United States Court of Appeals
For the First Circuit
No. 04-2186
GREGORIO IGARTÚA-DE LA ROSA, ET AL.,
Plaintiffs, Appellants,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Raymond L. Acosta, U.S. Senior District Judge]
Before
Boudin, Chief Judge,
Campbell, Senior Circuit Judge,
Torruella, Selya, Lynch, Lipez and Howard, Circuit Judges.
Gregorio Igartúa-de la Rosa for appellants.
Francisco J. Domenech with whom Angel J. Vargas-Carcaña,
Office of the Legal Counsel & Federal Affairs for the President,
Senate of Puerto Rico, was on brief for the Senate of the
Commonwealth of Puerto Rico and its President, the Honorable
Kenneth D. McClintock, Amicus Curiae.
Richard H. Fallon, Jr. with whom José A. Fuentes-Agostini,
Reed Smith LLC, John M. García, García & Fernández PSC, Joaquín A.
Márquez, Philip J. Mause and Drinker Biddle & Reath LLP were on
brief for the Puerto Rican-American Foundation, joined by the
Republican Party of Puerto Rico, Amici Curiae.
Amy B. Abbott, Kirkpatrick & Lockhart Nicholson Graham LLP,
Glenn R. Reichardt, Shanda N. Hastings, Kirkpatrick & Lockhart
Nicholson Graham LLP on brief for Dick Thornburgh and Citizens'
Educational Foundation-US, Amici Curiae.
Gael Mahony, Stephen S. Young, Martha Born, Holland & Knight
LLP and Israel Roldán-González on brief for Israel Roldán-González,
Amicus Curiae.
Gregory G. Katsas, Deputy Assistant Attorney General, with
whom Peter D. Keisler, Assistant Attorney General, H.S. García,
United States Attorney, Michael Jay Singer and Matthew M. Collette,
Appellate Staff, Civil Division, Department of Justice, were on
brief for appellee.
August 3, 2005
OPINION EN BANC
Boudin, Chief Judge. This case brings before this court
the third in a series of law suits by Gregorio Igartúa, a U.S.
citizen resident in Puerto Rico, claiming the constitutional right
to vote quadrennially for President and Vice President of the
United States. Panels of this court have rejected such claims on
all three occasions.1 We now do so again, this time en banc,
rejecting as well an adjacent claim: that the failure of the
Constitution to grant this vote should be declared a violation of
U.S. treaty obligations.
The constitutional claim is readily answered. Voting for
President and Vice President of the United States is governed
neither by rhetoric nor intuitive values but by a provision of the
Constitution. This provision does not confer the franchise on
"U.S. citizens" but on "Electors" who are to be "appoint[ed]" by
each "State," in "such Manner" as the state legislature may direct,
equal to the number of Senators and Representatives to whom the
state is entitled. U.S. Const. art. II, § 1, cl. 2; see also id.
amend. XII.
At one time state legislatures chose the electors
themselves, see McPherson v. Blacker, 146 U.S. 1, 28-35 (1892); in
1
Igartua de la Rosa v. United States, 32 F.3d 8 (1st Cir.
1994) ("Igartúa I"); Igartua de la Rosa v. United States, 229 F.3d
80 (1st Cir. 2000) ("Igartúa II"); Igartúa-de la Rosa v. United
States, 386 F.3d 313 (1st Cir. 2004) ("Igartúa III"). The panel in
Igartúa III vacated its own decision and granted panel rehearing,
404 F.3d 1 (1st Cir. 2005); and this court then granted en banc
review, 407 F.3d 30 (1st Cir. 2005).
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the modern manner, customarily a U.S. state provides that its own
citizens--citizens of that state--vote for the electors to
represent that state. Modern ballots may omit the names of the
electors and list only the candidates, so in form it appears that
citizens are voting for President and Vice President directly. But
they are not: they are voting for electors and, more pertinent
here, the electors are electors of the states.
Puerto Rico--like the District of Columbia, the Virgin
Islands, and Guam--is not a "state" within the meaning of the
Constitution. Trailer Marine Transport Corp. v. Rivera Vazquez,
977 F.2d 1, 7 (1st Cir. 1992). Puerto Rico was not one of the
original 13 states who ratified the Constitution; nor has it been
made a state, like the other 37 states added thereafter, pursuant
to the process laid down in the Constitution. U.S. Const. art. IV,
§ 3, cl. 1. Nor has it been given electors of its own, as was the
District of Columbia in the Twenty-Third Amendment.
Puerto Rico became associated with the United States as
an unincorporated territory under Article IV of the Constitution
following the 1898 war between this country and Spain. U.S. Const.
art. IV, § 3, cl. 2; see Insular Cases, 182 U.S. 1 (1901). Its
status has altered over the ensuing period, culminating in an
agreement in 1952, approved by the citizens of Puerto Rico, that
Puerto Rico should have a unique "Commonwealth" status; but the
unique status is not statehood within the meaning of the
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Constitution. See Trailer Marine, 977 F.2d at 7; Igartúa II, 229
F.3d at 87-88 & nn.15-16 (Torruella, J., concurring). And, in
recent elections, Puerto Ricans themselves have been substantially
divided as to whether to seek statehood status. Cf. Rossello-
Gonzalez v. Calderon-Serra, 398 F.3d 1, 4-5 (1st Cir. 2004).
As Puerto Rico has no electors, its citizens do not
participate in the presidential voting, although they may do so if
they take up residence in one of the 50 states and, of course, they
elect the Governor of Puerto Rico, its legislature, and a non-
voting delegate to Congress. Like each state's entitlement to two
Senators regardless of population, the make-up of the electoral
college is a direct consequence of how the framers of the
Constitution chose to structure our government--a choice itself
based on political compromise rather than conceptual perfection.
Note, Rethinking the Electoral College Debate: The Framers,
Federalism, and One Person, One Vote, 114 Harv. L. Rev. 2526, 2526-
31 (2001) (discussing historical commentary).
That the franchise for choosing electors is confined to
"states" cannot be "unconstitutional" because it is what the
Constitution itself provides. Hence it does no good to stress how
important is "the right to vote" for President. Although we
recognize the loyalty, contributions, and sacrifices of those who
are in common citizens of Puerto Rico and the United States, much
the same could have been said about the citizens of the District of
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Columbia, who were voteless over a much longer period. The path to
changing the Constitution lies not through the courts but through
the constitutional amending process, U.S. Const. art. V; and the
road to statehood--if that is what Puerto Rico's citizens want--
runs through Congress. U.S. Const. art. IV, § 3, cl. 1.
This court has thrice rejected the constitutional claim
now advanced by Igartúa. The Ninth Circuit reached the same result
in a similar suit concerning Guam. Attorney General of the
Territory of Guam v. United States, 738 F.2d 1017 (9th Cir. 1984).
The Supreme Court denied certiorari in both Igartúa I, 514 U.S.
1049 (1995), and in the Ninth Circuit case, 469 U.S. 1209 (1985).
Igartúa has offered nothing new in this third case to support his
constitutional claim. In this en banc decision, we now put the
constitutional claim fully at rest: it not only is unsupported by
the Constitution but is contrary to its provisions.
Igartúa's complaint also relied upon U.S. treaties–-
technically, two of the three are not treaties--as a premise for
the suffrage right claimed.2 This theory had been advanced and
rejected by this court in Igartúa I, 32 F.3d at 10 n.1, which was
2
The first two of the three documents are not "treaties" in
the constitutional sense, being instead aspirational documents
never submitted by the President for Senate ratification. U.S.
Const. art. II, § 2, cl. 2. Neither is listed in the State
Department's current "treaties in force" list. U.S. Department of
State, Treaties in Force 2004, at www.state.gov/s/l/38294.htm. For
convenience, we ignore the distinction because it does not affect
the result in this case.
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binding on the panel and could not be altered by it. Charlesbank
Equity Fund II v. Blinds to Go, Inc., 370 F.3d 151, 160 & n.4 (1st
Cir. 2004). After the panel granted rehearing in this case to
examine a more elaborate version of the treaty argument, the en
banc court determined that the matter should be heard by the full
court. Two of the three panel members said that they were content
with this course. Only one judge dissented from the proposal to
hear the case en banc. See Igartúa de la Rosa, 407 F.3d 30.
No treaty claim, even if entertained, would permit a
court to order that the electoral college be enlarged or
reapportioned. Treaties--sometimes--have the force of domestic
law, just like legislation; but the Constitution is the supreme law
of the land, and neither a statute nor a treaty can override the
Constitution. Reid v. Covert, 354 U.S. 1, 16-18 (1957) (plurality
opinion); Matter of Burt, 737 F.2d 1477, 1484 (7th Cir. 1984);
Plaster v. United States, 720 F.2d 340, 348 (4th Cir. 1983)
(collecting case law). See also Marbury v. Madison, 5 U.S. (1
Cranch.) 137, 180 (1803) ("a law repugnant to the constitution is
void"). So the treaty claim, originally made in support of
injunctive relief, is now recast by proponents as a demand for "a
declaration" that the United States is in violation of its treaty
obligations for failing to "take steps" to give a presidential vote
to citizens of Puerto Rico.
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There are a host of problems with the treaty claim,
including personal standing, redressability, the existence of a
cause of action, and the merits of the treaty interpretations
offered. Treaties are made between states (in the international
usage of that term) and citizens do not automatically have a right
to sue upon them.3 The present claim is also probably not
justiciable in the sense that any effective relief could be
provided;4 it is enough to let common sense play upon the
conjecture that the Constitution would be amended if only a federal
court declared that a treaty's generalities so required. See
Simon, 426 U.S. at 44 ("unadorned speculation [as to redress] will
not suffice to invoke the federal judicial power").
Nor are the merits of Igartúa’s reading of the treaties
at all straightforward. The language of each of the treaties
invoked is general. Nothing in them says anything about just who
should be entitled to vote for whom, or that an entity with the
3
See United States v. Li, 206 F.3d 56, 60-61 (1st Cir. 2000)
(en banc) ("[T]reaties do not generally create rights that are
privately enforceable in the federal courts" (citing Head Money
Cases, 112 U.S. 580, 598 (1884)); id. at 61 ("presumption against
private rights of action under international treaties").
4
Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 38 (1976)
(unless injury is "likely to be redressed by a favorable decision,"
federal court's exercise of power "would be gratuitous and thus
inconsistent with the Art. III limitation"); Lujan v. Defenders of
Wildlife, 504 U.S. 555, 561 (1992)(redressability must not be
"speculative"). See also Steel Co. v. Citizens for a Better
Environment, 523 U.S. 83, 103-04, 103 n.5 (1998) (redressability at
"core" of Article III).
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negotiated relationship that the United States has with Puerto Rico
is nevertheless required to adopt some different arrangement as to
governance or suffrage. In 1951, Puerto Ricans themselves acceded
to their present Commonwealth status,5 and they are today divided
as to what relationship they would prefer on the spectrum from
statehood to Commonwealth status to independence.
We think it unnecessary to plumb these questions, whether
of preconditions to suit or the meaning of the treaties, because
none of these treaties comprises domestic law of the United States
and so their status furnishes the clearest ground for denying
declaratory relief. It is well settled that declaratory relief is
discretionary, Wilton v. Seven Falls Co., 515 U.S. 277, 287 (1995),
but discretion does not mean anything that a judge feels like
doing. Rather,
the discretion to grant declaratory relief is
to be exercised with great circumspection when
matters of public moment are involved, . . .
or when a request for relief threatens to drag
a federal court prematurely into
constitutional issues that are freighted with
uncertainty.
5
See G.A. Res. 748 (VIII), U.N. GAOR, 8th Sess., 459th plen.
mtg. at 26 (1953) (United Nations General Assembly, upon formation
of "political association" between United States and Puerto Rico,
"[r]ecognizes that the people of the Commonwealth of Puerto Rico,
by expressing their will in a free and democratic way, have
achieved a new constitutional status" and "that, when choosing
their constitutional and international status, the people of the
Commonwealth of Puerto Rico have effectively exercised their right
to self-determination").
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Ernst & Young v. Depositors Economic Protection Corp., 45 F.3d 530,
535 (1st Cir. 1995).
It would not be "circumspection" but patent imprudence to
"declare" purported rights under the treaties at issue in this
case. The United States has signed numerous treaties over the
years, many containing highly general and ramifying statements.
Some as negotiated by the President are merely aspirational and not
law in any sense. Others may comprise international commitments,
but they are not domestic law unless Congress has either enacted
implementing statutes or the treaty itself conveys an intention
that it be "self-executing" and is ratified on these terms. The
law to this effect is longstanding. See Whitney v. Robertson, 124
U.S. 190, 194 (1888); Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314
(1829) (Marshall, C.J.).
The treaties in question here do not adopt any legal
obligations binding as a matter of domestic law. The Universal
Declaration of Human Rights is precatory: that is, it creates
aspirational goals but not legal obligations, even as between
states. Sosa v. Alvarez-Machain, 124 S. Ct. 2739, 2767 (2004).
This is also true of the Inter-American Democratic Charter.6 The
6
See Remarks of U.S. Ambassador Roger Noriega at Organization
of American States Permanent Council Meeting (Sept. 6, 2001), in
Digest of United States Practice in International Law: 2001 at 347,
Office of the Legal Advisor, U.S. Department of State (Sally J.
Cummins & David P. Stewart eds., 2001) ("[T]he United States
understands that this Charter does not establish any new rights or
obligations under either domestic or international law.").
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final instrument, the International Covenant on Civil and Political
Rights, is a ratified treaty but was submitted and ratified on the
express condition that it would be "not self-executing." 138 Cong.
Rec. S4781, S4784 (daily ed. Apr. 2, 1992). Indeed, Sosa used it
as an example of such a treaty, saying:
Several times, indeed, the Senate has
expressly declined to give the federal courts
the task of interpreting and applying
international human rights law, as when its
ratification of the International Covenant on
Civil and Political Rights declared that the
substantive provisions of the document were
not self-executing.
124 S. Ct. at 2763.
Whatever limited room there may be for courts to second-
guess the joint position of the President and the Senate that a
treaty is not self-executing--and we are pretty skeptical of such
a suggestion in light of "the discretion of the Legislative and
Executive Branches in managing foreign affairs," id.--it is
certainly not present in a case in which the Supreme Court has
expressed its own understanding of a specific treaty in the terms
block quoted above. Indeed, only a few pages later Sosa repeated:
"[T]he United States ratified the Covenant on the express
understanding that it was not self-executing and so did not itself
create obligations enforceable in the federal courts." Id. at
2767.
When the President negotiates a precatory agreement or a
non-self-executing treaty, and when Congress refuses to adopt
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implementing legislation for a non-self-executing treaty, both are
performing functions entrusted to them by the Constitution. U.S.
Const. art. I, §§ 1, 8-10; art. II, §§ 2-3. It would ignore, and
undermine, this constitutional allocation of functions for a
federal court to declare that the United States was nevertheless
"violating" such a treaty. In substance, such an exercise would
attempt to do what the President and Congress have declined to do,
namely, to deploy the treaty provision in an attempt to order
domestic arrangements within the United States.
This intrusive course could also embarrass the United
States in the conduct of its foreign affairs, which is "committed
by the Constitution to the executive and legislative--'the
political'--departments of the government." Oetjen v. Central
Leather Co., 246 U.S. 297, 302 (1918). Whatever the State
Department might later say, such a declaration by a federal court
of a supposed "treaty obligation" could be trumpeted as propaganda
in international bodies and elsewhere. This is a legitimate
concern in considering whether "discretion" should be exercised to
grant declaratory relief.7 Of course, no such declaration would
confer a presidential vote on Igartúa: it would merely reinforce
7
See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 412,
431-33 (1964) (weighing possibility of "embarrassment to the
Executive Branch in handling foreign affairs"); Baker v. Carr, 369
U.S. 186, 217 (1962) ("potentiality of embarrassment from
multifarious pronouncements by various departments on one question"
relevant to justiciability). See also United States v. Lee, 106
U.S. 196, 209 (1882).
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the disturbing view that judges have no proper notion of where
their own authority ends.
The case for giving Puerto Ricans the right to vote in
presidential elections is fundamentally a political one and must be
made through political means. But the right claimed cannot be
implemented by courts unless Puerto Rico becomes a state or until
the Constitution is changed (as it has been, at least five times,
to broaden the franchise). U.S. Const. amend. XV (race, color,
previous servitude); id. amend. XIX (sex); id. amend. XXIII
(District of Columbia); id. amend. XXIV (payment of poll or other
tax); id. amend. XXVI (age eighteen and older). It certainly
should not be "declared" by a federal court on the basis of
treaties none of which was designed to alter domestic law--and none
of which could override the Constitution.
Little need be said of Igartúa's related claim that
customary international law, by itself and independent of treaties,
requires that he be allowed to vote for President. Although
sometimes said by enthusiasts to be law like other law, customary
international law is a diffuse and often highly uncertain body of
norms whose force and enforceability vary greatly even in the
international sphere; and its status in our domestic courts is even
more qualified. See Sosa, 124 S. Ct. at 2762-63, 2768-69.
Only recently, in Sosa, the Supreme Court enjoined great
caution in importing such norms into domestic law, even in the
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context of a federal statute governing alien tort actions that
arguably authorized some degree of importation by federal courts.
Sosa refused to recognize as a norm of customary international law
the notion of protection against arbitrary arrest. 124 S. Ct. at
2769. Yet the claim rejected in Sosa was a model of precision
compared to Igartúa's present claim.
No serious argument exists that customary international
law, independent of the treaties now invoked, requires a particular
form of representative government. Practice among leading
democratic nations shows a diversity as to how governments organize
and structure the franchise; in Great Britain, for example, neither
the head of state nor of government is directly elected by the
public at large. If there exists an international norm of
democratic government, it is at a level of generality so high as to
be unsuitable for importation into domestic law. Sosa, 124 S. Ct.
at 2768 n.27.
Finally, other supporters of Igartúa's claim suggest that
the United States need not "amend the Constitution" to resolve the
asserted infirmity of having Puerto Ricans classed as citizens of
the United States but unable to vote for President. For example,
Puerto Rico could be made a state or, alternatively, could be
recognized as an independent nation. Granting the declaration, it
is claimed, would encourage the United States to "take steps"
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toward a resolution even if it did not immediately secure a vote
for Igartúa.
This is, of course, nothing but speculation, but it
further underscores the impropriety of the judicial declaration
sought. The main impact of such an abstract declaration, if any,
would be to serve partisans in a political campaign as to the
choice between statehood, independence, Commonwealth status, or
other altered arrangements between Puerto Rico and the United
States. Changes to the Constitution and the present status of
Puerto Rico are not the province of federal judges, nor are they
dictated by international law; those changes can only be adopted as
set forth in the Constitution and laws of the United States.
