S. Virgin Islands, which are still governed by organic acts of Congress, Puerto Rico adopted its own constitution in 1952. That constitution declares that "political power of the Commonwealth comes from the people," not, importantly, the U.S. government. With its adoption, Puerto Rico argued, "Congress relinquished control over the organization of the internal affairs of the island."

That relative independence gives Puerto Rico the right to pursue a criminal prosecution against Sanchez Valle under its own laws, according to its lawyers. "Offense created by two different entities are not the same offense if they flow from different sources," the island argued, and the source of Puerto Rico's laws are the people of Puerto Rico, not the federal government.

That Slippery Word

That argument didn't go far in the Supreme Court. Justice Sotomayor, a Nuyorican whose parents come from San Juan and rural Lajas, described it as "a bit histrionic to me." If Puerto Rico's limited independence came from a grant of power by the federal government could it really be said to have the status of a dual sovereign?

Indeed, the Nicole Saharsky, the Department of Justice lawyer representing the United States government, even argued that Congress is free to override Puerto Rico's Constitution.

As the arguments meandered through a largely academic -- and confused -- discussion of sovereignty, Justice Kennedy summed up the uncertainty best. "'Sovereignty' is a slippery word," he said. "That's why the framers didn't use it in the Constitution."

But whatever definition of sovereignty the Court settles on, if it settles on one at all, it doesn't appear likely that Puerto Rico will be happy with the result. As SCOTUSblog's Lyle Dennison described it, "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."

Christopher Landau, who represented the island, ended his argument with this plaintive entreaty: "Please do not take the Constitution of Puerto Rico away from the people of Puerto Rico."

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