Igartua-de-La-Rosa v. United States

United States Court of Appeals
For the First Circuit
____________________

No. 00-2083

GREGORIO IGARTUA DE LA ROSA, ET AL.,

Plaintiffs, Appellees,

v.

UNITED STATES OF AMERICA,

Defendant, Appellant.

____________________

COMMONWEALTH OF PUERTO RICO,

Intervenor.
____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jaime Pieras, Jr., Senior U.S. District Judge]

____________________

Before

Torruella, Chief Judge,
Lynch and Lipez, Circuit Judges.

____________________

Matthew M. Collette, Attorney, U.S. Department of Justice, with
whom Jacob M. Lewis, Attorney, U.S. Department of Justice, David W.
Ogden, Assistant Attorney General, and Guillermo Gil, U.S. Attorney,
were on brief, for appellant.
Gregorio Igartua for appellee.
Angel E. Rotger Sabat, Attorney General, Commonwealth of Puerto
Rico and Gustavo A. Gelpi, Solicitor General, Commonwealth of Puerto
Rico, with whom John F. Nevares, Carlos Lugo-Fiol, and Smith and
Nevares, were on brief, for intervenor-appellee Commonwealth of Puerto
Rico.
Charles J. Cooper, Michael A. Carvin, Jeffrey A. Tomasevich, and
Cooper, Carvin & Rosenthal on brief for amicus curiae Popular
Democratic Party of Puerto Rico.

____________________

October 13, 2000
____________________

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 Per Curiam. On April 5, 2000 a complaint was filed in the

United States District Court for the District of Puerto Rico by eleven

individuals alleging that as citizens of the United States residing in

Puerto Rico they are being deprived of the right to vote for the

candidates to the offices of President and Vice-President of the United

States, a condition which they view to be a "violation of their

constitutional rights to the same privileges and immunities, treaty

rights, due process and equal protection of the laws" enjoyed by United

States citizens residing in the States.

Plaintiffs, in effect, comprise two separate groups. The

first includes individuals who have always resided in Puerto Rico and

whose claim is based on their alleged right to vote for the national

offices in question because they consider it a right inherent in United

States citizenship. The second group is comprised of former residents

of states who were eligible to vote during such residence in the States

but became ineligible to do so upon taking residency in Puerto Rico.

Both groups claim entitlement to vote pursuant to the Constitution of

the United States and pursuant to treaty obligations assumed by the

United States under the International Covenant on Civil and Political

Rights, U.N.T.S. No. 14668, Vol. 999 (1976) p. 171, ratified, 138 Cong.

Rec. S-4781 (April 2, 1992) ("ICCPR"). In addition, the second group

also calls into question the constitutionality of the Uniformed and

Overseas Citizens Absentee Voting Act (NOCAVA), 42 U.S.C. §§ 1973ff-

1973ff-6, which allows United States citizens residing outside the

United States to vote in federal elections as absentee voters in their

last state of residence. Because Puerto Rico is included within the

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definition of "United States," 42 U.S.C. § 1973ff-6(8), residents of

Puerto Rico who would otherwise qualify to vote pursuant to this

statute are disqualified. This is claimed to be a violation of various

constitutional provisions.

Plaintiffs sought a declaratory judgment against the United

States affirming the invalidity of the denial of their alleged right to

vote for the national offices in question. In addition, they sought an

order requiring the United States "to take all the necessary steps" to

implement their alleged right to vote for President and Vice-President.

On June 5, 2000 the United States moved to dismiss the

complaint claiming, in substance, that the allegations contained in the

complaint "are virtually identical to those previously brought by

eleven individuals, including [Plaintiff] Igartua in the case of

Igartua de la Rosa, et al. v. United States, C. 91-2506," in which the

District Court (Acosta, J.) dismissed plaintiffs' request for

declaratory and injunctive relief for failure to state a claim upon

which relief could be granted. See Igartua v. United States, 842

F. Supp. 607 (D. P.R. 1994), aff'd, 32 F.3d 8, 9 (1st Cir. 1994),

(Igartua I), cert. denied, 514 U.S. 1049 (1995). The United States

alleged that Igartua I required dismissal of the present action under

the principles of res judicata and stare decisis.

