Puerto Rico Belongs to Congress

A U.S. Supreme Court ruling and the imminent passage of a debt-relief bill raise questions about Puerto Rico’s status.

Puerto Rico's Resident Commissioner Pedro Pierluisi, speaks on Capitol Hill about PROMESA (Evan Vucci / AP)

Thursday was a big day for Puerto Rico’s 3.5 million citizens. First, a ruling from the Supreme Court established that defendants cannot be tried for the same crime in both federal and Puerto Rican courts. Later, a landslide vote in the House of Representatives in favor of Puerto Rican debt relief bill PROMESA provided a first step towards fixing Puerto Rico’s debt crisis. Although the ruling and the bill have immediate effects for law and everyday life in the Commonwealth, they also have serious long-term reverberations on Puerto Rican self-rule, America’s relationship with its territories, and Puerto Rican citizenship.

In Puerto Rico v. Sanchez Valle, the justices ruled 6-2 affirmed a ruling from the Supreme Court of Puerto Rico that held that two defendants could not be charged and prosecuted for illegal gun sales in Puerto Rican court if they had already been charged in federal court. Generally, double jeopardy only protects defendants from being tried twice for the same crime in a given state or in federal courts––which could allow a defendant to be tried for the same crime once in a state court and once in a federal court. The Supreme Court ruled that this does not apply to Puerto Rico and that Puerto Rican courts do not have the authority to try anyone for crimes already being tried in federal court.

That’s a very technical-sounding decision, but it is a landmark in considering just what Puerto Rico is, in a legal and political sense. Much of the argument before the Court concerned the history of Puerto Rico and its relationship to Congress.  The justices held that protection against double jeopardy is  subject to the “separate sovereigns” doctrine, which treats criminal law in the court systems of the 50 states and in the federal courts as separate because of the sovereign status of each. The opinion, written by Justice Elena Kagan, holds that the ultimate sovereignty of each state does not originate from the federal government because each existed prior to admission to the Union.

The ultimate sovereignty for Puerto Rico, however, as Kagan writes, does not come from the territory but originates with Congress itself, a ruling which reaffirms the so-called “Insular Cases.” It firmly establishes Puerto Rico as an entity dependent on Congress, as opposed to anything resembling a state. The Court was not swayed by arguments that Puerto Rico should be treated as a sovereign because it functions as a sovereign, with a congressionally approved constitution and its own laws and government. It was also not swayed by arguments that the United States had inadvertently created sovereignty by declaring to the United Nations that Puerto Rico is a self-governing “commonwealth” in 1953.

What remains legally now is in many senses a colony with little real self-governing power and with a different set of rules––including the lack of the right to vote in federal elections. The United Nations declaration of 1953 was enough to remove it from an international declaration as a colonized territory, but the Court’s ruling denies any real sense of sovereignty for Puerto Rico and thus undermines that declaration. The ruling established the political status of the commonwealth, a status which will be clarified even further with Puerto Rico v. Franklin California Tax-Free Trust, which was argued in March. That case deals with what tools Puerto Rico has to restructure its own debt and also explores the legal limits of Puerto Rican authority.

Both the Puerto Rico v. Sanchez Valle decision and the pending Puerto Rico v. Franklin California Tax-Free Trust decision have implications on the island’s massive humanitarian and debt crisis, especially with regards to the bill currently being considered in Congress as a way to resolve those crises. That bill, PROMESA, was passed in resounding fashion by the House Thursday. The bill—which establishes an independent restructuring board for Puerto Rico’s $70 billion in debt, provides protection against a looming multibillion-dollar default, and reduces minimum wage for young workers—has been characterized as a necessary step to avoid disaster.

The severity of the disaster in Puerto Rico has certainly convinced the House, as evidenced by the broad bipartisan support for PROMESA. However, some representatives raised the specter of colonialism on the House floor with the Supreme Court ruling still fresh. Representative Raúl Grijalva, the ranking Democrat on the House Natural Resources Committee, exhorted his fellow members to vote for PROMESA as a way to “provide the tools necessary” for Puerto Rican relief. He did, however, also characterize the independent board with no Puerto Rican oversight and the bill’s clear legal delineation between Puerto Rico and states as “another infringement on the sovereignty of the people of Puerto Rico” and framed its passage as a bitter compromise. Other members who spoke on behalf of the bill––many of them with ties to Puerto Rico––expressed similarly begrudging support.

Among these members, Puerto Rico’s status was an important issue. Representative José Serrano of New York was unequivocal. “As long as Puerto Rico is a colony, a territory of the United States, these issues will continue to come back,” he said. The only long-term solutions, he said, were statehood or independence. Pedro Pierluisi, Puerto Rico’s non-voting Resident Commissioner in Congress, echoed those sentiments, saying that while he strongly supported PROMESA as necessary to save Puerto Rico, “so long as my constituents are treated like second-class citizens, Puerto Rico will never have a first-class economy.”

If PROMESA is passed by the Senate and signed into law by President Obama, Puerto Rico’s status will be crystal clear. As per the Court’s ruling, it has no self-evident sovereignty and is still a possession of Congress. PROMESA, despite its necessity to avert a very real disaster in the territory, would reaffirm Puerto Rico’s distinct status from states and would place an unelected board in charge of its finances. Young Puerto Ricans will have much lower minimum-wage protections than people in the states, and Puerto Rico will continue to receive some federal funding at much lower relative percentages than states. Through it all, Puerto Ricans will not be able to vote for the very body that exerts so much power over them. There are now, simply, very few definitions by which Puerto Rico is not a colony.