On Wednesday, January 12, 2016, the United States Supreme Court heard the case of Commonwealth of Puerto Rico v. Sanchez Valle, et al. (No. 15-108), which poses the question of whether Puerto Rico is a separate sovereign for the purposes of the Double Jeopardy Clause under the United States Constitution. The Petitioner, the Commonwealth of Puerto Rico, filed a writ of certiorari to the Supreme Court of Puerto Rico after it reversed the judgment of the Puerto Rico Appellate Court and held that the Commonwealth, by virtue of its status as a territory and not a state, is not a separate sovereign.
In its brief on the merits, the Puerto Rico government stresses that Puerto Rico laws emanate from the people of Puerto Rico, and not the federal government, by way of the Puerto Rico Constitution. This Constitution, it suggests, is ‘for the people and ‘by the people’; significantly, it created the three departments of government and it specifies that each is “subordinate to the sovereignty of the people of Puerto Rico.” Thus, because the government has the authority to enforce its own laws, it is a separate sovereign.
The brief on the merits for the Respondent, Sanchez Valle and Gomez Vazquez (the two defendants who were prosecuted under federal and territorial law in Puerto Rico), emphasizes that regardless of its Constitution, Puerto Rico is still a territory under Article IV of the U.S. Constitution. United States territories, unlike states, have never had their own sovereignty, as their governments exist at the will and hand of Congress and, indeed, are simply an extension, or delegation, of federal authority.
The major distinction between the two sides’ positions, then, is the source of a government entity’s authority to enforce its own laws (Petitioner’s position) versus the source and status of the government entity in the first place (Respondent’s position).
While no amicus curiae briefs were filed in support of the Petitioner’s position, six amicus curiae briefs were filed in support of the Respondents, including one filed by the United States as well as one filed by the Virgin Islands Bar Association (represented by this firm). The United States, agreeing with the Respondents’ basic premise, argues primarily that the source of governing authority in Puerto Rico is Congress and therefore, as a territory with no independent status from the federal government, it is not a separate sovereign.
The position of the Virgin Islands Bar Association (VIBA) has created quite a stir over the past week. VIBA challenged the subject matter jurisdiction of the Court, suggesting that because the defendants were each charged with multiple counts and only some (but not all) of those counts were dismissed while the rest remained pending, the Puerto Rico Supreme Court’s judgment was not final. On Friday, January 8th, five days before oral argument, the Court issued a letter to the parties, ordering them to be prepared to discuss whether the Court has jurisdiction to hear the case. On Monday, January 11th, the Petitioner submitted a supplemental brief in favor of jurisdiction, responding directly to each of the points made in VIBA’s amicus brief. The Respondent filed a letter with the Court on Tuesday, January 12th agreeing with the position of the Petitioner that there is jurisdiction to hear the claim. In light of the fact that both parties agree that there is jurisdiction but the Court has sua sponte questioned it.