14/01/2016 11:37 AM AEDT | Updated 15/01/2016 2:24 AM AEDT

Supreme Court Could Decide Political Fate Of 3.5 Million Puerto Ricans

"Please do not take the constitution of Puerto Rico away from the people of Puerto Rico."

Puerto Rico is hoping to convince the Supreme Court that it's a "sovereign" under the Constitution. But the answer isn't so simple.

WASHINGTON -- The unlikely case of two convicted gun runners could force the Supreme Court to decide Puerto Rico's political future.

During the course of oral arguments Wednesday in Puerto Rico v. Sánchez Valle, a low-profile case about the Constitution's double jeopardy clause, there were clear signs that the dispute could have major consequences for the nearly 3.5 million citizens of Puerto Rico.

Consider the desperate plea Puerto Rico's lawyer offered at the close of the one-hour hearing: "Please do not take the constitution of Puerto Rico away from the people of Puerto Rico."

For a territory on the verge of economic collapse exacerbated by its amorphous legal status, the case truly matters. And the potential repercussions weren't lost on the justices.  

"If we simply write an opinion and it says, 'Puerto Rico is sovereign,' that has enormous implications," Justice Stephen Breyer said. "On the other hand, if we write an opinion that says it's just a territory, that has tremendous implications."

Under the U.S. Constitution, Puerto Rico is only a territory with a form of self-government that has remained largely beholden to the United States since the 1950s -- though Congress did allow Puerto Rico to adopt its own constitution and has granted it some autonomy to pass laws and maintain a local government.

But the island still depends on the dictates of the mainland -- as its ongoing debt crisis and the ensuing tussling with Congress has reminded us. Now, Sánchez Valle could determine to what extent Puerto Rico is sovereign, in a decision that could prove seismic for a people long trapped in a sort of no man's land between statehood and independence. 

"The implications in law and in politics and everything else are overwhelming," Breyer said.

If we simply write an opinion and it says, "Puerto Rico is sovereign," that has enormous implications. Justice Stephen Breyer

Breyer was perhaps the most engaged in finding out where Puerto Rico's authority comes from. As a pragmatist who cares about how the court's rulings reverberate on the world stage, he offered lengthy interventions, most of them addressed to Puerto Rico's lawyer, Christopher Landau.

Given the politics of the case, Landau drew tough questioning from the justices. He probably bears the heaviest burden in Sánchez Valle, which is to convince the court to rule narrowly and reaffirm the status quo: that Puerto Rico is and should remain a commonwealth.

"Is it essential to your case that we recognize Puerto Rico as a sovereign?" -- meaning a self-governing body politic -- Justice Antonin Scalia asked.

Landau responded, "It is not essential that you recognize Puerto Rico as a sovereign with a capital 'S,'" which is a sly way of saying Puerto Rico would be comfortable with a limited ruling on sovereignty.

Boiled down to its basics, the case is asking the Supreme Court to resolve whether Puerto Rico is a sovereign only for the purpose of carrying out criminal prosecutions independently from federal authorities.

The two men in the case, Luis Sánchez Valle and Jaime Gómez Vázquez, were convicted of gun crimes by the federal government, and local prosecutors sought to go after them, too. But the men complained that a second prosecution for roughly the same crimes ran afoul of the Constitution's double jeopardy clause.

The Supreme Court settled long ago that all 50 states, which the Constitution treats as "dual sovereigns," can pursue their own criminal prosecutions separately from the federal government.

But last March, the Puerto Rico Supreme Court sided with Sánchez Valle and Gómez Vázquez, ruling in no uncertain terms that "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."

Bruising words for those who support the status quo in Puerto Rico.

And on Wednesday, when Landau pointed to an "arrangement" between Congress and Puerto Rico that occurred by "invitation of Congress and with the blessing of Congress," it was enough for Justice Elena Kagan to go in on him.

"Even in saying that, Mr. Landau, you're putting Congress in the driver's seat here," she said. "It was done at the invitation of Congress. Congress approved it. Presumably Congress can unapprove it if Congress ever wished to."

"So if Congress is in the driver's seat, why isn't Congress the source of authority for the purposes of our double jeopardy jurisprudence?" she asked.

Justice Sonia Sotomayor, who is of Puerto Rican descent, said Puerto Rico's argument went too far and pressed its lawyer for a simpler argument for why it has authority of its own.

"You keep saying it's the Constitution. It's the We the People.' It sounds a bit histrionic to me," she said. "There's something else. What is meant by this distinct source of power?"

Justice Anthony Kennedy piled on.

"Sovereignty is a slippery word. That's why the framers didn't use it in the Constitution," he said, as if to suggest that he and his colleagues perhaps should skirt a grand exploration of Puerto Rico's status. "Are you suggesting there's kind of a second-class sovereignty and a first-class sovereignty?"

None of these questions have easy answers, and Landau fought hard to get the Supreme Court to see things Puerto Rico's way and adhere to precedents that favor it.

Allison Shelley via Getty Images
U.S. Supreme Court Justice Sonia Sotomayor was very active during oral arguments in a case that could be pivotal for Puerto Rico's political future.

"Do you know what 'Estado Libre Asociado' means in Spanish?" Sotomayor asked at one point, citing the island's local designation, which means a thousand things to Puerto Ricans. Landau responded with a softball: "It means free associated state, literally," and declined to offer more substance. 

Sotomayor reminded Landau that Congress' arrangement with Puerto Rico never used the term, and with good reason: Congress knew that "states have a different meaning in the United States."

But perhaps the greater revelation came when Nicole Saharsky, the federal government's lawyer, rose to the podium. Asked by Breyer whether "Congress can take back what they gave" Puerto Rico in the 1950s, when Congress approved the island's constitution, she was unequivocal.

"Could Congress revise the arrangements it has with Puerto Rico?" Saharsky said. "And we think the answer is yes, and that that follows from the structure of the Constitution and its history."

That's unlikely to happen any time soon. But the Supreme Court's decision in the Sanchez Valle case could lead to a reckoning in Congress and for the people of Puerto Rico.

A decision is expected sometime before the end of June.

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