Affirmed.
Concurring and dissenting opinions follow.
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CAMPBELL, Senior Circuit Judge, concurring. I join in
Chief Judge Boudin's excellent opinion for the majority, but I also
note my subscription to Judge Lipez's narrower concurrence. The
two are not in conflict. The majority's opinion recognizes the
possible validity of Judge Lipez's belief that the court here lacks
jurisdiction to grant declaratory relief. I happen to think Judge
Lipez is right, and, if so, that of course ends the matter. But
even apart from the correctness of his approach, I agree with Chief
Judge Boudin's alternative analysis which leads to the same
outcome.
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LIPEZ, Circuit Judge, concurring in the judgment. I
agree with the majority's denial of relief to Igartúa. I write
separately, however, because I would reject Igartúa's request for
declaratory relief on jurisdictional grounds.
I.
I am sympathetic to the aspirations of Puerto Ricans who
are citizen residents of Puerto Rico to participate fully in the
election of the President and Vice President of the United States.
The dissenting judges present their legal positions in support of
those aspirations powerfully and eloquently. Nevertheless,
"[f]ederal courts are courts of limited jurisdiction," Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994), and that
limited jurisdiction does not permit us to decide the issues raised
by Igartúa's request for declaratory relief.
It may seem odd to some that a federal court might not
have the power to answer important legal questions involving the
interaction between the Constitution, international law, and the
rights of American citizens. But, as I will explain below, one
cannot simply go to federal court and get an answer to a legal
question. Before a federal court can resolve the issues before it,
the court must first satisfy itself that, if the plaintiff
ultimately won, the decision would probably result in a redress of
the plaintiff's grievance. If a judicial victory would probably
not produce such a result, the federal court has no power to
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address the merits of the issues underlying the dispute. In most
cases redressability is not a problem. In this case, however,
redressability is an insuperable problem.
As the majority ably explains, there are only two methods
under our Constitution by which a territory can receive electoral
votes: through admission as a state, see U.S. Const. art. IV, § 3,
cl. 1, or by special amendment, see id. amend. XXIII. For all
practical purposes, only Congress can perform either of these
actions, and whether to do so is in Congress's sole discretion.8
Thus, the critical jurisdictional question reduces to whether a
court can declare Congress's failure to initiate either of these
processes to be a violation of international law -- or, as Judge
Torruella puts it, whether a court can issue a declaratory judgment
that "the United States has taken no steps to meet its obligations
under the ICCPR and customary international law to grant equal
voting rights to all citizens in the election of the President and
Vice President of the United States." Post at 88 (Torruella, J.,
dissenting).
In my view, the answer to this jurisdictional question
does not turn on the precise contents of the particular agreements
at issue; whether the agreements are binding or merely "precatory";
8
There is an exception, in theory: if two-thirds of state
legislatures so request, Congress must convene a Constitutional
convention. See U.S. Const. art. V. However, no such convention
has ever been convened since the adoption of the Constitution.
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whether they have been ratified by the Senate; whether they are
self-executing; or even whether the relevant international legal
norms derive from agreements at all, as opposed to customary law.
Nor does the answer turn on the discretionary nature of a
declaratory judgment. Even if those factors were removed,
Igartúa's request for declaratory relief would still face an
insuperable obstacle: we lack jurisdiction to decide his
international law claim because his grievance is not judicially
redressable. See Steel Co. v. Citizens for a Better Env't, 523
U.S. 83, 101 (1998) (court must address Article III jurisdictional
questions before addressing merits, because "[h]ypothetical
jurisdiction produces nothing more than a hypothetical judgment --
which comes to the same thing as an advisory opinion").
Unavoidably, Igartúa's request for a declaratory judgment requires
unsupportable speculation about the possibility of a Constitutional
amendment or the admission of Puerto Rico as a state. For this
reason alone, I conclude that we do not have jurisdiction over his
request for declaratory relief.
II.
Under Article III of the Constitution, "[t]he judicial
Power shall extend" to "Cases" and "Controversies." U.S. Const.
art. III, § 2, cl. 1. The Supreme Court has interpreted this "case
or controversy" requirement to mean, among other things, that
federal courts do not issue advisory opinions. In particular, a
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federal court may only exercise jurisdiction over an action if it
is "'likely,' as opposed to merely 'speculative,' that the injury
will be 'redressed by a favorable decision.'" Lujan v. Defenders
of Wildlife, 504 U.S. 555, 561 (1992) (quoting Simon v. E. Ky.
Welfare Rights Org., 426 U.S. 26, 38, 43 (1976)). If the plaintiff
cannot show that his injury "is likely to be redressed by a
favorable decision," the federal court's "exercise of its power
. . . would be gratuitous and thus inconsistent with the Art. III
limitation." Simon, 426 U.S. at 38. This limitation applies with
undiminished force to actions for declaratory judgment. See
Calderon v. Ashmus, 523 U.S. 740, 745 (1998) ("[W]e must first
address whether this action for a declaratory judgment is the sort
of 'Article III' 'case or controversy' to which federal courts are
limited."); Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240
(1937) (The Declaratory Judgment Act "is operative only in respect
to controversies which are such in the constitutional sense.").
This is not a case where a plaintiff claims injury from
an allegedly unconstitutional act of Congress. Rather, Igartúa
claims injury from Congress's inaction in the face of certain
international agreements: its failure to either admit Puerto Rico
as a state or to propose a Constitutional amendment allocating
electors to Puerto Rico.9 Since it is beyond dispute that we could
9
The dissents suggest that there might be other alternatives
by which Congress could grant the Presidential vote to residents of
Puerto Rico. The only specific suggestion is one first advanced by
Judge Leval in Romeu v. Cohen, 265 F.3d 118, 128-30 (2d Cir. 2001)
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not order Congress to do either of those things, Judge Torruella
says that we should issue a declaratory judgment that Congress has
not fulfilled its duties under international agreements. Judge
Torruella then says that Congress, chastened by this declaration,
would voluntarily choose to act -- presumably either by admitting
Puerto Rico as a state or proposing an amendment similar to the
Twenty-third. In Judge Torruella's view, "it is substantially
likely that a declaration by this Court that the United States is
in violation of international law will result in some form of
relief to the United States citizens who reside in Puerto Rico."
Post at 80 (Torruella, J., dissenting).
Respectfully, the basis for this speculation about
Congress initiating the process of Constitutional amendment or
invoking the Constitutional process for the admission of a new
state is unexplained. We have already warned about the hazards of
such speculation when only statutory changes by a state legislature
were at stake. In Biszko v. RIHT Financial Corp., 758 F.2d 769
(Leval, J., writing separately), under which Congress would require
each state to accept a proportional share of territorial voters.
See post at 89 (Howard, J., dissenting). This suggestion has been
critiqued on the ground that there is "no authority in the
Constitution for the Congress (even with the states' consent) to
enact such a provision." Romeu, 265 F.3d at 121 (Walker, Jr.,
C.J., concurring); see also id. at 136 (Walker, Jr., C.J.,
concurring) ("I see only two remedies afforded by the Constitution:
(1) statehood . . ., or (2) a constitutional amendment."). At any
rate, for purposes of redressability analysis, it is no more likely
that Congress would adopt Judge Leval's suggestion (which is
probably not Constitutionally permissible) than one of the two
alternatives that the Constitution provides.
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(1st Cir. 1985), plaintiffs challenged a Rhode Island statute that
arguably created market conditions under which plaintiffs could not
receive full market value for their shares in a Rhode Island bank.10
They argued that their suit was redressable because if the federal
court invalidated the statute, "the Rhode Island legislature would
soon be moved, sua sponte or by the persuasive efforts of non-New
England banks, to pass a statute permitting [a more competitive
market]." Id. at 773. We described such speculation concerning "a
benefit that [plaintiffs] might gain were the Rhode Island
legislature to react in a certain way to a decision by this court"
as "not merely speculative" but "positively chimerical." Id.11
If a legislative body would be within its rights to
ignore the court's decision, and the plaintiff cannot convince the
court that it is "'likely,' as opposed to merely 'speculative,'"
Lujan, 504 U.S. at 561, that the legislature will react in the way
that he hopes, the redressability requirement has not been met.
Cf. Chicago & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S.
103, 113 (1948) ("[I]f the President may completely disregard the
10
The statute permitted a Rhode Island bank to be acquired by
an out-of-state bank, but only if the other bank was based in
another New England state. The plaintiffs were shareholders of a
Rhode Island bank that had agreed to merge with a Massachusetts
bank, and they sought to block the merger. See id. at 770-71.
They argued that the limitation to New England banks reduced
competition and that, without that restriction, an out-of-state
bank would have had to pay more for their stock. See id. at 771.
11
We analyzed this argument under the rubric of the "injury"
requirement, but our reasoning on that point applies to the
redressability requirement.
-22-
judgment of the court, it would be only because it is one the
courts were not authorized to render. Judgments, within the powers
vested in courts by the Judiciary Article of the Constitution, may
not lawfully be revised, overturned or refused faith and credit by
another Department of Government."). The cases that Judge
Torruella cites for the contrary proposition (that Congress would
be "substantially likely" to redress Igartúa's grievance in light
of a judicial declaration) are easily distinguishable and actually
reveal why the redressability requirement prevents declaratory
relief here.
Judge Torruella relies on Utah v. Evans, 536 U.S. 452
(2002), a dispute ultimately stemming from the Census Bureau's
method of calculating population in the 2000 census. The Bureau
used a statistical method that calculated the population of Utah as
somewhat lower, relative to the population of North Carolina, than
if the Bureau had not used that method. See id. at 457-58.
Pursuant to statute, the Bureau's final report was formally
transmitted to Congress, and the Clerk of the House of
Representatives then transmitted to each state governor "'a
certificate of the number of Representatives to which [that] State
[was] entitled.'" Id. at 461 (quoting 2 U.S.C. § 2a(b)). Due to
the statistical method that the Bureau used, Utah received one less
representative, and North Carolina one more representative, than if
the Bureau had not used that method. Id. at 458. After receiving
-23-
the results, Utah sued the government, arguing that the Bureau's
statistical method violated another census-related statute, and
sought an injunction ordering the Bureau to reissue its report with
different results. Id. at 459.
North Carolina intervened, arguing that the case was not
justiciable because the relief sought would not redress Utah's
grievance. Although North Carolina "[did] not deny that the courts
[could] order the [Bureau] to recalculate the numbers and to
recertify the official census result," it reasoned that "Utah
suffer[ed], not simply from the lack of a proper census 'report' (a
document), but more importantly from the lack of the additional
congressional Representative to which North Carolina believes
itself entitled as a consequence of the filing of that document."
Id. at 461. In other words, although the court could order a new
census report as Utah requested, a new report would not result in
Utah gaining a Representative. That outcome would depend entirely
on whether Congress, acting in its unbridled discretion, would
choose to reapportion, or just ignore the report.
The Court concluded that the injury cited by Utah was
redressable:
[W]e believe it likely that Utah's victory
here would bring about the ultimate relief
that Utah seeks. Victory would mean a
declaration leading, or an injunction
requiring, the Secretary to substitute a new
"report" for the old one. Should the new
report contain a different conclusion about
the relative populations of North Carolina and
-24-
Utah, the relevant calculations and consequent
apportionment-related steps would be purely
mechanical; and several months would remain
prior to the first post-2000 census
congressional election. Under these
circumstances, it would seem . . .
"substantially likely that the President and
other executive and congressional officials
would abide by an authoritative interpretation
of the census statute . . . ."
Id. at 463-64 (quoting Franklin v. Massachusetts, 505 U.S. 788, 803
(1992) (opinion of O'Connor, J.)). Two points about Evans bear
emphasis. First, compliance with the actual court order or
declaration relating to the need for a new census report "would be
purely mechanical." 536 U.S. at 463. Second, while ultimate
redress of Utah's grievance would require discretionary action by
elected officials, that action -- recertifying the total number of
Representatives for two states -- was of a piece with a process so
regular and commonplace that Congress has, in ordinary
circumstances, delegated it by statute to the Clerk of the House.12
Here, by contrast, the Congressional action envisioned (admitting
a state or initiating the process of Constitutional amendment) is
exceptional, lengthy, complex, and highly uncertain. Consequently,
12
After Congress receives the statement listing the number of
representatives to which each state is entitled, "[i]t shall be the
duty of the Clerk of the House of Representatives, within fifteen
calendar days after the receipt of such statement, to send to the
executive of each State a certificate of the number of
Representatives to which such State is entitled." 2 U.S.C.
§ 2a(b).
-25-
how Congress would react to a declaration is considerably more
speculative here than in Evans.13
A second case cited by Judge Torruella, Juda v. United
States, 13 Cl. Ct. 667 (1987), relates more directly to
international agreements. Juda concerned the status of the
Marshall Islands. After World War II, the United States entered
into an agreement with the United Nations (UN) to administer the
Marshall Islands as a UN trusteeship, in an arrangement designed to
be temporary. In the 1970s, the United States decided to terminate
the trusteeship and offer the territory a compact of free
association. The compact agreement was submitted to a plebiscite,
and was resoundingly approved. Congress then enacted, and the
President signed, legislation formally adopting the compact. After
the President issued an executive order implementing the compact,
the UN Trusteeship Council determined that the trusteeship had
terminated. See id. at 671-76.
Some years later, Marshall Islander plaintiffs filed a
claim against the United States under the Tucker Act, 28 U.S.C.
§ 1491,14 which had undisputedly applied to the Islands while they
were still under the trusteeship. The United States argued,
13
Moreover, one of the two methods of redress contemplated --
Constitutional amendment -- would require action not just by
Congress, but also the legislatures of thirty-eight states. See
U.S. Const. art. V.
14
The Tucker Act grants jurisdiction to the Court of Federal
Claims (then known as the Claims Court) for claims against the
United States, and provides the government's consent to such suits.
-26-
however, that the compact agreement withdrew the government's
waiver of sovereign immunity. See 13 Cl. Ct. at 677. The
plaintiffs responded that, under the rules applicable to UN
trusteeships, the trusteeship had not been validly terminated, and
therefore the compact -- which withdrew the government's consent to
suit -- never took effect. See id. at 678.
The court rejected the plaintiffs' argument that failure
to terminate the trusteeship properly meant that the compact (and
with it the withdrawal of consent to suit) had never taken effect.
Rather, the court found that whether "the Trusteeship Agreement has
not been terminated de jure does not resolve the issue of whether
the Compact . . . is in effect." Id. at 682. Ultimately, the
court concluded that the compact did take effect, and therefore
that the United States had withdrawn its consent to be sued. See
id. at 683, 690. Thus, it dismissed the complaint. Id. at 690.
Nevertheless, in a lengthy dictum, the court explained
that the trusteeship had in fact not been properly terminated. The
court held that the trusteeship could not be formally terminated
until the UN Security Council so voted. See id. at 678-82. Some
time after the Juda decision issued, the government took the
court's advice and formally asked the Security Council to terminate
the trusteeship, which it did. See United Nations Security Council
Resolution 683 (Dec. 22, 1990). That dictum, and the government's
-27-
decision to take the court's advice, is the precedent upon which
Judge Torruella relies.
Yet the Juda court did not "declare" anything -- it
dismissed the plaintiffs' complaint, did not even mention a
declaratory judgment, and is cited by Judge Torruella only for a
dictum. More importantly, in Juda there was no dispute that both
Congress and the President intended to terminate the trusteeship;
indeed, by enacting the compact and issuing an executive order
implementing it, the political branches thought they had done
exactly that. Juda noted that these actions did not have their
intended effect due to a technical misunderstanding of UN
procedures, and explained how the elected branches could properly
achieve what they had already sought to do. The likelihood that
Congress and the President would follow the court's advice was not
just "substantial," it was a near certainty. There is nothing
remotely approaching such certainty here.15
15
A third case cited by Judge Torruella, Federal Election
Commission v. Akins, 524 U.S. 11 (1998), does not involve the
likelihood of action by Congress. Akins was a petition for review
of an administrative agency's dismissal of an administrative
complaint. See id. at 18. The agency's governing statute
specifically authorized judicial review of an agency's decision not
to take certain action, see 2 U.S.C. § 437g(a)(8)(A), and provided
that the district court "may declare that the dismissal of [a]
complaint or the failure to act is contrary to law, and may direct
the Commission to conform with such declaration within 30 days,"
id. § 437g(a)(8)(C). Thus, Akins involved an administrative agency
which Congress placed under unusually close judicial oversight,
even extending to the agency's exercise of prosecutorial
discretion, for which every declaration was potentially accompanied
by a coercive order "to conform with such declaration within 30
days." We are not dealing in this case with a subordinate
-28-
III.
There is no precedent for issuing a declaratory judgment
in the circumstances of this case, and for good reason. A
declaratory judgment "is a procedural device that provides a new,
noncoercive remedy . . . in cases involving an actual controversy
that has not reached the stage at which either party may seek a
coercive remedy . . . and in cases in which a party who could sue
for coercive relief has not yet done so." B. Braun Med., Inc. v.
Abbott Labs., 124 F.3d 1419, 1428 (Fed. Cir. 1997) (emphasis
added). Here, however, no coercive remedy would ever be available.
Congress would be perfectly within its rights to ignore whatever a
federal court said. The court's declaratory judgment would be, in
essence, an advisory opinion.
As the Supreme Court explained in a different context:
In all civil litigation, the judicial decree
is not the end but the means. At the end of
the rainbow lies not a judgment, but some
action (or cessation of action) by the
defendant that the judgment produces -- the
payment of damages, or some specific
performance, or the termination of some
conduct. Redress is sought through the court,
but from the defendant. This is no less true
of a declaratory judgment suit than of any
government agency, created by statute, with carefully crafted
provisions for substantive judicial review over the agency's
decision to do nothing. Rather, the party whose inaction Igartúa
complains of is Congress itself, a coequal branch of government
that is Constitutionally free to ignore any potential declaration
that it should or must perform various actions entrusted to its
sole discretion by the Constitution itself. The redressability
analysis in Akins does not apply to this case.
-29-
other action. The real value of the judicial
pronouncement -- what makes it a proper
judicial resolution of a "case or controversy"
rather than an advisory opinion -- is in the
settling of some dispute which affects the
behavior of the defendant towards the
plaintiff.
