Igartua v. United States , 626 F.3d 592 ( 2010 )

United States Court of Appeals
For the First Circuit
No. 09-2186
GREGORIO IGARTÚA, ET AL.,
Plaintiffs, Appellants,
v.
UNITED STATES OF AMERICA, ET AL.,
Defendants, Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Lipez, Circuit Judges.
Gregorio Igartúa for the appellants.
Claudio Aliff-Ortiz with whom Guillermo Somoza-Colombani,
Attorney General of the Commonwealth of Puerto Rico, Irene Soroeta
Kodesh, Solicitor General of the Commonwealth of Puerto Rico,
Eliezer Aldarondo-Ortiz, and Eliezer A. Aldarondo-López were on
brief for the Commonwealth of Puerto Rico, amicus curiae.
Mark R. Freeman, Appellate Staff, Civil Division, Department
of Justice, with whom Tony West, Assistant Attorney General, Rosa
Emilia Rodríguez-Vélez, United Stated Attorney, and Michael Jay
Singer, Appellate Staff, Civil Division, Department of Justice,
were on brief for appellees.
November 24, 2010
LYNCH, Chief Judge. Plaintiff Gregorio Igartúa and
others have brought suit claiming they and other U.S. citizen-
residents of Puerto Rico have a right to vote for a Representative
to the U.S. House of Representatives from Puerto Rico and a right
to have Representatives from Puerto Rico in that body. Long ago,
residents of Puerto Rico were granted U.S. citizenship by statute.
See Pub. L. No. 368, ch. 145, § 5, 39 Stat. 951 (1917).
Igartúa's putative class action claim is supported in
part by the government of the Commonwealth of Puerto Rico, which
has filed a brief amicus curiae and presented oral argument. The
defendants are the United States, as well as the President of the
United States, the Secretary of Commerce, and the Clerk of the
United States House of Representatives, all in their official
capacities. Among the remedies Igartúa seeks is an order directing
these officials to "take all the necessary steps . . . to
implement[] the apportionment of Representatives [in the] electoral
process to Puerto Rico."
The district court dismissed the complaint. See Igartua
v. United States, No. 08-1174 (D.P.R. June 3, 2009). On de novo
review, we affirm the dismissal. The text of the U.S. Constitution
grants the ability to choose, and so to vote for, members of the
House of Representatives to "the People of the several States."
U.S. Const. art. I, § 2. Since Puerto Rico is not a state, and
cannot be treated as a state under the Constitution for these
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purposes, its citizens do not have a constitutional right to vote
for members of the House of Representatives. Igartúa's claim that
international law requires a contrary result is foreclosed by our
decision in the last case Igartúa brought before us. See
Igartúa-de la Rosa v. United States (Igartúa III), 417 F.3d 145(1st Cir. 2005) (en banc). The case was properly dismissed.
The panel is unanimous in agreeing that the U.S.
Constitution does not give Puerto Rico residents the right to vote
for members of the House of Representatives because Puerto Rico is
not a state.
Chief Judge Lynch and Judge Lipez conclude that this
panel is bound by Igartúa III's holding that the Constitution does
not permit granting such a right to the plaintiffs by means other
than those specified for achieving statehood or by amendment.
Chief Judge Lynch independently concludes that this holding in
Igartúa III is correct. Judge Lipez considers the panel bound by
this holding in Igartúa III, but he does not express a view of his
own on its merit. Chief Judge Lynch and Judge Lipez agree that
Igartúa III requires dismissal of plaintiffs' claims based on
treaties and international law. Judge Lipez joins the holding that
dismissal of the case is affirmed. He joins this introduction, the
introduction to Section II, Sections II.A, II.B, and II.C.1, and
Section III of Chief Judge Lynch's opinion. He expresses
additional views in his concurring opinion.
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Judge Torruella dissents and is of the view that the
constitutional text neither denies citizens of Puerto Rico the
right to vote for members of the House of Representatives nor
imposes a limitation on the federal government's authority to
extend the franchise to territorial residents under other
constitutional powers.
I.
This is plaintiff Igartúa's fourth case before this court
raising questions about the ability of the U.S. citizen-residents
of Puerto Rico to vote for those high federal officials described
in the Constitution. In three earlier decisions, including an en
banc decision, this court rejected Igartúa's analogous claims that
Puerto Rican U.S. citizen-residents have a right to vote in
elections for President and Vice President of the United States.
See Igartúa III, 417 F.3d 145; Igartúa de la Rosa v. United States
(Igartúa II), 229 F.3d 80 (1st Cir. 2000); Igartúa de la Rosa v.
United States, 32 F.3d 8 (1st Cir. 1994). These cases inform our
analysis of this admittedly different, but related question.
