Political Wine in a Judicial Bottle: Justice Sotomayor’s Surprising Concurrence in Aurelius
abstract. For seventy years, Puerto Ricans have been bitterly divided over how to decolonize the island, a U.S. territory. Many favor Puerto Rico’s admission into statehood. But many others support a different kind of relationship with the United States: they believe that in 1952, Puerto Rico entered into a “compact” with the United States that transformed it from a territory into a “commonwealth,” and they insist that “commonwealth” status made Puerto Rico a separate sovereign in permanent union with the United States. Statehood supporters argue that there is no compact, nor should there be: it is neither constitutionally possible, nor desirable as a goal of self-determination. Without even acknowledging the existence of this debate, Justice Sotomayor recently declared the existence of the “compact” in a concurrence in a case in which no one raised it. By doing so, Justice Sotomayor took sides in the divisive political debate over Puerto Rico’s future.
Justice Sotomayor just took sides in the debate over Puerto Rican decolonization. It happened when no one was looking, on June 1, 2020, in Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment, LLC.1 The plaintiffs challenged the mechanism for selecting the members of the Financial Oversight and Management Board for Puerto Rico (FOMB), an entity created by Congress to address Puerto Rico’s financial crisis, on the ground that the mechanism violated the Appointments Clause of the Constitution.2 The Court unanimously upheld the appointments, but Justice Sotomayor concurred separately to despair that no one raised a far more fundamental challenge to the statute creating the FOMB. According to her concurrence, Puerto Rico has full local self-government pursuant to an irrevocable “compact” with the United States, which Congress may not unilaterally amend or repeal. Despite the compact, Congress created the FOMB, which wields “wide-ranging, veto-free authority over Puerto Rico.”3 Since the FOMB is obviously at odds with the compact, the statute creating the FOMB should be declared “invalid.”4 But she “reluctantly” concurred, evidently because the parties’ failure to raise this issue forced her to leave in place a statute that should have been struck down as a violation of the “compact” between Puerto Rico and the United States.5
Justice Sotomayor’s view on the compact echoes that of the Partido Popular Democrático, one of the two dominant political parties in Puerto Rico, which supports the island’s decolonization through an improved or “enhanced” version of its current “commonwealth” status. But the other dominant political party, the Partido Nuevo Progresista, which supports decolonization through the island’s admission into statehood (and with which I identify), does not share their view.6 Our view is that there is no irrevocable compact guaranteeing Puerto Rico full local self-government. Instead, Congress has the power to grant Puerto Rico autonomy, as it has done extensively, but it also has the power to take some or all of that autonomy away, as it has also done. In other words, our view is that Puerto Rico is now, and for nearly one-and-a-quarter centuries has been, a colony of the United States.
Given the chance to respond to Justice Sotomayor’s concurrence, we would point to the FOMB as the latest addition to a mountain of evidence that the United States neither believes nor behaves as if it has an irrevocable compact with Puerto Rico. We would explain why the so-called compact is one in a long list of examples of the federal government’s use of legal ambiguity to govern colonies while denying it has any. And we would argue that when anyone, let alone a Supreme Court Justice, proclaims the existence of this irrevocable compact, they do not bolster Puerto Rican sovereignty. Instead, they inadvertently perpetuate Puerto Rico’s status as a colony by enhancing the illusion that it is not. But there is no sign of our view in Justice Sotomayor’s concurrence, which fails even to acknowledge the existence of a contrary understanding of Puerto Rico’s status.
This Essay responds to Justice Sotomayor’s concurrence by making clear where she stands with respect to the debate over Puerto Rican decolonization, and explaining why her decision to shore up the “compact theory”7—in a Supreme Court concurrence, and without so much as a nod in the direction of the opposing point of view—not only diverts the judicial power to a political end, but also severely exacerbates the considerable legal ambiguity that has defined and prolonged Puerto Rico’s colonial condition for well over a century. My aim here is to mitigate the damage done by her concurrence, by exposing, explaining, and criticizing her decision not only to take sides in a political debate, but worse, to do so in a Supreme Court opinion, and worse still, to do so by ignoring the other side at every turn, without letting on that that is what she is doing.
First, I situate Justice Sotomayor’s concurrence in the context of the debate over Puerto Rican decolonization. Second, I examine her arguments one by one, and show that each has been subject to serious—arguably devastating—objections, none of which she engages. Third, I explain how her concurrence exacerbates the legal ambiguity that has trapped Puerto Rico in a colonial status for over a century. I conclude by arguing that the notion that Congress has the power to confer irrevocable autonomy upon a territory other than by admitting it into statehood or granting it independence is not only wrong as a matter of law, but also harmful as a matter of policy.
I. aurelius and the debate over puerto rican decolonization
Legal ambiguity has been the defining feature of Puerto Rico’s constitutional status since 1898, when the island became an “unincorporated” territory of the United States.8 According to Downes v. Bidwell, the leading case in a series of early twentieth-century Supreme Court decisions known as the Insular Cases, unincorporated territories like Puerto Rico “belong to the United States, but [are] not a part of the United States.”9 In other words, the United States is sovereign over Puerto Rico—that much we know—but Puerto Rico is neither here nor there; neither this nor that. A concurrence in Downes elaborated with the observation that the island is “foreign to the United States in a domestic sense.”10 Needless to say, that supremely unhelpful formulation (foreign in a domestic sense?!) clarified nothing. One of the dissenting Justices in Downes summed it up in disbelief: “[T]he contention seems to be that, if an organized and settled province of another sovereignty is acquired by the United States, Congress has the power to keep it, like a disembodied shade, in an intermediate state of ambiguous existence, for an indefinite period.”11 Indeed, the contention was exactly that.