Hewitt v. Helms, 482 U.S. 755, 761 (1987) (describing test for
"prevailing party" under 42 U.S.C. § 1988). Here there is only
hope and speculation that Congress, in response to a declaratory
judgment about a violation of international law, would invoke
cumbersome and contentious processes relating to Constitutional
amendments or the admission of a new state to eventually give
citizen residents of Puerto Rico the right to vote for President
and Vice President. Such hope and speculation does not satisfy the
"case or controversy" requirement of Article III. On that basis
alone, I would decline to exercise jurisdiction over Igartúa's
request for declaratory relief.
-30-
TORRUELLA, Circuit Judge (dissenting).16 In its haste to
"put [plaintiffs-appellants'] constitutional claim fully at rest,"17
maj. op. at 6, the majority has chosen to overlook the issues
actually before this en banc court as framed by the order of the
rehearing panel, see Igartúa de la Rosa v. United States, 404 F.3d
1 (1st Cir. 2005) (order granting panel rehearing), which panel the
en banc court suppressed, but whose order was adopted as
establishing the parameters of the issues to be decided by the en
banc court. See Igartúa de la Rosa v. United States, 407 F.3d 30,
31 (1st Cir. 2005) (converting to en banc review panel rehearing in
which "the parties [are] to address two issues: first, the
plaintiffs' claim that the United States was in default of its
treaty obligations and, second, the availability of declaratory
judgment concerning the government's compliance with any such
16
I acknowledge the participation of amici, whose briefs
contributed to the clarification of various important issues. I
regret that not all amici were granted the opportunity to express
themselves at oral argument.
17
Is this the constitutional equivalent of "rest in peace"?
Of course, if Judge Lipez and Judge Campbell are correct that we
lack jurisdiction to consider plaintiffs' claim, then the
majority's various conclusions on the merits would be mere dicta,
lacking any precedential value. "Without jurisdiction the court
cannot proceed at all in any cause. Jurisdiction is power to
declare the law, and when it ceases to exist, the only function
remaining to the court is that of announcing the fact and
dismissing the cause." Ex parte McCardle, 7 Wall. 506, 514, 19
L.Ed. 264 (1868) (quoted in Steel Co. v. Citizens for a Better
Environment, 523 U.S. 83, 94-95 (1998)). Furthermore, if the
concurring opinion is correct, the majority is issuing an advisory
opinion of the same kind that Judge Lipez claims results from the
declaratory judgment that I propose.
-31-
obligations."). It is these issues that the parties were asked to
brief. Instead the majority has sidetracked this appeal into a dead
end that is no longer before us: Puerto Rico's lack of electoral
college representation, see U.S. Const. art. II, § 1, cl. 2, and
our lack of authority to order any constitutional change to such
status by reason of that constitutional impediment.
In doing so, the majority fails to give any weight to the
fundamental nature of the right to vote, and the legal consequences
of this cardinal principal. Under the combined guise of alleged
political question doctrine, its admitted desire to avoid
"embarrassment" to the United States, and its pious lecturing on
what it deems to be the nature of the judicial function, the
majority seeks to avoid what I believe is its paramount duty over
and above these stated goals: to do justice to the civil rights of
the four million United States citizens who reside in Puerto Rico.
The majority labels this duty with despect as "rhetoric" and
"intuitive values." Maj. op. at 3. I beg to differ, and so, I
suspect, do a considerable number of those four million U.S.
citizens who, lacking any political recourse, look to the courts of
the United States for succor because they are without any other
avenue of relief. See United States v. Carolene Prods. Co., 304
U.S. 144, 152 n.4 (1938) ("[P]rejudice against discrete and insular
minorities may be a special condition, which tends seriously to
curtail the operation of those political processes ordinarily to be
-32-
relied upon to protect minorities and . . . may call for
correspondingly more searching judicial inquiry.").18
Considering that justice and equity are the handmaidens
of the law, I believe it is the duty of this court to exercise its
equitable power under the Declaratory Judgment Act, 28 U.S.C. §
2201(a),19 in its decision of the issues that are properly before
the en banc court, and to declare that the United States has failed
to take any steps to meet obligations that are cognizable as the
supreme law of the land20 regarding plaintiffs-appellants' voting
rights. "This is of the very essence of judicial duty." Marbury
v. Madison, 5 U.S. (1 Cranch) 137, 178 (1803).
Because I believe that the majority fails to meet this
duty, I respectfully dissent.
18
Reducing the majority and concurring opinions to their bare
bones, the former leaves the four million nationally
disenfranchised United States citizens residing in Puerto Rico to
claim their rights through a nonexistent political forum, while the
latter deny an existing judicial forum the authority to state the
actuality of an undeniable fact. Both outcomes leave the citizens
in question in an unjust legal limbo.
19
The Act states that "[i]n a case of actual controversy within
its jurisdiction, . . . any court of the United States, upon the
filing of an appropriate pleading, may declare the rights and other
legal relations of any interested party seeking such declaration,
whether or not further relief is or could be sought." 28 U.S.C. §
2201(a).
20
U.S. Const. art. VI, cl. 2 ("This Constitution, and the Laws
of the United States which shall be made in Pursuance thereof; and
all Treaties made, or which shall be made, under the Authority of
the United States, shall be the supreme Law of the Land; and the
Judges in every State shall be bound thereby, any Thing in the
Constitution or Laws of any State to the Contrary
notwithstanding.").
-33-
I.
A. How did we come to this state of affairs?
On July 25, 1898, in the closing days of the Spanish-
American War, the United States invaded21 Puerto Rico. At that
21
In what must be the height of euphemism, the majority refers
to this turn of events as Puerto Rico's becoming "associated" with
the United States. Maj. op. at 4. A similar, but more pernicious,
mischaracterization follows its description of the congressional
enactments that authorized local self-government for Puerto Rico,
which the majority calls an "agreement" for a "unique
'Commonwealth' status," id., and which the majority states resulted
in the current "negotiated relationship," id. at 9 (emphasis in
original), between the U.S. and Puerto Rico. Of course, these
statements are simply inaccurate and do not reflect the facts.
There is no room for doubt that Public Law 600, 64 Stat. 319 (1950)
(codified at 48 U.S.C § 731b, et seq.) (authorizing Puerto Rico to
enact a constitution for local self-government), and its sequel,
Public Law 447, 66 Stat. 327 (1952) (resolution approving Puerto
Rico's Constitution), did nothing to change the underlying
constitutional status of Puerto Rico as an unincorporated
territory, subordinated to Congress' plenary powers under the
Territorial Clause, U.S. Const., Art. IV, § 3, cl. 2. See generally
David M. Helfeld, The Historical Prelude to the Constitution of the
Commonwealth of Puerto Rico, 21 Rev. Jur. U.P.R. 135 (1952); David
M. Helfeld, Congressional Intent and Attitude Toward Public Law 600
and The Constitution of the Commonwealth of Puerto Rico, 21 Rev.
Jur. 255 (1952) (containing numerous citations to the Congressional
record and reports indicating that these measures did not change
Puerto Rico's basic status under the Constitution nor Congress'
powers over this unincorporated territory); Keith Bea,
Congressional Research Service, Political Status of Puerto Rico:
Background, Options, and Issues in the 109th Congress, at CRS-2
(updated Jun. 6, 2005) ("While the approval of the commonwealth
constitution marked a historic change in the civil government for
the islands, neither it, nor the public laws approved by Congress
in 1950 and 1952, revoked statutory provisions concerning the legal
relationship of Puerto Rico to the United States. This
relationship is based on the Territorial Clause of the U.S.
Constitution."). It is not just the majority's inaccuracies in
describing the colonial relationship between Puerto Rico and the
United States to which I object. The majority's unfortunate choice
of language obviously favors the colonial condition and this bias
will, without any question or doubt, be exploited politically.
-34-
point in time the inhabitants of Puerto Rico had full rights as
Spanish citizens. This included the right to elect sixteen
deputies and three senators, with full voting rights, to the
Spanish Cortes (Parliament).22 Fernando Bayrón Toro, Elecciones y
partidos de Puerto Rico 108 (2003). Furthermore, Puerto Ricans had
recently been granted a high measure of self-government. See
generally Autonomic Charter of 1897, reproduced at, Documents on
the Constitutional Relationship of Puerto Rico and the United
States 22-46 (Marcos Ramirez Lavandero, ed., 1948).
All this came to naught with the signing of the Treaty of
Paris on December 10, 1898, which officially concluded this
"splendid little war"23 and ended four hundred years of Spanish
The debate over what status Puerto Rico ought to have with
respect to the United States is, of course, hotly contested. What
that status should be is not the issue before us. The only issue
is whether the U.S. citizens in Puerto Rico should have the right
to vote nationally. The right to vote will benefit all U.S.
citizens residing in Puerto Rico regardless of their position on
status, since it will give them a meaningful political voice until
that issue is resolved, and on that issue itself.
22
In fact, Puerto Rico had been represented in the Spanish
Cortes as early as 1812, see Constitución politica de la Monarquía
Española (promulgated in Cadiz on Mar. 18, 1812), as a result of
which its one deputy, Ramón Powers, became Vice President of the
Cortes in 1812. Thereafter, depending on the vagaries of Spanish
politics, constitutions, and special laws enacted to apply to
Spain's overseas provinces and colonies, Puerto Rico was variously
represented in the Cortes.
23
John Hay, U.S. Ambassador to Great Britain in 1898, and a
leading expansionist of the time, wrote to then Colonel Theodore
Roosevelt, at the time of only Rough Rider fame, "[i]t has been a
splendid little war; begun with the highest motives, carried on
with magnificent intelligence and spirit, favored by that fortune
which loves the brave." Frank Freidel, The Splendid Little War 3
-35-
colonial rule. See Treaty of Peace between the United States of
America and the Kingdom of Spain, Dec. 10, 1898, U.S.-Spain, 30
Stat. 1754. Thus commenced, in its place, a new period of
colonialism which has so far lasted one hundred and seven years.24
Notwithstanding Puerto Ricans' loss of these major political grants
from Spain, the transition to United States sovereignty was largely
seamless.25 This was at least partially due to the fact that
Spanish rule had been less than kind,26 but more importantly,
because of the prospect of joining a democratic nation that
promised the Puerto Rican people that it had come to "bestow upon
[Puerto Ricans] the immunities and blessings of [the] liberal
institutions of our government." Letter of Nelson Miles, Major-
General Commanding the U.S. Army to the Inhabitants of Porto Rico
(Nov. 5, 1898) in Annual Reports of the War Department for the
Fiscal Year Ended June 30, 1900 19-20 (1902). See generally Bailey
W. Diffie & Justine Whitfield Diffie, Porto Rico: A Broken Pledge
(1931).
(1958); Hugh Thomas, Cuba, The Pursuit of Freedom 404 (1971).
24
See generally José Trías Monge, Puerto Rico: The Trials of
the Oldest Colony in the World (1997).
25
U.S. troops were received in Ponce, Puerto Rico's second
largest city, by the municipal band playing the "Star Spangled
Banner," and General Nelson Miles, commanding general of the
expeditionary force wired Washington: "Please send any national
colors that can be spared, to be given to the different
municipalities." 1 Messages and Documents, 1898-1899.
26
See Antonio Salvador Pedreira, El Año Terrible del 87: Sus
Antecedentes y Sus Consecuencias, Ed. Edil, Rio Piedras (1974).
-36-
In fact, the Treaty of Paris left to future action by
Congress what should be "[t]he civil rights and political status of
the native inhabitants of the territories . . . ceded to the United
States". Treaty of Peace, art. IX, para. 2, 30 Stat. 1754, 1759.
Thus, for the first time in American history, the United States
acquired territory without ipso facto granting its inhabitants
citizenship,27 and therefore, also contrary to its founding history,
the United States became a colonial nation. See Julius William
Pratt, America's Colonial Experiment 68 (1950). Immediately after
the invasion, Puerto Rico settled into a military government that
lasted until 1900, when Congress enacted the so-called Foraker Act.
Foraker Act, ch. 191, 31 Stat. 77 (1900) (codified as amended in
scattered sections of 48 U.S.C.). This statute established a civil
government composed almost totally of officials appointed by the
President. A local legislature was provided, but only its lower
house was elected by Puerto Rican residents. The Foraker Act
27
See Treaty Between the United States of America and the
French Republic, April 30, 1803, U.S.-Fr. art. III, 8 Stat. 200,
202 (Louisiana Purchase); Treaty of Amity, Settlement, and Limits,
Between the United States of America and His Catholic Majesty, Feb.
22, 1819, U.S.-Spain, art. 6, 8 Stat. 252 (acquisition of Florida);
Treaty of Guadalupe Hidalgo, Feb. 2, 1848, U.S.-Mex., art. VIII, 9
Stat. 922 (acquisition of California); Gadsen Treaty, Dec. 30,
1853, U.S.-Mex., art. V, 10 Stat. 1031 (acquisition of Arizona);
Treaty concerning the Cession of Alaska, Mar. 30, 1867, U.S.-Russ.,
art III, 15 Stat. 539 (acquisition of Alaska); Act of Apr. 30,
1900, ch. 1, § 4, cl. 339, 31 Stat. 141 (providing a government for
Hawaii). Hawaii was actually annexed in 1898, see Joint Resolution
To provide for annexing the Hawaiian Islands to the United States,
30 Stat. 750 (1898), two years before citizenship was granted.
-37-
declared these residents to be "citizens of Porto Rico."28 Foraker
Act § 7 ("[A]ll inhabitants continuing to reside [in Puerto Rico]
who were Spanish subjects on the eleventh day of April, eighteen
hundred and ninety-nine, and then resided in Porto Rico, and their
children born subsequent thereto, shall be deemed and held to be
citizens of Porto Rico, and as such entitled to the protection of
the United States . . . .") As such, they became "nationals" of
the United States.29 Almost immediately after the Foraker Act went
into effect, a challenge was made to its provisions allowing the
imposition of duties on goods imported into Puerto Rico from the
United States. It was claimed that this tax was contrary to the
Uniformity Clause of Article I, Section 8 of the Constitution.
28
Between 1900 and 1932, Puerto Rico was officially misspelled
as "Porto Rico," as a result of the incorrect spelling of the
Island's name in the English version of the Treaty of Paris in
1898. This incorrect spelling was thereafter used in the Foraker
Act in 1900, after which it took thirty-two years to persuade
Congress that "Porto" is Portuguese and that the correct Spanish
name should be restored. This was finally done by joint resolution
on May 17, 1932. Joint Resolution to change the name of "Porto
Rico" to "Puerto Rico," ch. 190, 47 Stat. 158 (1932).
29
A national, as distinguished from a citizen, who is "a
member of a political community, owing allegiance to the community
and being entitled to enjoy all its civil rights and protections,"
Black's Law Dictionary 261 (8th ed. 2004), is a person who owes
allegiance to a state but does not enjoy the full rights of a
citizen. See José A. Cabranes, Citizenship and the American
Empire, 127 U. Pa. L. Rev. 391 (1978); see also Gonzalez v.
Williams, 192 U.S. 1, 12-13 (1904); cf. Dred Scott v. Sanford, 60
U.S. (19 How.) 393, 404 (1857) (holding that "a negro of African
descent, [whose] ancestors were of pure African blood, and were
brought into this country and sold as slaves," id. at 397, was not
entitled to the privileges and immunities of the Constitution
accorded to citizens).
-38-
U.S. Const., art. I, § 8, cl. 1 ("all Duties, Imposts, and Excises
shall be uniform throughout the United States").
In the course of ruling upon this issue, the Supreme
Court, in 1901, decided the Insular Cases,30 wherein it sanctioned
Puerto Rico's colonial status ad perpetuam. There is no question
that the Insular Cases are on par with the Court's infamous
decision in Plessy v. Ferguson in licencing the downgrading of the
rights of discrete minorities within the political hegemony of the
United States. See Plessy v. Ferguson, 163 U.S. 537 (1896)
(holding that it was not a violation of the Equal Protection Clause
for a state law to segregate white and colored people in public
facilities provided "equal" alternatives were provided for each
race); see also Rubin Francis Weston, Racism in U.S. Imperialism:
The Influence of Racial Assumptions on American Foreign Policy,
1893-1946 15 (1972) ("Those who advocated overseas expansion faced
this dilemma: What kind of relationship would the new peoples have
to the body politic? Was it to be the relationship of the
Reconstruction period, an attempt at political equality for
dissimilar races, or was it to be the Southern
"counterrevolutionary" point of view which denied the basic
30
De Lima v. Bidwell, 182 U.S. 1 (1901); Goetze v. United
States, 182 U.S. 221 (1901); Dooley v. United States, 182 U.S. 222
(1901); Armstrong v. United States, 182 U.S. 243 (1901); Downes v.
Bidwell, 182 U.S. 244 (1901); Huus v. New York & Porto Rico
Steamship Co., 182 U.S. 392 (1901). See generally Juan R.
Torruella, The Supreme Court and Puerto Rico: The Doctrine of
Separate and Unequal (1985).
-39-
American constitutional rights to people of color? The actions of
the federal government during the imperial period and the relation
of the Negro to a status of second-class citizenship indicated that
the Southern point of view would prevail. The racism which caused
the relegation of the Negro to a status of inferiority was to be
applied to the overseas possessions of the United States.")
The Insular Cases, would today be labeled blatant
"judicial activism."31 See, e.g., Keenan D. Kmiec, The Origin and
Current Meanings of "Judicial Activism", Comment, 92 Cal. L. Rev.
1441, 1463-76 (2004) (describing judicial practices purported to be
indicative of judicial activism). They are anchored on theories of
dubious legal or historical validity, contrived by academics
interested in promoting an expansionist agenda.32 These theories
31
As Finely Peter Dunne, a popular political wit of the time
said about the Insular Cases, "[n]o matter whether th' constitution
follows th' flag or not, th' supreme court follows th' ilection
results." Finley Peter Dunne, Mr. Dooley's Opinions 26 (1901).
Whether the Constitution applied in the territories acquired as a
result of the Spanish-American War was, of course, central to the
Insular Cases, and a major issue in the 1900 elections, which were
won by McKinley and those who favored overseas territorial
expansion without extension of the Constitution. See La Feber,
"The Elections of 1900," in 3 History of American Presidential
Elections, 1789-1968 1877 (Arthur M. Schlesinger, Jr. ed., 1971).
32
See, e.g., Selden Bacon, Territory and the Constitution, 10
Yale L.J. 99 (1901); William W. Howe, The Law of Our New
Possessions, 9 Yale L.J. 379 (1900); Charles C. Langdell, The
Status of Our New Territories, 12 Harv. L. Rev. 365 (1899); Carman
F. Randolph, Constitutional Aspects of Annexation, 12 Harv. L. Rev.
291 (1898); James Bradley Thayer, Our New Possessions, 12 Harv. L.
