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The Supreme Court and Sovereignty

Puerto Rico: The New Argentina?

By way of concluding this round-up, I'll address two decisions that themselves addressed the relationship between the United States and its territory, the Commonwealth of Puerto Rico.

I'll also finish my discussion (begun earlier this year, well before this 'round-up series) of a controversy over US policy on the Mexican border and on the deportation of undocumented Mexicans in the U.S.

Further, I'll say something about the ability of Indian tribes to maintain their own reservation-based courts, which courts can hear at least some controversies involving persons who are not residents thereof.

All these controversies speak in their various ways to the idea of sovereignty, which underlies not only the US constitution, but any nation state's constitution, written or implicit.

Tribes and Reservations

Reservations are the sovereign territory of the recognized tribe. Obviously the Choctaws are not sovereign in quite the full-throated sense in which the United States is a sovereign. The Choctaws don't have a seat at the United Nations, for example. John Marshall, in 1823, wrote of how tribal sovereignty had "necessarily diminished" by the arrival of European powers, and that the United States had inherited relations with the Indian tribes in that diminished state. And Marshall was relatively speaking a friend of the tribes, one who (ineffectively but genuinely) sought to assist them against the Jacksonian genocide.

 Dollar General v. Mississippi Band of Choctaw Indians treats of whether the Choctaws as sovereigns have authority to find civil liability against non-members: In this case the issue was whether reservation courts can render a binding tort law judgment against Dollar General, arising out of a store manager's sexual advances toward a 13 year old boy placed in the store by the tribe's youth employment program. The store is on the reservation., and within space leased from the tribe.

The 5th Circuit Court of Appeals said that the tribal court does have authority in the civil case because, by agreeing to take on the boy, "Doe," as an employee. the store entered into a contractual relationship with the tribe regarding harm he might suffer. I'm not sure why THAT was the key act of consent to jurisdiction rather than, say, the store lease. If a reader wants to explain that to me, I'm all ears.

At argument before SCOTUS, the questions of Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan all suggested some confidence in tribal courts and support for the arguments of Doe and the tribe.

But on June 23 the court announced that it had deadlocked 4 to 4, so presumably the above named 4 had been unable to find a 5th to join them. The court was unable to decide, thus the decision of the 5th Circuit remains in place as to this case, but has no precedential significance for the other circuits.


I concur, as a logical matter, with this point made by Donald Trump and his supporters in this campaign season: control over the passage of goods and persons across borders is integral to what is meant by the word "sovereignty." Of course as a philosophical matter I disapprove of sovereignty, so that doesn't mean from me what it means from them. For that matter of course even people who do agree with the logical premise would not necessarily draw Trumpian conclusions. Sovereignty does not inherently imply the prerogative of forcing one's neighbors to build or pay for a wall to one's  specifications!

Anyway, one discretional decision that presumably is to be made by each nation state is the matter of enforcement, what to do about those who get across the border in violation of the rules for that crossing decreed by their new place of residence.

The case of U.S. v. Texas arose in regard to the Obama administration's implementation of a plan it called Deferred Action for Parents of Americans (DAPA). I've discussed the merits of the dispute before in this blog, in particular here.

What is new? On Thursday, June 23, the Supreme Court announced that it was split 4-4 on whether to uphold or reverse a circuit court decision on the matter, and so that judgment stands. SCOTUS said just that and no more.

What we know, then, is that the lower court's order blocking the administration from giving temporary work permits to 4 million immigrants in the country illegally, remains in effect. The administration will presumably have to get some action in Congress to get that done, and in its lame duck phase, that seems unlikely.

What we don't know is why the four who voted this way did so.  What argument prevailed with them? Minimal legislative arguments or broad-gauge constitutional arguments? I believe the opponents of the administration's initiative had a good statutory case given the interaction of DAPA with APA, and that even rhymes if you treat those as acronyms rather than merely as initials.

Puerto Rico

Two much-watched cases this session spoke to the issue of the legal status of Puerto Rico, and they seem to add up to the conclusion that the territory of Puerto Rico is, in plain English, a colony. It doesn't have the sovereignty of a nation-state, or of a state. Arguably its status it more dependent that that of a tribal reservation. Certainly it didn't have the good fortune that the Choctaws did this term of benefitting from a 4-4 split and a win in the court below.

The first such case involved the application of double jeopardy under the US constitution. Clearly it is perfectly lawful for the state of Florida and the United States to bring separate indictments and pursue separate criminal prosecutions on the same set of facts, concurrently or seriatim, without violating that constitutional clause, precisely because they are different sovereigns for the purpose of criminal prosecutions.

But what about the Commonwealth of Puerto Rico and the United States? The Supreme Court has now ruled that only one such prosecution is allowed, because they are both prosecutions by the United States, there being no separate Puerto Rican sovereignty. Justice Kagan's opinion for the court did a good deal of fancy footwork to make it appear that it wasn't saying this, exactly, but there is no other rational way to construe where she came down. And at one point she explicitly distinguished between Puerto Rico and the Indian tribes to the advantage of the latter.

Even more intriguing, on June 13 the high court struck down by a 5 to 2 vote a "Recovery Act" passed by the Commonwealth’s legislature.

What does this mean? By 2014, when the Commonwealth enacted the Recovery Act, three utilities -- the P.R. Electric Power Authority, the P.R, Aqueduct and Sewer Authority, and the P.R. Highways and Transportation Authority, owed collectively $20 billion. Their solvency could not be treated as a matter distinct from the solvency of the Commonwealth itself. The Government Development Bank for Puerto Rico had by this time provided financing to allow the utilities to continue operations without default, and the Bank itself came to face a fiscal crisis.

Plaintiffs, who collectively held nearly $2 billion worth of the bonds issued by the Electric Power Authority, alleged that the federal government has preempted the field, thus prohibiting Puerto Rico from creating such a bankruptcy scheme.

The Supreme Court’s opinion, June 13, is written by Justice Clarence Thomas. Since Justice Scalia’s seat remains vacant and Justice Alito recused himself, only seven votes were cast on the matter. Thomas write for himself, Chief Justice Roberts, as well as Justices Kennedy, Breyer, and Kagan. Justice Sotomayor wrote a dissent, in which Ginsburg joined.

The dissenters made the policy point that “the government and people of Puerto Rico should not have to wait for possible congressional action to avert the consequences” of a fiscal crisis. Justice Thomas responded: that such is what the language of the statute requires, and dismay at the consequences of following the plain meaning of the language doesn’t exempt the courts from the responsibility of following it.

Breyer and Sotomayor were alone in dissent in each of the two Puerto Rico cases.

Thank you for your patience, dear reader. I do believe we've now said as much as needs to be said about the latest term of the U.S. Supreme Court.


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