Longing to decolonize, and realizing that in order to achieve consensus on what they should become, they need to understand who they are, Puerto Ricans have ceaselessly debated the question of their constitutional status. As of 1950, that debate has concerned the so-called compact.
A. Legal Ambiguity and the Debate over the Compact
The debate over whether Puerto Rico and the United States have an irrevocable compact has gone on endlessly and failed to yield a definitive result. This is precisely because it concerns yet another instance of the federal government’s use of deliberately confusing and unclear language to describe Puerto Rico’s relationship to the United States: specifically, the phrase “in the nature of a compact,” which appears in a 1950 federal statute authorizing Puerto Rico to adopt a Constitution.12 That inscrutable phrase (is it a compact or not?) has caused unending disagreement, since it gives simultaneous support both to those who insist that there is a compact (it says “compact”!) and to those who insist that there is not (it says “in the nature of”!).13
For seventy years, legal scholars, politicians, and commentators have extensively debated the so-called compact theory.14 As it stands now, the overwhelming majority of Puerto Ricans wish to remain in some form of union with the United States, but they are split as to what form that union should take. Roughly half of Puerto Rico’s population favors the option of becoming a state of the Union, while the other half prefers to remain in its current “commonwealth” status, albeit with “enhancements.” (A 1993 plebiscite shows that only a small percentage supports the island’s independence.)15
The compact theory lies at the center of the contest between statehooders and commonwealthers.16 The reason is that, in order for Puerto Rico to cease being a colony, the terms of its union with the United States would have to bind Congress as much as they bind Puerto Rico. Otherwise, Puerto Rico is just a U.S. territory, with no guarantee of local control—and as everyone in this debate knows, “U.S. territory” is constitutional law-speak for “U.S. colony.”17 Accordingly, commonwealthers argue that Puerto Rico is no mere territory, but rather has a mutually binding bilateral compact with the United States, which elevates its status to something analogous to, but different from, that of a state. Statehooders deny that a binding compact between the United States and a U.S. territory is constitutionally possible except of course through the territory’s admission into statehood. And they believe that such a compact is undesirable as a matter of policy, since it would permanently bind Puerto Rico to a union with the United States in which Puerto Ricans would continue to be denied equal voting representation in the federal government.18
Meanwhile, the federal government’s contribution to the debate has been to confuse matters repeatedly while dodging its own responsibility to take measures to decolonize Puerto Rico—which it could do, for example, by enacting legislation providing for a process leading to clearly defined, noncolonial status options, and stating its willingness and intention to implement the results. Instead it substitutes action with hollow proclamations of the right to self-determination. Decrying this dynamic, one of the leading participants in Puerto Rico’s status debate had this sarcastic remark to offer on the centenary of the island’s annexation: “‘Let the Puerto Ricans choose,’ it is grandly said. Choose what?”19
Given the stakes of dignity and self-respect that Puerto Ricans rightly invest in the political status debate, it is no exaggeration to say that the term “compact” is a fightin’ word in Puerto Rico. The mystery, then, is why Justice Sotomayor would raise the compact theory when no one else did—and having raised it, why she would fail even to acknowledge, let alone engage, the extensive judicial, scholarly, and popular debate over each of compact theory’s very familiar and widely contested premises. Either she does not know the debate exists, which is inconceivable, or she does and ignores it, which is unforgivable.
To those of us who have lived this unending debate, laboring to articulate and defend our views thoroughly and with care, Justice Sotomayor’s Aurelius concurrence comes as a shock, though one imagines that those who just learned they have an ally on the Supreme Court bench will be pleased, and it would be understandable. Those of us who believe that the compact theory is not just wrong as a matter of law but harmful as a matter of policy, however, just found ourselves erased from the record this Supreme Court concurrence creates.
B. Aurelius, Justice Sotomayor, and the Compact
The federal statute creating the FOMB, the Puerto Rico Oversight, Management, and Stability Act (PROMESA), provides for the appointment of Board members without the advice and consent of the Senate.20 Aurelius Investment, LLC (Aurelius) challenged these appointments on the ground that the members of the FOMB are “Officers of the United States” and therefore their appointment requires Senate confirmation. The Supreme Court rejected the challenge, reasoning that the members of the FOMB are not Officers of the United States, but rather territorial officers, whose appointment need not comply with the requirements of the Appointments Clause.21
The decision was unanimous, with Justice Breyer writing for the Court and Justices Thomas and Sotomayor writing separate concurrences. Justice Breyer’s and Justice Thomas’ opinions are straightforward enough: they ask whether the members of the FOMB are Officers of the United States or territorial officers, agree on the answer, and disagree on how to get there. Justice Sotomayor, however, takes up an entirely different issue—one that, by her own account, no one raised or discussed.22
While Justice Sotomayor agrees that the Board members are territorial officers, her surprising contribution to the discussion is the argument that Congress does not have the power to appoint territorial officers in Puerto Rico at all, because Puerto Rico has a mutually binding bilateral “compact” with the United States, by virtue of which Congress permanently and irrevocably relinquished its sovereignty over the island’s internal affairs seventy years ago.23 As a result, PROMESA itself—a statute that rather aggressively takes charge of the island’s internal affairs—may be “invalid.”24 Although her argument would seem to lead inexorably to that conclusion, Justice Sotomayor stops short of reaching it outright, claiming that her hands are tied because the plaintiffs did not raise the issue.25 Instead, because she agrees that the FOMB members are territorial officers, to whom the requirements of the Appointments Clause do not apply, she “reluctantly” concurs.26
Justice Sotomayor presents Puerto Rico’s “compact” as if it were a self-evidently legitimate basis for striking down PROMESA, on a par with the Appointments Clause itself. To read her concurrence, you would think the parties, the amici, and the eight other Justices unaccountably missed the constitutional elephant in the courtroom.