Rev. 464, 467 (1899) ("Let me at once and shortly say that, in my
judgment, there is no lack of power in our nation -- of legal,
constitutional power, to govern these islands as colonies,
substantially as England might govern them . . . ."); cf. Simeon E.
-40-
in turn provided a platform that allowed a receptive bare plurality
of Justices33 to reach a result unprecedented in American
jurisprudence and unsupported by the text of the Constitution. See
generally James E. Kerr, The Insular Cases: The Role of the
Judiciary in American Expansionism (1982).
In fact, what precedent existed was contrary to the
premise underlying the Insular Cases, for in Dred Scott, Chief
Justice Taney had concluded:
There is certainly no power given by the
Constitution to the Federal Government to
establish or maintain colonies bordering on
the United States or at a distance, to be
ruled and governed at its own pleasure . . . .
[N]o power is given to acquire a Territory to
be held and governed permanently in that
character.
Dred Scott v. Sanford, 60 U.S. (19 How.) at 446.
This conclusion, however, presented no obstacle to
Justice Brown, who wrote the opinion of the Court in Downes v.
Bidwell, the leading Insular Case:
We are also of opinion that the power to
acquire territories by treaty implies, not
Baldwin, The Constitutional Questions Incident to the Acquisition
and Government by the United States of Island Territory, 12 Harv.
L. Rev. 393 (1899). See generally Frederic R. Coudert, The
Evolution of the Doctrine of Territorial Incorporation, 26 Colum.
L. Rev. 823 (1926).
33
In Downes, 182 U.S. 244, Justice Brown delivered the
judgment of the court. Justice White delivered a concurring
opinion joined by Justices Shirra and McKenna. Justice Gray also
delivered a concurring opinion. Chief Justice Fuller dissented,
with Justices Harlan, Brewer and Peckham joining. Justice Harlan
also filed a separate dissent.
-41-
only the power to govern such territory, but
to prescribe upon what terms the United States
will receive its inhabitants, and what their
status shall be in what Chief Justice Marshall
termed the "American Empire."
Downes, 182 U.S. at 279.
Justice Brown goes on to say, in language that is tinged
by Plessy-like views:
It is obvious that in the annexation of
outlying and distant possessions grave
questions will arise from differences of race,
habits, laws and customs of the people . . .
which may require action on the part of
Congress that would be quite unnecessary in
the annexation of contiguous territory
inhabited only by people of the same race, or
by scattered bodies of native Indians.
Id. at 282. He concluded that:
A false step at this time might be fatal to
what Chief Justice Marshall called the
American Empire . . . . If those possessions
are inhabited by alien races, differing from
us in religion, customs, laws, methods of
taxation, and modes of thought, the
administration of government and justice,
according to Anglo-Saxon principles, may for a
time be impossible; and the question at once
arises whether large concessions ought not to
be made for a time, that ultimately our own
theories may be carried out . . . . We
decline to hold that there is anything in the
Constitution to forbid such action. We are
therefore of the opinion that the Island of
Porto Rico is a territory appurtenant and
belonging to the United States, but not a part
of the United States within the revenue
clauses of the Constitution . . . .
Id. at 286-87.
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Justice White's concurrence in Downes provided the
central support for the seminal "unincorporated territory" doctrine
for which the Insular Cases have become known. This doctrine
states that in the case of unincorporated territories -- that is,
those for which, at the time of acquisition, the United States did
not express an intention of incorporating into the Union -- only
those parts of the Constitution dealing with "fundamental" rights
apply. See Coudert, supra, note 32, at 832 (relating a
conversation with Justice White in which it was "evident that he
was much preoccupied by the danger of racial and social questions
of a very perplexing character and that he was quite as desirous as
Justice Brown that Congress should have a very free hand in dealing
with the new subject populations").
Chief Justice Fuller's dissent, which was joined by
Justices Harlan, Brewer and Peckham, and thus gathered the most
votes, followed a strict construction of the Constitution. It
rejected the plurality's conclusion as inconsistent with the
Constitution, because it
assumes that the Constitution created a
government empowered to acquire countries
throughout the world, to be governed by
different rules than those obtaining in the
original states and territories, and
substitutes for the present system of
republican government a system of domination
over distant provinces in the exercise of
unrestricted power.
Downes, 182 U.S. at 373 (Fuller, C.J., dissenting).
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Justice Harlan's dissent was equally forceful in pointing
out that:
Still less is it true that Congress can deal
with new territories just as other nations
have done or may do with their new territories
. . . . Monarchical and despotic governments,
unrestrained by written constitutions, may do
with newly acquired territories what this
government may not do consistently with our
fundamental law. To say otherwise is to
concede that Congress may, by action taken
outside of the Constitution, engraft upon our
republican institutions a colonial system such
as exists under monarchical governments.
Surely such a result was never contemplated by
the fathers of the Constitution . . . . The
idea that this country may acquire territories
anywhere upon the earth, by conquest or
treaty, and hold them as mere colonies or
provinces,--the people inhabiting them to
enjoy only such rights as Congress chooses to
accord to them,-- is wholly inconsistent with
the spirit and genius, as well as with the
words, of the Constitution.
Id. at 380. Justice Harlan went on to say, in part to answer the
racial overtones of the plurality, that:
Whether a particular race will or will not
assimilate with our people, and whether they
can or cannot with safety to our institutions
be brought within the operation of the
Constitution, is a matter to be thought of
when it is proposed to acquire their territory
by treaty. A mistake in the acquisition of
territory, although such acquisition seemed at
the time to be necessary, cannot be made the
ground for violating the Constitution or
refusing to give full effect to its
provisions. The Constitution is not to be
obeyed or disobeyed as the circumstances of a
particular crisis in our history may suggest
the one or the other course to be pursued . .
-44-
. . The Constitution is supreme over every
foot of territory, wherever situated, under
the jurisdiction of the United States, and its
full operation cannot be stayed by any branch
of the government in order to meet what some
may suppose to be extraordinary emergencies.
If the Constitution is in force in any
territory, it is in force there for every
purpose embraced by the objects for which the
government was ordained.
Id. at 384-85.
Although decided by an exiguous plurality of five votes
to four, and based on dubious constitutional foundations, the
Insular Cases became an article of faith in American constitutional
dogma, with far-reaching consequences on the lives of the millions
of persons whom they impacted in very fundamental ways. See
Torruella, supra note 30, at 117-266.
B. United States citizenship for the residents of Puerto Rico
In the aftermath of the Insular Cases, the United States
settled into the business of governing its far-flung colonial
empire and emerged from its isolationist cocoon into the world of
power politics. See generally Foster Dulles, America's Rise to
World Power, 1898-1954 (1955). In the meantime, between 1901 and
1917, a total of twenty one bills were presented in Congress
proposing the grant of U.S. citizenship to Puerto Rico's
inhabitants.34 During this interregnum between the Insular Cases
and the 1917 passage of the Jones Act, ch. 145, 39 Stat. 951 (1917)
34
For a full account see Cabranes, supra note 29.
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-- which granted U.S. citizenship to the residents of Puerto Rico,
id. § 5 -- the Supreme Court decided Rassmussen v. United States,
197 U.S. 516 (1905). Rassmussen provides an important backdrop to
the grant of citizenship to Puerto Ricans because in it, the
Supreme Court seemed to link the incorporation of a territory into
the United States (and thus full application of the Constitution)
to the granting of citizenship to the inhabitants of a territory.
See id. at 522 (finding grant of citizenship to residents of newly
acquired territory of Alaska served "to express the purpose to
incorporate acquired territory into the United States.").
There was therefore great expectation in Puerto Rico when
Congress passed the Jones Act in 1917, which, in addition to
providing Puerto Ricans with an elected bicameral legislature,
granted U.S. citizenship to the residents of Puerto Rico.35 These
hopes were soon deflated by the Supreme Court in Balzac v. Porto
Rico, 258 U.S. 298 (1922), in which Chief Justice William Howard
Taft,36 at this point writing for a unanimous court, held that no
35
For an in-depth account of the events leading up to the
passage of the Jones Act, particularly the acrimonious debates that
preceded its passage, see Cabranes, supra note 29, at 471-85.
36
Chief Justice Taft who, of course, had been President of the
United States from 1909 to 1912, had a long and somewhat fractious
experience with the United States' newly acquired colonies. He did
not need to be influenced by academics on questions of expansionism
or how to deal with the colonies. In 1900, he became the first
civilian governor of the Philippine Islands at a time when the
Aguinaldo Insurrection -- a war that led to thousands of U.S.
casualties and over 100,000 civilian deaths, many more than in the
entire Spanish-American War -- was in full swing. See generally
Brian McAllister Linn, The Philippine War, 1899-1902 (2000). In
-46-
right to trial by jury attached to Balzac's new status as a U.S.
citizen because, even after the Jones Act, Puerto Rico remained an
unincorporated territory with only "fundamental rights" under the
Constitution applying. The right to trial by jury was not, the
Court reaffirmed, "a fundamental right." Id. at 309-10 (quoting
Dorr v. United States, 195 U.S. 138, 148 (1904). Contra Duncan v.
Louisiana, 391 U.S. 145, 154 (1968) (holding that trial by jury is
a fundamental right).
What rights did U.S. citizenship give Puerto Ricans? "It
enabled them to move into the continental United States," and upon
becoming residents thereof, to enjoy the rights of other citizens.
Balzac, 258 U.S. at 308. It was locality that counted, said Chief
Justice Taft, "not the status of the people who live in it." Id.
at 309. In language reminiscent of the racially-tinged
asseverations of Justice Brown in Downes, Chief Justice Taft went
on to say:
1904, while Secretary of War under President Theodore Roosevelt,
Taft oversaw not only the Philippines, but also Cuba and Puerto
Rico. In 1906, he was sent to Cuba as its provisional governor
under the Platt Amendment to the Cuban Constitution, which allowed
the United States to intervene in Cuban affairs during times of
"unrest." However, it was during his time as President that Taft
became openly disenchanted with Puerto Rico and its inhabitants as
a result of the so-called Budget Crisis of 1909. See Truman R.
Clark, President Taft and the Puerto Rican Appropriations Crisis of
1909, 26 The Americas 152-70 (1969). President Taft accused
Puerto Rico's elected leaders of irresponsibility and political
immaturity, and suggested that too much power had been given to
Puerto Ricans "for their own good." Message from President Taft to
Congress, S. Rep. No. 61-10, at 5. See generally Henry F. Pringle,
The Life and Times of William Howard Taft (1939).
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The jury system postulates a conscious duty of
participation in the machinery of justice
which it is hard for people not brought up in
fundamentally popular government at once to
acquire . . . . Congress has thought that a
people like the Filipinos, or the Porto
Ricans, trained to a complete judicial system
which knows no juries, living in compact and
ancient communities, with definitely formed
customs and political conceptions, should be
permitted themselves to determine how far they
wish to adopt this institution of Anglo-Saxon
origin, and when.
Id., at 310.
Rassmussen was distinguished:
It is true that in the absence of other and
countervailing evidence, a law of Congress . .
. declaring an intention to confer political
and civil rights on the inhabitants of the new
lands as American citizens, may be properly
interpreted to mean an incorporation of it
into the Union, as in the case of Louisiana
and Alaska. This was one of the chief grounds
[for the holding in Rasmussen] . . . . But
Alaska was a very different case from that of
Porto Rico. It was an enormous territory,
very sparsely settled, and offering
opportunity for immigration and settlement by
American citizens. It was on the American
continent and within easy reach of the then
United States. It involved none of the
difficulties which incorporation of the
Philippines and Porto Rico presents . . . .
Id. at 309 (internal citation omitted).
This is a prime example of the double standard that has
been used by the Court, and concomitantly by Congress, in
determining the rights to which the U.S. citizens of Puerto Rico
are entitled. Unfortunately, it is one which has been repeated
since Balzac was decided. See Califano v. Gautier Torres, 435 U.S.
-48-
1 (1978) (upholding Social Security Act provisions denying benefits
to U.S. citizens who move to Puerto Rico); Harris v. Rosario, 446
U.S. 651 (1980) (upholding statute providing less federal financial
assistance to Puerto Rico than other states to aid families with
dependent children).
The Court's rulings in Kinsella v. Krueger, 351 U.S. 470
(1956), reh'd granted 352 U.S. 901 (1956), and Reid v. Covert, 351
U.S. 487 (1956), reh'd granted, 352 U.S. 901 (1956), illustrate
this point even more clearly. Although, in denying Puerto Ricans
the right to trial by jury in Balzac, Chief Justice Taft
unequivocally stated that "[i]t is locality that is determinative
of the application of the Constitution in such matters as judicial
procedure, and not the status of the people who live in it," 258
U.S. at 309, the Supreme Court nevertheless chose to overlook this
rule when deciding Kinsella and Reid in the aftermath of the Second
World War.
Both cases involved challenges to the application of the
Uniform Code of Military Justice to women who were tried, convicted
and sentenced by court martial for murdering their serviceman
husbands, one in Japan (Kinsella), and the other in England (Reid).
Neither had the benefit of indictment by grand jury or trial before
a petit jury. On the first round, the Court, relying on Balzac,
affirmed the validity of both convictions. Kinsella, 351 U.S. at
-49-
474-80; Reid, 351 U.S. at 490-91 (relying on Kinsella as
establishing validity of military jurisdiction).
This outcome was followed by much public stirring, an
unsurprising result, considering the number of civilian U.S.
citizens who were then attached to the military overseas. The
public outcry undoubtedly contributed to their being reheard almost
immediately, early in the Court's next term.
The plurality opinion, reversing the prior outcome, was
written by Justice Black. He announced that the reliance placed on
the Insular Cases in the first Kinsella opinion was "misplaced."
Reid v. Covert, 354 U.S. 1, 13 (1957). In language reminiscent of
Justice Harlan's dissents in the Insular Cases, Justice Black
stated:
The 'Insular Cases' can be distinguished from
the present cases in that they involved the
power of Congress to provide rules and
regulations to govern temporarily territories
with wholly dissimilar traditions and
institutions whereas here the basis for
governmental power is American citizenship . .
. . The concept that the Bill of Rights and
other constitutional protections against
arbitrary government are inoperative when they
become inconvenient or when expediency
dictates otherwise is a very dangerous
doctrine and if allowed to flourish would
destroy the benefit of a written Constitution
and undermine the basis of our government.
Id. at 14 (emphasis added).
The new outcome in Kinsella and Reid, as well as the
reversal of Plessy by Brown v. Board of Education, 347 U.S. 483
-50-
(1954), accentuate the realpolitik of the civil and political
rights of the United States citizens who reside in Puerto Rico, for
it is because of the democratic deficit in the Puerto Rico-United
States relationship that Puerto Rico enters its second century of
its colonial condition with the United States without any
resolution of this conundrum in sight.37 Stagnation is inevitable,
for there is a political vacuum in the Puerto Rico-United States
linkage. No effective political pressure can be exercised by the
subjects of this colonial relationship on the national political
institutions with power to solve the problem. It is precisely
because this discrete population of United States citizens is kept
in a voteless state by the national political institutions that
have "plenary powers" over Puerto Rico that a "political solution"
is not a realistic option. The opinion of U.S. voters affected by
Kinsella and Reid could be heard and felt in Washington, as could
that of African-Americans after Plessy, even if they were a
numerical minority, because they had a significant political
presence that was bound to be listened to sooner or later. There
can be little doubt that this political clout was transformed into
a judicial result. Cf. supra note 31. Not so with Puerto Rico's
U.S. citizens. They have no effective way of influencing the
37
The debate over what status Puerto Rico ought to have with
respect to the United States is, of course, hotly contested. The
right to vote will benefit all U.S. citizens residing in Puerto
Rico, regardless of their position on status since it will give
them a meaningful political voice until that issue is resolved.
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political branches of the national government. Puerto Rico's lone
non-voting representative in Congress is a prime example of Puerto
Rico's political defenselessness. The political pressure that can
be exercised by those who took Chief Justice Taft's advice, and
moved to the Mainland, is so diluted in the general population of
the United States as to make any political pressure by them
exiguous.
This total lack of political power is a fact that is
glossed over by the majority when it righteously dictates that
Puerto Ricans' "right to vote in presidential elections is
fundamentally a political [issue] and must be [achieved] through
political means." Maj. op. at 13. To what "political means" is
the majority referring? Political means are precisely what the
U.S. citizens of Puerto Rico lack, and cannot create out of thin
air as if by alchemy.
Not only do the national political branches lack
incentive to act, but, as illustrated by the majority's views,38
38
Although I place Judge Lipez's concurrence in a separate
category, I disagree with his conclusion that we lack jurisdiction
to declare the Congress has failed to take any action to comply
with its international obligations. This failure affects the
"rights and legal relations of an interested party," the U.S.
citizens in question, "whether or not further relief is or could be
sought." 28 U.S.C. § 2201(a). There is nothing hypothetical about
plaintiffs' national disenfranchisement. We have the authority to
acknowledge that condition, and Congress' failure to take any
action to correct it despite having committed, under binding
international law, to do so. Judge Lipez misstates the issues as
framed by my dissent when he focuses on Congress' failure "to
either admit[] Puerto Rico as a state or propose[] . . . [a
constitutional] amendment." Supra at 21 (Lipez, J., concurring).
-52-
this disincentive has also been manifested in the Third Branch,
which, if the truth be told, laid the groundwork for this state of
affairs with its decisions in the Insular Cases and Balzac, and
continues to perpetuate the inherent inequalities thus created.
The Supreme Court therefore has every reason to
reconsider the Insular Cases and Balzac. They are the product of
an era which is a blot on our national and judicial history. The
basis upon which they were premised -- that the United States could
hold territories and their inhabitants in a colonial status ad
infinitum -- was unprecedented and unauthorized by the
Constitution. The interpretation given by the Insular Cases and
Balzac to the Constitution permits the perpetuation, without
limitation, of a class of citizens unequal in rights to the rest of
the body politic, an anachronism that is unsupportable morally,
logically or legally.
Furthermore, the underpinnings to this doctrine have
since been eroded. If there ever were a justification for their
outcome based on the expediency of the historical epoch during
which they were decided, this justification can no longer be
sustained. Since the Insular Cases and Balzac were decided, Plessy
Although those are among the remedial options available, it makes
no difference whether it be these or other alternatives that
Congress adopts. The only unavailable option is to do nothing,
because that is a violation of an international pledge which has
become United States law. Failure to act has legal consequences
that create a case and controversy legally cognizable by a
declaratory judgment even if relief is not available.
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has been reversed by Brown, making racial discrimination legally
and ethically unacceptable. Discrimination on the basis of
locality makes as much sense as such opprobrious conduct based on
race. Moreover, the idea, expressed in Balzac, that the right to
trial by jury is not a fundamental constitutional right is no
longer the law of the land. See Duncan, 391 U.S. at 154. Balzac's
ruling has therefore ceased to be the law of the land.
