Is Puerto Rico Really Incorporated?

Luis Arroyo left us an intriguing comment:

“An interesting note. When it comes to the federal Judiciary branch, Puerto Rico is an incorporated United States territory. I will explain. All unincorporated US territories have a US article 4 (Article IV) federal US court. US states, Incorporated territories and the District of Columbia fall under article 3 (Article III) federal US Court. Puerto Rico’s US court is Article III. Puerto Rico is a de facto incorporated territory of United States.”

The difference between an incorporated and an unincorporated territory is immense. In the Insular Cases, a series of Supreme Court decisions in the 20th century, the court came up with the idea of “unincorporated” territories, where the U.S. Constitution doesn’t apply fully to the residents, even though they are U.S. citizens. If Puerto Rico can claim to be an incorporated territory, that could be a game changer.

So we reached out to the experts to find out whether the situation with Puerto Rico’s court could change the position of the territory.

What’s an Article III court?

The reader comment notes that a 1966 act of Congress (80 Stat. 764) conferred for judges on the U.S. District Court in Puerto Rico the same lifetime appointments, compensation and retirement benefits as Federal District Court judges in Article III courts in the states. The reader suggests Congress thereby gave the federal court in Puerto Rico what has been referred to in legal publications and court rulings as “the same status as other Article III district courts.”

The reader refers to this as a “de facto” status, seeming to mean that even if the statute did not declare that the district court in Puerto Rico is an Article III court, the effect is that the judicial branch of the local government is permanently incorporated into the union under the Constitution. The linchpin of this intriguing legal analysis is the assertion that the courts of Puerto Rico before 1966 were established under the Territorial Clause in Article IV, and were thus “Article IV courts.” The reader’s theory is that those former inferior courts in territories were supplanted for purposes of judicial jurisdiction by an Article III district court.

This is creative and intrepid thinking, but in the end it does not add to the clarity needed to understand the real choices that Congress and our fellow Americans have to attain not just de facto but also de jure equal status under the Constitution. However, this inventive thesis invites respectful clarification that can help confirm the need for resolution of the political status of Puerto Rico based on sustainable constitutionalism.

The Territorial Clause

Even if established under and operating equivalently with Article III federal courts, the U.S. district court and other federal judicial bodies in Puerto Rico remain under the Territorial Clause.

An act of Congress applicable in a territory under any provision of the Constitution other than the Territorial Clause is also an exercise of the Territorial Clause power of Congress. For example, 8 U.S.C. 1402 confers U.S. nationality and citizenship based on birth in Puerto Rico. That is an exercise of the power of Congress under the Uniform Naturalization Clause in Article I, Section 8, Clause 4, but that naturalization statute applies and can be implemented in Puerto Rico only as an exercise of U.S. sovereignty in the territory under under the Territorial Clause in Article IV, Sec. 3, Case 2. Since the U.S. nationality and citizenship Clause in Section 1 of the 14th Amendment, which also is codified by 8 U.S.C. 1401(a), does not apply to U.S territories, as confirmed by Fitisemanu v. U.S. (2022), there is no self-executing conferral of constitutional sourced U.S. nationality and citizenship in the U.S. territories. That makes the combined exercise of Territorial Clause and Uniform Naturalization Clause powers necessary to confer statutory birthright citizenship in a territory.

In the same way, establishment of a district court in Puerto Rico with some or all attributes pf an Article III court is possible only because it is also an exercise of the Territorial Clause power under Article IV. Since Article III power to create inferior federal courts can only be exercised where Congress has jurisdiction, the authority to create such courts in Puerto Rico requires the tandem exercise of U.S. sovereign power under the Territorial Clause in Article IV. Thus, federal courts established in the territories are all inferior courts established by Congress under Article III, including territorial courts established under federal organic acts. No matter how narrow the jurisdiction of local courts may be, including limitation to purely local matters under the applicable organic act, arguably and indeed logically all courts created by Congress are federal courts, and established by Congress, and therefore exist under Article III and Article IV as well. Being Article III courts does not mean territorial courts are not Article IV courts, and vice versa.

Congress still has the power

Congress establishes and delegates federal judicial power to all courts established under federal law. Just as Article III courts have different subject matter jurisdiction, Article III courts have jurisdiction listed to local matters under local territorial law. So, if there were only one or the other, Article IV territorial court or Article III federal court, it is not clear how giving the judges on any federal court the same compensation as judges on another court affects the “status” of that other court. Thus, it is not clear that giving judges on the district court in Puerto Rico the same salaries and benefits as judges on district courts in the states would give the district court in Puerto Rico itself a new or the “same status” as federal district courts in the states.

Accordingly, the most plausible and perhaps best explanation of the 1966 statute giving judges in Puerto Rico the same employment status as judges in the states is that Congress and the federal courts wanted to support and facilitate institutionalization of the concept that the establishment of local constitutional government in the territory in 1952. Under the so-called “commonwealth” territorial constitution, Puerto Rico purportedly attained greater autonomy from federal power in matters defined by Congress and territorial as well as higher federal courts as “local.” At the same time, the “commonwealth” constitution was interpreted under local and federal law to mean the local government had greater autonomy, as in PDP v. Rodriguez (1982), and also had acquired new powers traditionally exercised by states and a “state-like” status, as in Examining Board v. Flores de Otero (1976). Subsequently, the U.S. Supreme Court has confirmed the 1952 constitution delegated some sovereign powers of Congress to the territorial government, but this delegation does not create a new political or legal status of the territory, its local government or the local and higher federal courts in the territory, as in Puerto Rico v, Sanchez Valle (2016).

Can Puerto Rico be called de facto incorporated?

Under Balzac, incorporation was not inferred in the absence of a clear mandate by Congress, Just so, we can’t infer a change of status for the territory from equal compensation for judges in the Puerto Rico district court. Puerto Rico can’t become an incorporated territory until Congress declares the territory incorporated.

In the case of federal courts in unincorporated territories, all judicial power exercised in territories under authority of federal law is delegated by Congress under the Territorial Clause, pursuant to statutes that also can be understood as measures adopted under Article III, Section 1.

Some leaders have suggested that Puerto Rico needs to become an incorporated territory in order to get on a path to statehood, and to gain the full protection of the U.S. Constitution. however, Congress can admit Puerto Rico as a state without that step. Once that happens, Puerto Rico will no longer be subject to the Territorial Clause.