This motion was denied by the District Court on July 19, 2000

in an extensive opinion, see Igartua v. United States, 107 F. Supp. 2d

140 (D. P.R. 2000) ( Igartua II), in which it ruled that the provisions

of the ICCPR were not self-executing and thus did not give rise to

privately enforceable rights under United States law, and further that

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NOCAVA did not violate Plaintiffs' constitutional rights. It ruled,

however, that preventing plaintiffs from voting in presidential and

vice-presidential elections was unconstitutional.

Thereafter, on July 27, 2000 the Commonwealth of Puerto Rico

and its governor, Pedro Rosselló, moved to intervene in this action, in

effect supporting the claims of Plaintiffs. This intervention was

allowed by the district court on July 28, 2000.

On August 1, 2000 the United States filed its Answer,

alleging in defense substantially the same grounds as claimed in its

Motion to Dismiss, and in addition contending that the issues presented

by plaintiffs raised "political questions outside the jurisdiction of

the federal courts."

After several intervening procedural events, on August 29,

2000 the district court entered a Final Opinion and Order, essentially

confirming its July 29 opinion, and entering a Final Judgment:

(1) Declaring "that the United States Citizens residing in Puerto Rico

have the right to vote in Presidential elections and that its electoral

votes must be counted in Congress";

(2) Concluding "that the Government of Puerto Rico has the obligation

to organize the means by which the United States citizens residing in

Puerto Rico will vote in the upcoming and subsequent Presidential

elections and to provide for the appointment of Presidential electors,"

and ordering "the Government of Puerto Rico to act with all possible

expediency to create such mechanism;" and

(3) Ordering "the Government of Puerto Rico to inform the Court of all

developments related to its implementation of the Presidential vote

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until the votes are counted pursuant to the Twelfth Amendment to the

Constitution."

On September 10, 2000 the Legislature of Puerto Rico enacted

Law No. 403 for the purpose of allowing the citizens of the United

States of America domiciled in Puerto Rico to vote in the election for

the offices of President and Vice-President of the United States, and

to establish the procedures and mechanisms to effectuate said vote.

This bill was signed into law on September 10, 2000 and became

effective immediately. See Law No. 403 of September 10, 2000, § 4.6.

On September 11, 2000 the United States filed its Notice of

Appeal from this Final Judgment and from the Final Opinion and Order

also entered by the district court on August 29, 2000, which contained

provisions substantially the same as those in the Final Judgment.

Neither the Plaintiffs nor the Intervenor Government of Puerto Rico and

Governor appealed.

For the reasons stated herein, we reverse and vacate the

Final Judgment and Final Opinion and Order and remand with instructions

to dismiss the action. See Toren v. Toren, 191 F.3d 23 (1st Cir.

1999). This court, of course, expresses no opinion with regard to the

validity under Puerto Rican law of Law No. 403.

I

In Igartua I , a case brought by the same lead plaintiff and

lawyer who appears currently before us, this court held with undeniable

clarity that the Constitution of the United States does not confer upon

United States citizens residing in Puerto Rico a right to participate

in the national election for President and Vice-President. Addressing

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precisely the argument presented to the district court in this case,

this court recognized that Article II of the Constitution explicitly

provides that the President of the United States shall be elected by

electors who are chosen by the States, in such manner as each state's

legislature may direct. See id. at 9 (citing U.S. Const. Art. II, § 1,

cl. 2). We concluded that Puerto Rico, which is not a State, may not

designate electors to the electoral college, and therefore that the

residents of Puerto Rico have no constitutional right to participate in

the national election of the President and Vice-President. See id. at

9-10.

