Tuesday, December 29, 2015

Have Puerto Rico Laws 75 and 21 become federal laws?

Puerto Rico has been federalized but how far would that go?

Would the federal district court have original federal question jurisdiction under 28 USC Sec. 1331 over any claims brought under Puerto Rico law, including Law 75, if Puerto Rico is considered to be a territory under Congress' plenary authority?

I suppose most would argue that there is no federal question jurisdiction because even a territory can enact local laws over matters of local concern without them becoming Acts of Congress. End of story.

But, the recent position adopted by the United States in a case pending before SCOTUS (Puerto Rico v. Sanchez Valle) certainly raises questions as to whether narrow and legally permissible (or cute) distinctions can be drawn that would not have far-reaching repercussions beyond deciding whether Puerto Rico can accuse persons for the same crimes being accused by the federal goverment.

In the PR case, the Solicitor General of the US filed an amicus brief arguing that Puerto Rico is subject to Congress' plenary authority under the territorial clause of the US Constitution so that, unlike the States, Puerto Rico has no separate sovereignty for purposes of the Double Jeopardy Clause. You can argue for the next millenium that the position of the US is limited to the Double Jeopardy Clause. I don't think so and the US should not get off the hook so easily.

In effect, according to the US, the US and PR are constitutionally one and the same- with you know who- having the absolute power and control over the other. If true, then it follows that Congress can't have the cake and eat it too. Being the sovereign, all local laws enacted by Puerto Rico under the plenary authority of Congress are federal in character which could theoretically be amended or repealed by an Act of Congress. What is there to constitutionally limit Congress from repealing local laws if it has absolute authority over a territory? We are not talking about acquired fundamental rights of US citizens. That is another matter. But I don't see the 10th Amendment as a bar if Congress can do as it pleases when it comes to Puerto Rico's welfare (and benefit entitlements). And, one of the many consequences of really being a territory might be that there would be federal question jurisdiction over all "territorial" law claims. To be sure, this would require revisiting years of precedent and expanding federal jurisdiction. Take the good with the bad, but be consistent, either way.

Maybe federal civil cases will come up as a test with local "federalized" claims when there is no diversity jurisdiction. As I said, there will be many repercussions from the pending SCOTUS cases involving Puerto Rico.