Puerto Rico and the U.S. Supreme Court don’t interact very often, but an obscure case recently accepted by the Court could have significant consequences for the Island and its inhabitants. The case involved federal benefits owed to Puerto Ricans.

     The shock resulting from this case was an opinion by Justice Neil Gorsuch. He started by asserting that the United States had no business deciding anything for Puerto Rico, because the U.S. ownership of that island – and, by extension, other U.S. colonies – is unconstitutional. “A century ago in the “Insular Cases”, this court held that the federal government could rule Puerto Rico and other territories largely without regard to the Constitution. It is past time to acknowledge the gravity of this error, and admit what we know to be true: the Insular Cases have no foundation in the Constitution. They deserve no place in our law…..And I hope the day comes soon when the Court squarely overrules them.”

     When the United States took control of Cuba, Puerto Rico, the Philippines, and Guam following the Spanish-American War, it was unclear to what degree these islands were actually part of the U.S. and, in particular, whether the Constitution applied fully, or even in part, to their citizens. The Insular Cases, decided by the Supreme Court, eventually settled the question by holding that the newly acquired territories belonged to, but were not a part of, the United States. The cases created a distinction between incorporated and unincorporated territories that remains today. I should add that the confusion created by that ruling has always haunted Puerto Rico and, almost certainly, the other territories.

     Justice Gorsuch’s opinion comes at the same time as three residents of Samoa, another one of the U.S. five territories (Samoa was added after the first four), have filed suit against the federal government for denying them full citizenship. Their case is based on the fact that Samoans, like Puerto Ricans, cannot participate in U.S. presidential elections and are not represented fully in the U.S. Congress. In the case of Puerto Rico, that restriction is purely geographic, which is weird. Puerto Ricans who move to the U.S., and register there, can vote for the president like any other U.S. citizen. However, if they are resident on the Island, they can’t. Even stranger, a U.S. born citizen, who is not Puerto Rican, and chooses to reside on the Island can’t vote for the president either.

     This situation, and Justice Gorsuch’s opinion, opens the possibility of all sorts of interpretations, each with its own set problems and consequences. Given the current conservative/often politically-motivated decisions of the Supreme Court, Puerto Rico should pay close attention to the results of the Samoan case, which should reach a ruling by the end of this year.

     On the one hand, it could lead to full citizen rights for all people of the territories. On the other hand it could result in the revocation of citizenship completely, and virtually any result in between. I wouldn’t like to guess what that result will be, but my guess would be a result closer to revocation of U.S. citizenship, given the current state of the Supreme Court.

     Puerto Rico has enjoyed the benefits of “sitting on the fence” between a fabricated “Commonwealth” status – the current situation – and full statehood.

     “Commonwealth” was a status that modified “territory” for economic reasons in 1952. The U.S. Congress decided that, although they were granting the Island the ability to elect their own governor, the Island was so poor that it couldn’t become a state at that time. The status was supposed to be temporary but it has lasted 71 years, so far.

     Once in a while, Puerto Rico has held a referendum on the topic of status, knowing full well that the U.S. Congress has no obligation to honor the results. The independence movement on the Island has always been small, but very vocal; they’ve rarely approached 5% of the actual vote. Most Puerto Ricans are proud to be American citizens although, like Texans, they would rarely describe themselves as such.

     This opinion of Justice Gorsuch may lead to a situation where a decision on the future of the Island is taken with little, if any input, from the Island population. The U.S. appears to have no legal obligation to consult with Puerto Rico, before making a decision that could affect 3.6 million lives on the Island, not to mention the far larger Puerto Rican population, resident on the U.S. Mainland.

     Jurisprudence is currently so mixed with politics in the U.S., and becoming more so every day. It is a situation that behooves all Puerto Ricans to monitor status questions, and Supreme Court decisions closely. In my opinion, it also behooves the Island to become much more actively involved in the processes that may result in a decision on their future.

     It bodes well for those who are prepared, and bodes badly for those who wait and see. This situation can be seen as an opportunity as well as a possible curse.

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