Since our decision in Igartua I in 1994, Puerto Rico has not

become a State, nor has the United States amended the Constitution to

allow United States citizens residing in Puerto Rico to vote for

President, as it did for United States citizens residing in the

District of Columbia with the Twenty-Third Amendment to the

Constitution. See id. at 10. Absent such a change in the status of

Puerto Rico or an amendment to the Constitution of the United States,

our decision in Igartua I controls this case, unless there has been

intervening controlling or compelling authority. See Gately v.

Massachusetts, 2 F.3d 1221, 1226 (1st Cir. 1993) ("The doctrine of

stare decisis renders the ruling of law in a case binding in future

cases before the same court or other courts owing obedience to the

decision.");1 see also Williams v. Ashland Eng'g Co., 45 F.3d 588, 592

1 The Commonwealth argues that stare decisis is not "an
inexorable command," particularly in constitutional cases. But Igartua
I is based on Supreme Court opinions which that court has not
reconsidered and we are not free to do so. And "[e]ven in

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(1st Cir. 1995) ("In a multi-panel circuit, newly constituted panels

are, for the most part, bound by prior panel decisions closely on

point.").

II

The district court attempted to distinguish Igartua I in its

July 19 opinion (but not in its Final Opinion and Order) on reasoning

that "while Igartua I centered on Plaintiff's inability to vote for the

President and Vice President, the instant case revolves around their

inability to elect delegates to the electoral college." Igartua II,

107 F. Supp.2d at 145. This effort at distinguishing Igartua I

obviously fails. Under the Constitution, the appointment of electors

(through the popular vote) is the means by which the President and Vice

President are chosen. U.S. Const., Art. II, § 1, cl. 2; Amend. XII.

This court held in Igartua I that the citizens resident in Puerto Rico

do not have a right to vote in presidential elections because Puerto

Rico "is not entitled under Article II to choose electors for the

President." Igartua I, 32 F.3d at 9-10.

There are two exceptions to the rule that earlier decisions

are binding. First, an earlier panel decision "may be undermined by

controlling authority, subsequently announced, such as an opinion of

the Supreme Court." Williams, 45 F.3d at 592. The second exception is

for "those relatively rare instances in which authority that postdates

the original decision, although not directly controlling, nevertheless

constitutional cases, stare decisis carries such persuasive force that
[even the Supreme Court has] always required a departure from precedent
to be supported by some 'special justification.'" Dickerson v. United
States, 120 S. Ct. 2326, 2336 (2000).

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offers a sound reason for believing that the former panel, in light of

fresh development, would change its collective mind." Id. The

Commonwealth argues that those exceptions are met here in light of two

Supreme Court decisions: Rice v. Cayetano, 120 S. Ct. 1044 (Feb. 23,

2000), and U.S. Term Limits v. Thornton, 514 U.S. 770 (1995). Neither

case support the Commonwealth's argument.

The Court in Rice struck down a Hawaii statute that imposed

race-based voting qualifications based on the Fifteenth Amendment's

mandate that neither the National Government nor the states may deny or

abridge the right to vote on account of race. See Rice, 120 S. Ct. at

1056-57. This Fifteenth Amendment ruling on racial voting

classifications does not impact the reasoning in Igartua I that Article

II governs the right to vote in presidential elections. The reliance

on the Court's holding in U.S. Term Limits similarly is inapt. The

Court ruled that States lack the power to impose qualifications for

offices of the United States Congress in addition to those set forth in

the Constitution. See 514 U.S. at 818-20. The Court's language

describing the "fundamental principle of our representative democracy,"

which appellees cite in their brief, serves to amplify the Court's

holding that the states cannot impose restrictions on federal

elections, but also does not alter the Article II analysis in Igartua

I. Thus, neither case stands for the proposition that the right to

vote in the presidential election is derived from any source other than

Article II of the Constitution.