The Justice explains her decision to discuss the so-called compact on the ground that this “unexplored” issue “may well call into doubt the Court’s conclusion that the members of the [FOMB] are territorial officers not subject to the ‘significant structural safeguards’ embodied in the Appointments Clause.”27 But nothing in Justice Sotomayor’s concurrence raises any doubt about that conclusion. On the contrary, she assumes the Board members are territorial officers and concurs with the holding that their appointment did not violate the Appointments Clause. What the compact theory calls into question instead is the validity of PROMESA itself. What she accomplishes with her concurrence, then, is not to call into doubt the Court’s conclusion, but to give the compact theory a boost: her concurrence amounts to nothing less than an emphatic, standing invitation to challenge PROMESA on the ground that it violates the compact.
The question whether any U.S. territory could have, let alone whether Puerto Rico does have, a mutually binding bilateral “compact” with the United States could not be more legally controversial or politically divisive in Puerto Rico. Justice Sotomayor wades into this morass with a concurring opinion that declares the existence of the purported compact as if it were a given. She does this without even mentioning the existence of the highly contentious debate over that very question. In doing so, she has bestowed a gift of immeasurable rhetorical value on the pro-commonwealth party in its bitter and divisive contest with the pro-statehood party, and exacerbated the legal ambiguity that has trapped Puerto Rico in an indefinite colonial status. Does she not know there is a debate over the compact that defines the island’s major political parties? Or is she attempting to resolve the debate by pretending that the commonwealthers won? It is impossible to tell from reading her opinion.
Puerto Ricans desperately need a clear path forward. What Justice Sotomayor has given them instead is yet another head-spinningly inconclusive exercise in question-begging by a federal official with outsized power over their fate.
II. responding to justice sotomayor’s defense of the “compact theory”
Anyone familiar with Puerto Rico’s contentious debate over the compact theory can see that Justice Sotomayor plants an unmistakably partisan flag from the very first sentence of her concurrence:
Nearly 60 [sic] years ago, the people of Puerto Rico embarked on a project of constitutional self-governance after entering into a compact with the Federal Government. At the conclusion of that endeavor, the people of Puerto Rico established, and the United States Congress recognized, a republican form of government pursuant to a constitution of the Puerto Rican population’s own adoption. One would think the Puerto Rican home rule that resulted from that mutual enterprise might affect whether officers later installed by the Federal Government are properly considered officers of Puerto Rico rather than “Officers of the United States” subject to the Appointments Clause.28
To the uninitiated, this opening paragraph sounds like a simple statement of fact followed by a modest suggestion that the fact might have consequences. But it is nothing of the sort, because it ignores the well-known and deeply held conviction of roughly half of Puerto Rico’s population: that there is no compact between Puerto Rico and the United States. The term “compact” in this context means something very specific: a binding bilateral agreement, unalterable except by mutual consent. For Justice Sotomayor to begin by simply declaring its existence is no less striking than were she to begin an opinion in an abortion case by asserting that the fetus is a person, and that one would think the existence of that human life might affect whether a woman has the right to terminate her pregnancy, without offering even a hint of a suggestion that someone out there might disagree. There is nothing simple or modest about it.
The discussion that follows in the concurrence echoes the commonwealthers’ longstanding defense of the compact theory. Several familiar arguments make an appearance. First, there is a brief history of U.S.-Puerto Rico relations that treats the early 1950s as the climactic moment in which the vaunted compact came into being. Here, the claim is that events occurring in 1950-1952 transformed Puerto Rico from a nonsovereign U.S. territory into a separate sovereign “commonwealth” in union with the United States.29 Second, there’s a string of quotations describing Puerto Rico’s autonomy as comparable to that of the states. Here, the claim is that Puerto Rico’s transition to commonwealth status should be considered analogous to prior territories’ admission into the Union as states—which are bound to each other in a permanent union.30 Third, there’s an account of representations made by U.S. delegates to the United Nations in the immediate aftermath of the events of 1950-1952, arguing that since Puerto Rico attained full local self-government, it should be removed from the United Nations’ Decolonization Committee’s list of non-self-governing territories—which it was.31 Here, the claim is that these delegates’ statements, followed by the U.N.’s removal of Puerto Rico from the list, must prove that the change that occurred in Puerto Rico’s status was not merely a change in degree, but a change in kind.32 Fourth, there’s a reference to the Northwest Ordinance, which contained several “articles of compact . . . forever . . . unalterable, unless by common consent,” cited as “precedent” for Puerto Rico’s modern-day compact.33 Here, the claim is that if Congress could bind the United States to a compact with the original territories, surely it can do the same with Puerto Rico.34 Fifth, there’s the most important point of all: the argument that Congress may not unilaterally revoke what it granted Puerto Rico in 1950-1952.35 This final point is absolutely critical to the compact theory, for if Congress has the power to take away what it has given, then the compact does not bind. If the compact does not bind, then Puerto Rico is not sovereign. If Puerto Rico is not sovereign, then it remains a nonsovereign U.S. territory, subject to the plenary power of Congress under the Territory Clause, which is to say, a colony.36
