Many attribute the crisis to the island’s lack of “statehood,” as either an independent nation or as a state in the United States. “Puerto Rico doesn’t have access to financial instruments available both to states and to sovereign nations,” said Carlos Iván Gorrín Peralta, a professor at the InterAmerican University of Puerto Rico and a territorial-law scholar. “It is in essence in a straight jacket.”
One case in front of the Supreme Court challenges that understanding of Puerto Rico’s lack of sovereignty. Puerto Rico v. Sanchez Valle, which was argued in January, adds a new wrinkle to an old question: Can a person be charged twice for the same crime? Generally, a strong Fifth Amendment protection against double jeopardy makes that answer clear. However, for the purposes of much of constitutional law, the states and the federal government are considered separate, but overlapping, sovereigns, meaning that multiple states and the federal government can charge an individual with the same exact crime.
In a ruling on whether two defendants could be charged with gun possession in the territory after a federal conviction, the highest court in Puerto Rico ruled that the territory does not have its own sovereignty. The government of Puerto Rico appealed on the grounds that its creation of a constitution in 1952, some conflicting congressional statements over the past 50 years, and the gradual evolution of its relationship with the federal government, combine to grant it sovereignty.
“The issue is whether Puerto Rico has some form, vestige, or mirage of sovereignty, despite the fact that the Supreme Court [of Puerto Rico] has felt that it is an unincorporated territory subject to the plenary powers of Congress,” Gorrín Peralta told me.
The executive branch of the government, in an amicus brief, agrees enthusiastically with Puerto Rico’s Supreme Court, noting that Puerto Rico could only have sovereignty if recognized fully as a state or if spun off as an independent country. While Gorrín Peralta believes a 5-4 ruling upholding the rejection of sovereign status or a 4-4 tie reinforcing the lower court’s rejection are the most likely outcomes, such rulings could bolster the already-vibrant pro-statehood movement within the territory. Also, a 4-4 ruling would not set national precedent and would allow a similar challenge––say from another territory––to rise to the federal courts again.
The second case involves a more complicated issue of bankruptcy law. Puerto Rico v. Franklin California Tax-Free Trust, argued last week, involves Puerto Rico’s decision to create mechanisms for its local utilities providers to restructure debts, in a way similar to what Detroit did under Chapter 9 bankruptcy options. In a 1984 revision of bankruptcy code, Puerto Rico was expressly barred from being able to restructure under Chapter 9, but it was granted at least some authority to create its own laws. The question of congressional preemption of Puerto Rico’s laws could again be at play here.