Because Igartua I is binding authority, the district court

erred in not dismissing the action.

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 The judgment and order of the District Court is reversed and

vacated and the case is remanded with instructions that the action be

dismissed with prejudice.

Concurrence follows.

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 TORRUELLA, Circuit Judge (Concurring). As I did in Igartúa

I, I join the Court's opinion in this appeal because I believe it to be

technically and, as the law now stands, legally correct in its

conclusion that the Constitution does not guarantee United States

citizens residing in Puerto Rico the right to vote in the national

Presidential election. I also agree with the Court's indication that

today's decision expresses no opinion with regard to the validity under

Puerto Rico law of Law 403 of September 10, 2000, which is the subject

of separate litigation and which I conclude is not properly before us.

I am, however, compelled to write separately because I can no longer

remain silent to the subjacent question, because from my perspective,

there are larger issues at stake.

I.

More than 100 years ago, at the conclusion of the Spanish-

American War of 1898, Puerto Rico was ceded to the United States by

Spain.2 Despite lofty rhetoric at the time extolling the virtues of

American democracy,3 the United States has since exercised almost

2 See Treaty of Paris, Dec. 10, 1898, United States-Spain,
30 Stat. 1754. Article IX of the treaty reads: "The civil rights and
political status of the native inhabitants of the territories hereby
ceded to the United States shall be determined by the Congress."
3 For example, on July 28, 1898, three days after the landing
of American troops at Guánica, General Nelson A. Miles, who commanded
the expeditionary force, proclaimed:

In the prosecution of war against the kingdom of Spain
by the people of the United States, in the cause of liberty,

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unfettered power over Puerto Rico and the nearly 4,000,000 United

States citizens who currently reside there.4 Although persons born in

Puerto Rico are citizens of the United States at birth,5 and thereby

justice and humanity, its military forces have come to
occupy the island of Porto Rico. They come bearing the
banner of freedom, inspired by noble purposes, . . . .

They bring you the fostering arms of a free people,
whose greatest power is justice and humanity to all living
within their fold. . . .

They have come not to make war on the people of the
country, who for centuries have been oppressed; but, on the
contrary, to bring protection, not only to yourselves, but
to your property, promote your prosperity and bestow the
immunities and blessings of our enlightenment and liberal
institutions and government . . . .

Annual Report of the Major General Commanding the Army, Nelson A.
Miles, Nov. 5, 1898, Messages, 1898-1899, at 31-32.

It should be noted that, at the time of General Miles' arrival,
and since the enactment of the Spanish Constitution of 1812, Puerto
Ricans enjoyed Spanish citizenship and voting representation in the
Spanish Parliament, rights which were confirmed in the Constitution of
1876 and in the Autonomic Charter of 1897. See 1 José Trías Monge,
Historia Constitucional de Puerto Rico 34-35 (1983).
4 See U.S. Census Bureau, Population Div., PR-99-1 Estimates
of the Population of Puerto Rico Municipios, July 1, 1999, (July 21,
2000) . This is a larger population than 26 of the States and
more than the combined population of Maine, New Hampshire, and Rhode
Island, which together with Massachusetts and Puerto Rico constitute
the First Circuit. See U.S. Census Bureau, Population Div., ST-99-3
State Population Estimates: Annual Time Series, (December 29, 1999)
.
5 8 U.S.C. § 1402 (1999) (governing the citizenship of
persons born in Puerto Rico on or after April 11, 1899). The residents
of Puerto Rico were first granted citizenship in 1917. See Jones Act

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"owe[] allegiance to the United States," Kawakita v. United States, 343

U.S. 717, 736 (1952), while residing in Puerto Rico they enjoy fewer

rights than citizens of the United States that reside in the fifty

States, see United States v. Verdugo-Urquídez, 494 U.S. 259, 268 (1990)

(and cases cited therein), or even in foreign countries, see Reid v.