Puerto Rico is part of the First Circuit. An Article III
District Court sits there, providing nearly one-third of the
appeals filed before this court, which sits in Puerto Rico at least
twice a year, also in the exercise of Article III power. One
active judge of this court resides in Puerto Rico and participates
in cases that are often of national importance, but is nonetheless
disenfranchised from voting for national offices. How can the
Constitution be applied in such a Balkanized, arbitrary and
irrational manner? See Downes, 182 U.S. at 374 (Fuller, C.J.,
dissenting) ("[T]he language of the Constitution is too plain and
unambiguous to permit its meaning to be thus influenced.").
The proposition that Puerto Rico "belong[s] to . . . but
[is] not a part of the United States," Downes, 181 U.S. at 287,
like the "separate but equal" concept endorsed in Plessy, belongs
to the Dark Ages of American constitutional law and should be
relegated to a period in our history best forgotten.
-54-
II.
A. The right to vote is a fundamental constitutional right
The right to vote is a fundamental right, which our
Constitution guarantees to all citizens. See, e.g., Bush v. Gore,
531 U.S. 98, 104 (2000); Burson v. Freeman, 504 U.S. 191, 198
(1992); Tashjian v. Republican Party, 479 U.S. 208 (1986); Buckley
v. Valeo, 424 U.S. 1, 49 n.55 (1976); Lubin v. Panish, 415 U.S.
709, 721 (1974); Bullock v. Carter, 405 U.S. 134 (1972); Phoenix v.
Kolodziejski, 399 U.S. 204 (1970); Harper v. Virginia State Bd. of
Elections, 383 U.S. 663, 667 (1966); Reynolds v. Sims, 377 U.S.
533, 561-562 (1964); Wesberry v. Sanders, 376 U.S. 1, 7 (1964).
No right is more precious in a free country
than that of having a voice in the election of
those who make the laws under which, as good
citizens, we must live. Other rights, even
the most basic, are illusory if the right to
vote is undermined. Our Constitution leaves no
room for classification of people in a way
that unnecessarily abridges this right.
Wesberry, 376 U.S. at 17-18. "[H]istory has seen a continuing
expansion of the scope of the right of suffrage in this country.
The right to vote freely for the candidate of one's choice is of
the essence of a democratic society, and any restrictions on that
right strike at the heart of representative government." Reynolds
v. Sims, 377 U.S. 533, 555 (1964) (footnote omitted).
Fundamental voting rights protections should apply fully
to U.S. citizens residing in Puerto Rico. Even under the notorious
Insular Cases, it has been held that the Constitution extends
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fundamental rights to Puerto Rico. See Balzac, 258 U.S. at 312-13.
The Fifth Amendment is fully applicable to the actions of the U.S.
government in Puerto Rico. Cf. Examining Bd. of Engineers v.
Flores de Otero, 426 U.S. 572 (1976). Although not identical to
that of the Fourteenth Amendment, an equal protection component is
part of the due process clause of the Fifth Amendment, and serves
to constrain the United States. See Bolling v. Sharpe, 347 U.S.
497, 498-99 (1954) (holding that despite lack of explicit equal
protection clause, "discrimination may be so unjustifiable as to be
violative of due process"). The utter failure of the government of
the United States to take any action to protect its citizens in
Puerto Rico from continued national disenfranchisement is a
violation of due process and equal protection under the Fifth
Amendment of the Constitution.
B. International law
In addition to the right to vote enshrined in its
Constitution, the United States is also bound, both domestically
and internationally, by guarantees of voting rights found in
international law. Historically referred to as "the law of
nations," international law incorporates both treaty law and
customary international law. Restatement (Third) of Foreign
Relations Law of the United States § 102 (2004) ("Restatement").
Thus conceived, international law has been an integral part of our
constitutional and legal system since the founding of our Nation.
-56-
See Sosa v. Alvarez-Machain, 124 S. Ct. 2739, 2764 (2004) ("For two
centuries we have affirmed that the domestic law of the United
States recognizes the law of nations."); The Paquete Habana, 175
U.S. 677, 700 (1900) ("International law is part of our law, and
must be ascertained and administered by the courts of justice of
appropriate jurisdiction, as often as questions of right depending
upon it are duly presented for their determination."); The Nereide,
13 U.S. (9 Cranch) 388, 423 (1815) ("[T]he Court is bound by the
law of nations which is part of the law of the land."). The
importance placed on international law, from the founding of the
United States, as a component of the nation's legal system is
evident in its Constitution, which authorized Congress "[t]o define
and punish Piracies and Felonies committed on the high Seas, and
Offenses against the Law of Nations," U.S. Const. art. I, § 8, cl.
10, granted the President the power, "by and with the Advice and
Consent of the Senate, to make Treaties," id. art. II, § 2, cl. 2,
and extended the Article III authority of the federal judiciary to
"all Cases, in Law and Equity, arising under this Constitution, the
Laws of the United States,39 and Treaties made, or which shall be
made," id. art. III, § 2, cl. 1. It also provided that "[t]his
Constitution, and the Laws of the United States which shall be made
39
Customary international law is part of the "Law[] of the
United States" within the meaning of Article III. See, e.g., Sosa,
124 S.Ct. at 2764 ("[T]he domestic law of the United States
recognizes the law of nations."); see also Restatement § 111, cmt.
e; Louis Henkin, International Law as Law in the United States, 82
Mich. L. Rev. 1555, 1566 (1982).
-57-
in Pursuance thereof; and all Treaties made, or which shall be
made, under the Authority of the United States, shall be the
supreme Law of the Land; and the Judges in every state shall be
bound thereby, any Thing in the Constitution or Laws of any State
to the Contrary notwithstanding." Id. art. VI, cl. 2. In light of
the historical significance of international law, the Supreme Court
has recently recognized that "[i]t would take some explaining to
say now that federal courts must avert their gaze entirely from any
international norm intended to protect individuals." Sosa, 124
S.Ct. at 2764-65.
We look to the treaties and conventions to which the
United States is a party, both to determine whether they impose a
direct obligation on the United States that is relevant to
plaintiffs-appellants' claims, and, in combination with widely-
observed legal norms and practices among the nations of the world
today, as evidence of binding customary international law that
would support plaintiffs-appellants' claims. See Restatement § 102
(identifying sources of customary international law); see also id.
§ 103 (identifying secondary evidence of international law).
The United States has participated in several
international instruments relevant to the issue before us: (1) the
Universal Declaration of Human Rights ("UDHR") G.A. Res. 217 A
(III), U.N. Doc. A/810 (1948); (2) the American Declaration of the
Rights and Duties of Man ("American Declaration"), O.A.S. Res. XXX
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(1948), O.A.S. Off. Rec. OEA/Ser. L/V/I.4 Rev. (1965) (3) the
Inter-American Democratic Charter of the Organization of American
States ("IADC"), 28th Spec. Sess., OAS Doc. OEA/Ser. P/AG/RES.1
(XXVIII-E/01) (OAS General Assembly) (Sept. 11, 2001), and (4) the
International Covenant on Civil and Political Rights ("ICCPR"),
opened for signature Dec 16, 1966, 999 U.N.T.S. 171.40
In 1948, the member states of the General Assembly of the
United Nations, including the United States, proclaimed the UDHR,
which states:
1. Everyone has the right to take part in the
government of his country, directly or through
freely chosen representatives.
. . . [and that]
3. The will of the people shall be . . .
expressed in periodic and genuine elections
which shall be by universal and equal suffrage
. . . .
UDHR art. 21.
Although the Supreme Court has ruled that "the [UDHR]
does not of its own force impose obligations as a matter of
international law," Sosa, 124 S. Ct. at 2767, it has nevertheless
recognized its "moral authority," id., and has cited to its
40
In addition, the American Convention of Human
Rights("ACHR"), adopted in 1969 and signed by twenty-six countries
(not including the United States) between 1969 and 2000, provides
in Article 23(1) that "every citizen shall enjoy . . . rights and
opportunities: . . . to vote . . . in genuine periodic elections,
which shall be by universal and equal suffrage . . . ." ACHR,
opened for signature Nov. 22, 1969, 1144 U.N.T.S. 123 (entered into
force Jul. 18, 1978).
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provisions on several occasions. See Knight v. Florida, 528 U.S.
990, 996 (1999) (Breyer, J., dissenting) (noting U.N. Human Rights
Committee decisions that a ten-year delay between death sentence
and execution is not necessarily a violation of UDHR as informative
precedent in Eighth Amendment case); Dandridge v. Williams, 397
U.S. 471, 520 n.14 (1970) (citing UDHR Article 25 as informative
"[o]n the issue of whether there is a 'right' to welfare
assistance"); Zemel v. Rusk, 381 U.S. 1, 14 n.13 (1965) (citing
UDHR Article 13 in discussion of scope of due process); Kennedy v.
Mendoza-Martinez, 372 U.S. 144, 161 n.16 (1963) (noting, in
rejecting revocation of U.S. citizenship as consequence of
remaining abroad to evade military service, the UDHR's guarantee
"of the right of every citizen to retain a nationality"); Am. Fed'n
of Labor v. Am. Sash & Door Co., 335 U.S. 538, 549 n.5 (1949)
(Frankfurter, J., concurring) (citing UDHR provisions on freedom
from mandatory association in context of discussing foreign
standards of labor law).
Beyond the UDHR, Article XX of the American Declaration,
agreed to in 1948 by all of the member States of the Organization
of American States, including the United States, provides that:
"[e]very person having legal capacity is entitled to participate in
the government of his country, directly or through his
representatives, and to take part in popular elections . . . ."
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In 2001, the United States joined thirty-four other
countries in this hemisphere in adopting the IADC. Coincidentally,
this occurred at a Special General Assembly of the Organization of
the American States meeting in Lima, Peru on the fateful day of
September 11, 2001. The importance of this agreement to the United
States can be gauged by what took place there and by the actions of
Secretary of State Collin Powell, who headed the U.S. delegation at
that meeting. After thanking the gathered delegates for their
expressions of solidarity and condolences for the terrorist attacks
that had occurred that day against the United States homeland, the
Secretary stated:
It is important that I remain here for a bit
longer in order to be part of the consensus of
this new charter on democracy. That is the
most important thing that I can do before
departing to go back to Washington, D.C. and
attend the important business that awaits me
and my other colleagues . . . . I hope we can
move the order of business to the adoption of
the Charter because I very much want to
express the United States' commitment to
democracy in this hemisphere . . . . And we
unite behind it as democratic nations
committed to individual liberties . . . .
Secretary Colin Powell, Statement at the Special General Assembly
of the Organization of American States (Sep. 11, 2001), available
at http://www.state.gov/secretary/rm/2001/5656.htm. Thereafter,
the Special Assembly adopted the IADC, which among other relevant
provisions states:
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Article 2
The effective exercise of representative
democracy is the basis for the rule of law and
constitutional regimes of the member states
. . . .
Article 3
Essential elements of representative democracy
include, inter alia . . . the holding of
periodic, and fair elections based on secret
balloting and universal suffrage as an
expression of the sovereignty of the people
. . . .
Article 6
It is the right and responsibility of all
citizens to participate in decisions relating
to their own development. This is also a
necessary condition for the full and effective
exercise of democracy . . . .
Prior to the approval of the IADC, however, the United
States had already entered into another international agreement
whose provisions are of singular importance to the issue before us.
By virtue of the ICCPR, which came into force on March 23, 1976,
and was ratified by the Senate on April 12, 1992, see 138 Cong.
Rec. S4781, S4783, the United States committed, in clear and
unambiguous terms, that "[e]very citizen shall have the right and
the opportunity . . . [t]o vote . . . at genuine periodic elections
which shall be by universal and equal suffrage . . . ." ICCPR art.
25. Furthermore, in ratifying Article 2, Paragraph 1, the United
States agreed that it would "undertake[] to respect and to ensure
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to all individuals within its territory and subject to its
jurisdiction the rights recognized in the present Covenant . . .
without distinction of any kind . . . ." Most important, and
central to the issue before us, the signatory nations committed
themselves that:
[W]here not already provided for by existing
legislati[on] . . . each State Party . . .
undertakes to take necessary steps, in
accordance with its constitutional processes
and with the provisions of the present
Covenant, to adopt such legislation or other
measures as may be necessary to give effect to
the rights recognized in the present Covenant.
Id. art. 2, para. 2 (emphasis added).41
We turn now to an examination of the United States'
obligations under these international instruments and the customary
international law to which they contribute.
1. Treaty obligations
By 1992, 103 nations had become parties to the ICCPR,
with another five, including the United States, having signed. On
April, 12, 1992, as required by the Constitution, two-thirds of the
United States Senate voted in favor of ratifying the ICCPR. 138
41
The United States further agreed to an enforcement mechanism
for the realization and security of the rights established in the
ICCPR. Each State Party undertook "[t]o ensure that any person
whose [ICCPR] rights or freedoms . . . are violated shall have an
effective remedy," to ensure that these rights would be "determined
by competent judicial, administrative or legislative authorities,
or by any competent authority provided for by the legal system of
the State," and that "the possibilities of judicial remedy" would
be developed. Id. art. 2, para. 3 (emphasis added).
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Cong. Rec. S4781, S4783. Under Article VI, Clause 2 of the
Constitution, a treaty thus ratified has equal status to an act of
Congress. That is, a treaty is law of the United States. See,
e.g., Jordan J. Paust, International Law as Law of the United
States 99-105, 120 (2d ed. 2002). As with statutes, a later treaty
supercedes inconsistent earlier-enacted statute, provided the
treaty provision on the subject is self-executing. Whitney v.
Robertson, 124 U.S. 190, 194 (1888).
When it ratified the ICCPR, however, the Senate also
issued a declaration to the effect that the substantive provisions
of the ICCPR would not be self-executing.42 138 Cong. Rec. at
42
The Senate also made actual reservations under which its
obligations to comply with various provisions of the ICCPR were
limited. See 138 Cong. Rec. S4781, S4783 (stating, inter alia,
that the United States will not take any steps to comply with ICCPR
Article 20 that would infringe on the right of free speech and
association; reiterating the applicability of capital punishment
for adults and minors; deeming ICCPR Article 7 prohibitions on
"cruel, inhuman or degrading treatment or punishment" to apply only
to treatment deemed "cruel and unusual" under domestic
constitutional law; declining to adhere to ICCPR Article 15,
Paragraph 1; and reserving the right to treat juveniles, under
certain circumstances, as adults, notwithstanding the provisions
of ICCPR Article 10, Paragraphs 2(b) and 3, and Article 14,
Paragraph 4).
In contrast, no reservations or other limitations to the
specific obligations contained in Article 25 were made, aside from
the declaration of non-self-execution applicable to all substantive
articles of the ICCPR. Id. This is indicative of the Senate's
intent to accept the obligation of full compliance with that
provision of the ICCPR. See also id. at S4784 (adding the
Understanding "[t]hat the United States understands that this
Covenant shall be implemented by the Federal Government to the
extent that it exercises legislative and judicial jurisdiction over
the matters covered therein, and otherwise by the state and local
governments," and that "the Federal Government shall take measures
appropriate to the Federal system" to ensure that "state or local
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S4784. I wholeheartedly agree with Judge Howard's conclusion that
this declaration is not binding on this court, and that further
inquiry to determine whether the ICCPR is indeed non-self-executing
is required. See infra at 89 (Howard, J., dissenting). I will not
attempt to restate his sound reasoning here. However, even if this
approach is not accepted, this court is not, as explained below,
entirely without power to act.
If the ICCPR were not self-executing, the treaty, qua
treaty, could not be invoked by a private citizen as the basis for
a court of the United States to order that citizen's full
participation in the electoral processes of the United States. See
Sosa, 124 S. Ct. at 2767 (recognizing the internationally-binding
nature of the ICCPR, but observing that "the United States ratified
the Covenant on the express understanding that it was not self-
executing and so did not itself create obligations enforceable in
the federal courts").43 That is, a court of the United States could
not use the requirement, established in Article 25 of the ICCPR,
governments may take appropriate measures for the fulfillment of
the Covenant" for matters under their jurisdiction) (emphasis
added); Exec. Order No. 13,107, 63 Fed. Reg. 68,991 (Dec. 10, 1998)
("It shall be the policy and practice of the Government of the
United States, being committed to the protection and promotion of
human rights and fundamental freedoms, fully to respect and
implement its obligations under international human rights treaties
to which it is a party, including the ICCPR . . . .").
43
As Judge Howard notes, this statement from Sosa is not at
odds with the conclusion that the non-self-execution declaration is
not, itself, binding on the courts. See infra at 105, n.63
(Howard, J., dissenting).
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that "[e]very citizen shall have the right and opportunity . . . to
vote," as the basis for enforcing an individual's right to
participate in the electoral processes of the United States, until
such time as there has been municipal implementation of Article 25
by the enactment of intra-national legislation or constitutional
provision. Neither could the courts of the United States order
that the legislative branch of government live up to the
obligations undertaken by the United States to "adopt such
legislation or other measures as may be necessary to give effect to
[the right to vote established in Article 25 of the ICCPR]." ICCPR
art. 2, para. 2. Such an intromission would violate the
constitutional principle of separation of powers. See Smith & Lee
Assocs., Inc. v. City of Taylor, Mich., 102 F.3d 781, 797 (6th Cir.
1996) ("Federal Courts do have jurisdiction and power to pass upon
the constitutionality of Acts of Congress, but we are not aware of
any decision extending this power in Federal Courts to order
Congress to enact legislation. To do so would constitute
encroachment upon the functions of a legislative body and would
violate the time-honored principle of separation of powers of the
three great departments of our Government."). The majority's
contentions regarding the trumping of treaty provisions by the
Constitution, maj. op. at 7, are thus inapposite, as I recognize
the validity of this hierarchy and am not in any way proposing its
violation.
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That said, however, it is an undisputed fact that,
contrary to the requirements of Article 2, Paragraph 2 of the
ICCPR, the United States has taken no steps, to date, to implement
the obligations undertaken therein. More directly on point, the
United States has not enacted any legislation, passed any
constitutional provision, or even put in motion any process
directed at nationally enfranchising the nearly four million United
States citizens residing in Puerto Rico, notwithstanding its
ratification of the ICCPR and the Senate's acknowledgment "[t]hat
the United States understands that this Covenant shall be
implemented by the Federal Government." 138 Cong. Rec. S4781,
S4784 (emphasis added). Accordingly, the United States is not in
compliance with the binding obligations it undertook by signing and
ratifying the ICCPR. The majority does not and cannot refute this
undeniable fact, and, as explained below, the potentially non-self-
executing nature of the ICCPR does not preclude our ability to make
a declaration to that effect, see infra Part III.C.
