“The People” Protects the People of Puerto Rico: Giving Meaning to an Uninterpreted Part of the Tenth Amendment
The island of Puerto Rico is unique—not just culturally, but politically and constitutionally. In the words of the U.S. Supreme Court, Puerto Rico “occupies a relationship to the United States that has no parallel in our history.” Footnote #1 content: Examining Bd. of Eng’rs, Architects & Surveyors v. Flores de Otero, 426 U.S. 572, 596 (1976). Though this unparalleled relationship comes with benefits, it also comes with a cost: for more than a century, Puerto Rico has had a quasi-domestic, quasi-foreign relationship with the United States. Puerto Rico is a U.S. territory, and Puerto Ricans are U.S. citizens. Footnote #2 content: See Raquel Reichard, Why Isn’t Puerto Rico a State?, HISTORY (Mar. 6, 2025), https://www. history.com/news/puerto-rico-statehood [https://perma.cc/C47G-2PMP]. In many respects, the island’s government functions like those of the fifty states of the Union. Puerto Rico has a governor, a bicameral legislature, and a supreme court, and since 1952 has exercised powers of self-governance. Footnote #3 content: See Anna Price, The Commonwealth of Puerto Rico and Its Government Structure, LIBR. CONG.: BLOGS (Nov. 10, 2022), https://blogs.loc.gov/law/2022/11/the-commonwealth-of-puerto-rico-and-its- government-structure [https://perma.cc/FT6B-LAUP]; Developments in the Law: The U.S. Territories, 130 HARV. L. REV. 1616, 1632–33 (2017). The island’s powers of self-governance stem from a congressional grant of sovereignty similar to that enjoyed by the fifty states, despite a much less certain constitutional doctrine underlying that grant of sovereignty. Footnote #4 content: See Developments in the Law, supra note 3, at 1632–33. But Puerto Rico is not a state, and recent federal actions intruding upon the island’s power of self-governance have renewed calls to define—or redefine—what Puerto Rico is and should be. Footnote #5 content: See, e.g., Nicole Acevedo, What’s Behind Calls for Puerto Rico Statehood? Here Are 4 Things to Know., NBC NEWS (Mar. 3, 2021, 11:16 AM), https://www.nbcnews.com/news/latino/what-s-behind- calls-puerto-rico-statehood-here-are-4-n1259300. The federal–state relationship differs greatly from the federal–territory relationship. On the one hand, the federal–state relationship comprises two separate sovereigns—the federal government and the states—and the Tenth Amendment is one of several constitutional provisions delineating the balance of power between those two sovereigns. Footnote #6 content: The Tenth Amendment states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” U.S. CONST. amend. X. In fact, the Court has recognized the Tenth Amendment as an independent limitation on what the federal government can do vis-à-vis the states. Footnote #7 content: See, e.g., Nat’l League of Cities v. Usery, 426 U.S. 833, 842–43 (1976); New York v. United States, 505 U.S. 144, 156–57 (1992); Printz v. United States, 521 U.S. 898, 919 (1997). The constitutional division of authority between the federal government and the states, a concept known as “federalism,” protects the states from the arbitrary exercise of federal power. Footnote #8 content: Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 536 (2012); see also Akhil Reed Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425, 1448–51 (1987) (discussing the development of American-style federalism). On the other hand, the federal–territory relationship comprises only one sovereign—the federal government—and the Territory Clause of Article IV gives Congress, an entity over which U.S. territories have little influence, Footnote #9 content: Residents of U.S. territories have only non-voting representation in Congress. See U.S. GOV’T ACCOUNTABILITY OFF., GAO/OGC-98-5, U.S. INSULAR AREAS: APPLICATION OF THE U.S. CONSTITUTION 26–27 (1997). ample powers to “dispose of” and “make all needful Rules and Regulations” respecting those territories. Footnote #10 content: U.S. CONST. art. IV, § 3, cl. 2. Consequently, the power of self-governance that Puerto Rico enjoys today exists only because Congress authorized it through federal law. Footnote #11 content: See Puerto Rico Federal Relations Act of 1950 § 1, 48 U.S.C. § 731b. This seemingly undemocratic distinction between the federal–state relationship and the federal–territory relationship has led some to conclude that Puerto Rico is a colony of the United States. Footnote #12 content: See, e.g., Juan R. Torruella, ¿Hacia dónde vas Puerto Rico?, 107 YALE L.J. 1503, 1519–20 (1998). See generally JOSÉ TRÍAS MONGE, PUERTO RICO: THE TRIALS OF THE OLDEST COLONY IN THE WORLD (1997). A colony is “[a] dependent territorial entity subject to the sovereignty of an independent country, but considered part of that country for purposes of relations with third countries.” Colony, BLACK’S LAW DICTIONARY (9th ed. 2009). And though students of the Puerto Rico–U.S. relationship might agree with the colony label, unexplored legal avenues exist for Puerto Rico to claim rights typically reserved to the states. Indeed, the Tenth Amendment speaks about more than just states: it speaks about rights reserved to the “states, or to the people.” Footnote #13 content: U.S. CONST. amend. X (emphasis added). This Note argues there is another way to think about what Puerto Rico currently is—constitutionally speaking. This Note proceeds in three Parts. Part I summarizes the political and legal relationship between Puerto Rico and the United States. Part II argues that the Tenth Amendment’s restrictions on federal power protect more than just states, as evidenced by both the text itself and the Court’s case law defining the term “the people” in other constitutional contexts. Part II further reasons that through the federal government’s grant of U.S. citizenship to Puerto Ricans in 1917 and its subsequent state-like treatment of Puerto Rico from 1952 to 2016, Puerto Ricans became part of “the people” protected by the Tenth Amendment. Finally, Part III explains how the Court’s “anti-commandeering” principle can protect Puerto Rico and why recent federal legislation affecting the island is unconstitutional under this federalist framework.
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