DOJ legal brief dovetails with friend of court brief by senior PR officials

The U.S. Department of Justice’s Solicitor General has filed a brief supporting PR Supreme Court holding that PR “commonwealth” is not sovereign. Two statements by the Department of Justice stand out: “Puerto Rico cannot become a sovereign while remaining a U.S. territory.” (DOJ amicus brief, Commonwealth v. Sanchez Valle, p. 26). “The exercise of self-governance does not denote sovereignty.” (DOJ amicus brief, Commonwealth v. Sanchez Valle, p. 35).

This is more than the typical boilerplate Insular Cases based territorial law brief we are used to from DOJ. It is a masterful defense of the Insular Cases jurisprudence. For many long time territorial policy observers the highlight is that DOJ acknowledges the federal government would have to cede sovereignty to PR if it becomes a state, or a nation, and even recognizes that Indian tribes have at least a vestigial form of sovereignty ceded by treaty, but the federal government cannot cede sovereignty as long as PR remains a territory. That pretty much says it all, confirming that DOJ rejects the theory that Congress has in the past or in the future can simply pass a statute to give away federal constitutional sovereignty to Puerto Rico, so Puerto Rico does not have to choose between statehood or nationhood to gain sovereignty.

The Solicitor General’s brief also confirms the need for the record created in this case by the brief of former and current senior elected officials in PR who filed as amici to support the PR Supreme Curt ruling. The DOJ argument dovetails with the PR leaders’ argument urging the SCOTUS to affirm the PR court’s ruling based on the Insular Cases, even though the PR leaders do so without defending the doctrinal predicates of Insular Cases in the same manner as DOJ. Defending the Insular Cases in themselves is DOJ’s job, but the job taken on by the former PR leaders was to prevent the Insular Cases from being misapplied or adapted once again to create new ambiguities about the legal and political status of the territory.

Thus, all the bases are now covered in the record of this case, and the amici brief by former senior PR officials effectively supports the same outcome as the DOJ brief, but more objectively assesses the anomalies of the Insular Cases, especially as applied to U.S. citizens in PR by the errant Balzac case, which immeasurably widened the deviation of Insular Case jurisprudence from sound precedent in federal territorial jurisprudence based on the principles of the Northwest Ordinance.

That said, the DOJ brief constitutes a significant demonstration that the anti-statehood and anti-nationhood party PR, which for unrelated reasons happens to control the executive branch of the territorial government at the moment, has failed to convince the federal Department of Justice to support its legal and political position in the Valle Sanchez appeal. Instead, DOJ is supporting the PR Supreme Court ruling in the case, quite adamantly. After decades in which DOJ flip-flopped due to political pressure to allow the “commonwealth” social experiment to persist, in the DOJ brief filed yesterday there is no neutrality, ambivalence, ambiguity. Perhaps the current economic crisis helped reason prevail at last so that federal legal policy can recognize that the social engineering project known as “commonwealth” is no longer tolerable, at least not consistent with the national interest or interests of the U.S. citizens in Puerto Rico.

This leaves a handful of members of Congress who have aligned themselves with the anti-statehood party as the last hold outs in the two political branches of the federal government still defending the anti-historical and anti-constitutional theory of “commonwealth” as an “new form of sovereign autonomous statehood” for Puerto Rico. The question now is very simple. Will the court give the anti-statehood party what it has been unable to attain from Congress, DOJ, and the PR Supreme Court? Justice Kennedy is reported once to have told several people “in territorial law ambiguity has its place, and can be a good thing when too much clarity means hard choices no one wants to make.” Will the court repeat the mistake of the 1922 Balzac case and try to protect PR and Congress from hard choices? My instincts tell me no, but this brief makes it clear DOJ decided not to leave it to chance.

The current anti-statehood Governor and his glib Attorney General asserted that the Sanchez Valle case was the most important legal test of the constitutional relationship between the territory and the federal government since the advent of “commonwealth” in 1952. This brief demonstrates that there is no relationship and Puerto Rico does not have a status that is defined by the U.S. Constitution, but only by the federal statutes that created the “commonwealth” structure of territorial self-government to administer local civil affairs not otherwise governed by federal law. In a sense, then, what makes this case “important” is if the court rules in a manner consistent with the DOJ brief.

The DOJ brief defends a legal and political order based on Justice White’s opinion in Downes holding that the U.S. Constitution is “operative but not applicable” in unincorporated territories. Justice White explicitly based his Downes opinion on the fact that non-citizens in Louisiana were naturalized by the treaty of cession at the time of annexation, but the non-citizens of PR had not been naturalized under the treaty of cession and would remain non-citizens unless and until Congress did in PR what it had done in Louisiana. But when Congress did naturalize the people of PR the Balzac case in practical effect overturned the Insular Cases and held that citizenship has nothing to do with incorporation.

The discussion of the Lara case and Indian sovereignty in the DOJ brief also is helpful, as is the argument that all powers in the commonwealth are sourced in statute not the U.S. Constitution. These arguments track the core theory of the PR officials brief, and makes if clear the PR friends of court were wise to address Downes and Balzac forcefully.