Igartúa's arguments are unavailing. First, the text of
the Constitution, in several provisions, plainly limits the right
to choose members of the House of Representatives to citizens of a
state. Second, the constitutional text is entirely unambiguous as
to what constitutes statehood; the Constitution explicitly recites
the thirteen original states as being the states and articulates a
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clear mechanism for the admission of other states, as distinct from
territories. Puerto Rico does not meet these criteria. Third,
these provisions of the constitutional text are deliberate and go
to the heart of the Constitution. This deliberate constitutional
framework may not be upset.
This Section addresses these points, which require the
dismissal of plaintiffs' complaint. The subsequent Sections turn
to the additional arguments raised by Igartúa and the government of
the Commonwealth of Puerto Rico.
The analysis of Igartúa's constitutional claims begins
with the pertinent text of the U.S. Constitution as to the U.S.
House of Representatives. This language is different from that
governing the ability to vote for President, which was at issue in
Igartúa III.
The text of the Constitution refers directly to the
election of members of the House of Representatives in Article I,
Article II, and the Fourteenth Amendment. Article I reads, in
relevant part:
The House of Representatives shall be composed
of Members chosen every second Year by the
People of the several States, and the Electors
in each State shall have the Qualifications
requisite for Electors of the most numerous
Branch of the State Legislature.
No person shall be a Representative who shall
not have attained to the Age of twenty five
Years, and been seven Years a Citizen of the
United States, and who shall not, when
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elected, be an Inhabitant of that State in
which he shall be chosen.
Representatives . . . shall be apportioned
among the several States which may be included
within this Union, according to their
respective Numbers . . . . The Number of
Representatives shall not exceed one for every
thirty Thousand, but each State shall have at
Least one Representative . . . .
When vacancies happen in the Representation
from any State, the Executive Authority
thereof shall issue Writs of Election to fill
such Vacancies.
. . . .
The Times, Places and Manner of holding
Elections for Senators and Representatives,
shall be prescribed in each State by the
Legislature thereof; but the Congress may at
any time by Law make or alter such
Regulations, except as to the Places of
Chusing Senators.
U.S. Const. art. I, § 2, cl. 1-4 (emphasis added); id. § 4, cl. 1
(emphasis added). Article I itself uses the term "State" or
"States" eight times when defining and outlining the House of
Representatives.
In addition to Article I, Article II, when referring to
the election of the President, reads:
Each State shall appoint . . . a Number of
Electors, equal to the whole Number of
Senators and Representatives to which the
State may be entitled in the Congress.
Id. art. II, § 1, cl. 2 (emphasis added). This reinforces the link
between statehood and the House of Representatives.
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Further, the Fourteenth Amendment, when describing the
apportionment of Representatives, states:
Representatives shall be apportioned among the
several States according to their respective
numbers, counting the whole number of persons
in each State . . . .
Id. amend. XIV, § 2 (emphasis added). The amendment process has
been used to reinforce, not to alter, the original text that
Representatives come from the states.
The text of Article I is clear that only the people of a
state may choose the members of the House of Representatives from
that state. Id. art. I, § 2, cl. 1 ("The House of Representatives
shall be composed of Members chosen every second Year by the People
of the several States."). We reject Igartúa's argument that this
text refers only to "People" and that we may ignore the express
limitation on representation to "People of the several States."
Id. (emphasis added).1 Our conclusion is reinforced by Article I,
Section 2, Clauses 2 through 4, as well as by Article I, Section 4,
Article II, Clause 2, and Section 2 of the Fourteenth Amendment,
which again refer to states in describing the number of
Representatives, their apportionment, and the setting of elections.
The text of the Constitution defines the term "State" and
affords no flexibility as to its meaning. The term is unambiguous
1
The term "People" clarifies that Representatives are not
to be chosen by state legislatures. Seth Lipsky, The Citizen's
Constitution 5 n.12 (2009).
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and refers to the thirteen original states, which are specifically
named in Article I, Section 2, id. art. I, § 2, cl. 3, and those
which have since joined the Union through the process set by the
Constitution, id. art. IV, § 3, cl. 1; see also Pollard v. Hagan,
44 U.S. 212, 216 (1845) (noting that states which join the union
through the constitutionally ordained process "must be
admitted . . . on an equal footing with the rest"). Puerto Rico
fits in none of these categories.
Because Puerto Rico is not a state, it may not have a
member of the House of Representatives. Id. art. I, § 2, cl. 1.
And because Puerto Rico is not a state, the legislature of Puerto
Rico may not set any time, place, or manner for holding elections
for Representatives. Id. § 4, cl. 1. Nor is Puerto Rico included
in the apportionment for the House.2 Id. § 2 cl. 3; id. amend.
XIV, § 2. The text of the Constitution does not permit plaintiffs
to vote for a member of the U.S. House of Representatives. It
cannot, then, be unconstitutional to conclude the residents of
Puerto Rico have no right to vote for Representatives.