It is uncontroversial that the events Justice Sotomayor describes occurred. What is controversial is their interpretation. Yet her opinion presents them as if there were no controversy. An exploration of these “unexplored” issues would look nothing like this concurrence. In what follows, I suggest what it might have looked like, examining what Justice Sotomayor includes and identifying what she leaves out as she makes each of the five arguments described above.37
A. The Argument Based on the Events of 1950-1952
Justice Sotomayor begins with a brief history of Puerto Rico’s relationship with the United States from 1898 to 1952.38 We learn that the island was annexed by the United States in 1898 and subjected to military rule for nearly two years, until, in 1900, Congress passed the Foraker Act, an organic act establishing a civil government on the island.39 The concurrence does not describe that government, but in a nutshell, it included a Governor and eleven-member Executive Council, all appointed by the President of the United States with Senate confirmation, and a territorial legislature with representatives chosen by popular election.40 Over time, the concurrence continues, Congress granted Puerto Rico “incremental measures of autonomy,” such as Congress’ conferral of U.S. citizenship upon Puerto Ricans in the Jones Act of 1917.41 This is a questionable example of increased “autonomy,” though, since it was followed by a Supreme Court decision holding that the grant of citizenship had changed nothing about Puerto Rico’s status.42
This brings Justice Sotomayor to the early 1950s, the crucial moment in which, on the pro-compact account, Congress finally and irrevocably relinquished all of its sovereignty over Puerto Rico’s internal self-government.43 In 1950, Congress passed Public Law 600, a federal statute that recognized and affirmed the principle of government by consent, described itself as a law “in the nature of a compact,” and authorized the people of Puerto Rico to adopt their own constitution.44 Public Law 600 was submitted to the Puerto Rican electorate, who voted in favor of it and elected delegates to a constitutional convention. The convention drafted a constitution and submitted it to Congress, which in a second law, Public Law 447, approved it with several modifications, and with the caveat that it would become effective only after the people of Puerto Rico themselves approved it by “formal resolution.”45 They approved it by popular ratification.46
Compact theorists (i.e., commonwealthers) have been unclear as to when, exactly, the mutually binding bilateral compact allegedly came into being. Justice Sotomayor’s concurrence does not make it any clearer. Was it when Congress passed Public Law 600, which described itself as “in the nature of a compact”? Or when the Puerto Rican electorate approved the process prescribed in Public Law 600? Or when Congress approved their Constitution? Or when the people of Puerto Rico ratified it?
Critics of the compact theory of course do not deny that these events occurred. They simply argue that none of them produced a mutually binding bilateral compact because Congress had neither the intent nor the power to do so.47 Agreeing that the events of 1950-1952 were a watershed moment in Puerto Rican history, critics nevertheless argue that Congress merely did what Congress has always had the power to do under the Territory Clause: it conferred upon Puerto Rico a significant degree of autonomy—greater autonomy than any territory before it—but it did not relinquish U.S. sovereignty under the Territory Clause, nor could it have. There is no hint of this competing interpretation in Justice Sotomayor’s account.48
B. The Argument Based on Suggestive Quotations
Turning to the second argument, the concurrence builds the case for the compact theory with a series of quotations, mainly from federal court opinions, referring to the compact and describing Puerto Rico as having achieved a degree of autonomy comparable to that of the states of the Union.49 These quotations appear over the course of a two-page passage following Justice Sotomayor’s description of the events of 1950-1952. There is little text between one quote and the next except for citations to their sources. They create the strong impression that there is an avalanche of support for the compact theory.
Critics of the compact theory, however, could supply plenty of quotations in support of their point of view.50 And they would have arguments to make in response to the quotations on Justice Sotomayor’s list, starting with the very first one: “In 1952, ‘both Puerto Rico and the United States ratified Puerto Rico’s Constitution.’”51 This quotation comes from the dissenting opinion in Sanchez Valle v. Puerto Rico, which Justice Sotomayor joined.52 While she does acknowledge it was a dissent, the objection to the quoted statement would be that, out of context, it is misleading—in a way that has significant implications for the compact theory. We all know what “ratified” implies: it implies a popular act of constitution-making, as opposed to an ordinary act of legislation. Compact theorists describe 1952 as a popular act of constitution-making, and it was—in Puerto Rico, where the people ratified their Constitution. But the United States did not “ratify” anything, in a constitution-making sense, in 1952. Congress approved Puerto Rico’s constitution through ordinary legislation. The United States did not amend its own Constitution, nor did it take any measure that could be confused with an amendment. Thus, it is incorrect to say that “Puerto Rico and the United States ratified Puerto Rico’s Constitution.”53
But the battle of the quotes is a dead end anyway. For every statement that Puerto Rico has “a measure of autonomy comparable to that possessed by the States,” there is a competing statement that “Congress retains all essential powers set forth under our constitutional system, and it will be Congress and Congress alone which ultimately will determine the changes, if any, in the political status of the island.”54 Moreover, the list of quotations provided here is problematic in yet another way: no matter how many court opinions or official texts one finds mentioning the compact and extolling the virtues of self-government it purportedly represents, one will not find any actually holding that Congress’ grant of autonomy to Puerto Rico was irrevocable. The irrevocability of the compact is essential to the compact theory, which is why commonwealthers insist that the compact is mutually binding: again, if Congress retains the power to modify or withdraw from the compact, then Congress retains ultimate control over Puerto Rican self-government, and Puerto Rico remains a colony.
