“Are you suggesting there's kind of a second-class sovereignty and a first-class sovereignty?” Justice Anthony Kennedy asked Christopher Landau, the attorney representing Puerto Rico.
Landau’s challenge was to convince the Court that Puerto Rico enjoys enough sovereignty that double jeopardy shouldn’t be an issue, but without forcing the Court into the thorny debate over Puerto Rican statehood and/or independence, or declaring that it has, in his words, "sovereignty with a capital 'S.'" Kennedy later dubbed it "interim sovereignty."
“If we simply write an opinion and it says Puerto Rico is sovereign, that has enormous implications,” Justice Stephen Breyer said. “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.”
Landau argued that Puerto Rico’s criminal jurisdiction does not overlap with the U.S.’s jurisdiction because the island has its own constitution, citing that document as the source of its power over criminal prosecutions.
“This arrangement was not something that Puerto Rico did as a rogue usurpation of authority,” Landau said. “This was pursuant to the invitation of Congress and with the blessing of Congress. That was submitted to the Congress. The Congress saw that language.”
But several of the justices were skeptical of that argument. Congress has granted Puerto Rico significant autonomy over the years, including its blessing to write a constitution, but that fact suggests that Congress is still in charge, they argued.
“Even in saying that, Mr. Landau, you're putting Congress in the driver's seat here: It was done at the invitation of Congress. Congress approved it. Presumably Congress can un-approve it if Congress ever wished to,” Justice Elena Kagan said. “So if Congress is in the driver's seat, why isn't Congress the source of authority for the purposes of our double-jeopardy jurisprudence?”
The concept of quasi-sovereignty was also a hard sell for Kennedy and Chief Justice John Roberts, who said Congress was the ultimate source of Puerto Rico’s authority over criminal prosecutions.
“It would seem to me that the authority to do it came from Congress, when they passed the law authorizing Puerto Rico to adopt a constitution of its own,” Roberts said.
Still, several justices acknowledged, Congress has given Puerto Rico a lot more autonomy over its own affairs than other colonies enjoy.
“It sure seems as though in the early 1950s, Congress with respect to Puerto Rico, said, ‘We want to give it some sovereign authority. We want to give it an enormous amount of home-rule authority, basically everything, and we also have some idea in our heads that Puerto Rico ought to be a sovereign with all the things sovereigns have, like a constitution and a "we the people" clause,'” Kagan said. “It's an unusual idea, to be sure—a sovereign territory. But Congress seems to have wanted to do exactly that.”