Statehood is central to the very existence of the
Constitution, which expressly distinguishes between states and
2
While the population of Puerto Rico is included in census
data collected by the Secretary of Commerce, so is census data from
U.S. territories and possessions other than states. 13 U.S.C.
§ 191. Only the data on the population of the states is
transmitted to Congress by the President for apportionment
purposes. 2 U.S.C. § 2a(a); 13 U.S.C. § 141(b).
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territories, see U.S. Const. art. IV, § 3, cl. 1. The limitation
on representation in the House to the people of the states was
quite deliberate and part of the Great Compromise. The Great
Compromise, which enabled the fledgling states to move beyond loose
affiliation and achieve nationhood, depended precisely on this firm
definition of a "State." The Framers appeared at the
Constitutional Convention as representatives of the thirteen
individual states.3 See Max Farrand, The Framing of the
Constitution of the United States 10-11 (1913). Disputes between
delegates from more and less populous states regarding how to
structure congressional representation brought the convention to a
standstill. Id. at 97.
The Great Compromise broke the deadlock, by providing
that "the People of the several States" would be represented in
proportion to their several populations in the House of
Representatives, whereas the Senate would have two senators per
state, regardless of the state's population. See id. at 91-106;
see also Wesberry v. Sanders, 376 U.S. 1, 10-13 (1964) (detailing
the debate over representation). That compromise was explicitly
predicated on the definition of statehood contained in the
3
Indeed, the thirteen former colonies' identity as
"states" predated the Constitution. See, e.g., Wesberry v.
Sanders, 376 U.S. 1, 9 (1964) ("Though the Articles [of
Confederation] established a central government for the United
States, as the former colonies were even then called, the States
retained most of their sovereignty, like independent nations bound
together only by treaties.").
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Constitution. See Wesberry, 376 U.S. at 13 ("The debates at the
[Constitutional] Convention make at least one fact abundantly
clear: that when the delegates agreed that the House should
represent 'people' they intended that in allocating Congressmen the
number assigned to each State should be determined solely by the
number of the State's inhabitants.") (emphasis added); see also
Utah v. Evans, 536 U.S. 452, 477 (2002) (noting the "important
constitutional determination[] that comparative state political
power in the House would reflect comparative population") (emphasis
added); Henry Paul Monaghan, We the People[s], Original
Understanding, and Constitutional Amendment, 96 Colum. L. Rev. 121,
143 (1996) ("[I]n the new constitutional order, the [Great]
Compromise ensured that the states would be part of an
'indestructible Union, composed of indestructible States.'")
(quoting Texas v. White, 74 U.S. (7 Wall.) 700, 725 (1868)).
The Framers also included a procedure to amend the
Constitution should the basic compromise--centered around
statehood–-require alteration. U.S. Const. art. V. There has been
no amendment that would permit the residents of Puerto Rico to vote
for Representatives to the U.S. House of Representatives. Indeed,
the Fourteenth Amendment adhered to the requirement of statehood
for purposes of representation in the House of Representatives that
is articulated in the original constitutional text. Id. amend.
XIV, § 2. By contrast, the District of Columbia has, through
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constitutional amendment, been given the ability to have electors
for purposes of electing the President and Vice President of the
United States. Id. amend. XXIII, § 1.
We concluded in Igartúa III and conclude again here that
Puerto Rico "is not a 'state' within the meaning of the
Constitution." 417 F.3d at 147.4 As we held there, voting rights
to choose electors are "confined" to citizens of the states because
that "is what the Constitution itself provides." Id. at 148. On
the same basis, affirmance of this action is necessary. Voting
rights for the House of Representatives are limited to the citizens
of the states absent constitutional amendment to the contrary.
Several other arguments made by the government of Puerto
Rico5 and Igartúa that the plaintiffs nonetheless have a right to
vote for a Representative to the U.S. House of Representatives are
rejected.
II.
The government of the Commonwealth argues that because
there is caselaw treating Puerto Rico as the functional equivalent
4
The special relationship between the Commonwealth of
Puerto Rico and the United States is described in detail in Igartúa
III and will not be repeated here. See Igartúa-de la Rosa v.
United States, 417 F.3d 145, 147 (1st Cir. 2005) (en banc).
5
Although we do not normally deal with arguments raised
for the first time by amici, this court has discretion to do so.
See, e.g., Aroostook Band of Micmacs v. Ryan, 484 F.3d 41, 51 n.11
(1st Cir. 2007). The importance of this case warrants the exercise
of that discretion.
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of a state for purposes of applying certain constitutional clauses,
it follows that Puerto Rico must also be treated as the functional
equivalent of a state for purposes of voting to elect a member of
the House of Representatives. As the government puts the argument,
the Commonwealth "does not need to be a State of the Union to be
entitled to representation in the House of Representatives."