Covert, 354 U.S. 1 (1957). Undoubtedly the most glaring evidence of

this egregious disparity is the fact that they do not elect a single

voting representative6 to a federal government that exercises almost

absolute power over them.

This anomalous situation arises primarily as a result of the

decisions of the Supreme Court in the Insular Cases,7 which established

as early as 1901 the plenary power of Congress over Puerto Rico under

the so-called "territorial" clause of the Constitution.8 In a series

of narrowly divided decisions, the Court held that Puerto Rico was an

(Puerto Rico), § 5, ch. 145, 39 Stat. 951 (1917).
6 The residents of Puerto Rico do elect a Resident
Commissioner to represent their interests before Congress, but that
official's lack of a vote obviously diminishes his ability to
effectively represent them.
7 Balzac v. Porto Rico, 258 U.S. 298 (1922); Ocampo v. United
States, 234 U.S. 91 (1914); Dorr v. United States, 195 U.S. 138 (1904);
Hawaii v. Mankichi, 190 U.S. 197 (1903); Downes v. Bidwell, 182 U.S.
244 (1901); Dooley v. United States, 182 U.S. 222 (1901); DeLima v.
Bidwell, 182 U.S. 1 (1901).
8 Article 4, section 3, clause 2, of the Constitution states:
"The Congress shall have Power to dispose of and make all needful Rules
and Regulations respecting the Territory or other Property belonging to
the United States . . . ."

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"unincorporated territory," see Insular Cases, supra note 6, and as a

result part of the United States for some purposes9 and not for

others.10 As such, Congress was held to have plenary power over the

internal and external affairs of the Island, subject not even to the

Bill of Rights except insofar as those guarantees might be explicitly

extended to the Island by Congress. See Downes, 182 U.S. at 286.

Between 1898 and 1917, persons residing in Puerto Rico were

considered to be citizens of Puerto Rico11 and "nationals" of the United

States.12 This condition was changed in 1917, however, when Congress

granted United States citizenship en masse to the residents of Puerto

Rico.13 Notwithstanding this apparent upgrading of the personal status

9 See, e.g., De Lima, 182 U.S. 1, 200 (1901) (Puerto Rico
part of the United States for customs purposes).
10 See, e.g., Downes, 182 U.S. 244, 287 (1901) ("[T]he Island
of Porto Rico is a territory appurtenant and belonging to the United
States, but not a part of the United States" for revenue purposes).
11 See Foraker Act, § 7, 31 Stat. 77 (1900) (codified as
amended at 48 U.S.C. § 733 (1987)).
12 The term "national of the United States" is defined at 8
U.S.C. § 1101(a)(22) to mean "(A) a citizen of the United States, or
(B) a person who, though not a citizen of the United States, owes
permanent allegiance to the United States." The only persons currently
holding such status are residents of American Samoa and Swains Island.

13 See Jones Act (Puerto Rico), § 5, ch. 145, 39 Stat. 951
(1917). This status was reiterated in the Nationality Act of 1940, §
202, ch. 876, 54 Stat. 1139 (1940), in which Congress explicitly stated
that all persons born in Puerto Rico automatically became citizens of
the United States, a situation analogous to that existing within the
then contiguous States under the Fourteenth Amendment. That provision

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of Puerto Rico's residents, the Supreme Court in 1922 in Balzac v.

Porto Rico, 258 U.S. 298 (1922), established the inferior nature of the

United States citizenship held by residents of Puerto Rico by

concluding that the Constitution's protection of these new citizens was

limited to those rights deemed by the Court to be "fundamental."14 Cf.

Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886) (voting is "a fundamental

political right, because [it is] preservative of all rights"); see also

was repealed by the Immigration and Nationality Act of June 27, 1952,
§403, ch. 477, 66 Stat. 280, and replaced by the provision now codified
at 8 U.S.C. § 1402 (1999) (governing the citizenship of all persons
born in Puerto Rico on or after April 11, 1899).
14 Balzac involved a claim to trial by jury in a criminal
prosecution, which the Court concluded was unavailable in Puerto Rico
because trial by jury was not a "fundamental" right. Balzac, 258 U.S.
at 312-13; cf. Duncan v. Louisiana, 391 U.S. 145, 149 (1968) (holding
that "trial by jury in criminal cases is fundamental to the American
scheme of justice"). Balzac has never been reversed and has been cited
approvingly by the Court as recently as 1990. See United States v.
Verdugo-Urquídez, 494 U.S. 259, 268 (1990). In comparison, in Reid v.
Covert, 354 U.S. 1 (1957), the Court refused to extend the reasoning of
the Insular Cases to American civilians abroad who had been convicted
by a court martial for a felony offense without being afforded the
right to a jury trial. Justice Black, writing for a four-Justice
plurality (no opinion of any Justices garnered a majority, and only
eight Justices participated in the case), stated: "[I]n view of our
heritage and the history of the adoption of the Constitution and the
Bill of Rights, it seems peculiarly anomalous to say that trial before
a civilian judge and by an independent jury picked from the common
citizenry is not a fundamental right." Justice Black went further,
rejecting Balzac and the other Insular Cases as outdated, see id. at
14, but concurring Justices Frankfurter and Harlan refused to go so
far, see id. at 54, 66. Ironically, because the holding of the Court
extends the protection of United States citizenship to a proceeding
that took place in England qua the condition of United States
citizenship, this case seems to stand for the proposition that certain
constitutional rights are inherent in United States citizenship.

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Reynolds v. Sims, 377 U.S. 533, 562 (1964).

II.

Since Balzac the civil rights of United States citizens

residing in Puerto Rico, particularly their national political rights,

have remained dormant at best, subject to the vagaries of Congress, and

the conspicuous inattention of the judiciary. The granting of so-

called "Commonwealth" status in 1952,15 itself an enigmatic condition16

15 See Public Law 600, ch. 446, 64 Stat. 319 (1950) (codified
at 48 U.S.C. § 731(b) (1994)).
16 Even the term "Commonwealth," as applied to Puerto Rico,
is meaningless. Massachusetts, Pennsylvania, and Virginia are all
entitled "commonwealths," yet Puerto Rico is certainly not equivalent
to them as a political entity. Puerto Rico and the United States
certainly do not form a "Commonwealth of Nations" nor is their
relationship in anyway similar to that of the nations forming the
"British Commonwealth." In fact, the official title of "Commonwealth
of Puerto Rico" is also officially in Spanish "Estado Libre Asociado,"
which literally translated means "Free Associated State." Puerto Rico
is neither free nor a state, and as to being "associated" with the
United States, the Supreme Court ruled long ago that "the Island of
Porto Rico is a territory appurtenant and belonging to the United
States, but not a part of the United States" for some purposes.
Downes, 182 U.S. at 287 (Puerto Rico not part of the U.S. for revenue
purposes). But see De Lima, 182 U.S. at 199-200 (Puerto Rico part of
the U.S. for tariff purposes) (stating, ironically, "We are unable to
acquiesce in this assumption that a territory may be at the same time
both foreign and domestic"). The confusion does not end with the name,
as the various courts, including of course the Supreme Court and our
own, have contributed much to this condition. See Rodríguez v. Popular
Democratic Party, 457 U.S. 1 (1982); Harris v. Rosario, 446 U.S. 651
(1980); Califano v. Torres, 435 U.S. 1 (1978); Examining Bd. of Eng'rs
v. Flores, 426 U.S. 572 (1976); Calero Toledo v. Pearson Yacht Leasing
Co., 416 U.S. 663 (1974); Mercado v. Puerto Rico, 214 F.3d 34, 40, 44
(1st Cir. 2000); Dávila-Pérez v. Lockheed Martin Corp., 202 F.3d 464
(1st Cir. 2000); Moreno v. United States, 38 F.3d 1204 (Fed. Cir.
1994); United States v. Sánchez, 992 F.2d 1143 (11th Cir. 1993);
Trailer Marine Trans. Corp. v. Rivera-Vázquez, 977 F.2d 1, 7 (1st Cir.