2. Customary international law
Customary international law constitutes "those clear and
unambiguous rules by which States universally44 abide, or to which
44
The universality requirement does not imply that compliance
with customary international law norms be perfect. "States need
not be universally successful in implementing the principle in
order for a rule of customary international law to arise. If that
were the case, there would be no need for customary international
law. But the principle must be more than merely professed or
aspirational." Flores, 406 F.3d at 80; see also Restatement § 102,
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they accede, out of a sense of legal obligation and mutual concern
. . . ." Flores v. S. Peru Copper Corp., 406 F.3d 65, 84 (2d Cir.
2003). The norm in question must be "specific, universal and
obligatory," In re Estate of Ferdinand Marcos, Human Rights Litig.,
25 F.3d 1467, 1475 (9th Cir. 1994), and must be a matter of
"mutual, and not merely several concern . . . ." Flores, 406 F.3d
at 81 (quoting Filartiga v. Peña-Irala, 630 F.2d 876, 888 (2d Cir.
1980)).
Although the test is demanding, the content of customary
international law is not fixed and immutable. See Sosa, 124 S. Ct.
at 2761-62 ("[W]e think courts should require any claim based on
the present-day law of nations to rest on a norm of international
character accepted by the civilized world and defined with a
specificity comparable to the features of the 18th-century
paradigms we have recognized."); Filartiga, 630 F.2d at 881 ("[I]t
is clear that courts must interpret international law not as it was
in 1789, but as it has evolved and exists among the nations of the
world today.") (citing Ware v Hylton, 3 U.S. (3 Dall.) 199 (1796)
(distinguishing "ancient" from "modern" law of nations)). We look
to international instruments setting forth "clear and unambiguous
rules," Flores, 406 F.3d at 84, and to other indications of
widespread compliance motivated by a sense of legal obligation, by
the nations of the world to establish the content of customary
cmt. b.
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international law. See id. at 82-84; Restatement § 102 (2)
("Customary international law results from a general and consistent
practice of states followed by them from a sense of legal
obligation.").
The ICCPR, the UDHR, the American Declaration, the ACHR
and the IADC are all evidence of the emergence of a norm of
customary international law with an independent and binding
juridical status. See Restatement § 102(3) ("International
agreements . . . may lead to the creation of customary
international law when such agreements are intended for adherence
by states generally and are in fact widely accepted."). The right
to equal political participation required by these instruments, as
outlined above, is clear and unambiguous. The ICCPR, for example,
admits of no doubt when it states that "[e]very citizen shall have
the right and the opportunity . . . [t]o vote . . . at genuine
periodic elections which shall be by universal and equal suffrage
. . . ." ICCPR art. 25. The universal acceptance of this right to
equal political participation is demonstrated by the prevalence of
the right in a variety of multinational and regional agreements,
and by the broad acceptance of those agreements by the countries of
the world. Currently, for example, 163 nations of the 191-member
United Nations are parties to the ICCPR, with an additional seven
signatories that have not yet ratified the treaty.
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The right to equal political participation, as evidenced
by these international treaties, covenants, and declarations, is
reinforced by what has become the overwhelming practice worldwide.
See, e.g., Enrique Lagos & Timothy D. Rudy, In Defense of
Democracy, 35 U. Miami Inter-Am. L. Rev. 283, 288-89 (2004)
("Democracy as an international law norm has been 'emerging' for
some time, especially in the western hemisphere."); Fernando R.
Tesón, "Changing Perceptions of Domestic Jurisdiction and
Intervention," in Beyond Soverignty: Collectively Defending
Democracy in the Americas 35 (Tom Farer ed., 1996) ("[t]here can be
little doubt that a principle of democratic rule is today part of
international law"). From an exiguous minimum of only twenty-two
democratic governments out of 154 sovereign states elected by
universal suffrage in competitive multiparty elections in 1950, the
number of democratic states to 120 out a total of 192 nations in
the year 2000. Freedom House, Democracy's Century: A Survey of
Global Political Change in the 20th Century 2 (1999). While the
system of democratic government may differ from country to country,
the fundamental right of citizens to participate,45 directly or
indirectly, in the process of electing their leaders is at the
heart of all democratic governments. See, e.g., James Crawford,
45
See, e.g., Freedom House, List of Electoral Democracies, at
www.freedomhouse.org/research/freeworld/2003/tables.htm (2003)
(listing 121 countries which have at least four different systems
of democracy including parliamentary, federal parliamentary,
presidential parliamentary, and federal presidential
parliamentary).
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"Democracy and the Body of International Law," in Democratic
Governance and International Law 93 (Gregory Fox & Brad R. Roth
eds., 2000) ("[t]hat the will of the people is to be the basis of
the authority of government is as good a summary as any of the
basic democratic idea").
We cannot overlook, and in fact we should take judicial
notice of, the many official actions of the United States in
promoting democratic elections throughout the world -- not the
least of which is its support for the recently held national
elections in Afghanistan and Iraq,46 places where thousands of U.S.
citizens from Puerto Rico serve, AP State & Local Wire, A Package
of News Briefs from the Caribbean, Mar. 19, 2005 (reporting 1800
Puerto Ricans currently stationed in Iraq, Kuwait, Afghanistan and
Bosnia), at least twenty-five of whom have lost their lives in
support of the rights of the citizens of those countries to vote.
Id. The situations in Iraq and Afghanistan present the further
anomaly of two classes of U.S. citizens, both fighting and dying
side by side, only one of which was able to vote for its Commander
46
See Afghans Studying the Art of Voting, N.Y. Times, Oct. 4,
2004, at A1 (discussing Afghanistan's first ever democratic
elections); David E. Sanger & Stephen R. Weisman, The Iraqi
Election: The White House; Bush Hails Vote, N.Y. Times, Jan. 31,
2005, at A1 (reporting that President Bush called the election in
Iraq a "triumphant moment in his efforts to spur democratic
movements throughout [the] Middle East"); Steven R. Weisman, U.S.
Asks Others to Pressure Iraq to Be Inclusive, N.Y. Times, Jun. 12,
2005, at A1 (reporting that U.S. seeks to "enlist [] Europe, the
Arab world and the United Nations to pressure the Bagdad government
to include minorities in the political process").
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in Chief. See Uniformed and Overseas Citizens Absentee Voting Act
§ 102, 42 U.S.C. § 1973ff-1(a) (requiring states to permit absentee
voting by overseas military personnel).
But most important, in what may be the ultimate example
of not seeing the forest for the trees, there are few countries in
the world in which the right to vote is as exalted as it is in the
United States. See Wesberry, 376 U.S. at 17 ("No right is more
precious in a free country than that of having a voice in the
election of those who make the laws under which, as good citizens,
we must live."). Furthermore, the right to vote is directly
protected by Federal statute, which provides both civil and
criminal penalties for interference therewith, see Voting Rights
Act § 12, 42 U.S.C. § 1973, by several constitutional amendments,
see U.S. Const., amend. XV (prohibiting discrimination in voting
rights because of race); id. amend. XIX (prohibiting voting
discrimination by reason of gender); id. amend. XXIII (granting the
residents of the District of Columbia the right to vote for the
President of the United States); id. amend. XXIV (prohibiting poll
tax); id. amend. XXVI (extending the right to vote to all citizens
over the age of 18); see also, e.g., Proclamation No. 7806, 69 Fed.
Reg. 52,987 (Aug. 26, 2004) (concerning women's right to vote);
Proclamation No. 7584, 67 Fed. Reg. 55,317 (Aug. 23, 2002)
(concerning Afghan women's right to vote); Proclamation No. 6924,
61 Fed. Reg. 51,767 (Oct. 2, 1996) (concerning right to vote for
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citizens aged between 18 and 21); Der Reichman, Bush Promotes
Democracy in Hemisphere of the Americas, San Juan Star, Jun. 5,
2005, at 11 (in a speech before the Organization of American
States, President Bush urged that entity to monitor democratic
progress in the hemisphere, check the credibility of elections, and
offer a vision of hope "founded on representative government").
In light of the proliferation and widespread acceptance
of, and compliance with, international instruments that
specifically require a right to equal political participation by
all citizens, we should conclude that such a right is a norm of
customary international law.
At least some components of customary international law
are incorporated into United States domestic law as federal common
law. See Sosa, 124 S.Ct. at 2764-65 (recognizing a class of
international law claims as judicially enforceable federal common
law); Kadic v. Karadzic, 70 F.3d 232, 246 (2d Cir. 1995)(terming it
a "settled proposition that federal common law incorporates
international law"); 13B Charles Alan Wright, et al., Federal
Practice & Procedure: Jurisdiction 2d, § 3585, at 329 (2d ed.,
1984) ("[T]oday it is not difficult to conclude that customary
international law is part of federal common law . . . .").
The Supreme Court in Sosa recognized that certain claims
based on customary international law, as a result of their status
as federal common law, can be enforced in the federal courts under
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the Alien Tort Statute, 28 U.S.C. § 1350. See Sosa, 124 S.Ct.
2764-65. Although the Alien Tort Statute grants jurisdiction only
over "causes where an alien sues for a tort only in violation of
the law of nations or a treaty of the United States," 28 U.S.C. §
1350, the Sosa court did not foreclose the possibility of directly
enforcing some customary international law claims through the
federal common law when federal jurisdiction is based on other
grounds. See Sosa, 124 S.Ct. at 2765, n.19 (expressing doubt, but
leaving open possibility of common law claims for violation of
customary international law when jurisdiction is based on 28 U.S.C.
§ 1331); cf. id. at 2761 (noting that, at least under Alien Tort
Statute, no legal development "has categorically precluded federal
courts from recognizing a claim under the law of nations as an
element of common law"). In light of legislative history that
indicates Congress's intent to extend federal jurisdiction over
cases "arising under" federal law to the fullest extent the
Constitution would allow, see 2 Cong. Rec. 4986-87 (1874) ("The
[Judiciary] [A]ct of 1789 did not confer the whole [judicial] power
which the Constitution conferred . . . . This bill does. . . .
This bill gives precisely the power which the Constitution confers
-- nothing more, nothing less."), we should conclude that the
jurisdiction conferred by 28 U.S.C. § 1331 can encompass claims
arising under customary international law as incorporated into the
federal common law.
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The Supreme Court limited recognizable claims, however,
to "a narrow class of international norms." Sosa, 124 S. Ct. at
2764. Specifically, "courts should require any claim based on the
present-day law of nations to rest on a norm [1] of international
character [2] accepted by the civilized world and [3] defined with
a specificity comparable to the features of the 18th-century
paradigms" that were recognized at that time as actionable
violations of the law of nations. Id. at 2761-62. These were
violations of international law that "admitt[ed] of a judicial
remedy and at the same time threaten[ed] serious consequences in
international affairs," such as the 18th-century prohibitions on
violation of safe conducts, infringement of the rights of
ambassadors, and piracy. Id. at 2756.
As established above, the first two requirements --
international character and broad acceptance -- have been met in
the case of the customary international law requirement that
citizens be permitted full and equal participation in their
government. Furthermore, this norm is defined with a specificity
comparable to the international law norms recognized as actionable
at the founding of our nation. Its requirements are clear and
definite,47 and the failure to fulfill it can indeed threaten
47
Compare the language of the international instruments
described above with the extended discussion of the definition of
"piracy" in United States v. Smith, 18 U.S. (5 Wheat.) 153, 160-63
(1820) and the comment in the dissent that the reason such lengthy
discussion and definition was the "uncertainty which it was known
existed on the subject in the law of nations . . . ." Id. at 170-71
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serious consequences in international affairs, as evidenced by the
pressure exerted by the United States and other governments on non-
democratic regimes abroad. Cf. Case 11.204, Inter-Am. C.H.R. 727,
OEA/ser.L/V/II.118, doc. 5 rev. 2 (2003) (finding by Inter-American
Commission of Human Rights that the United States "is responsible
for violations of Petitioners' rights under Articles II and XX of
the American Declaration by denying [citizens of the District of
Columbia] an effective opportunity to participate in their federal
legislature").
Because the right to equal political participation by all
citizens meets all of the elements required of an enforceable norm
of customary international law, there should be no question that it
is incorporated into the domestic law of the United States as
federal common law to be applied by the federal courts. See Sosa,
124 S.Ct. at 2764-65. Moreover, it is clear that the United States
is in violation of that norm with respect to the residents of
Puerto Rico. Were we to avoid this conclusion, we would not just
be "avert[ing] [our] gaze entirely from [an] international norm
intended to protect individuals," id., but would be placing our
heads into the sand to avoid seeing the obvious.
In my view, the majority's refusal to incorporate the
clear and specific customary international law norm requiring equal
political participation into federal common law contravenes both
(Livingston, J., dissenting).
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the specific language of the Constitution, see U.S. Const. art. VI,
cl. 2, and relevant Supreme Court doctrine, see Sosa, 124 S.Ct. at
2761-62.
The majority's concern that customary international law
is a "diffuse and often highly uncertain body of norms," maj. op.
at 13, if true regarding other areas of customary international
law, is certainly not true of the right to vote, as demonstrated
above. Moreover, the majority's contention that "[i]f there exists
an international norm of democratic government, it is at a level of
generality so high as to be unsuitable for importation into
domestic law," maj. op. at 14, misses the point. The international
norm at issue here is not "democratic government" generally, but
the right to vote in equality with all other citizens of one's
nation. The majority studiously fails to provide any example, in
any democratic country, in which citizens are classified into
voting and non-voting categories. Its reference to Great Britain
as an example of diversity in democratic governments in which
citizens neither vote for the head of state nor directly for the
governing party, hardly proves the point or even stands for the
proposition that customary international law tolerates unequal
voting rights among citizens of the same country. In Great
Britain, the monarch is only symbolically the head of state.
Furthermore, I was under the impression that in 1776 we rejected
Great Britain's views regarding colonial government.
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C. Remedy
We commence with the premise that plaintiffs-appellants
have the right to equal political participation as citizens of the
United States, pursuant to customary international law and the
ICCPR, both of which are binding on the United States. As
observed, the United States is currently in violation of these
requirements. Given the failure by the United States to take steps
to rectify this clear violation of international law,
notwithstanding its agreement to do so, see, e.g., Exec. Order No.
13,107, 63 Fed. Reg. 68, 991 (Dec. 10, 1998), this court ought to
take such measures as are necessary to protect a discrete group of
citizens that is completely under the sovereignty of the United
States. See United States v. Carolene Prods. Co., 304 U.S. 144,
152 n.4 (1938) ("[P]rejudice against discrete and insular
minorities may be a special condition, which tends seriously to
curtail the operation of those political processes ordinarily to be
relied upon to protect minorities, and . . . may call for
correspondingly more searching judicial inquiry.").
Although, assuming the ICCPR is not self-executing, we
cannot order legislative action to bring the United States into
compliance with its international obligations, a stop-gap measure
is available and is justified by plaintiffs-appellants'
predicament. The Declaratory Judgment Act, 28 U.S.C. § 2201(a),
provides that:
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In a case of actual controversy within its
jurisdiction . . . any court of the United
States, upon the filing of an appropriate
pleading, may declare the rights and other
legal relations of any interested party
seeking such declaration, whether or not
further relief is or could be sought.
Under this Act, this court may declare the rights, under
the ICCPR and customary international law, of the United States
citizens residing in Puerto Rico. "It is emphatically the province
and duty of the judicial branch to say what the law is." Marbury
v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). The Act provides
the courts with the option of "declar[ing] the rights and other
legal relations of any interested party seeking such declaration,
whether or not further relief is or could be sought." 28 U.S.C. §
2201(a) (emphasis added), particularly when a declaratory judgment
"will serve a useful purpose in clarifying and settling the legal
relations in issue . . . ." Aetna Cas. & Sur. Co. v. Quarles, 92
F.3d 321, 325 (4th Cir. 1937) (internal quotation marks omitted).
The power to provide declaratory relief extends to the
power to clarify and settle the legal relations between the United
States and the inhabitants of territories under Federal
administration. See United States v. Sanchez, 992 F.2d 1143, 1150-
53 (11th Cir. 1993), rev'd in part on other grounds, 3 F.3d 366
(11th Cir. 1993) (determining that Puerto Rico is not a separate
sovereign for purposes of the double jeopardy clause); see also
United States v. Lopez-Andino, 831 F.2d 1164, 1167-68 (1st Cir.
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1987) (holding that Puerto Rico is a separate sovereign for double
jeopardy purposes). "Courts of the United States have final
authority to interpret an international agreement for purposes of
applying it as law of the United States." Juda v. United States,
13 Cl. Ct. 667, 678 (Cl. Ct. 1987).
1. Redressability
This type of declaratory relief in the present case is
fully consistent with the Declaratory Judgment Act, because it is
substantially likely that a declaration by this Court that the
United States is in violation of international law will result in
some form of relief to the United States citizens who reside in
Puerto Rico. See Utah v. Evans, 536 U.S. 452, 463-464 (2002). In
Evans the Court held that the "redressability" element of standing
under Article III and the Declaratory Judgment Act48 was met in a
situation in which it was "'substantially likely'" that a non-
party, co-equal branch of government would abide by a federal
court's interpretation of the law "'even though they would not be
directly bound by such a determination.'" Id. at 460 (quoting
Franklin v. Massachusetts, 505 U.S. 788, 803 (1992)). Standing was
established because "the practical consequence of [a court order
declaring a census-taking method unlawful] would amount to a
significant increase in the likelihood that the plaintiff would
48
The "case-or-controversy" requirements of Article III and
the Declaratory Judgment Act are co-extensive. See Teva Pharm.
USA, Inc. v. Pfizer, Inc., 395 F. 3d 1324, 1340 (Fed. Cir. 2005).
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obtain relief [from the President] that directly redresses the
injury suffered." Id. at 464 (collecting cases in which standing
has been found under similar circumstances).
Similarly, in Juda, one can find an example of the
legislative branch following the judiciary's interpretation of
international law. In that case, the inhabitants of the Marshall
Islands -- which the United States held under trusteeship from the
United Nations -- challenged the United States' attempt to
unilaterally terminate the Trusteeship Agreement by way of
Presidential proclamation, which would have contravened the
international agreement with the United Nations. The Claims Court
declared that the Trusteeship remained in effect de jure as a
matter of international law, and set forth the procedure to be
followed by the United States to end it under international law.
