WASHINGTON, January 17, 2016 – Those familiar with the television program Saturday Night Live may remember the news report by character Emily Litella, questioning why President Ford wanted to make Puerto Rico a steak.
She offers that she didn’t think those people even liked meat.
Two recent cases now being considered by the Supreme Court will involve a determination about the island’s status under U.S. law.
Puerto Rico is not a state of the United States. It is an “unincorporated” territory. It has also been referred to as a Commonwealth. It has been under U.S. sovereignty for over a century. Its residents have been U.S. citizens since 1917.
To truly understand Puerto Rico’s connection to the United States, and the rights, privileges and obligations of its citizens, one must look at multiple federal laws and U.S. Supreme Court cases. This article is not going to attempt to explain all of them, however, a summary is in order to get to the current cases.
The U.S. acquired the islands of Puerto Rico in 1898 after the Spanish-American War. In 1950, Congress passed legislation authorizing Puerto Rico to create a constitution, which was done and ratified in 1952. A republican form of government was created, establishing executive, legislative and judicial branches.
All of this was approved (by the U.S. President and by Congress), giving the whole enchilada the force of federal law.
While there is a certain amount of local autonomy, ultimate governance is retained by both the U.S. President and Congress.
Puerto Ricans do not have voting representation in the U.S. Federal government, meaning they cannot vote in Presidential elections, nor do they have U.S. Senators or House members. They have one non-voting Resident Commissioner in the House of Representatives.
Some additional, interesting facets of the status of the approximate 3.9 million people whose home is Puerto Rico are:
People born on the islands are natural-born U.S. citizens (they have U.S. passports), but they are not Fourteenth Amendment citizens, meaning Congress can unilaterally remove their citizenship individually or collectively. Puerto Ricans are not covered by the Bill of Rights.
Puerto Ricans must pay federal taxes, but, for PR-sourced income, they are not required to pay federal income taxes.
When compulsory in the U.S., Puerto Ricans must serve in the U.S. military. Thousands of PR’s have died in U.S. foreign wars.
Despite their citizenship, Puerto Ricans only have “fundamental rights” under the U.S. Constitution, which does not include the right to trial by jury (court case decided this is not a fundamental right), thus this right can be denied to PR criminal defendants.
Supplemental Security Income (SSI) payments to the aged and benefits to children and the poor who reside there, even in the case of an insured who had worked all of his life as a resident of the States but then moved to live in Puerto Rico, can be denied.
PR’s ports can only do business with U.S. ships and the PR economy is heavily dependent on U.S. federal aid. In 2012 approximately one-third of PR’s population divided over $2 billion in food stamps.
The island is an economic disaster, yet Puerto Ricans lack authority to either file for bankruptcy or restructure their (recent estimate) $72 billion municipal debt.
For their part, Puerto Ricans have historically been divided on what they want relative to their status with the U.S. Debate on the following is ever present:
Maintenance and/or enhancement of current status
Statehood for the island requires approval by Congress. For the first time, in 2012, Puerto Ricans voted in favor of statehood: six percent voted for independence, thirty-three percent for sovereign free association, and sixty-one percent for statehood. President Obama supported this result. Last April, Jeb Bush endorsed statehood:
Puerto Rican citizens ought to have the right to determine whether they want to be a state. I think statehood is the best path, personally. To get the full benefits and responsibilities of citizenship, being a state is the only way to make that happen.
Statehood for PR has gotten no movement in Congress. Even appeals over bankruptcy powers separate members of the House.
Arguments were held in the Supreme Court this past week in the case of Puerto Rico v. Valle. The issue is whether PR can prosecute a criminal, already tried by the U.S. Federal government, without violating the Constitution’s double jeopardy clause. PR says yes, it can proceed. The U.S., and the criminal, Sanchez Valle, say no. Valle was charged with weapons trafficking.
The double jeopardy clause of the Fifth Amendment to the U.S. Constitution says:
Nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.
There are four basic protections for the same offense:
- retrial after an acquittal
- retrial after a conviction
- retrial after certain mistrials, and
- multiple punishment
The heart of the case reaches into how PR fits into the American system of government. A state may try an individual for the same crime he was tried in a federal court, because a state’s individual sovereignty protects it from double jeopardy. The U.S. and Valle offer that Puerto Rico’s authority to enact criminal laws comes from the sovereignty of Congress, and thus, as a territory, PR, without its own sovereignty, cannot try Valle again, because it would be double jeopardy.
Under the Supreme Court’s dual sovereign doctrine, the federal government and states may separately prosecute someone for the same crime, so long as they do so under their own, separate laws. PR in this case argues that since it adopted its own constitution in 1952, its power comes from the people, not the U.S. government. They argue that Congress relinquished control over the internal affairs of the island.
Puerto Rico’s argument is not likely to prevail. Justice Sonia Sotomayor, whose parents come from San Juan and rural Lajas, was not convinced. She offered that if Puerto Rico’s limited independence came from a grant of power by the federal government, it could not be said to have the status of an independent sovereign. Apparently seeing the proverbial writing on the wall, an attorney representing PR ended his argument to the justices: Please do not take the Constitution of Puerto Rico away from the people of Puerto Rico.
Despite endorsing statehood, the Obama administration, relying on numerous precedent legal cases, urged the Supreme Court to rule that PR remain a dependent U.S. territory and that it not be seen as governing itself as an independent “sovereign.”
A second case involving Puerto Rico’s status (Puerto Rico v. Franklin California Tax-Free Trust) is coming later this year in the Supreme Court’s Term, and will consider how PR can handle its current debt crisis.
Emily Litella notwithstanding, on good authority, Puerto Ricans do like meat. Political opposition will keep Puerto Rico and the District of Columbia from becoming states for the foreseeable future.
Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980. He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website.
His book “The 8 Critical Things Your Auto Accident Attorney Won’t Tell You” can be instantly downloaded, for free, on his website: http://www.samakowlaw.com/book.