The government of Puerto Rico further urges that the
Supreme Court's decision in Boumediene v. Bush, 553 U.S. 723(2008), decided after Igartúa III, supports its argument and
supersedes our reasoning in rejecting that very claim in Igartúa
III. The government argues that the relationship between the
United States and Puerto Rico has so strengthened in ways which are
constitutionally significant under Boumediene that Puerto Rico is
"de facto" a state for Article I House of Representative purposes.
The government also argues that it is inherent in the grant of
American citizenship to the residents of Puerto Rico that they be
afforded the "right to elect voting representatives to the House of
Representatives."
Finally, Igartúa asserts that international agreements
and treaties as well as customary international law require that
his claim be granted. Such arguments were rejected before, and
they do not succeed here.6
6
We also reject the argument made by Igartúa, but not made
by the government, that this case must be heard by a three-judge
district court under 28 U.S.C. § 2284(a). That statute provides
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A. The Government of Puerto Rico's Argument That the
Commonwealth Must Be Treated as the Functional Equivalent
of a State for Purposes of Article I Fails
The government of Puerto Rico recognizes that the claim
that Puerto Rico is the functional equivalent of a state was
available at the time of Igartúa III, even if not made then as
explicitly as it is made in this case. Nonetheless, we examine the
argument and reject it.
The government, relying primarily on First Circuit
caselaw, correctly notes that for some constitutional purposes
Puerto Rico has been treated as the functional equivalent of a
state. For example, Eleventh Amendment restrictions on the
jurisdiction of the federal courts have been extended to Puerto
Rico. See, e.g., Nieves-Márquez v. Puerto Rico, 353 F.3d 108, 127
(1st Cir. 2003). Puerto Rico's government has also been subjected
to the constraints of the dormant Commerce Clause. Trailer Marine
Transp. Corp. v. Rivera Vazquez, 977 F.2d 1, 7 (1st Cir. 1992).
Further, a number of provisions of the Bill of Rights
that have been applied as against the states by incorporation
through the Due Process Clause of the Fourteenth Amendment have
also been extended against Puerto Rico. See, e.g., Mangual v.
Rotger-Sabat, 317 F.3d 45, 53 n.2 (1st Cir. 2003) ("[R]esidents of
that a "district court of three judges shall be convened
when . . . an action is filed challenging the constitutionality of
the apportionment of congressional districts." Id. That is not
the issue in this case.
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Puerto Rico are protected by the First Amendment."); Tenoco Oil
Co., Inc. v. Dep't of Consumer Affairs, 876 F.2d 1013, 1017 n.9
(1st Cir. 1989) (noting that Puerto Rico residents are given
procedural due process rights under either or both the Fifth and
Fourteenth Amendments); United States v. Lopez Audino, 831 F.2d
1164, 1168 (1st Cir. 1987) ("Puerto Rico is to be treated as a
state for purposes of [a criminal defendant's protection under] the
double jeopardy clause.").7
However, no case, from this court or the Supreme Court,
has ever held that Puerto Rico is to be treated as the functional
equivalent of a state for purposes of the House of Representative
clauses of Article I of the Constitution; nor does the government
say such a case exists.
The "functional equivalent" argument is refuted by a
plain reading of the text of the Constitution. The constitutional
text allocates voting for members of the House to people of a
"State." See U.S. Const. art. I, § 2, cl. 1-4.
7
Although the government of Puerto Rico relies on these
and similar cases, the cases guarantee the rights of individuals
against the government of Puerto Rico and are not concerned with an
expansion or recharacterization of the status of Puerto Rico
itself. Similarly, application of the Eleventh Amendment to Puerto
Rico is not a grant of authority to Puerto Rico, but rather is a
restriction on the federal courts' jurisdiction in certain cases.
See, e.g., Fresenius Medical Care Cardiovascular Res., Inc. v. P.R.
& the Carribean Cardiovascual Center Corp., 322 F.3d 56, 63 (1st
Cir. 2003).
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As a result, there is no room for a court to deviate from
the words of the Constitution or to adopt a functional equivalency
test. No constitutional text vests the power to amend or the power
to create a new state in the federal courts. No such power is
granted to the courts by Article III, which creates and limits the
jurisdiction of the federal courts. This alone precludes our
accepting the government's functional equivalent argument.
B. The Government of Puerto Rico's Argument Regarding the
Effect of Boumediene v. Bush Is Incorrect
The government of Puerto Rico also argues that the
Supreme Court's 2008 decision in Boumediene, 553 U.S. 723, supports
the adoption of a "de facto" test for statehood and requires
rethinking of the conclusion reached in Igartúa III. Boumediene
does no such thing.