Id. at 678-82. Although not bound by that judicial roadmap,
Congress did in fact follow it. See Joint Resolution to Approve
the "Compact of Free Association" between the United States and the
Government of Palau, Pub. L. No. 99-658, § 101, 100 Stat. 3672
(1986); U.N. Security Counsel Res. 683 (Dec. 22, 1990) (terminating
Trusteeship Agreement).
The parallel between these cases and the present
situation is self-evident. Judge Lipez's attempt to distinguish
them on the basis that "the likelihood that Congress and the
President would follow the court's advice was not just
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'substantial,' [in those cases], it was a near certainty . . . .
[but] [t]here is nothing approaching such certainty here," supra at
28 (Lipez, J., concurring), is unconvincing. With due respect, it
is the concurrence that engages in speculation. It seems to me
that the prediction that Congress would ignore a declaratory
judgment of this court that the United States is not in compliance
with its international obligations is simply contrary to
experience. Juda, whether dicta or not, see supra at 27 (Lipez,
J., concurring), bears this out. We live in a country of laws in
which the norm is for all branches of government to respect and
comply with the decisions of the courts, irrespective of how
disputed they may be. See, e.g., Bush v. Gore, 531 U.S. 98 (2000).
I cannot countenance that Congress -- nor, for that matter, the
Executive, which negotiated the ICCPR and is thus intimately
involved and committed -- would ignore a judgment of this court
declaring that the government has taken no action to comply with an
international obligation of the United States, negotiated and
agreed to by the Executive Branch with the advice and consent of
the Senate.
The difficulty, complexity, or length of the process
required for the United States to comply with the law of the land
is irrelevant, as it has never been a test for redressability of a
wrong. Cf. Brown v. Bd. of Educ., 349 U.S. 294, 301 (1955)
(ordering racial desegregation of schools occur "with all
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deliberate speed"). The U.S. citizens of Puerto Rico have waited
over one hundred years to regain the voting rights they lost when
the U.S. invaded in 1898. A declaratory judgment would be of some
help in speeding up the process of recovering these rights.
Regardless, however, of the inappropriateness and
unlikelihood of Congressional inaction in response to a judicial
declaration of the rights at issue, it cannot be denied that we
lack authority to order Congress to act. Even if Congress chooses
to continue on its course of inaction, however, our declaration of
the plaintiffs' rights under the ICCPR and customary international
law would, itself, provide a form of redress. On this point,
Federal Election Commission v. Akins, 524 U.S. 11 (1998), is
instructive. In Akins, a group of voters filed an administrative
complaint with the Federal Election Commission ("FEC") asking it to
force a certain political organization to comply with the reporting
requirements for political action committees ("PACs"). See id. at
17. The FEC dismissed the complaint on the ground that the
organization did not fit the definition of a PAC under federal law.
See id. The voters appealed the FEC's dismissal of their complaint
and the FEC defended on the ground that the voters' claim was not
redressable. See id. at 19. The FEC argued that, even if it
misinterpreted the definition of a PAC, it maintained the option
not to act on the voters' complaint as a matter of prosecutorial
discretion. See id. at 25. The Court disagreed that the FEC's
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discretionary authority deprived the voters of standing. See id.
The Court explained that, even though the FEC might ultimately
decline to act on the voters' complaint, the voters' injury was
redressed by assuring that the FEC's discretionary decision was
based on a correct understanding of the relevant law.
This case presents an analogous circumstance. The
plaintiffs have alleged that Congress has an obligation under the
ICCPR and customary international law to further their right to
vote for President and that since the ICCPR was ratified, Congress
has taken no action in this regard. It is possible that Congress
has not acted in accord with its obligations because it is unaware
of them. By issuing a declaration stating the plaintiffs' rights
under the ICCPR and customary international law, the court can
correct this potential misunderstanding. To be sure, an Article
III court cannot order Congress to pass a law, just as it cannot
order the executive to prosecute a particular case. But, as in
Akins, a declaration can ensure that the government actor in
question (here Congress) exercises its responsibility with a
correct understanding of the relevant legal principles. This is no
guarantee that the Congress will exercise its discretion favorably
to the plaintiff. But, as Akins makes clear, there is no such
requirement. See id. at 25; Evans, 536 U.S. at 464 (stating that
redressability is established where court action "would amount to
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a significant increase in the likelihood that the plaintiff would
obtain the relief that directly redresses the injury suffered").
Ultimately, I simply do not agree with Judge Lipez's
reading of the Utah and Juda cases, nor with his conclusions
regarding redressability. Obviously, the ideal remedy would be if
we could order that plaintiffs be allowed to vote. Barring a
finding that the ICCPR is self-executing, that remedy is not
available. Continued non-compliance, however, is a circumstance
that cannot be ignored any longer. The honor and credibility of
the United States are at stake.
Plaintiffs-appellants, citizens of the United States, are
denied the right to vote for the offices of President and Vice
President of our nation in violation of the ICCPR and customary
international law. Further, it is an unquestionable fact that the
United States has not met its obligation under the ICCPR to take
steps toward allowing these citizens to exercise this fundamental
right. See ICCPR art. 2, para. 2. It must be assumed that the
United States will give effect to a judicial declaration stating
its failure to meet its obligations in this respect, and, at a
minimum, we must ensure that any future inaction by the government
is not based on an inaccurate understanding of its obligations
under international law.
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2. "Embarrassment" v. Equality
If the majority were to conclude that plaintiffs-
appellants' allegations are not supported by the law, although I
obviously disagree with this conclusion, I would accept it as part
of the judicial process in which diversity of opinion is a fact of
judicial review. However, I cannot accept, and am highly disturbed
by, the proposition espoused by the majority that the outcome of
this appeal should in any way be dictated by its perception that a
declaration by this court that the United States has failed to
comply with its treaty obligations might "embarrass" the United
States and "could be trumpeted as propaganda in international
bodies and elsewhere." Maj. op. at 12. These statements are
worrisome because they demonstrate a misperception of the role of
federal courts vis-à-vis treaties and other international law. The
interpretation of treaties and international law, as an integral
part of the law of the land, is a nondelegable judicial duty and
function that cannot be avoided by this court. Indeed, federal
courts are the final interpreters of treaties. Juda, 13 Cl. Ct. at
678. The United States is just another party in this case, as it
is in the thousands that are heard before the federal courts
throughout the nation. It has no higher standing than any other
party, and is entitled to no higher privilege than private
citizens. It is precisely because the courts of the United States
are perceived by the world at large as upholding these high
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standards of impartiality that a declaration exposing the
government's failure to comply with its treaty obligations, rather
than "embarrassing" the U.S., as the majority suggests, would have
a highly salutary effect by showing the world that we practice what
we preach: the rule of law.
Embarrassment indeed! The U.S. should be embarrassed at
its denying equal rights to four million of its citizens in this
day and age. That fact itself -- particularly in light of the
government's intense encouragement of democratic reform in other
nations and purported commitment to international instruments that
guarantee equal political participation by all citizens -- could be
"trumpeted as propaganda in international bodies and elsewhere."
Maj. op. at 12. Was it "embarrassment" that finally reversed
Plessy? If embarrassment is what it takes to give equal rights to
the United States citizens of Puerto Rico, maybe a dose is
appropriate.
III.
There comes a point when the courts must intervene to
correct a great wrong, particularly one of their own creation,
because the political branches of government cannot or will not
act. See, e.g., Brown v. Bd. of Educ., 347 U.S. 483. This case is
such a crossroads in history. This court cannot further "avert its
gaze," Sosa, 124 S.Ct. at 2764-65, without becoming an accomplice
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to this monumental injustice to Puerto Rico's nationally
disenfranchised United States citizens.
Shortly before the Civil War, Abraham Lincoln said: "As
I would not be a slave, so I would not be a master. This expresses
my idea of democracy. Whatever differs from this, to the extent of
the difference, is no democracy." President Abraham Lincoln,
Address to Indiana Regiment (Aug. 1, 19858) in II The Collected
Works of Abraham Lincoln 532 (Roy P. Basler ed., 1953) (emphasis
removed from original). Substitute "colonized" for "a slave" and
"colonizer" for "master" in this quote, and we are where the United
States citizens of Puerto Rico find themselves today in their
subservient political condition within the United States' political
hegemony.
The opinion of the district court should therefore be
reversed, and the case remanded for the entry of a declaratory
judgment to the effect that the United States has taken no steps to
meet its obligations under the ICCPR and customary international
law to grant equal voting rights to all citizens in the election of
the President and Vice President of the United States.
E pluribus unum.
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HOWARD, Circuit Judge, (dissenting). The inability of
American citizens residing in the territories to participate in the
election of our nation's leaders is antithetical to our
foundational democratic values. Like Judge Torruella, Judge Leval
of the Second Circuit49 has observed that excluding these United
States citizens from voting for President of the United States
poses serious “problems of fairness, resentment and impaired
reputation in the community of nations.” Romeu v. Cohen, 265 F.3d
118, 128 (2nd Cir. 2001)(Leval, J., writing separately).
Constructively, Judge Leval has explained in some detail
how legislation could constitutionally provide for participation by
Puerto Ricans in Presidential elections. See id. at 128-30; but
see id. at 131-36 (Walker, C.J., disputing that Congress has such
power, while sharing the concern "that the U.S. citizens residing
in the territories are not being afforded a meaningful voice in
national governance."). There is every reason to expect that
people of good will serving in our legislative and executive
branches would seriously consider Judge Leval’s proposal among
other options, were the plaintiffs to successfully prosecute this
action. But this is not to endorse any particular implementation
of voting rights – the preferences of the people of Puerto Rico are
of paramount consideration. It is instead to acknowledge that
there could be approaches beyond what many have assumed.
49
Now Senior Circuit Judge.
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More generally, while it may be that the Constitution
does not itself confer voting rights upon citizens, generations of
Americans have rightly taken as an article of faith their ability
to participate in the selection of our national leaders through the
franchise.50 In seeking to participate in the Presidential
election, the plaintiffs attempt to assert a right long held by
law abiding United States citizens of age, whether at home or
abroad, so long as they are not residents of one of the
territories. Because the interest represented by the plaintiffs'
claim is of paramount importance to our democratic structure, we
ought to approach their claim searchingly rather than skeptically,51
with the understanding that the court’s declaratory authority
should be exercised to its outermost limits if the claim is
50
"[T]he right to vote, as the citizen's link to his laws and
government, is protective of all fundamental rights and
privileges." Evans v. Cornman, 398 U.S. 419, 422 (1970). "[M]ost
U.S. citizens have a limited, constitutionally enforceable right to
vote in presidential elections as those elections are currently
configured. The States have uniformly exercised their Article II
authority by delegating the power to appoint presidential (and
vice-presidential) electors to U.S. citizens residing in the State
to be exercised in democratic elections." Romeu, 265 F.3d at 123.
51
"Since the right to exercise the franchise in a free and
unimpaired manner is preservative of other basic civil and
political rights, any alleged infringement of the right of citizens
to vote must be carefully and meticulously scrutinized." Reynolds
v. Sims, 377 U.S. 533, 562 (1964); see also Kramer v. Union Free
School District, 395 U.S. 621, 626 (1969) ("[C]areful examination
is necessary because statutes distributing the franchise constitute
the foundation of our representative society. Any unjustified
discrimination in determining who may participate in political
affairs or in the selection of public officials undermines the
legitimacy of representative government.").
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otherwise viable. We should take care that the claims of American
citizens who assert a basic right to participate in the democratic
process do not suffer stillbirth through exacting application of
redressability doctrines that, as Judge Torruella has pointed out,
have significant flexibility.
Turning directly to the plaintiffs' treaty claim, even if
there were a persuasive argument not to accept Judge Torruella's
reasoning, the case still should not end at this stage. This is
because plaintiffs' claim under the ICCPR should not be resolved on
a motion under Fed. R. Civ. P. 12(b)(6) without an opportunity for
record development.52
The United States signed the ICCPR in 1977. Among its
provisions, Article 25 provides:
Every citizen shall have the right and
opportunity and without unreasonable
restrictions to take part in the conduct of
public affairs, directly or through freely
chosen representatives and to vote and to be
elected at genuine periodic elections which
shall be by universal and equal suffrage and
shall be held by secret ballot, guaranteeing
the free expression of the will of the
electors.
999 U.N.T.S. 171 (opened for signature Dec. 19, 1966). The Senate
did not provide its advice and consent for the ICCPR until 1992. In
consenting to the Treaty, the Senate added a declaration stating
52
Beyond my own views expressed here, I agree with much of
Judge Torruella's dissent. In particular, I agree substantially
with his reasoning in Parts I., II. B. 1., and II. C. 1. and join
him in those respects.
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that the ICCPR will be "non-self-executing,"53 as requested by the
executive. S. Exec. Rep. No. 102-23 at 23 (1992) ("[T]he United
States declares that the provisions of Articles 1 through 27 of the
Covenant are not self-executing.").54 From this declaration, one
might conclude that the plaintiffs do not have enforceable rights
under Article 25 of the Treaty.55 But in my view, separation of
powers considerations prevent a court from relying exclusively on
the Senate's declaration to determine that a treaty is non-self-
executing. The Supremacy Clause and Article III require a court to
examine independently the intentions of the treatymakers to decide
if a treaty, by its own force, creates individually enforceable
53
Courts and commentators have used the term "non-self-
executing" to mean many things. See D. Cinotti, Note, The New
Isolationism: Non-Self-Execution Declarations and Treaties as the
Supreme Law of the Land, 91 Geo. L. Rev. 1277, 1279 (2003). For
purposes of this opinion, I understand the term to mean that a
treaty does not create individually enforceable rights without the
passage of implementing legislation. See Columbia Marine Servs.,
Inc. v. Reffet Ltd., 861 F.2d 18, 21 (2d Cir. 1988) (stating that
in order for an action to arise under a treaty for purposes of 28
U.S.C. § 1331, "the treaty must be self-executing, i.e., it must
prescribe rules by which private rights may be determined"); J.
Paust, Avoiding "Fraudulent" Executive Policy: Analysis of the
Covenant on Civil and Political Rights, 42 De Paul L. Rev. 1257,
1258 n.4 (1992) (explaining that the purpose of the non-self-
execution declaration in the ICCPR was intended to assure that the
Treaty would not create a private cause of action in U.S. courts).
54
Articles 1 through 27 are the rights-granting provisions of
the ICCPR.
55
It might also be said that as a prudential matter the
Senate's declaration precludes relief under the Declaratory
Judgment Act. For the reasons expressed herein, I would not decide
this prudential question at the motion to dismiss stage.
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rights. While the Senate's preratification view on the matter is
entitled to some weight, other facts, including extrinsic evidence
concerning the Treaty's negotiation history and international
practice under the Treaty, are relevant. Because the procedural
posture of this case has precluded introduction of evidence
regarding the ICCPR's negotiation and enforcement history, it is
premature to dismiss on the ground that the Treaty does not provide
the plaintiffs with enforceable rights.
The Senate's practice of declaring certain treaties to be
non-self-executing is of relatively recent origin.56 See L. Henkin,
Foreign Affairs and the United States Constitution, 201-02 (2d ed.
1996). This practice has become commonplace especially, although
not exclusively, for human rights treaties, see L. Damrosch, The
Role of the United States Senate Concerning "Self-Executing" and
"Non-Self-Executing" Treaties, 67 Chi-Kent L. Rev. 515, 519-26
(1991), and has been accepted in some quarters, see Restatement
(Third) of Foreign Relations Law of the United States § 303, cmt.
56
This practice appears to be, at least in part, a response to
the proposed Bricker Amendment, which would have amended the
Constitution to require implementing legislation before a treaty
could have domestic effect. See S.J. Res. 130, printed at 98 Cong.
Rec. 907-08 (1952). Some scholars have concluded that the Senate
viewed non-self-executing declarations as a way to achieve the
objectives of the Bricker Amendment without having to amend the
Constitution. See L. Henkin, U.S. Ratification of Human Rights
Conventions: The Ghost of Senator Bricker, 89 Am. J. Int'l L. 341,
348-50 (1995). See also D. Sloss, The Domestication of Int'l Human
Rights: Non-Self-Executing Declarations and Human Rights Treaties,
24 Yale J. Int'l L. 129, 173 (1999).
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d (1986) (stating that there is no accepted doctrine indicating
limits on the conditions that the Senate may impose on its
provision of consent), but "without significant discussion,"
Henkin, Foreign Affairs, supra at 202.
Unlike in some other countries, treaties become part of
the fabric of our domestic law upon ratification. Carlos Manuel
Vázquez, Treaty-Based Rights and Remedies of Individuals, 92 Colum.
L. Rev. 1082, 1111 (1992) (describing the rule under British law
that a treaty does not have domestic effect until Parliament passes
implementing legislation). This is a direct result of the
Supremacy Clause, which makes treaties part of the "supreme law of
the land" along with federal statutes, federal common law, and the
Constitution itself. U.S. Const. art. VI., cl. 2.57 The
Constitution's grant of power to the federal judiciary also
recognizes that treaties constitute domestic law. Under article
III, § 2, cl. 1, the federal judicial power "extend[s] to all
Cases, in Law and Equity arising under . . . Treaties." The
57
The Supremacy Clause states:
This Constitution, and the Laws of the
United States made in Pursuance Thereof;
and all which shall be made in Pursuance
Thereof; and all Treaties made, or which
shall be made, under the Authority of the
United States, shall be the supreme law
of the land; and the judges in every
State shall be bound thereby, any Thing
in the Constitution of Laws of any State
to the Contrary notwithstanding.
(Emphasis supplied).
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express language of the Constitution thus provides that a treaty
ratified by the President, after the Senate's advice and consent,
see U.S. Const. art. II, § 2, cl. 2, is part of our domestic law
and may be enforced in a domestic court.
This is not a historical accident, for incorporating
treaties into the domestic law was one of the purposes for drafting
the Constitution. Under the Articles of Confederation, the States
were reluctant to enforce treaties entered into by the national
government. In proposing the Virginia Plan as the working draft
for the new Constitution, Edmund Randolph complained about the
Articles' powerlessness to "cause infractions of treaties . . . to
be punished." 1 M. Farrand, The Records of the Federal Convention
of 1787 19 (rev. ed. 1996). James Madison shared this view. He
claimed that "experience [under the Articles] had evidenced a
constant tendency in the States to . . . violate national Treaties
. . . ." Id. at 164. The Constitution sought to remedy this
tendency by making treaties "the supreme law of the land."
The Framers' intention to establish treaties as law,
without further legislative action, is demonstrated by several of
the proposals that the Constitutional Convention rejected. One
such proposal would have required that treaties be sanctioned by
legislation if they were to have "the operation of laws." J.
