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Puerto Rico Loses Case Over Sovereignty, With More Losses Likely

By Casey C. Sullivan, Esq. | Last updated on

Puerto Rico may have its own constitution, elect its own leaders, and pass its own laws, but when it comes down to it, Congress, not the people of Puerto Rico, is the ultimate source of the island government's power. That's the lesson from today's Supreme Court ruling in Puerto Rico v. Sanchez Valle, over whether the Commonwealth of Puerto Rico could prosecute criminals already tried by the federal government, as the 50 states can.

Under the dual-sovereignty doctrine, both federal and state governments may prosecute an individual for a crime, so long as they do so under their own laws. Puerto Rico argued that it was entitled to the same rights as the states when it came to double jeopardy. But, while acknowledging Puerto Rico's "distinctive, indeed exceptional status," the Court ultimately determined that Puerto Rico's prosecutorial power comes from the U.S. Congress, rejecting the island's claim to state-like sovereignty. The ruling is a blow to the island, and it may soon be followed by more Supreme Court losses in the near future.

The Ultimate Source of Puerto Rico's Power

To determine the nature of Puerto Rican sovereignty, one must go back "as far as our doctrine demands -- to the 'ultimate source' of Puerto Rico's prosecutorial power," the Court explained in a 6-2 decision, the majority opinion written by Justice Kagan.

After being claimed by Christopher Columbus in 1493 and conquered and colonized by the Spanish crown, la isla del encanto was transferred to the United States in 1898, a conquest of the Spanish-American War.

It gained a modicum of self-government in 1947, when Congress gave it the right to elect a Governor, and again three years later, when it was given the power to draft its own constitution. That constitution declares that "the political power of the Commonwealth comes from the people" and marked, Puerto Rico argued, Congress's relinquishment over the control of the island's internal affairs.

Not so, the Supreme Court ruled. Even when transferring Puerto Rico the power to create its own constitution, Congress was never fully hands-off. It modified Puerto Rico's constitution several times before it was ratified, Justice Kagan noted. The "ultimate source" of Puerto Rico's power to prosecute individuals under its own laws remains the U.S. Congress, thus excluding the island from the dual-sovereignty doctrine.

Justice Breyer dissented, joined by Puerto Rico's native daughter (by way of the Bronx), Justice Sotomayor. The fact that Congress granted Puerto Rico the right to adopt a constitution does not mean that it did not create a source of sovereignty for the island, Justice Breyer argued. After all, Congressional action is what gave birth to most of the 50 states as well -- that does not make Congress the source of those state's sovereignty any more than it does Puerto Rico's.

Another Blow for Puerto Rico -- and Another on the Way

The outcome is not unsurprising, given the skeptical hearing Puerto Rico received during oral arguments. But it will certainly come as a significant blow during a period of strain between the island and the federal government.

The island is currently grappling with massive debt that it's unable to repay and which it cannot, for no clear reason, restructure in bankruptcy. The federal government is currently considering legislation that would help Puerto Rico repay its creditors, while significantly undermining the island's independence. Under the proposed law, a federal oversight commission would hold veto power over government officials, should their actions undermine the ability to repay the debt. Only one of the commission's seven members would need to be a Puerto Rican resident.

In a separate case, the Supreme Court is also considering whether Puerto Rico has the right to restructure some of that debt, despite its exclusion from the Bankruptcy Code. Justices Thomas and Alito are the only two justices yet to write a majority opinion during this session and Justice Alito recused himself from the debt case due to financial conflicts. That makes it very likely that Justice Thomas will write the majority in that case, Puerto Rico v. Franklin, and it is unlikely that he will rule in the island's favor.

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