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which merely allowed the residents of Puerto Rico limited self-

government, did nothing to correct Puerto Rico's fundamental condition

of national unempowerment, embodied most notably in the lack of voting

representation in the Congress and the ineligibility to vote for

President and Vice-President. The United States citizens residing in

Puerto Rico to this day continue to have no real say in the choice of

those who, from afar, really govern them, nor as to the enactment,

application, and administration of the myriad of federal laws and

regulations that control almost every aspect of their daily affairs.

On numerous occasions since 1952 Congress has turned a blind

eye and a deaf ear to the continuing inequality to which United States

citizens in Puerto Rico are subjected, and a perusal of the

Congressional Record demonstrates the jealousy with which Congress has

guarded its plenary power over the Island.17 The courts have supported

this view. See Harris v. Rosario, 446 U.S. 651 (1980); Califano v.

Torres, 389 U.S. 1 (1978).

This is not a totally unpredicted scenario. As far back as

1901, in the first of the Insular Cases, De Lima v. Bidwell, 182 U.S.

1992); United States v. López-Andino, 831 F.2d 1164 (1st Cir. 1987);
Córdova v. Simonpietri Ins. Agency v. Chase Manhattan Bank, 649 F.2d 36
(1st Cir. 1981).
17 See Hearings Before the House Comm. on Resources on H.R.
4751, 106th Cong., (Oct. 4, 2000); Young Bill, H.R. 856, 105th Cong.
(1997); Fernós-Murray Bill, H.R. 5926, 86th Cong. (1959); Aspinall
Bill, H.R. 5945, 88th Cong. (1963); Hearings Before House Subcomm. on
Territorial Affairs on H.R. 5945, 88th Cong. (1963).

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at 196-97, the Court expressed its concern with the possibility that

Congress might hold Puerto Rico in limbo indefinitely:

The theory that a country remains foreign with
respect to the tariff laws until Congress has
acted by embracing it within the Customs union,
. . . presupposes that territory may be held
indefinitely by the United States; that it may be
treated in every particular, except for tariff
purposes, as domestic territory; that laws may be
enacted and enforced by officers of the United
States sent there for that purpose; that
insurrections may be suppressed, wars carried on,
revenues collected, taxes imposed; in short, that
everything may be done which a government can do
within its own boundaries, and yet that the
territory may still remain a foreign country.
That this state of things may continue for years,
for a century even, but that until Congress
enacts otherwise, it still remains a foreign
country. To hold that this can be done as matter
of law we deem to be pure judicial legislation.
We find no warrant for it in the Constitution or
in the powers conferred upon this court . . . .
(Emphasis provided).

See also Downes, 182 U.S. at 379-80 (Harlan, J. dissenting).

The present conundrum cannot be justified or perpetuated

further under the subterfuge of labeling it a "political question."

Undoubtedly, this situation is "political" in the sense that it

involves the political rights of a substantial number of United States

citizens. It is also "political" because it is one that should, in the

normal course of things, be resolved by the political process and the

political branches of government. But in the final analysis, this

problem is no more "political" than that presented to and resolved by

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the Supreme Court in Brown v. Board of Education, 347 U.S. 483 (1954),

one that required corrective judicial action even in the face of

longstanding legal precedent.18 In Brown, the Court recognized that,

as the ultimate interpreter and protector of the Constitution, it must

at times fill the vacuum created by the failure or refusal of the

political branches to protect the civil rights of a distinct and

politically powerless group of United States citizens. See also United

States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938) (famously

suggesting that "prejudice 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 a correspondingly more searching

judicial inquiry").

