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Justice’s Dissenting Opinion Lays Bare Puerto Rico-U.S. Relationship

By on June 9, 2016

SAN JUAN—The Supreme Court ruled on Thursday that Puerto Rico remains a U.S. territory without the independent powers of a sovereign state when it comes to enforcement of criminal law.

The justices’ 6-2 ruling on the Puerto Rico v. Sánchez Valle case says Congress is the ultimate source of the island’s legal power even though Puerto Rico has its own constitution.

Justice Elena Kagan, a Democratic Party nominee, delivered the majority opinion while Justices Sonia Sotomayor and Stephen Breyer wrote dissenting opinions. Justices Clarence Thomas and Ruth Bader Gingsburg wrote concurring opinions.

WASHINGTON, DC - APRIL 21:  Supreme Court Associate Justice Stephen Breyer participates in a panel on "Lessons from the Past for the Future of Human Rights: A Conversation" at the Gewirz Student Center on the campus of the Georgetown University Law Center April 21, 2014 in Washington, DC. Organized by the law center, the New York Review of Books and the Bingham Centre for the Rule of Law the forum focused on the future of human rights.  (Photo by Chip Somodevilla/Getty Images)

Supreme Court Associate Justice Stephen Breyer  (Photo by Chip Somodevilla/Getty Images)

Breyer, in his opinion, wrote that he does not believe that Puerto Rico and the federal government share the same source of power—namely, the U. S. Congress—because the historical context shows that the United States intended to change the nature of its relationship with Puerto Rico by granting it self-government.

“I do not believe, as the majority seems to believe, that the double jeopardy question can be answered simply by tracing Puerto Rico’s current legislative powers back to Congress’ enactment of Public Law 600 and calling the Congress that enacted that law the “source” of the island’s criminal-enforcement authority,” Breyer’s opinion stated.

“That is because—as with the Philippines, new States, and the Indian tribes—congressional activity and other historic circumstances can combine to establish a new source of power. We therefore must consider Public Law 600 in the broader context of Puerto Rico’s history. Only through that lens can we decide whether the Commonwealth, between the years 1950 and 1952, gained sufficient sovereign authority to become the “source” of power behind its own criminal laws,” he said.

Breyer added that in enacting Law 600, the Puerto Rican Federal Relations Act determined that the “political status” of Puerto Rico would for double jeopardy purposes subsequently encompass the sovereign authority to enact and enforce— pursuant to its own powers—its own criminal laws. Several considerations support this conclusion.

He also noted that the timing of Public Law 600’s enactment suggests that Congress intended it to work a significant change in the nature of Puerto Rico’s political status. Prior to 1950, Puerto Rico was initially subject to the Foraker Act, which provided the Federal Government with virtually complete control of the island’s affairs.

In 1917, Puerto Rico became subject to the Jones Act, which provided for United States citizenship and permitted Puerto Ricans to elect local legislators but required submission of local laws to Congress for approval. In 1945, the United States, when signing the United Nations Charter, promised change. It told the world that it would “develop self-government” in its territories.

“Public Law 600 uses language that says or implies a significant shift in the legitimacy-conferring source of many local laws,” he said. Public Law 600 created a constitution-writing process that led Puerto Rico to convene a constitutional convention and to write a constitution that, in assuring Puerto Rico independent authority to enact many local laws. The constitution adds that the commonwealth’s “political power emanates from the people and shall be exercised in accordance with their will.”

Breyer noted that President Truman himself noted that change in the political nature of the relationship with the island when he said that the power in the constitution emanated from the people, a view held by subsequent administrations and local Supreme Court.

He added that in analyzing the nature of the relationship, one has to examine the actions of the United States. “I would add that the practices, actions, statements, and attitudes just described are highly relevant here, for this Court has long made clear that, when we face difficult questions of the Constitution’s structural requirements, longstanding customs and practices can make a difference,” he said.


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