C. The Argument Based on Representations Made to the United Nations
Justice Sotomayor next turns to statements made by U.S. representatives to the United Nations in 1953, to the effect that because Puerto Rico had achieved local self-government the previous year, it should now be removed from the list of non-self-governing territories.55 Frances P. Bolton and Mason Sears usually make an appearance at this point, and here they are in Justice Sotomayor’s concurrence. The concurrence identifies Bolton as the “U.S. Rep. to the General Assembly.” To be clear, however, she was an Ohio congresswoman appointed by President Eisenhower to join the U.S. delegation to the United Nations in 1953, not the U.S. Ambassador to the United Nations, whose words would arguably have carried greater weight. Sears, meanwhile, served as the U.S. delegate to the Committee on Information.56
As part of the U.S. effort to get Puerto Rico removed from the list, both Bolton and Sears definitely made statements supportive of the compact theory. Bolton claimed that Puerto Rico and the United States had entered into “a compact of a bilateral nature whose terms may be changed only by common consent,” and Sears claimed that “[a] compact . . . is far stronger than a treaty [because a] treaty can be denounced by either side, whereas a compact cannot be denounced by either party unless it has the permission of the other.”57 Compact theorists quote these statements as further evidence in support of the argument that Congress must have meant to enter into a binding relationship with Puerto Rico in 1950-1952. As Justice Sotomayor puts it, if these representations to the United Nations were “merely aspirational,” not only would “the United States’[s] compliance with its international obligations be in substantial doubt,” but Congress would have made Puerto Rico an “empty promise.”58 And so, the argument goes, the compact theory must be true.59
These arguments misunderstand the problem with Bolton’s and Sears’s statements. The problem is not that their statements were “merely aspirational,” but that they were incorrect. Congress did not make an “empty promise,” because Congress did not promise Puerto Rico a mutually binding bilateral compact.60 If anything, the word “aspirational” more accurately captures the language of Public Law 600 itself, which avoids a clear and direct reference to a compact, instead using the bet-hedging phrase “in the nature of a compact.”
Bolton and Sears were simply mistaken when they claimed that the United States had entered into a mutually binding bilateral compact with Puerto Rico. The argument that their representations must be true because their falsity would mean that the United States might be in violation of its international obligations rests on the self-evidently flawed premise that one can avoid legal jeopardy by the expedient of treating false propositions as true. If recognition of their falsity places the United States in violation of its international obligations, the solution is not to claim that their statements must be true, but to insist that the United Nations put Puerto Rico back on the list of non-self-governing territories until the United States actually decolonizes the island.
Moreover, whether the events of 1952 met an international standard sufficient to remove Puerto Rico from the list of non-self-governing territories is an entirely separate question from whether the U.S. Constitution even permits an irrevocable compact in the first place, let alone whether Congress offered or entered into such a compact in 1950-1952.61The views of representatives sent to the United Nations as part of an effort to remove Puerto Rico from a list of colonies have no bearing on the latter, purely legal question.
D. The Argument Based on the Northwest Ordinance
Another familiar argument invokes the Northwest Ordinance of 1789 as precedent establishing the power of Congress to enter into a binding compact that it may not alter or withdraw from unilaterally.62 Sure enough, there it is in Justice Sotomayor’s concurrence.63 She relegates this argument to a footnote, and there is a satisfying symmetry here: the Northwest Ordinance itself is in a footnote, at page 51 of the first volume of the Statutes at Large.64 That’s right: the Statutes at Large, a compilation of ordinary legislation passed by Congress and requiring no more than a simple majority to enact—or repeal.
The Northwest Ordinance introduces the six articles that comprise its second half in the following language: “That the following articles shall be considered as articles of compact between the original States, and the people and States in the said territory, and forever remain unalterable, unless by common consent.”65 Justice Sotomayor quotes this language in support of the proposition that “Public Law 600 was not entirely without precedent,” adding that “proponents of Public Law 600 were vocal in their reliance on the Northwest Ordinance as a model.”66 They were indeed, and they still are.67 But opponents of the compact have a voice too, even if it is not represented in this concurrence. We disagree with the argument that the Northwest Ordinance provides precedent for a compact that actually, as opposed to aspirationally, binds.68
For one thing, while the Northwest Ordinance contains language seemingly supportive of the compact theory, that language refers to a compact with the “people and States in the said territory,” which strongly suggests that any promises made here are inextricably intertwined with statehood, and have nothing to do with alternatives to statehood.69 For another, the entire nineteenth-century history of the admission of territories into statehood confirms this impression.70
Moreover, it is not at all clear what Justice Sotomayor means by “precedent,” and she does not elaborate.71 If she means that the Northwest Ordinance provides an earlier example of Congress’s use of the term “compact” in a statute, it does, though what leaps out at the reader is the stark contrast between the forcefulness of the language in the Ordinance (“articles of compact . . . forever . . . unalterable”) and the timidity of the language in Public Law 600 (“in the nature of a compact”). If she means that the Ordinance provides a precedent with weight somehow comparable to that of a judicial decision—which is what the term “precedent” implies—then it would require far more than bare assertion to support the claim.
