Of all the notable dates in Puerto Rico’s history, June 9, 2016, stands out with special prominence, as it was the day that cracks in the U.S. narrative on Puerto Rico became unavoidable.
It was on this day that Congress passed the controversial PROMESA legislation imposing a federal governing board over the island’s finances, and the Supreme Court decided Sánchez Valle, a seminal case that made it clear that, under the facts of the case, Puerto Rico lacks its own sovereignty beyond any rights bestowed by Congress.
Combined, the two decisions made it very clear that Puerto Rico, despite the governor at the time arguing that it was not “a mere territory,” lacks its own sovereignty.
PROMESA, the Puerto Rico Oversight, Management, and Economic Stability Act, established an oversight board with sweeping powers. The goal was to help Puerto Rico to settle its debts, which amounted to more than $72,000,000 — about 70% of the total economic activity of Puerto Rico. Then-Governor Alejandro García Padilla had declared the debt “unpayable” and asked Congress to allow the Island to file for bankruptcy. Congress refused and created a new oversight structure instead.
The new law reflected a Congressional action imposing a new policy for Puerto Rico. In this instance, Puerto Rico was not self-governing. As noted when Congress recognized Puerto Rico’s constitution in the 1950’s, Puerto Rico has local autonomy through its own legislature and governorship, but it is not on equal footing with states.
The case of Puerto Rico vs. Sanchez Valle confirmed that, unlike states, Puerto Rico lacked sovereign rights separate from the federal government under the Double Jeopardy provision in criminal law. The case asked whether trying the same criminal case in Puerto Rico and in federal court was equal to Double Jeopardy — trying the same case twice. One case can be tried in a state and in a federal court, because the states have their own sovereignty apart from the federal government. Puerto Rico, having no sovereignty other than what is provided by Congress, was determined to be a different situation.
A commonwealth or a colony?
Puerto Rico’s government at the time claimed, as many of the Island’s leaders had done before, that Puerto Rico was a “commonwealth” and not a territory because the name “Commonwealth of Puerto Rico” is used in the title of Puerto Rico’s 1952 constitution. However, “commonwealth” has no legal meaning in the United States, where several states, such and Kentucky and Massachusetts, also have the word “commonwealth” in their official titles. The label does not reflect any special relationship, and it has been clearly stated ever since 1952 that the name change for Puerto Rico did not suggest a change of status.
Notably, Justice Breyer confirmed in Sanchez Valle that the holding laid bare contrary, false claims the US made to the international community at the United Nations in the 1950s during an intense period of global decolonization. It is now more widely recognized that, contrary to U.S. claims to the UN in the 1950s, Puerto Rico is indeed a US territory that lacks its own sovereignty.
“The United Nations Declaration of 1953 was enough to remove it from an international declaration as a colonized territory, but the Court’s ruling denies any real sense of sovereignty for Puerto Rico and thus undermines that declaration,” wrote Vann R. Newkirk in The Atlantic in 2016.
“If PROMESA is passed by the Senate and signed into law by President Obama, Puerto Rico’s status will be crystal clear,” he further explained. “As per the Court’s ruling, it has no self-evident sovereignty and is still a possession of Congress. PROMESA, despite its necessity to avert a very real disaster in the territory, would reaffirm Puerto Rico’s distinct status from states and would place an unelected board in charge of its finances. Young Puerto Ricans will have much lower minimum-wage protections than people in the states, and Puerto Rico will continue to receive some federal funding at much lower relative percentages than states. Through it all, Puerto Ricans will not be able to vote for the very body that exerts so much power over them. There are now, simply, very few definitions by which Puerto Rico is not a colony.”
In its brief submitted to the Sanchez Valle Court, the Department of Justice explained clearly that “United States territories are not sovereigns.”
The Justice Department clarified at the time that “[t]he Constitution affords no independent political status to territories but instead confirms that they are under the sovereignty of the United States and subject to the plenary authority of Congress. It has long been settled that ‘there is no sovereignty in a Territory of the United States but that of the United States itself.’ The Court therefore has recognized that territories are not separate sovereigns under the Double Jeopardy Clause. Puerto Rico is a U.S. territory, and it therefore is not a sovereign for double jeopardy purposes.”
The murder of the commonwealth?
This decision was interpreted by many as an affirmation by the courts that PROMESA, passing the same day Sanchez Valle was released, could be constitutional despite its creation of a Federal Oversight and Management Board (FOMB) that can exercise power over Puerto Rico’s local government.
Observers were quick to dub June 9, 2016, as the date of the “murder of the commonwealth.” While the notion that the “commonwealth” had a special, evolving relationship with the United States was always a myth (or an intentional deception), the decisions by Congress and the Supreme Court on that day made it clear even to believers that Puerto Rico was and is merely a territory belonging to the United States.
In a subsequent June 2020 case, the Supreme Court explicitly upheld the constitutionality of PROMESA, reinforcing the lack of sovereignty for Puerto Rico. The decision was unanimous, with Justice Sotomayor “reluctantly” concurring in the court’s judgment.
In December, 2022, the House of Representatives passed the Puerto Rico Status Act, which called for a vote on a “non-territorial” status for Puerto Rico and did not include any version of “commonwealth” or territory on a ballot to be presented to the Puerto Rican people. This bill was frequently characterized as a “decolonization” effort.
No events since June 9, 2016 have changed the political status of Puerto Rico, but the Island’s position is much more clear than it was. Looking back, it is possible to see how a new trajectory for discussions on Puerto Rico’s status that was launched on this day.