The United States citizens residing in Puerto Rico are caught

in an untenable Catch-22. The national disenfranchisement of these

citizens ensures that they will never be able, through the political

processes, to rectify the denial of their civil rights in those very

political processes. This uninterrupted condition clearly provides

solid basis for judicial intervention at some point, one for which

there is resounding precedent. See Brown v. Board of Education, supra.

III.

In this 211th year of the United States Constitution, and

18 See Plessy v. Ferguson, 163 U.S. 537 (1896).

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102nd year of United States presence in Puerto Rico, United States

citizenship must mean more than merely the freedom to travel to and

from the United States. See Balzac, 258 U.S. at 308. This citizenship

should not, cannot, be devalued to such a low scale.

After more than a century of United States possession of

Puerto Rico, there continues to be tremendous debate over the status of

the Island and the nature of its relationship with the United States.

Certainly the citizens of Puerto Rico are divided on the issue, a

condition which has permitted the federal government to externalize

this question. What is established, for the time being at least, is

that the federal courts continue to recognize the almost absolute power

of Congress to unilaterally dictate the affairs of Puerto Rico and her

people. So long as that is the case, the practicality of the matter is

that Puerto Rico remains a colony with little prospect of exerting

effective political pressure on the elected branches of government to

take corrective action.

The contemporary society of United States citizens residing

in Puerto Rico hardly deserves colonial treatment by the United States,

assuming that such treatment is ever justified. Puerto Rico is home to

a vibrant intellectual and cultural community which includes many

institutions of higher education and other indicia of modern society,

as well as a solid economic foundation which is wholly integrated into

the National framework. Most importantly, its citizens have

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contributed in full measure, and at times beyond, to the defense of our

Country.19

The perpetuation of this colonial condition runs against the

very principles upon which this Nation was founded. Indefinite

colonial rule by the United States is not something that was

contemplated by the Founding Fathers nor authorized per secula

seculorum by the Constitution. See Downes, 182 U.S. at 380 (Harlan,

J., dissenting) ("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 those

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."). And far from being a matter of local concern to the

United States citizens in Puerto Rico only, the inequality to which

these citizens are subjected is an injury to every American, because as

surely as the current situation causes irreparable harm to United

States citizens residing in Puerto Rico, it just as powerfully

19 For example, more than 62,000 Puerto Ricans served in World
War II. In Korea, over 43,000 Puerto Ricans served, including almost
40,000 volunteers, and approximately 3,540 of them lost their lives in
defense of the United States, the second highest rate per capita of any
jurisdiction in the Nation. Some 48,000 Puerto Ricans served in
Vietnam; approximately 270 were killed and more than 3,000 wounded.
Puerto Ricans also served in World War I and in every significant
United States conflict since Vietnam, including the Persian Gulf War.
See Lance Oliver, Puerto Rico's Overlooked Veterans, P. R. Herald (Nov.
11, 1999), available online at .

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denigrates the entire Nation and the Constitution.

Although this is not the case, nor perhaps the time, for a

federal court to take remedial action to correct what is a patently

intolerable situation, it is time to serve notice upon the political

branches of government that it is incumbent upon them, in the first

instance, to take appropriate steps to correct what amounts to an

outrageous disregard for the rights of a substantial segment of its

citizenry. A failure to do so countenances corrective judicial action.

See Brown v. Board of Education, supra. It may be that the federal

courts will be required to take extraordinary measures as necessary to

protect discrete groups "completely under the sovereignty and dominion

of the United States." Cherokee Nation v. Georgia, 30 U.S. 1, 17

(1831) (Marshall, C.J.).

My concurrence in today's decision, of course, indicates that

I do not consider this the appropriate case for such intervention,

largely because the particular issue of the presidential vote is

governed by explicit language in the Constitution providing for the

election of the President and Vice-President by the States, rather than

by individual citizens. But I, for one, am of the view that my vote

today is not equivalent to a carte blanche.

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