Madison, Notes of Debates in the Federal Convention of 1787 520
(1966 ed.). Another would have established two types of treaties:
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one requiring only action by the President and the Senate, and a
second requiring additional action by the House of Representatives.
See 2 Farrand, supra at 394. The rejection of these proposals
illustrates the Framers' intention that all treaties constitute law
under the Supremacy Clause.58 As James Wilson stated: "[The
Supremacy Clause] will show the world that we make the faith of
treaties a constitutional part of the character of the United
States; that we secure [their] performance no longer nominally, for
the judges of the United States will be enabled to carry [them]
into effect." 2 J. Elliot, The Debates in the Several State
Conventions on the Adoption of the Federal Constitution 490 (2d ed.
1881).
The expectation that treaties would become operative as
domestic law upon ratification is also expressed in the Federalist
Papers and the ratification debates within the States. For
example, in Federalist No. 22, Alexander Hamilton explained that
"the treaties of the United States, to have any force at all, must
be considered as part of the law of the land. Their true import,
as far as respects individuals, must, like all other laws, be
ascertained by judicial determinations." The Federalist No.22 at
58
In a similar vein, the Committee on Style removed from the
final version of the Supremacy Clause language that would have
given the national government the power to "enforce treaties." The
Committee removed this language because it was redundant; the
Supremacy Clause already declared that treaties were law.
See Farrand, supra, at 389-90.
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150 (C. Rossiter ed. 1961). Similarly, at the North Carolina
ratifying convention, one of the Constitution's supporters
explained:
It was necessary that treaties should operate
as laws on individuals. They ought to be
binding upon us the moment they are made. They
involve in their nature not only our own
rights, but those of foreigners and should be
protected by the federal judiciary.
4 Elliot, supra at 158. Even those opposing ratification shared
in this view. "Brutus," in criticizing Article III, stated that
he could "readily comprehend what is meant by deciding a case
under a treaty. For as treaties will be the law of the land,
every person who has rights or privileges secured by a treaty,
will have the aid of courts in recovering them." 16 J. Kaminski
and G. Saladino, The Documentary History of the Ratification of
the Constitution 172 (1984).
One commentator has summarized the founding period
evidence as follows:
[The] historic patterns of expectation
demonstrate that most Framers intended all
treaties immediately to become binding on
the whole nation, superadded to the laws of
the land; to be observed by every member of
the nation, to be applied by the courts
whenever a cause of action arose from or
touched upon them; and to prevail over and
preemept any existing state action. In
these ways, at least, all treaties (to the
extent of their grants, guarantees, or
obligations) were to be self-executing.
See J. Paust, Self-Executing Treaties, 82 Am. J. Int'l L.
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760, 764 (1988).59
This understanding quickly found its way into the United
States Reports. See Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796).
Ware concerned the 1783 Peace Treaty with Great Britain. The
plaintiff, a British citizen, claimed that he was owed a debt by a
Virginia citizen. See id. at 199-201. The defendant claimed that
the debt had been extinguished by a 1777 Virginia statute. See id.
The treaty provided, however, that "creditors, on either side, shall
meet with no lawful impediment to the recovery of full value of all
bona fide debts heretofore contracted." Id. at 277. The British
plaintiff argued that this treaty provision overrode the Virginia
statute and reinstated the debt. See id. at 209.
Justice Iredell, sitting as a circuit judge, considered
whether the treaty was operative without the passage of any
additional domestic legislation. He recognized that, under the law
of Great Britain, a treaty would not be operative domestically
without implementing legislation, but that the purpose of the
Supremacy Clause was to differentiate the effect of treaties under
American law:
59
For a fuller discussion, see Paust, supra; Vázquez, supra;
and M. Flaherty, History Right?: Historical Scholarship, Original
Understanding, and Treaties as "Supreme Law of the Land", 99 Colum.
L. Rev. 2095 (1999). For an alternate interpretation of the
Founding period, see J. Yoo, Globalism and the Constitution:
Treaties, Non-Self-Execution, and the Original Understanding, 99
Colum. L. Rev. 1955 (1999).
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Under this constitution, therefore, so far as
a treaty constitutionally is binding, upon
principles of moral obligation, it is also, by
the vigor of its own authority, to be executed
in fact. It would not otherwise be the
supreme law, in the new sense provided for,
and it was so before, in a moral sense. . . .
[W]hen the constitution was ratified, the case
as to the treaty in question stood upon the
same footing, as if every act constituting an
impediment to a creditor's recovery had been
expressly repealed, and any further act
passed, which the public obligation had before
required, if a repeal alone would not have
been sufficient.
Id.
The case went to the Supreme Court, where each Justice
wrote his own opinion. No Justice disagreed with Justice Iredell's
explanation of the domestic effect of the treaty. See id. at 237
("[E]very treaty made by authority of the United States, shall be
superior to the constitution and laws of any individual state. . .
.") (Chase, J.). Ware thus supports the view that, when a treaty
creates obligations favoring an individual, the individual may
enforce the obligation directly in a United States court, even
though there is no implementing legislation.60 In other words,
under American law, treaties can be self-executing. See Head Money
Cases, 112 U.S. 580, 598-99 (1884) ("A treaty . . . is a law of the
land as an act of Congress is, whenever its provisions prescribe a
60
In another early case, Chief Justice Marshall echoed this
sentiment. Owings v. Norwood Lessee, 9 U.S. (5 Cranch) 344, 348-49
(1809) ("Whenever a right grows out of, or is protected by a
treaty, it is to be protected.").
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rule by which the rights of the private citizen . . . may be
determined. And when such rights are of a nature to be enforced in
a court of justice, that court resorts to the treaty for a rule of
decision for the case before it as it would to a statute.").
The suggestion that some treaties are not self-executing
first appeared in Foster v. Nielson, 27 U.S. (2 Pet.) 253 (1829),
overruled in part by United States v. Percheman, 32 U.S. 51 (1833)
(reinterpreting treaty in light of new evidence regarding meaning
of ambiguous term). There, a treaty with Spain, designed to protect
private land grants, provided that "grants shall be ratified and
confirmed." Id. at 309. Writing for the Court, Chief Justice
Marshall concluded that the treaty was not self-executing because,
by its terms, it did not establish a right in an individual but
rather placed an obligation on the legislative branch to act.
See id. at 314. As Chief Justice Marshall explained:
Our constitution declares a treaty to be the law
of the land. It is consequently to be regarded
in courts of justice as equivalent to an act of
the legislature, whenever it operates of itself,
without the aid of any legislative provision.
But when the terms of the stipulation import a
contract, where either of the parties engages to
perform a particular act, the treaty addresses
itself to the political, not the judicial
department; and the legislature must execute the
contract before it can be become a rule for the
court.
Id.
The Foster rule -- that certain treaties are non-self-
executing -- is a judicially-created doctrine. See Henkin, The
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Ghost of Senator Bricker, supra at 347. Under this doctrine, a
court must ascertain whether the instrument was intended by its
makers to establish directly enforceable rights, or only to impose
an obligation on one of the political branches. See Frolova v.
Union of Soviet Socialist Republics, 761 F.2d 30, 373 (7th Cir.
1985) ("Whether a treaty is self-executing is an issue for judicial
interpretation."); Restatement supra at § 111, cmt. h ("Whether an
agreement is to be given effect without further legislation is an
issue that a court must decide when a party seeks to invoke the
agreement as law."). Such an intent is to be gleaned from the
treaty's terms and history. See Diggs v. Richardson, 555 F.2d 841,
851 (D.C. Cir. 1976) (stating that, "[i]n determining whether a
treaty is self-executing courts look to the intent of the signatory
parties as manifested by the language of the instrument, and if the
instrument is uncertain, recourse must be had to the circumstances
surrounding its execution").
Given this constitutional and judicial history, a court
ought not quickly conclude that treaties are non-self-executing.
Cf. United States v. Li, 206 F.3d 56, 61 (1st Cir. 2000) (en banc)
(stating that there is a presumption against self-executing
treaties under American law).61 Rather, a court must conduct an
independent and searching inquiry into the treaty's purpose. And
61
Judge Torruella took a similar view in his dissent in Li.
See 206 F.3d at 70-71.
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on this point a declaration by the Senate that a treaty is non-
self-executing should not be dispositive.
Those holding a contrary view tend to regard the Senate's
power to declare a treaty non-self-executing to be an adjunct of
its general power to consent to ratification. See Restatement
supra at § 303, cmt. d. There is no doubt that the Senate may
hinge its consent to ratify a treaty on a reservation. See Haver
v. Yaker, 76 U.S. (9 Wall.) 32, 35 (1869). But a reservation is a
"unilateral statement . . . whereby [one party] purports to exclude
or to modify the legal effect of certain provisions of the treaty
in the application to that State." Vienna Convention on the Law of
Treaties, art. 2(1)(d) (1969). A reservation thus has an actual
effect on the terms of the treaty. See M. Glennon, The
Constitutional Power of the United States Senate to Condition Its
Consent to Treaties, 67 Chi.-Kent. L. Rev. 533, 542 n. 63 (1991)
(citing authority). And the reservation will vitiate the Senate's
consent if its terms are not incorporated into the treaty.
See Henkin, Foreign Affairs, supra at 180-81.
A non-self-execution declaration differs materially from
a reservation. See Restatement, supra at § 314, cmt. d. The
declaration is not presented to the other international signatories
as a request for a modification of the treaty's terms. Rather, it
is directed primarily toward United States courts to express "the
sense of the Senate" that the treaty should not be interpreted to
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establish individually enforceable rights. As two leading
commentators have explained, the Senate does not have the power to
bind a court to such declarations:
[T]he Senate lacks the constitutional authority
to declare the non-self-executing character of
a treaty with binding effect on U.S. courts.
The Senate has the unicameral power only to
consent to ratification of treaties, not to
pass domestic legislation. A declaration is
not part of a treaty in the sense of modifying
the legal obligations created by it. A
declaration is merely an expression of an
interpretation or of a policy or position.
U.S. courts are bound by the Constitution to
apply treaties as the law of the land. They
are not bound to apply expressions of opinion
adopted by the Senate (and concurred in by the
President). The courts must undertake their
own examination of the terms and context of
each provision in a treaty to which the United
States is a party and decide whether it is
self-executing. The treaty is law. The
Senate's declaration is not law. The Senate
does not have the power to make law outside the
treaty instrument.
S. Riesenfeld & F. Abbott, Foreword: Symposium of Parliamentary
Participation in the Making and Operation of Treaties, 67 Chi.-
Kent L. Rev. 293, 296-97 (1991).62
62
Other commentators, including Professor Henkin, share this
view. See Henkin, Foreign Affairs, supra at 202 (describing the
Senate's practice of declaring treaties as non-self executing to be
"anti-Constitutional in spirit and highly problematic as a matter
of law"); Henkin, The Ghost of Senator Bricker, supra at 346
(stating that non-self-execution declarations by the Senate "may be
unconstitutional"). See also D. Cinnoti, supra; J. Quigley, The
Rule of Non-Inquiry and Human Rights Treaties, 45 Cath. L. Rev.
1213 (1995); J. Quigley, The Int'l Covenant on Civil and Political
Rights and the Supremacy Clause, 42 De Paul L. Rev. 1287 (1993);
Paust, Avoiding Fraudulent Executive Policy, supra; C. Dearborn,
Note, The Domestic Legal Effect of Declarations that Treaty
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Stated differently, the Senate's power under Article II
extends only to the making of reservations that require changes
to a treaty before the Senate's consent will be efficacious. A
declaration that only has domestic effect is, in reality, an
attempt to legislate concerning the internal implementation of a
treaty. But the power to legislate is not granted to the Senate
under Article II. Legislation may only be enacted through
bicameral adoption and presentation to the President as set forth
in Article I. See INS v. Chada, 462 U.S. 919 (1983).
The only case that I am aware of that addresses a similar
question supports this view. In Power Authority of New York v.
Federal Power Commission, 247 F.2d 538 (D.C. Cir.), vacated and
remanded with instructions to dismiss as moot 355 U.S. 64 (1957),
the United States entered a bilateral treaty with Canada concerning
the use of the Niagara River to produce power along the United
States/Canada border. See id. at 539. In its resolution
consenting to the treaty, the Senate included a reservation whereby
the United States reserved the right to redevelop its portion of
the power generated on the river only through an act of Congress.
See id. The United States and Canada agreed that the reservation
only concerned American domestic law and did not require any
changes to the treaty. See id. at 540-41.
Provisions Are Not-Self-Executing, 57 Tex. L. Rev. 233 (1979).
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The Power Authority of the State of New York sought a
license from the Federal Power Commission to use the Niagara River
for the state's anticipated power project. See id. at 539. The
Commission dismissed the authority's license application,
contending that the Senate's reservation precluded it from granting
such a license because federal legislation was required. See id.
at 539-40.
The D.C. Circuit held that the reservation was
ineffective because it involved only United States domestic law.
For the reservation to be binding on the judiciary, the court
reasoned, it had to constitute an actual part of the treaty:
A true reservation which becomes a part of a
treaty is one which alters the effect of the
treaty insofar as it may apply in the relations
of the State with the other State or States
which may be parties to the treaty. It creates
a different relationship between the parties
and varies the obligations of the parties
proposing it.
Id. at 541. Because the reservation was merely an expression of
the Senate's view of domestic policy it had no domestic effect.
See id.63
63
Sosa v. Alvarez-Machian, 124 S. Ct. 2739 (2004) is not to the
contrary. That case involved whether the right to be free from
arbitrary abduction and detention was protected under customary
international law. The plaintiff in Sosa did not sue directly
under the ICCPR but rather argued that the Treaty's terms helped
establish the relevant principle of customary international law for
purposes of his Alien Tort Act claim. The Court relied on the
Senate's non-self-execution declaration in the ICCPR as one factor
to support its conclusion that the ICCPR could not, by itself,
establish a rule of customary international law. See id. at 2763
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The non-self-execution declaration in the ICCPR is a
similar expression of the Senate's desire concerning a purely
domestic issue. Like the reservation in Power Authority, the
declaration was not intended to modify the Treaty terms in any way.
Thus, it lacks binding force. Cf. Fourteen Diamond Rings v. United
States, 183 U.S. 176, 178-80 (holding that a Senate resolution
purporting to interpret a treaty adopted after ratification was not
binding). Of course, the Senate's view is relevant. Cf. United
States v. Stuart, 489 U.S. 353, 366-67 (1989) (stating that Senate
preratification debate is relevant to determining the meaning of
a treaty). But, in the end, whether there is a private right of
action under the ICCPR should be decided on the basis of the
totality of available evidence. See Volkswagenwerk A.G. v.
Schlunk, 486 U.S. 694, 700 (1988) ("Treaties are construed more
liberally than private agreements, and to ascertain their meaning
we may look beyond the written words to the history of the treaty
negotiations, and the practical construction adopted by the
parties."); see also Societe Nationale Industrielle Aerospatiale v.
& 2767. But the Court was not faced with (and did not decide)
whether the Senate's declaration ipso facto prevents a plaintiff
from suing directly under the Treaty. Because the question in Sosa
was not the binding effect of the Senate's non-self-execution
declaration in determining whether the ICCPR establishes a private
cause of action, the parties did not present the Court with (and it
did not address) the separation of powers arguments questioning the
Senate's authority to issue such declarations. See, e.g., Reply
Brief of United States at 8, Sosa, supra.
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U.S. Dist. Ct. for the S. Dist. of Iowa, 482 U.S. 522, 534 (1987)
(stating that treaty interpretation begins with the text of the
treaty, but that the treaty's history and practical construction
adopted by the parties are relevant); Air France v. Saks, 470 U.S.
392, 400 (1985) (stating that "in interpreting a treaty it is
proper . . . to refer to the records of its drafting and
negotiation"); Islamic Rep. of Iran v. Boeing Co., 771 F.2d 1279,
1283 (9th Cir. 1985) (explaining that the most important factor in
determining whether a treaty is self-executing is the language,
purpose, and intent behind the treaty).
Given the broad judicial inquiry required to determine if
a treaty establishes individually enforceable rights and the non-
binding nature of the Senate's non-self-execution declaration, I do
not think it proper to affirm the dismissal under Fed. R. Civ. P.
12(b)(6). See Paust, Avoiding "Fraudulent" Executive Policy, supra
at 1259-62 (suggesting that text of ICCPR indicates that it was
intended to be self-executing). We do not have before us
sufficient information concerning the negotiation history of the
ICCPR or the way in which the other signatories have enforced it.
Without such information, we lack the full spectrum of sources
necessary to evaluate the extent to which, if at all, the
plaintiffs may possess one or more enforceable rights under the
Treaty.
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A "court should be especially reluctant to dismiss on the
basis of the pleadings when the asserted theory of liability is
novel or extreme, since it is important that new legal theories be
explored and assayed in the light of the actual facts rather than
a pleader's suppositions." 5A Wright & Miller, Federal Practice &
Procedure, § 1357; see also Doe v. Walker, 193 F.3d 42, 46 (1st
Cir. 1999)("Our preference for a better record is well supported
and . . . is one which we are entitled to require for reasons of
prudence."). When looked at the way I see it, this suit presents
a novel claim concerning the right to vote – a right which, as I
have said, has special significance. See Wesberry v. Sanders, 376
U.S. 1, 17 (1964) (stating that "no right is more precious in a
free country than that of having a voice in the election of those
who make the laws, under which, as good citizens, we must live").
Given the sensitive nature of the dispute and its implications, I
would permit the parties to develop a record concerning the ICCPR.64
64
I am less sanguine about whether plaintiffs may successfully
press a claim under customary international law. The most
promising avenue for challenging Puerto Rico's status as violative
of a customary international norm -- a claim arguing that customary
international law recognizes a right of peoples to self-
determination and imposes on nations an obligation to decolonize --
more properly belongs not to an individual Puerto Rican, but to the
Commonwealth of Puerto Rico itself, the political leadership of
which is elected by individual Puerto Ricans and, presumably, would
be responsive to the electorate. See, e.g., Duke Power Co. v.
Carolina Env. Study Group, Inc., 438 U.S. 59, 80 (1978); Laurence
H. Tribe, American Constitutional Law, § 3-19 (3d ed. 2000); Erwin
Chemerinsky, Constitutional Law Principles and Policies, § 2.5.4
(2d ed. 2002). In such a lawsuit, there would be less reason for
concern that the plaintiffs might be seeking a fundamental change
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in the relationship between the Commonwealth and the United States
that many of their fellow Puerto Ricans may not desire.
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Igartua-De-La-Rosa v. United States
Court: Court of Appeals for the First Circuit
Date filed: 2005-08-03
Citations: 417 F.3d 145
Copy CitationsCombined Opinion