POLITICS

Puerto Rico Is Up In Arms Because The Obama Administration Basically Just Called It A Colony

Commonwealth officials are not happy about a legal brief the U.S. filed in a little-noticed Supreme Court case.
Puerto Rico Gov. Alejandro García Padilla is in sharp disagreement with the Obama administration over the commonw
Puerto Rico Gov. Alejandro García Padilla is in sharp disagreement with the Obama administration over the commonwealth's sovereign status.

As the federal government's lead lawyer before the Supreme Court, U.S. Solicitor General Donald Verrilli has an important but relatively narrow role: By design, his views are intended to sway the justices and the justices alone.

But a brief Verrilli filed last week with the court -- for an under-the-radar case in which the U.S. isn't even a party -- made waves far beyond, eliciting a media maelstrom in Puerto Rico, impassioned responses from officials and even an appeal to the U.N. The controversy brings to the fore a longstanding debate about the island's political future, which is already at a tipping point thanks to Puerto Rico's ongoing debt crisis.

The reason for the uproar: Verrilli's brief stressed that Puerto Rico is still only a U.S. territory -- a non-sovereign with limited authority over its affairs.

In a telling passage, the solicitor general told the Supreme Court that Puerto Rico "could become" a sovereign, but "only if it were to attain statehood or become an independent nation."

After Verrilli filed the brief, Puerto Rico Gov. Alejandro García Padilla issued a forceful statement that essentially accused the federal government of doing an about-face. García Padilla, who supports neither statehood nor independence for Puerto Rico, called Verilli's stance "contrary to all Supreme Court jurisprudence" on the commonwealth's historic self-governance.

The solicitor general "has decided to adopt a position that's at odds with prior postures by his office with regards to the sovereignty of the Commonwealth," García Padilla said on Thursday, according to El Nuevo Día, a leading Puerto Rican newspaper.

Resident Commissioner Pedro Pierluisi, Puerto Rico's non-voting representative in Congress and a supporter of statehood, weighed in that same day, pointing to Verrilli's arguments as evidence that it was time for Puerto Ricans to stop accepting their status quo as "second-class citizens." The brief, Pierluisi said, was "without a doubt the most complete document ever published by the United States government on the issue of Puerto Rico's political status."

Quite a fallout from a case that, strictly speaking, isn't even about Puerto Rican sovereignty.

Rather, Puerto Rico v. Sánchez Valle is a criminal case involving two men who were convicted of gun crimes by the federal government. Puerto Rico wanted to prosecute them, too, but the defendants claimed that a second prosecution for roughly the same conduct violated the Constitution's double jeopardy clause.

All 50 states, which the Constitution treats as "dual sovereigns," can launch their own criminal prosecutions after the federal government has done so, provided some basic tests are met.

But Puerto Rico is different, since it's a U.S. territory, not a state. The island's own high court ruled against the local government in the Sánchez Valle case earlier this year, saying the commonwealth has, essentially, no constitutional power of its own.

"Puerto Rico's authority to prosecute individuals is derived from its delegation by [the] United States Congress and not by virtue of its own sovereignty," the Puerto Rico Supreme Court said in March.

The court then took it up a notch: Puerto Rico never had any "original or prior sovereignty" to begin with. Rather, it explained, "the United States has managed Puerto Rico through legislation passed pursuant to the territorial clause of the federal Constitution."

Those fighting words were arguably the reason that Puerto Rico's government appealed Sánchez Valle to the U.S. Supreme Court, which will hear the case on Jan. 13. (Earlier this month, the justices agreed to hear a second case dealing with the island's debt crisis.)

So why did the solicitor general's office get involved? The answer is that it often files briefs in cases when there's a substantial federal interest meriting the government's views -- whether the matter is same-sex marriage, affirmative action or anything with implications for the country as a whole. 

What seems to have provoked outrage among some in Puerto Rico's political class was Verrilli's assertion that "Puerto Rico is not a separate sovereign." In line with the Puerto Rico Supreme Court, he argued that just because the island adopted its own constitution and a form of self-government in the 1950s -- all with Congress' blessing -- that doesn't mean it can claim a right to something it never had.

"The Obama administration is essentially taking the position that Puerto Rico is a colony, which betrays the commitments the United States made to the world in the aftermath of World War II, when the self-governing Commonwealth of Puerto Rico was created," said Richard Pildes, a law professor at NYU who has been following the case and has worked on other cases dealing with Puerto Rico's legal interests.

The Obama administration is essentially taking the position that Puerto Rico is a colony, which betrays the commitments the United States made to the world in the aftermath of World War II, when the self-governing Commonwealth of Puerto Rico was created.

Indeed, "colony" is exactly the word the Puerto Rican governor used in a follow-up letter to U.N. Secretary-General Ban Ki-moon -- to alert the international community that the U.S. had "abruptly reversed course" in how it views the island's status.

"The U.S. Government has effectively taken the position that the Commonwealth of Puerto Rico is unconstitutional insofar as it is based on an exercise of popular sovereignty by the People of Puerto Rico," García Padilla said in the letter, which was made public on Sunday.

It is anyone's guess whether this political back-and-forth will come up at the January hearing in the Sánchez Valle case. But whatever the justices say over the course of deciding the case will reverberate in upcoming discussions over the commonwealth's standing.

"Even small statements related to this issue potentially will have great significance for debates and executive-branch and congressional-branch policy going forward on Puerto Rico’s status," Pildes wrote in October, when the Supreme Court first took up the case.

As for Verrilli, he'll likely get to make eye contact with Puerto Rico's lawyers very soon: When he filed the brief, he also asked the court to give him a few minutes to argue on behalf of the United States.