For example: On the one hand, the Ordinance does use language that is not just forceful, but that purports to make a binding commitment. And one might add that the First Congress, whose views on the meaning of the Constitution arguably carry particular weight,72 enacted it. On the other hand, one cannot reach a conclusion about what this language means without reckoning with the subsequent history of congressional action with respect to the territories. Congress did keep the promise of statehood, but not without unilaterally altering—over the full-throated protests of the affected territorial inhabitants—the boundaries set forth in the fifth of those “unalterable” articles of compact.73 And that is not even to mention the fate of the promises in the third:
The utmost good faith shall always be observed towards the Indians; their land and property shall never be taken from them without their consent; and in their property, right and liberty, they never shall be invaded or disturbed, unless in just and lawful wars authorized by Congress; but laws founded in justice and humanity shall from time to time be made, for preventing wrongs being done to them, and for preserving peace and friendship with them.74
It would be a wild understatement to say that the United States, which went on to renege on every one of these assurances, turned out not to consider itself bound by them.75
In short, not only is Congress’s unequivocal language in the Northwest Ordinance unlike its noncommittal language in Public Law 600, but even language as unequivocal as that does not establish Congress’s power to make binding promises. Subsequent practice here swamps textual inferences. When it comes to the question whether Congress intended and believed that the Northwest Ordinance would create a legally irrevocable compact, Congress’s words point in one direction, but its subsequent actions point emphatically in another.
E. The Argument that One Congress Can Bind Another
The most important argument in compact theory, and therefore in Justice Sotomayor’s concurrence, directly tackles the question whether Congress has the power to take away what it has given.76 It is at this point in her concurrence that Justice Sotomayor comes closest to acknowledging the existence of an opposing point of view, in the following three sentences:
Of course, it might be argued that Congress is nevertheless free to repeal its grant of self-rule, including the grant of authority to the island to select its own governmental officers. And perhaps, it might further be said, that is exactly what Congress has done in PROMESA by declaring the Board “an entity within the territorial government” of Puerto Rico. §101(c)(1), 130 Stat. 553. But that is not so certain.77
No citations have been omitted from this quotation. Justice Sotomayor simply gestures at the counterarguments as if they were possibilities, rather than actualities.78 She then proceeds to make the case against them, arguing that PROMESA did not implicitly repeal the grant of self-rule, and that Congress does not have the power to do so expressly.
On the first point, she argues that PROMESA is a “temporary” statute passed to address an economic crisis, not an “organic statute clearly or expressly purporting to renege on Congress’ prior gran[t] . . . [of] a measure of autonomy comparable to that possessed by the States.”79 True, PROMESA does not expressly purport to renege on a prior grant of autonomy, though why it matters that it is temporary is unclear. According to the compact theory, Congress lacks the power to repeal the grant of self-rule, period. If it can do so for even a minute, then the compact is not irrevocable and compact theory fails. And for what it’s worth, organic acts are all temporary.80
At any rate, the far more serious problem here is that PROMESA obviously reneges on a prior grant of autonomy, even if it does not do so by saying so. Indeed, Justice Sotomayor’s own description of the Board’s powers renders the conclusion inescapable. The Board, she tells us, “oversee[s] the island’s finances and restructure[s] its debts.” She continues:
The Board’s decisions have affected the island’s entire population . . . . It is under the yoke of [the Board’s] austerity measures that the island’s 3.2 million citizens now chafe . . . . Despite the Board’s wide-ranging, veto-free authority over Puerto Rico, the solitary role PROMESA contemplates for Puerto Rican-selected officials is this: The Governor of Puerto Rico sits as an ex officio Board member without any voting rights. No individual within Puerto Rico’s government plays any part in determining which seven members now decide matters critical to the island’s fate.81
How is this not a blatant repeal of the grant of self-rule? Making the case for the compact several pages later, Justice Sotomayor remarks that “[i]t would seem curious to interpret PROMESA as having [reneged on Congress’ prior grant of autonomy] indirectly, simply through its characterization of the Board ‘as an entity within the territorial government.’”82 Surely it would be, but no one argues that it is “simply” those words that had this effect. It is, rather, the brutal reality of the Board’s “wide-ranging, veto-free authority,” as Justice Sotomayor herself describes it, that implicitly, because necessarily, repealed the grant of self-rule.
There is still the matter of whether Congress could expressly repeal the grant of self-rule, if one persists in denying that Congress already did so through PROMESA. Acknowledging the “truism” that “one Congress cannot bind a later Congress,”83 Justice Sotomayor points out that there are exceptions to that rule, citing as examples Congress’ grant of independence to the Philippines and its grants of land or other vested interests.84 She does not elaborate on either example, nor does she suggest that anyone might disagree. But one might.85 Philippine independence “binds” Congress because the Philippines is a sovereign and independent nation-state, which the United States would have to (re)conquer in order for the grant of independence to be undone. And although it has not always been the case, these days international law prohibits conquest.86 As for land grants and other vested interests, the mere mention of them begs the question whether Puerto Rico has an analogous property interest in the “compact.”87
Justice Sotomayor does go on to say that “[p]lausible reasons may exist to treat Public Law 600 and the Federal Government’s recognition of Puerto Rico’s sovereignty as similarly irrevocable, at least in the absence of mutual consent.”88 But the reasons she offers once again turn out to consist entirely of suggestive quotations, led by Public Law 600, which, yes, we know, describes itself as “in the nature of a compact.”89
These quotations are not nothing. But equally plausible reasons exist not to interpret the grant of self-rule as irrevocable, and instead, to recognize it as what it is: the current arrangement between the United States and Puerto Rico, which Congress can unilaterally modify by exercising its power under the Territory Clause—say, by creating a federal board to oversee and manage Puerto Rico’s government, appointing its members however Congress sees fit, calling it an entity within the territorial government despite the fact that Congress neither needed nor sought Puerto Rico’s consent for its creation, empowering it to supervise the territorial government and override its decisions, and forcing Puerto Rico to pay for it.