Boumediene addressed whether aliens designated as enemy
combatants and detained at the United States Naval Station at
Guantanamo Bay, Cuba, "have the constitutional privilege of habeas
corpus, a privilege not to be withdrawn except in conformance with
the Suspension Clause." Id. at 732. The case has nothing to do
with whether U.S. citizens residing in Puerto Rico may vote for
members of the House of Representatives or whether Puerto Rico
should be treated as a state for House of Representatives purposes.
The government argues that Boumediene has nonetheless
established a "de facto" test governing whether U.S. citizens
residing in Puerto Rico may vote for and have a Representative in
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the House of Representatives. It is not entirely clear from the
government's argument whether the content of this proposed "de
facto" test is different in substance from the "functional
equivalent" test we rejected above.
The government of Puerto Rico's claim is that in
Boumediene the Supreme Court "in effect revisited its position
regarding the rights of those residing in territories of the United
States." The government cites out of context to several of the
Supreme Court's statements in that case. The government relies
heavily on the Court's observation that "questions of
extraterritoriality turn on objective factors and practical
concerns, not formalism." Id. at 764. The government argues that
the Court described the Insular Cases as applying to territories
"with wholly dissimilar traditions and institutions that Congress
intended to govern only temporarily," id. at 759 (internal
quotation marks omitted), and notes the Court's recognition that
"[i]t may well be that over time the ties between the United States
and any of its unincorporated territories strengthen in ways that
are of constitutional significance," id. at 758.
On the basis of these quotations, concerned with an
entirely different question, the government argues that the Supreme
Court has adopted a functional, de facto approach to all questions
of the effect of territorial status. It further argues that the
degree of integration between Puerto Rico and the United States has
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led to a relationship that is comparable to the relationship
between the national government and one of the fifty "de jure"
states of the Union.
The government's argument both misapplies Boumediene and
overreaches. As the United States points out, the Boumediene court
was concerned only with the Suspension Clause, U.S. Const. art. I,
§ 9, cl. 2, and not with Article I, Section 2, or any other
constitutional text. No question is raised in this case about the
extraterritorial availability of habeas corpus under the Suspension
Clause.8 To the extent a de facto analysis may govern the
availability of the writ of habeas corpus for aliens designated as
enemy combatants and held at Guantanamo, there was no claim in
Boumediene that Guantanamo was a state of the United States.
Further, unlike Article I, Section 2, the Suspension Clause
contains no mention of the "States," nor is it otherwise
geographically limited. Id.
Boumediene did not hold that courts may disregard the
explicit language in the text of the Constitution that
representation in the House is given to "the People of the several
States." Nor did the Supreme Court hold that all provisions of the
Constitution, regardless of constitutional text, may be applied
without regard to whether a state is involved. Cf. District of
8
The residents of Puerto Rico have the federal writ of
habeas corpus available to them by statute. 48 U.S.C. § 872.
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Columbia v. Carter, 409 U.S. 418, 420 (1973) ("Whether the District
of Columbia constitutes a 'State or Territory' within the meaning
of any particular . . . constitutional provision depends upon the
character and aim of the specific provision involved.").
Because the government of Puerto Rico's argument is based
on a misreading of Boumediene, we need not address its claim about
the precise status of Puerto Rico. What is clear is that the
Commonwealth "is not a 'state' within the meaning of the
Constitution." Igartúa III, 417 F.3d at 147. Even if the ties
between the United States and Puerto Rico were strengthened in ways
that might have some constitutional significance as to habeas
corpus, that would have no bearing on the Article I question before
us.
Moreover, an earlier line of Supreme Court cases, not
overruled by Boumediene, plainly rejected the "de facto" approach,
which the government urges, to determining what qualifies as a
state. As early as 1805, Chief Justice Marshall rejected a claim
by residents of the District of Columbia that the Court should
treat the District as a state because it met some political
theorists' definition of a "state," that is, a discrete political
society. Hepburn & Dundas v. Ellzey, 6 U.S. (2 Cranch) 445, 445-
46, 452-53 (1805). Chief Justice Marshall explicitly quoted
Article I's language concerning the election of Representatives "by
the people of the several states" as evidence "that the word state
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is used in the constitution as designating a member of the union,
and excludes from the term the signification attached to it by
writers on the law of nations." Id. at 452-53.
The Supreme Court applied similar reasoning in two later
nineteenth century cases to reject arguments by residents of the
Florida and Mississippi territories that these territories should
be treated as states. Am. Ins. Co. v. 356 Bales of Cotton, 26 U.S.
