Barack Obama, King of Puerto Rico

thierry ehrmann/Flickr

thierry ehrmann/Flickr

The Supreme Court and the Obama administration found themselves in an awkward discussion on Wednesday. Hearing arguments on how the Double Jeopardy rule applies to Puerto Rico, several justices and the assistant to the solicitor general wrestled over the strange nature of Puerto Rico’s sovereignty (or lack thereof).

The case, Puerto Rico v. Sanchez Valle, involves two Puerto Rican men who were charged by local prosecutors in September 2008 with selling guns without a license. Before they stood trial in a Puerto Rican court, the federal government independently charged them with the same crime, and the two men were found guilty in a federal court and sentenced. After being the federal trials, the two men demanded that Puerto Rican prosecutors drop their charges, arguing that the Fifth Amendment’s Double Jeopardy Clause prevents a U.S. citizen from being tried for the same crime twice unless tried by two separate sovereigns, such as a state and the federal government. The men argued that, since Puerto Rico isn’t sovereign, it cannot try a person with a crime for which the federal government has already tried him.

Arguing alongside the two men was President Obama, represented in court by Nicole Saharsky, the assistant to the solicitor general. It’s the White House’s position that, while Congress may have granted Puerto Rico a great deal of autonomy by allowing the island to draft its own constitution (which Congress approved — with a few edits — in July 1952), Puerto Rico  has no sovereignty and ultimately remains under the authority of Congress. (I share the same position, as did the late José Trías Monge, who had the great distinction of being, at various times, chief justice of the Puerto Rico Supreme Court, attorney general of Puerto Rico, and one of the authors of its Constitution.)

The Obama administration’s position reveals an inconvenient truth concerning the political status of Puerto Rico: despite the rhetoric from the U.S. and Puerto Rico governments over the past 60-plus years about Puerto Rico not being a colony but a “Commonwealth” or “Free Associated State,” a colony is basically what Puerto Rico is and has been all along. Puerto Rico can make its own laws, but it remains under the authority of the U.S. Congress, whose voting members it doesn’t elect. That’s like parents, in an effort to teach their kid responsibility, allowing him to choose his outfits and meals: the kid can’t pick anything he wants, of course.

This underlying paternalism on the part of the U.S. government means the Puerto Rico Constitution — which begins with “We, the people of Puerto Rico,” and portrays the island’s system of government as “democratic” and “republican” — is a sham. No person can be said to live in a democratic republic if he is at the whim of an ultimate authority he didn’t and cannot elect. It also means that the U.S. government lied to the United Nations in 1953 when it asked the international body to exempt it from having to supply an annual report on the progress toward sovereignty in Puerto Rico, claiming that the approval of Puerto Rico’s Constitution and the creation of the Commonwealth meant Puerto Rico had achieved a sufficient degree of sovereignty.

Justice Sonia Sotomayor, whose parents were born and raised on the island, seemed to take exception to the Obama administration’s dismissal of Puerto Rican sovereignty. When Saharsky pointed to a 1937 Supreme Court case, Puerto Rico v. Shell Co., in which the court ruled that Puerto Rico had autonomy similar to a state’s but didn’t have equal sovereignty, Justice Sotomayor countered that when Congress approved Puerto Rico’s Constitution in 1952, it drastically changed Puerto Rico’s political status, granting in sovereignty.

Justice Sotomayor: Before 1952, Congress could veto Puerto Rico’s laws. It has relinquished that right.

Ms. Saharsky: I don’t think that that’s right, and … it’s just not consistent with the Territory Clause of the Constitution.

Justice Stephen Breyer immediately caught the gist of the Obama administration’s argument.

Justice Breyer: It’s very interesting what you’re saying. Remember, though, one of the provisions of the Puerto Rico Constitution, which Congress approved and said it was a republican form of government, is that criminal actions shall be conducted in the name and by the authority of the people of Puerto Rico. Now, that sounds like a delegation of authority as to source, to go back to the Spanish system if they want. Now, if I take your view, then I guess you have to say ­­– and it has considerable implication ­­– that that doesn’t matter because Congress can take back what they gave. Now, is that the position of the government or the executive branch? Because that has tremendous implication.

Ms. Saharsky: Right.

Justice Breyer: Because obviously there is an argument as to whether what Congress and the president gave in Resolution 600, followed by the Constitution, followed by what happened at the UN, under the authority ­­– and looking to Felix Frankfurter for guidance, who said that the Constitution provides us with many forms of possible relationship. That’s what his view was. And now, is the position of the executive branch ­–­ I mean, you want to take a position on this? That Congress, if it wishes, can take all of that back and Puerto Rico has no more independence than, in principle, than any of the other places that were territories? Now, that’s a big question. But do you see it’s an important question? And I want to know if the government’s position rests upon it, because that’s an important statement for the executive, in my opinion.

Ms. Saharsky: Well, two responses to that question. The first, I think, is the first part of your question: this statement in the Puerto Rico Constitution that the authority to prosecute comes from the people of Puerto Rico and that it’s in the name of the people of Puerto Rico. That’s been true since 1900. That was in the 1900 Organic Act; that was true in 1917. Puerto Rico is not claiming that it was a sovereign then. So I would not rely on that. But the second and, obviously, more weighty question you raised is the question of could ­­Congress revise the arrangements it has with Puerto Rico? And we think the answer is yes, and that follows from the structure of the Constitution and its history.

Mark Joseph Stearn over at Slate wrote on Thursday that the justices appeared eager to carve out a path for the court to rule on this case without touching the question of Puerto Rico’s status. This case is, of course, a warm-up for the upcoming spring when the Supreme Court will hear arguments concerning Puerto Rico’s debt-relief options. Until now Puerto Rico has been denied Chapter 9 bankruptcy protection, thanks to a 1984 revision of the federal bankruptcy code. The island faces a $73 billion debt that Governor Alejandro García Padilla described as “not payable” back in June, and Puerto Rico rang in the new year by defaulting on a $174 million debt payment.

I get why Justice Sotomayor and other Puerto Ricans like to make it seem as though the island has more sovereignty than it actually does, but they do the people of Puerto Rico no favors by enabling the farce to continue. We need to call things by their proper names, none of this “Commonwealth” or “Free Associated State” gibberish. Canada and Australia are commonwealths, as are Virginia and Massachusetts; Puerto Rico is a colony. While the governor of Puerto Rico acts as its head of government, the president of the United States acts as its head of state (just as Queen Elizabeth II is in Canada and Australia), even though the people of Puerto Rico don’t vote in federal elections — a condition no sane person would describe as “free.” And if Puerto Rico is already some kind of “state,” then why the push for statehood?

The only word in Puerto Rico’s official names that accurately describes its relationship with the U.S. government is “associated,” which it is, whether the Puerto Rican people like it or not.

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Hector Luis Alamo is a Chicago-based writer and the deputy editor at Latino Rebels. You can connect with him @HectorLuisAlamo.

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