Puerto Rico v. Valle

The Supreme Court will determine whether Puerto Rico constitutes a separate sovereign for purposes of double jeopardy analysis. See Brief for Respondents, Luis M. Sanchez Valle and Jaime Gomez Vazquez at i. When a crime is committed under the shared jurisdiction of two separate sovereigns, double jeopardy does not apply, because the crime compromises an offense against each sovereign—a law from each respective sovereign has been broken. See Brief for Petitioner, The Commonwealth of Puerto Rico at 22. Puerto Rico contends that its government is a separate sovereign from the United States because it derives its authority from its constitution, adopted in 1952 as a reflection of the popular will of the people of the island. See id. at 28–30. Valle rejects this formulation and asserts that Puerto Rico is merely a territory to which Congress has delegated elements of quasi-sovereignty, but ultimately not the status of a sovereign state. See Brief for Respondents at 7–11.

WHAT ENTITIES ARE CONSIDERED “SOVEREIGN” UNDER THE U.S. CONSTITUTION FOR DOUBLE JEOPARDY PURPOSES?

For purposes of the double jeopardy clause, Puerto Rico argues that the relevant test of sovereignty is where Puerto Rico gets its power to prosecute. See Brief for Petitioner at 26. If Puerto Rico’s prosecutorial power stems from the Puerto Rico constitution, and the United State’s power stems from the U.S. Constitution, then, Puerto Rico concludes, Puerto Rico can be exercise its prosecutorial powers independently, like a U.S. state exercises its own authority to prosecute crimes within its jurisdiction. See id. at 27. Puerto Rico derives this test from two Court cases: United States v. Wheeler and Heath v. Alabama. In Wheeler, the Court determined that a Native American tribe had the power to punish crimes because of its inherent sovereignty, even though Congress could pass laws binding on the tribe. See id. Puerto Rico explains that the Court emphasized the tribe’s “retained sovereignty,” which was not affected by Congress’ plenary power. See id. In Heath, the Court confirmed that individual states are sovereign because they derive their authority to punish from their own constitutions. See id. Puerto Rico asserts that it punishes criminals through the authority granted to it by its own constitution, not federal law. See id. at 28. Accordingly, Puerto Rico claims that it passes the sovereignty test.

Valle contends that Puerto Rico is mischaracterizing the Court’s jurisprudence, and that there is no constitutional basis for treating territories as pseudo-sovereign. See Brief for Respondent at 11–12. In fact, Valle argues that the Constitution explicitly grants Congress plenary power over territories. And Valle maintains that neither Wheeler nor Heath created a “special” test of sovereignty for double jeopardy purposes; rather, the cases reflected a natural understanding of a sovereign’s powers. See id. at 12. Moreover, Valle asserts that the Constitution explicitly recognizes states as sovereigns, by reserving unremunerated powers to them under the Tenth Amendment. See id. Indeed, Valle points to the initial debates surrounding the Constitution’s adopting to show that the Founders were aware of the distinction between states and territories insofar as sovereignty was concerned, and that the subjugation of territories to Congress’ plenary power was deliberate. See id. at 13–14. Valle also challenges Puerto Rico’s reliance on Wheeler, arguing that Native American tribes are considered unique political entities similar to foreign nations under the Constitution, which Puerto Rico is not. See id. at 47–48. Indeed, Valle characterizes the Court’s jurisprudence with respect to the Indian tribes as affirming the tribes’ preexisting sovereignty, something that Puerto Rico does not possess. See id. at 50.

DID PUERTO RICO’S 1952 CONSTITUTION GRANT THE ISLAND SOVEREIGNTY?

Nevertheless, Puerto Rico maintains that the adoption of its constitution in 1952 was an exercise of popular sovereignty permitted by Congress and analogous to the process by which individual states enter the Union. See Brief for Petitioner at 32. Puerto Rico concedes that Congress imposed conditions on approval of Puerto Rico’s constitution, but points out that Congress has commonly required states to drop certain provisions in their constitutions before being admitted as states. See id. at 32–33. And Puerto Rico asserts that the restrictions placed on its constitution were even less burdensome than restrictions placed on most states’ constitutions, because the changes were popularly approved by the people of Puerto Rico. See id. at 33–35. In short, Puerto Rico concludes that Puerto Rico holds a unique position in the federal system; and that the compact between the island and the central government is roughly equivalent to the one the government maintains with the states. See id. at 36–39.

However, Valle likens Puerto Rico to a municipal government that has elements of self-rule, but nevertheless owes its authority to a delegation of power—in this case, from Congress. See Brief for Respondent at 24. Valle looks to Waller v. Florida, where the Court explained that the relationship between territories and the federal government was like that of state and municipal governments. Valle maintains that granting certain aspects of “home rule” does not diminish Congress’ constitutional power over Puerto Rico. See id. at 23–25. Furthermore, Valle contends that Puerto Rico’s attempt to draw an analogy between the approval of its constitution and the admittance of states is misleading. States are admitted, not through the exercise of popular sovereignty, but through the process established by the U.S. Constitution. See id. at 24–25. Even assuming the analogy was valid, Valle asserts that Congress has made unilateral changes to the Puerto Rican Constitution using its plenary power; for example, stripping a provision that guaranteed positive rights and prohibiting its adoption in the future. See id. at 42–43. Valle argues that such a move would have been unconstitutional if it had been attempted with a prospective state. See id.

DOES CONGRESS’ PLENARY POWER UNDER THE TERRITORIAL CLAUSE AFFECT PUERTO RICO’S SOVEREIGNTY?

Puerto Rico maintains that Congress’ plenary power over the territory does not affect the question of whether Puerto Rico is sovereign for double jeopardy purposes. See Brief for Petitioner at 39–40. Puerto Rico asserts that Congress’s ability to apply federal law to the island has no bearing on whether the Puerto Rican government can enforce its own criminal laws, the authority for which is derived from its own constitution. See id. at 41. Puerto Rico claims that as a practical matter, the question of whether Congress could unilaterally invalidate the Puerto Rican Constitution is meaningless, because Congress would never actually do so and has relinquished control over the island’s local affairs. See id. at 41–43.

Valle criticizes Puerto Rico for mistaking Congress’s forbearance as an inability to unilaterally interfere in the island’s political affairs, pointing to a host of instances in which Congress has exercised its plenary power over Puerto Rico since 1952. See Brief for Respondents at 46. For example, Valle asserts, Congress restricts Puerto Rico’s ability to impose taxes and borrow money from its original organic statute, and required that Puerto Rico follow the Religious Freedom Restoration Act, both of which would be unconstitutional as applied to the states. See id. at 45–46.