Puerto Rico: State, Commonwealth, or Other?

By Alicia Kysar

Alicia Kysar is a senior at Columbia University studying English and Political Science with a concentration in Pre-Law.
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As an unincorporated American territory, Puerto Rico has long had a complex and unique history with the United States. [1] While its citizens are granted statutory U.S. citizenship, and while the Puerto Rican currency is the U.S. dollar, Puerto Rico does not have the right to vote in Congress, and Puerto Rican-American citizens residing in Puerto Rico cannot vote in federal elections. In 2012, a referendum occurred in order to determine the nature of relationship with the United States Puerto Ricans desired in the coming years. Fifty-four percent of participants voted against their country remaining an unincorporated territory with limited American rights. Furthermore, sixty-one percent of voters opted for Puerto Rico to join the United States as the 51st state and enjoy the full rights of American citizenship. [2]​

Despite the wishes of the Puerto Rican people, however, there has been little to no action taken by the U.S. in recent years to incorporate further incorporate Puerto Rico into the United States. Two cases currently facing the Supreme Court, however, are poised to compel the US to take a more definite stand regarding Puerto Rico’s sovereignty.

The first case is Puerto Rico v. Sanchez-Valle (2015), which questions whether American and Puerto Rican federal governments represent one or two sovereigns, an issue that is particularly relevant in regards to the guarantee against double jeopardy in the U.S. Constitution. [3] The right against double jeopardy is part of the Fifth Amendment of the Constitution, and it states that a defendant cannot be prosecuted twice for the same crime, regardless of the outcome of the first prosecution. [4] In Puerto Rico v. Sanchez-Valle (2015), two Puerto Rican men pleaded guilty in an American federal court to charges of illegal firearm trafficking; Puerto Rican courts, however, also pressed charges for the same crime. The defendants argued that the Puerto Rican prosecution violated their Fifth Amendment rights to be prosecuted only once for a crime because the Puerto Rican prosecution came after their trial in the U.S. federal court. [5]

There are, however, a few exceptions to the Constitutional right against double jeopardy, the most relevant of which is the exception that states that double jeopardy does not apply if the defendant is tried in two courts of different sovereignties for the same crime. [6] Thus, a Supreme Court ruling that Puerto Rico may proceed with prosecuting the defendants will likely have much more extensive implications than the fates of the defendants alone; it will also mean that the U.S. government is taking a more clear-cut stand in expressing that Puerto Rican courts operate under a different sovereignty than do American courts. By extension, this decision would imply that Puerto Rico and the United States are separate sovereigns. Conversely, if the Court rules the Puerto Rican case to be unconstitutional,  it then holds that Puerto Rico and the U.S. are a single sovereign for purposes of the double jeopardy clause. [7]

Puerto Rico v. Franklin California Tax-Free Trust is another similar case regarding Puerto Rico’s relationship with the United States that will be playing out later this year. [8] Essentially, Puerto Rico hopes to pass a statute to restructure its public debt, a move that would be illegal under the U.S. Bankruptcy Code. Up to this point the Bankruptcy Code has not applied to Puerto Rico, mainly because Puerto Ricans do not have a vote in Congress and therefore had no role in shaping this law. [9]

If the Supreme Court rules either that it is constitutional for Puerto Rico to proceed with its prosecution in Puerto Rico v. Sanchez-Villa (2015) or that it is illegal for it to enact its debt restructuring statute in Puerto Rico v. Franklin California Tax-Free Trust, then Puerto Rico would be granted unprecedented steps in advancing from being a territory to being a sovereign state.
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[1] “Puerto Rico’s Relationship with the United States?,” US History Scene, accessed January 28, 2016, http://ushistoryscene.com/article/puerto-rico/.
[2] Joe Picard, “Statehood movement for Puerto Rico is growing everywhere,” Text, TheHill, (June 11, 2015), http://thehill.com/blogs/congress-blog/244609-statehood-movement-for-puerto-rico-is-growing-everywhere.
[3] “Puerto Rico v. Sanchez Valle,” SCOTUSblog, accessed January 28, 2016, http://www.scotusblog.com/case-files/cases/puerto-rico-v-sanchez-valle/.
[4] “Double Jeopardy,” TheFreeDictionary.com, accessed January 28, 2016, http://legal-dictionary.thefreedictionary.com/double+jeopardy.
[5] “Puerto Rico v. Sanchez Valle.”
[6] Adam J. Adler, “Dual Sovereignty, Due Process, and Duplicative Punishment: A New Solution to an Old Problem,” accessed January 28, 2016, http://www.yalelawjournal.org/note/dual-sovereignty-due-process-and-duplicative-punishment-a-new-solution-to-an-old-problem.
[7] “U.S. Opposes New Role for Puerto Rico,” SCOTUSblog, December 26, 2015, http://www.scotusblog.com/2015/12/u-s-opposes-new-role-for-puerto-rico/.
[8] “Puerto Rico v. Franklin California Tax-Free Trust,” SCOTUSblog, accessed January 28, 2016, http://www.scotusblog.com/case-files/cases/puerto-rico-v-franklin-california-tax-free-trust/.
[9] Ibid.

Photo Credit: Flickr User Lee Cannon

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