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Michael Greve on Puerto Rico (Update: and Zachary Price)
Michael Ramsey

At Liberty Law Blog, Michael Greve: Whither Puerto Rico? (commenting on last week's arguments in Puerto Rico v. Sanchez Valle)

[In Puerto Rico v. Sanchez Valle] ... the Court heard oral argument on the question whether Puerto Rico is a “state” for purposes of the Double Jeopardy Clause....  You can be convicted for the same offense under state and federal law, because those laws come from different sovereigns. But is that true of Puerto Rico—or is the ultimate authority of its laws the U.S. Congress?

Obviously, Puerto Rico’s counsel (Chris Landau) conceded, the place isn’t a state. But it’s enough like a state to be treated like one, for purposes at hand. He didn‘t get very far with that argument, chiefly because the constitutional counterargument is so obvious: Something is either a state, or it isn’t. If it isn’t (but still belongs to the United States), it must be a territory. Putting aside the District of Columbia and the Indian nations, both specifically mentioned in the Constitution, “state” and “territory” are mutually exclusive—and they exhaust the universe. Congress can make all “needful regulations” with respect to territories and grant them a great deal of autonomy. Congress can make territories into states, or grant them independence. It can even tell the UN, as it has, that Puerto Rico isn’t a colony but kinda, sorta self-governing. (Justice Breyer made a big point of that.) None of those powers, however, can possibly encompass the power to make these places into constitutional mutts.

First, congratulations to my former co-clerk Chris Landau for another Court argument.  Second, I'm not sure I'm convinced by the bright line Professor Greve is trying to draw.  Congress' power over territories is plenary, so why can't Congress create a status of self-governing territory that is effectively sovereign?  (Of course Congress could withdraw that status -- in a way it cannot withdraw a state's status -- but so long as the status persists, why doesn't it hold for double jeopardy purposes?).  The bright line is appealing, because then we don't have to have the same argument about other territorial units whose self-governing status may not be so clear as Puerto Rico's.  I can see why rule-of-law-oriented origianlists (which is most of them) would like that result.  But originalism does not always produce bright lines, much as we would like it to.  Perhaps this is an issue the Constitution leaves Congress to decide, meaning that when Congress does not speak clearly the rule is uncertain.

Incidentally, my impression is that the conventional understanding of double jeopardy (that is does not apply to successive federal and state prosecutions) is not as solidly grounded in original meaning as one might suppose.  Something for Justice Thomas to think about?

UPDATE:  Zachary Price (UC Hastings) has further thoughts here: Dividing Sovereignty: Commonwealth of Puerto Rico v. Sanchez Valle (pointing  to his article Dividing Sovereignty in Tribal and Territorial Criminal Jurisdiction [Columbia Law Review]).  He concludes:

With respect to so-called unincorporated territories like Puerto Rico—territories that might never become states—Congress’s plenary power to govern federal territories gives it ultimate authority.  In that sense, territorial government authority is delegated from Congress, and Congress in principle can take back the delegation, just as it can do with respect to delegations to ordinary federal agencies.  But exceptionally compelling normative and historical concerns support enabling unincorporated territories to govern themselves.  Accordingly, congressional plenary power has been understood to enable unusually open-ended forms of delegation—delegations that enable autonomous self-governance.

It should follow logically that Puerto Rico qualifies as a double-jeopardy “separate sovereign,” no less than a state.

That was my intuition.