(1 Pet.) 511, 542 (1828) (noting that residents of Florida "do not
. . . participate in political power" and "do not share in the
government, until Florida shall become a state"); Corp. of New
Orleans v. Winter, 14 U.S. (1 Wheat.) 91, 94 (1816) ("It has been
attempted to distinguish a Territory from the district of Columbia;
but the court is of opinion, that this distinction cannot be
maintained . . . [N]either of them is a state, in the sense in
which that term is used in the constitution.").
More recently, the Supreme Court has affirmed the
rejection of variations on both the "functional equivalent" and the
"de facto" arguments made here. In Adams v. Clinton, 90 F. Supp.
2d 35 (D.D.C. 2000) (per curiam), aff'd without opinion, 531 U.S.
941 (2000), the Supreme Court affirmed the rejection by a three-
judge court of the claim that denial of the right to vote in
congressional elections to District of Columbia residents was
unconstitutional. Relying in part on the constitutional language
and history discussed above, the three-judge court concluded that
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"the overlapping and interconnected use of the term 'state' in the
relevant provisions of Article I, the historical evidence of
contemporary understandings, and the opinions of our judicial
forebears all reinforce how deeply Congressional representation is
tied to the structure of statehood." Adams, 90 F. Supp. 2d at 56.
Courts of appeals have reached the conclusion that U.S.
territories are not states for similar purposes. The Virgin
Islands are not a state for purposes of federal elections,
Ballentine v. United States, 486 F.3d 806, 811 (3d Cir. 2007), nor
is Guam, Attorney Gen. of the Territory of Guam v. United States,
738 F.2d 1017, 1019 (9th Cir. 1984).
The government of Puerto Rico's final argument is that
since the people of Puerto Rico are U.S. citizens by statute, that
grant of citizenship from Congress carries with it a fundamental
right to elect Representatives to the House of Representatives.
Congress granted citizenship and other privileges to the residents
of Puerto Rico as an exercise of its constitutional authority under
the Territory Clause. U.S. Const. art. IV, § 3, cl. 2. Under
other provisions of the Constitution, however, the right to vote is
given to residents of the States, not to citizens. Hence,
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citizenship alone does not trigger the right to vote.9 The
government's argument therefore fails.
C. Igartúa's Arguments About Treaty and International Law
Obligations Are Without Merit
Igartúa urges that the United States must meet certain
obligations under international agreements, treaties, and customary
international law, including the obligation to provide him a vote
for Representatives to the United States House of Representatives.10
In particular, Igartúa relies on portions of (1) the International
Covenant on Civil and Political Rights, opened for signature Dec.
16, 1966, 999 U.N.T.S. 171; (2) the Universal Declaration of Human
Rights, G.A. Res. 217 A(III), U.N. Doc. A/810 (1948); (3) the
Inter-American Democratic Charter of the Organization of American
States, 28th Spec. Sess., OAS Doc. OEA/Ser.P/AG/RES.1 (XXVIII-E/01)
9
The caselaw cited by the government of Puerto Rico
illustrates the point. The Supreme Court has often emphasized the
importance of the right to vote. See, e.g., Burson v. Freeman, 504
U.S. 191, 198 (1992); Harper v. Va. State Bd. of Elections, 383
U.S. 663, 667 (1966); Reynolds v. Sims, 377 U.S. 533, 560 (1964)
(quoting Wesberry, 376 U.S. at 17-18); see also Dep't of Commerce
v. Montana, 503 U.S. 442 (1992). However, in each of these cases
the Court has addressed the voting rights of citizens "of the
several States."
In other words, the Court's recognition of the right to vote
has been consistently cabined by the geographical limits set out in
the Constitution. See, e.g., Wesberry, 376 U.S. at 17; Heald v.
District of Columbia, 259 U.S. 114, 124 (1922) (upholding a tax
levied on residents of the District of Columbia, reasoning that
"[t]here is no constitutional provision which so limits the power
of Congress that taxes can be imposed only upon those who have
political representation").
10
The government of Puerto Rico does not join this
argument.
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(OAS General Assembly) (Sept. 11, 2001); and (4) the American
Declaration of the Rights and Duties of Man, O.A.S. Res. XXX
(1948), O.A.S. Off. Rec. OEA/Ser. LV/I.4 Rev. (1965).
The Court in Igartúa III rejected similar claims
regarding three of these four agreements. The court also held that
customary international law does not require "a particular form of
representative government." Igartúa III, 417 F.3d at 151. If an
international norm of democratic governance exists, we held, "it is
at a level of generality so high as to be unsuitable for
importation into domestic law." Id. The same reasoning applies
here. Neither international agreements nor customary international
law mandates that residents of Puerto Rico who are U.S. citizens be
able to vote for members of the House of Representatives.
The dissent goes beyond the claims made by the parties
with respect to one international agreement. The dissent argues,
as though the issues were open in this court, that the
International Covenant on Civil and Political Rights (ICCPR) both
is a "self-executing" treaty and that it creates individual rights
enforceable in federal courts. But these issues are not open.