This, of course, is PROMESA: a federal statute that unceremoniously foisted a Board of overseers atop the government created by the Constitution of Puerto Rico, entirely disregarding the vaunted so-called mutually binding bilateral compact. No amount of compact theorizing can change that fact, nor will ignoring those of us willing to come out and say it. Far from being unalterable except by mutual consent, the so-called compact is, as critics have argued since the beginning, unilaterally alterable by congressional fiat.90
The compact theorists’ script runs out here.91 It is here that Justice Sotomayor concludes—almost—that PROMESA is invalid.92 Of course, as a claim about the validity of a federal statute, “invalid” can only mean “unconstitutional.” There is no other sense in which a federal statute can be invalid. Moreover, that PROMESA is unconstitutional seems to be what she has in mind: “May Congress,” she asks, “ever simply cede its power under [the Territory Clause] to legislate for the Territories, and did it do so nearly 60 [sic] years ago with respect to Puerto Rico? If so, is PROMESA itself invalid, at least as it holds itself out as an exercise of Territories Clause authority?”93 If Congress lacked the authority to enact PROMESA under the Territory Clause, and there is no other source for that authority, then PROMESA is unconstitutional. Yet despite the logic of her argument, Justice Sotomayor tells us she has no choice but to settle for suggesting that it is “invalid,” since, as she noted at the outset, the compact issue has not been litigated. Instead of dissenting, she must “reluctantly” concur.94
Despite her asserted reluctance, though, her decision to concur instead of dissent gives even greater force to what is already a ringing endorsement of compact theory. That is because suggestive quotations emanating from authoritative federal sources play an outsized role in the drama that is Puerto Rico’s status debate. This is not surprising, insofar as it is a debate over how to decolonize a marginalized people. Deprived of a voice in the government that holds the key to their fate, Puerto Ricans borrow the voices of officials within that government, be it this federal judge or that congressional report or some other remark by the latest Grand Poohbah of the United States of We Know What’s Best for Puerto Rico. Puerto Ricans battle each other over their island’s future by hurling these quotations at each other, and at anyone who will listen, in the desperate hope of compensating for their own lack of an equal voice and recruiting allies to their respective causes. Given all of this, the fact that Justice Sotomayor’s views on the compact theory appear in a concurrence rather than a dissent means that she has given the commonwealthers the most precious gem of them all: not just one or two suggestive quotations, but a paean to the compact theory, in nothing less than an opinion by a Justice of the Supreme Court of the United States, which will now and forever span several pages of the United States Reports, and which they can quote without having to cite a dissent. Not an opinion for the Court, true, but the next best thing.
III. the compact: imperialism redux
To put forward the view of only one side in a debate as if it were a settled and uncontested truth is bad enough; to do so in a concurring Supreme Court opinion is even worse. But the problems with this concurrence do not end there. By invoking the compact theory, Justice Sotomayor has exacerbated the already profound and oppressive legal ambiguity that has trapped Puerto Rico in a colonial status for a century and a quarter.95 She has done so by (perhaps inadvertently) breathing new life into the Insular Cases—by far the most notoriously offensive and contentious Supreme Court opinions addressing Puerto Rico’s constitutional status. And she has done so despite the Aurelius Court’s effort to render these cases irrelevant.96
You may have heard of the Insular Cases, a series of Supreme Court decisions handed down between 1901 and 1922 concerning the status of the territories annexed by the United States in 1898: Puerto Rico, the Philippines, and Guam.97 If you’re like most people, you know the Insular Cases are bad news, but you are not quite sure why. You think it has something to do with the idea that the Constitution does not “follow the flag” to Puerto Rico, but you are pretty sure that cannot really be right. And it is not. But it is not exactly wrong, either.
Like pretty much everything else affecting Puerto Rico’s status, what exactly the Insular Cases held has been the subject of much debate.98 But for present purposes, suffice it to say that, according to the standard account, they held that the Constitution did not apply in the territories annexed by the United States in 1898—the “unincorporated” territories—except for its “fundamental” provisions.99 The Insular Cases left the question of which provisions did apply to these territories to case-by-case determination, giving rise to enormous confusion and uncertainty about both the applicability of the Constitution there and their future status: would these territories ever be admitted into statehood? Would they become independent? Could they be held indefinitely as colonies? Although, over time, the Court held that nearly all the provisions that came before it applied in those territories, the confusion and uncertainty generated by the Insular Cases persists to this day.
It might seem obvious that the Appointments Clause “applies” in Puerto Rico—or, rather, that it does not really apply in any geographic location as such, but instead applies to the appointment of officers of the United States, no matter where on the planet they may end up. But because the Insular Cases created for Puerto Rico and other unincorporated territories a constitutional status defined by ambiguity, Puerto Ricans are never quite sure if any given constitutional provision “applies” there.
That is why the Insular Cases came up in the Aurelius litigation. If you read the briefs in Aurelius, you know that at least one of the parties, the Unión de Trabajadores de la Industria Eléctrica y Riego (UTIER), and several amici urged the Court to overrule the Insular Cases out of concern that those decisions would somehow render the Appointments Clause inapplicable in Puerto Rico.100 If you heard the oral arguments, you know that the Court allocated ten minutes to UTIER’s lawyer, during which she described the Insular Cases as a “dark cloud hovering over this case” and implored the Court to overrule them.101 Justice Breyer’s reaction at argument was sympathetic but puzzled. “I agree they’re a dark cloud,” he remarked, but “it doesn’t matter here because the provision of the Constitution does apply.”102 Chief Justice Roberts echoed the sentiment. “None of the other parties rely on the Insular Cases in any way,” he observed. “So it would be very unusual for us to address them in this case, wouldn’t it?”103
If you then read the opinion for the Court in Aurelius, you know that the dark cloud should have passed, at least for the time being. Justice Breyer begins with the unequivocal statement that “the Appointments Clause governs the appointments of all officers of the United States, including those located in Puerto Rico.” In case that is not enough, he later expressly rejects UTIER’s request that the Court overrule the Insular Cases, not by affirming them, but by declaring them irrelevant. “Those cases,” he explains, “did not reach this issue, and whatever their continued validity we will not extend them in this case.”104 Done and done.
