Puerto Rico’s Dream, Denied

Two Supreme Court decisions Monday made it clear that U.S. territories have no claim to self-determination.

Status questions are now settled for Puerto Rico and other United States territories. They will remain congressional dependencies with little to no self-determination—colonies, in effect—until Congress says otherwise, allowing them to become states or become independent. This week, the Supreme Court decided a case involving Puerto Rico’s debt structure and chose whether to hear a case involving birthright citizenship in American Samoa, two final rulings in a collection of legal challenges from the territories. A ruling in Puerto Rico v. Franklin California Tax-Free Trust and a denial of review for Tuaua v. United States on Monday effectively ended a budding theory of self-determination in these areas and confirmed a federal legal view of territories that was established during the height of American imperialism.

Puerto Rico’s fight was probably over last week. A Supreme Court ruling in the case Puerto Rico v. Sanchez Valle, which was about double-jeopardy protections for Puerto Ricans, established that Puerto Rico has no real authority it does not derive from Congress. The U.S. House’s easy passage of the debt-relief bill PROMESA stripped away even more of Puerto Rico’s functional self-governing authority, establishing an independent board with no Puerto Rican oversight that can restructure Puerto Rico’s debts and set financial priorities. The Court’s ruling in Puerto Rico v. Franklin California Tax-Free Trust affirmed both of these policies, clarifying that Puerto Rico cannot create its own municipal bankruptcy code and is also excluded from the normal bankruptcy protections granted to municipalities in states, leaving its only legal restructuring path with Congress. With financial ruin fast approaching for the island, it seems the only legally viable path for debt relief is an upcoming vote on PROMESA in the Senate.

The Court also decided not to weigh in on Tuaua v. United States. In refusing to hear the case, the Court affirmed the ruling in the D.C. Circuit Court of Appeals that automatic birthright citizenship does not apply to people born in American Samoa. American Samoans are born as U.S. nationals, not American citizens, and must be naturalized in order to vote or hold office. The D.C. court’s ruling is based on two things: the ambiguity of the Constitution’s citizenship clause with respect to unincorporated territories and outlying possessions, and the will of many American Samoans to remain a functionally separate and self-governing people.

These rulings on Puerto Rico undermine the possibility of self-governance in any territory. The courts ruled that ultimate sovereignty and the right to govern comes from Congress and Congress alone for territories. Puerto Rico has reached the highest legal status possible for a U.S. territory—it’s an incorporated commonwealth—but it is still legally distinct from states, with no real self-governance beyond what Congress allows. This is also true of territories that do not hold commonwealth status, such as American Samoa, Guam, and the U.S. Virgin Islands. People in territories will not be able to grant themselves privileges equivalent to those afforded in states—most notably the right to vote for congressional representation—until Congress so decides.

In a recent conversation, the Puerto Rican territorial-law scholar Carlos Iván Gorrín Peralta told me that with this recent slate of court cases and legislation, the “ambiguity of 60 years is disappearing.” He was referring to the decades since Puerto Rico was declared self-governing and granted the ability to organize a constitution and government, actions which Puerto Rico’s lawyers used as the basis for their arguments in court. Over the past few weeks, the Supreme Court and Congress have articulated firm limits on Puerto Rico’s power, and the executive branch joined in through amicus curiae briefs. The position of the United States government with respect to its territories has never been clearer. Optimism among self-determination activists and scholars in the territories has been subdued.

Aside from presidential campaign promises and some passionate speeches during the PROMESA debate, there hasn’t been much word from Congress or the administration on just what this all means for the prospect of statehood or independence for Puerto Rico and the unincorporated territories. Both are possibilities, especially for Puerto Rico: Congress may not be eager to act as its sole, ultimate authority for long, especially facing the massive responsibility of Puerto Rico’s debt. These decisions could also lead up to independence for the territories, as the United States will probably face more pressure from the United Nations and other international bodies to allow the territories freedom if they cannot become parts of the Union proper.

But the end of this series of decisions could just as easily perpetuate America's old history of imperialism, defined by the acquisition of territory without offers of full American citizenship. Under current law, only the United States government can choose to grant these rights. Judging by the last few weeks, people seeking higher status in territories might be waiting for a long time yet.