1. Igartúa III Binds the Court
We are bound by the en banc court's decision in Igartúa
III, which expressly opined on these issues. That decision reached
three relevant conclusions: (1) treaty obligations do not override
the Constitution; (2) the international agreements at issue in
-22-
Igartúa III, including the ICCPR, do not constitute domestic law
because they are not self-executing and Congress has not enacted
implementing legislation; and (3) there were other problems with
the treaty claims in Igartúa III, including personal standing and
redressability. Igartúa III, 417 F.3d at 148-150. Without more,
Igartúa III thus forecloses us from considering the treaty-based
claims in this case.11
2. The Dissent Relies on Waived and Forfeited Arguments
The dissent's argument that the ICCPR creates rights
under domestic law extends beyond the claims before this court.
Arguments that are intentionally relinquished or abandoned are
waived, and arguments that are not raised in a timely manner are
forfeited. See United States v. Morgan, 384 F.3d 1, 7 (1st Cir.
2004). An argument raised in a perfunctory or not serious manner
is waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990). Review is unavailable for waived arguments "unless the
court engages in the rare exercise of its power to excuse waiver."
Morgan, 384 F.3d at 7. Plain error review may be available for
11
The American Declaration of the Rights and Duties of Man
was not addressed by the majority in Igartúa III. Like the
Universal Declaration on Human Rights and the Inter-American
Democratic Charter, this agreement is merely an aspirational
statement. Garza v. Lappin, 253 F.3d 918, 923 (7th Cir. 2001)
(noting that the declaration "is merely an aspirational document
that, in itself, creates no directly enforceable rights"); see also
Flores v. S. Peru Copper Corp., 414 F.3d 233, 263 (2d Cir. 2003).
-23-
forfeited arguments, but it is seldom available for claims neither
raised below nor on appeal. Id. at 8.
Igartúa and the government of Puerto Rico do not claim
that the ICCPR is a self-executing treaty or that the ICCPR
overrides Article I of the Constitution by operation of the
Supremacy Clause. The government of Puerto Rico made an express
choice not to join these arguments, thereby both waiving and
forfeiting them. Igartúa contends that each agreement he invokes
"requires the signatory country to provide a judicial remedy for
claims of citizens invoking rights under it." But he does not
support this contention with argument as to how the agreements bind
federal courts. Igartúa cites the ICCPR merely "as supportive,"
noting that it has "been used by many courts to interpret existing
U.S. law or to determine legal rights when the plaintiff has an
independent cause of action" (emphasis added). This amounts to
forfeiture if not waiver.
The dissent fails to recognize this waiver or forfeiture,
and fails to meet the conditions for considering the arguments.
3. Stare Decisis Binds this Court to follow Igartúa III
This court is not free to disregard the holdings of
Igartúa III under the rule of stare decisis. As this circuit has
affirmed before, stare decisis "incorporates two principles: (1) a
court is bound by its own prior legal decisions unless there are
substantial reasons to abandon a decision; and (2) a legal decision
-24-
rendered by a court will be followed by all courts inferior to it
in the legal system." United States v. Rodriguez-Pacheco, 475 F.3d
434, 441 (1st Cir. 2007) (quoting 3 J. Moore et al., Moore's
Manual: Federal Practice and Procedure § 30.10[1] (2006)) (internal
quotation marks omitted).
This circuit has recognized two exceptions to the rule of
stare decisis. First, the rule does not apply when "[a]n existing
panel decision [is] undermined by controlling authority,
subsequently announced, such as an opinion of the Supreme Court, an
en banc opinion of the circuit court, or a statutory overruling."
Id. (quoting Williams v. Ashland Eng'g Co., 45 F.3d 588, 592 (1st
Cir. 1995)) (alteration in original). Second, in "relatively rare
instances . . . authority that postdates the original decision,
although not directly controlling, nevertheless offers a sound
reason for believing that the former panel, in light of fresh
developments, would change its collective mind." Id. at 442
(quoting Williams, 45 F.3d at 592).
We have interpreted the latter exception narrowly. It
applies when "recent Supreme Court precedent calls into legitimate
question a prior opinion of an inferior court." Id. (quoting
Eulitt v. Maine, 386 F.3d 344, 350 (1st Cir. 2004)) (alteration in
original). Such instances, we have noted, "fairly may be described
as hen's-teeth rare." Id. (quoting United States v. Guzmán, 419
F.3d 27, 31 (1st Cir. 2005)).
-25-
a. Controlling Authority Reinforces Igartúa III
Not only has there been no Supreme Court decision that
calls Igartúa III into question,12 the Supreme Court's decision in
Medellín v. Texas, 552 U.S. 491 (2008), reinforces our en banc
decision and analysis. Our conclusions here are a required result
of the judicial function under Medellín, and are not judicial
activism in any sense.