Justice Sotomayor’s concurrence never mentions the Insular Cases, which would seem to indicate that she is on board with the Court’s stance on them. But by bringing up the compact theory, she does call into doubt the Court’s conclusion after all—just not the one she claims she does. What she calls into doubt is the Court’s conclusion that the Insular Cases are irrelevant.
Here’s how: compact theorists have put the Insular Cases to use by way of an argument for their “reappropriation.”105 The idea is that since the Insular Cases held most of the Constitution inapplicable in Puerto Rico, the Constitution should impose no constraints upon Congress when it comes to devising new forms of self-government there. This means that if Congress wishes to enter into a mutually binding bilateral compact with Puerto Rico, the Constitution will not stand in the way.
It is a clever argument, which attempts to repurpose the legal ambiguity those decisions made the defining feature of Puerto Rico’s constitutional status, turning it away from the imperialist ends it originally served, and toward the end of self-determination—at least as the compact theorists conceive of that end. But you will not be surprised to learn that not everyone agrees with this revisionist interpretation of the Insular Cases. To the arguments already outlined above, critics of the compact theory would add an understanding of the Insular Cases according to which, whatever else they did, they certainly did not empower Congress to enter into mutually binding bilateral compacts with nonstate territories.106 To say otherwise not only exacerbates the confusion and uncertainty that has haunted Puerto Rico since the Insular Cases, but prolongs the island’s colonial condition, by revitalizing the jurisprudence that subjected Puerto Rico to a subordinate status in the first place.
None of this is explicit in Justice Sotomayor’s concurrence. Again, it is unclear whether she is unaware of it, or whether she is aware, but disagrees. But once one understands the relationship between the Insular Cases and the compact theory, one realizes that it is now the Justice’s concurrence that hangs like a dark cloud over this case, and over Puerto Rican decolonization itself.
This Essay has focused on the constitutional debate over the compact theory: the debate over whether it is constitutionally possible for Puerto Rico and the United States to enter into a mutually binding bilateral compact, which Congress may not unilaterally alter or repeal. I have shown that Justice Sotomayor’s concurrence makes the argument in favor of the “compact theory,” without acknowledging, let alone engaging, the opposing point of view. I have given voice to that opposition, by identifying and briefly describing the arguments we would make (and have long made) in response. I do not purport to offer a comprehensive account of the views on both sides, but rather to correct the misimpression, created by Justice Sotomayor’s concurrence, that the compact theory is a settled fact, as opposed to just one side in a bitter, longstanding, and high-stakes debate.
Justice Sotomayor writes as if she is not only making a constitutional argument, but also defending Puerto Rican dignity and empowerment. Doubtless, that is what she believes she is doing. But we critics of the compact theory would also disagree with that characterization of her concurrence. As noted at the outset, we critics—most of us statehooders—do not just believe that the compact theory is wrong as a legal matter. We also believe it is harmful as a matter of political aspiration. To hear Justice Sotomayor tell it, the compact fulfilled the goal of self-determination for Puerto Rico by transforming the island from the degraded status of a nonsovereign colony of the United States to the exalted status of a separate sovereign in a binding relationship with the United States. Or as commonwealthers often put it, the compact permanently secured for Puerto Rico the “best of both worlds,” where those “worlds” are statehood and independence.
Statehooders do not merely disagree with this characterization of the compact. We recoil from it.107 Were the compact not a fiction but a reality, it would mean that Puerto Rico willingly bound itself to the United States in a permanent union under which federal law continues to apply in Puerto Rico with few exceptions, yet Puerto Ricans remain completely denied voting representation in the federal government. Yes, completely: both before and after 1952, the U.S. citizens of Puerto Rico have not had the right to vote in U.S. presidential elections, or to elect U.S. Senators, or to elect voting Representatives in the U.S. House, where the island’s only representation consists of one single nonvoting “Resident Commissioner.”108
Statehooders believe that to be denied an equal voice in making the law that governs you is to be a colony. We believe it is wrong for the United States to have subjected Puerto Rico to this subordinate status indefinitely. We also believe it is wrong for our fellow Puerto Ricans to have perpetuated the island’s colonization by continuing to vote for a “compact” that creates the illusion of political equality while prolonging the reality of second-class citizenship. We believe that the right to self-determination does not include a right to self-subordination. And we believe that as long as Puerto Rico remains neither an independent nation nor a state of the Union, it is a U.S. territory, which is to say, a U.S. colony. Whatever label you attach to Puerto Rico’s current relationship with the United States, the island belongs back on that list of non-self-governing territories until it is no longer a colony. Puerto Rico was a colony in 1898. And in 1917. And in 1952. And in 1953. It was a colony when Congress enacted PROMESA in 2016. And it is a colony today.
George Welwood Murray Professor of Legal History, Columbia Law School. I’m grateful to José A. Cabranes, Adriel Cepeda Derieux, Edda P. Duffy, Lawrence Duffy, Sam Erman, Jody Kraus, Jack Lerner, Patricio Martínez Llompart, and Nicole Duffy Robertson for their valuable feedback, and to Daimiris García and Chris Santana for their excellent research assistance.
This Essay was originally published on September 21, 2020 and reissued on November 2, 2020 as part of the Collection.