Today one of the most respected writers on the Supreme Court, Lyle Denniston, and for whom I have the great respect, wrote a piece in SCOTUSBLOG about PR v. Sánchez Valle, a case to be argued on January 13, 2016. Lyle, however, missed a few issues of great importance.

 

He says, “True sovereignty is what they say they want.” I differ. What they want is to say that sovereignty comes from the People of Puerto Rico and not from Congress as the PR Supreme Court and the Obama administration say. Moreover, true sovereignty would be independence according to the Bush, Jr. and Obama administrations Task Force Reports on PR say.

 

Lyle also says, “The Island’s nearly four million people have debated for decades whether to seek statehood, and they still cannot agree whether to try for it.” This is incorrect. In the plebiscite of 2012, the voters rejected by 54% vote against the current status, and for those, 61% voted for statehood. See here and here.

 

Moreover, Lyle seems not to like the idea that a territory is subject to total Control by Congress. This is, however, the state of the law. Article IV, Section 3, Clause 2, does not start as Lyle put is but by saying “Congress shall have the power to dispose of” in reference to territories. In addition, the last two cases to deal with PR’s status, Califano v. Torres, 435 U. S. 1 (1978) and Harris v. Rosario, 446 U.S. 651 (1980), both reaffirm Congressional power over PR except for fundamental rights. And this was after 1952.

 

In addition, Lyle’s narrative of the Sánchez Valle case has to be qualified. The power of the territories to create crimes and prosecute them comes from Congress and since Congress makes federal laws, you cannot accuse a person in both federal and territorial courts for the same crimes. See, Grafton v. U.S., 206 U.S. 333 (1907) and Puerto Rico v. Shell Co., 302 U.S. 253 (1937). But, this doctrine changed in the First Circuit Court of Appeals, which handles federal appeals from PR, from U.S. v. López Andino, 831 F.2d 1164 (1st Cir. 1987) on.

 

The decision in López Andino is peculiar. From the start, at page 1167, Judge Bownes makes clear that the federal crimes are different from the Commonwealth crimes and hence, there is no double jeopardy. The Court could have stopped there, as Judge Torruella’s concurrence points out but Judge Bownes continues for little less than a page to conclude that the Federal Government and Puerto Rico are two different sovereigns. See pages 1167-68. He concludes saying “Puerto Rico’s status is not that of a state in the federal union, but, its criminal laws, like those of a state, emanate from a different source than the federal laws.” Page 1168. Judge Bownes, quoting from Examining Bd. of Eng’rs, Architects and Surveyors v. Flores de Otero, 426 U.S. 572, 594 (1976), continues to argue that Law 600, the Federal Relations Act relevant to PR, gave the PR “the degree of autonomy and independence normally associated with the states of the Union.”

 

By contrast, Judge Torruella’s concurrence with the result makes it clear that double jeopardy did not ensue since the crimes were different and questions the Court’s discussion in the power to prosecute separate from Congressional power. Different from the majority, he spends almost 6 pages explaining his view, which can be synthesized as follows:

 

Not the least of the majority’s errors stem from the fact that it overlooks that the Puerto Rican Federal Relations Act (Pub.L. 600) is merely an act of Congress. It is not a treaty, and certainly not a part of the Constitution. Thus, under well-established constitutional precedent, as an act of Congress it does not bind future Congresses. Like any other act of Congress it may be repealed, modified, or amended at the unilateral will of future Congresses. Thus, as will be further discussed post, the ultimate source of power in Puerto Rico, even after the enactment of P.L. 600, is Congress, a situation that deprives Puerto Rico of the rudiments of sovereignty basic to the application of the “dual sovereignty” rule. (Citations omitted)

 

Judge Torruella continues with citations from the Congressional record where time and again, PR officials tell Congress that even after Law 600 was enacted, it would have the same power over PR as before, see pages 1173 on. The US Senate hearings show that is was “well understood” that the Constitution would have no effect on the territorial stats of the island. During the Senate hearings, the Committee’s legal counsel that “[i]t is our hope and it is the hope of the Government, I think, not to interfere with the relationship but nevertheless the basic power inherent in the Congress of the United States, which no one can take away, is in Congress.” Hearings before the Senate Committee on Interior and Insular Affairs on S.J. Res. 151, 82d Cong., 2d Sess., 40-47 (1952).

 

This shows us that the Andino opinion is not without critics. The 11th Circuit in U.S. v. Sánchez, 992 F.2d 1142 (11th Cir. 1993) (this Circuit covers, among others, the state of Florida) where the Court declined to adopt the Andino opinion and instead was persuaded by Judge Torruella’s concurrence. Judge Hill in his opinion states that Congress is the “source of prosecutorial authority for the territories and for the Federal Government and therefore prosecutions in the territorial courts are not protected by the dual sovereignty doctrine from application of the Double Jeopardy Clause.” US v. Sánchez, at page 1150. He defined the legal question as:

 

Our inquiry does not end here, however. The Florida district court concluded that the reasoning underlying the above-quoted portion of Puerto Rico v. Shell was overridden by the passage of the Puerto Rico Federal Relations Act, Pub.L. 600, ch. 446, 64 Stat. 319 (1950) (codified at 48 U.S.C. § 731 et seq. (1989)), and, implicitly, that Puerto Rico is no longer a territory as that term was understood in the early part of this century. We must decide, therefore, whether the creation of the Commonwealth of Puerto Rico pursuant to the Federal Relations Act so changed the status of Puerto Rico that it must now be considered a separate sovereign for the limited purpose of the dual sovereignty exception to the Double Jeopardy Clause. (pages 1050-51)

 

After a careful analysis from pages 1047-1153, Judge Hill concluded as follows:

 

The development of the Commonwealth of Puerto Rico has not given its judicial tribunals a source of punitive authority which is independent of the United States Congress and derived from an “inherent sovereignty” of the sort supporting the Supreme Court’s decisions involving the states (Heath, supra) and Native American tribes (Wheeler, supra). Congress may unilaterally repeal the Puerto Rican Constitution or the Puerto Rican Federal Relations Act and replace them with any rules or regulations of its choice. Despite passage of the Federal Relations Act and the Puerto Rican Constitution, Puerto Rican courts continue to derive their authority to punish from the United States Congress and prosecutions in Puerto Rican courts do not fall within the dual sovereignty exception to the Double Jeopardy Clause.

 

It is based on this scenario that the PR Supreme Court decided Sánchez Valle. Interestingly, in the case of Franklin California v. Puerto Rico at page 47, also to be argued soon by the Supreme Court, decided on July 6, Judge Lynch quotes López Andino, but not from the majority opinion but Judge Torruella’s, saying that PR is constitutionally a territory. See also, Davila-Perez v. Lockheed Martin Corp., 202 F.3d 464, 468 (1st Cir. 2000). Maybe a change of heart in the First Circuit.

 

The Federal Government’s intervention, which would make it impossible for it to prosecute those who had been prosecuted first in Puerto Rico for the same crimes, may the preamble to the defense of Financial Control Board proposed by Senator Hatch in December. Let’s see what happens.

 

 

Again, I have the greatest respect for Lyle, but I think he left something of great importance out in this controversy.