In our analysis of the ICCPR in Igartúa III, we began
with the text of the treaty. We stated that nothing in the
treaties at issue in Igartúa III, including the ICCPR, "says
12
The dissent argues that Igartúa does not possess the
constitutional right he asserts, but argues that Congress could
extend the franchise to the citizens of Puerto Rico without making
Puerto Rico a state or ratifying a constitutional amendment. As
explained above, this argument is foreclosed by our en banc
decision in Igartúa III. The dissent makes three arguments, each
of which lacks merit.
First, the dissent cites caselaw that existed when we decided
Igartúa III. Second, the dissent suggests that Congress is not
limited by Article I when it implements a treaty obligation, citing
Missouri v. Holland, 252 U.S. 416 (1920). Neither plaintiff nor
the Commonwealth make this argument. But even if the argument were
not waived, Holland does not sweep so broadly. That decision held
that Congress may legislate beyond its Commerce Clause power to
implement a treaty. Holland, 452 U.S. at 432-33. It did not hold
that Congress may disregard Article I's structural provisions
governing the election of Representatives, not to mention similar
provisions in Article II and the Fourteenth Amendment.
Third, the dissent contends that the Framers did not intend to
imbue the distinction between a "state" and a "territory" in the
Constitution with any meaning. This claim, like much of the
dissent's argument, ignores that this court is an inferior court
subject to Supreme Court precedent. There is no dispute that
Supreme Court doctrine has long distinguished between the
Constitution's treatment of states and territories See, e.g.,
Boumediene v. Bush, 553 U.S. 723, 757-58 (2008) (discussing the
Insular Cases).
-26-
anything about just who should be entitled to vote for whom, or
that an entity with the negotiated relationship that the United
States has with Puerto Rico is nevertheless required to adopt some
different arrangement as to governance or suffrage." Igartúa III,
417 F.3d at 149.
Next, we noted that the Supreme Court concluded that the
ICCPR is not self-executing in Sosa v. Alvarez-Machain, 542 U.S.
692 (2004). Igartúa III, 417 F.3d at 150. In Sosa, the Supreme
Court relied upon congressional statements accompanying the
Senate's ratification of the ICCPR. Sosa, 542 U.S. at 728, 735.
We then looked to those congressional statements. We wrote that
the ICCPR "was submitted and ratified on the express condition that
it would be 'not self-executing.'" Igartúa III, 417 F.3d at 150
(quoting 138 Cong. Rec. S4781, S4784 (daily ed. Apr. 2, 1992)).
The Senate voiced this condition "as requested by the executive."
Id. at 185 (Howard, J., dissenting).
"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," we held, "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" used in Sosa. Id.
at 150. Our reasoning thus rested on not only the text of the
ICCPR but the positions of all three branches of government.
Medellín explicitly ratified Igartúa III's analysis of
-27-
self-executing treaties. In Medellín, the Supreme Court held that
whether a treaty is self-executing depends upon the language of
implementing statutes and the language of the treaty ratified by
the Senate. Medellín, 552 U.S. at 505. It summarized this holding
by quoting Igartúa III's conclusion that treaties "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." Id. (quoting Igartúa III, 417 F.3d at
150) (internal quotation marks omitted).
Medellín adds further weight to this court's deference to
the political branches in construing treaties like the ICCPR.
Medellín emphasized that the courts may not supplant the
constitutional role of the political branches in making and
approving treaties. Id. at 515. It gave deference to the
executive branch's interpretation of whether the treaty at issue in
that case was domestically enforceable. Id. at 513. The Court
tempered that deference to the executive in light of the
legislative role in transforming an international obligation from
"a non-self-executing treaty into domestic law." Id. at 525
(citing Igartúa III, 417 F.3d at 150).
This court's holding in Igartúa III that the ICCPR is not
a self-executing treaty thus stands on strengthened ground.13
13
Contrary to Igartúa and the dissent's assertions, the
Supreme Court's engagement with international law in Abbott v.
Abbott, 130 S. Ct. 1983 (2010), only reinforces our conclusion. In
-28-
Medellín supports our reliance in Igartúa III on both the text of
the ICCPR and the joint position of the legislative and executive
branches. The Supreme Court has not contradicted its statement in
Sosa that the ICCPR is not self-executing.14 It follows that our
conclusion that the ICCPR is not a self-executing treaty still
rests on the positions of all three branches of government.
b. The Circuit Courts Unanimously Reinforce Igartúa III
The Supreme Court's dictum in Sosa that the ICCPR is not
self-executing has been made holding in every circuit that has
considered the issue.15 Only the D.C. Circuit and the Federal
Circuit have not reached the question of whether the ICCPR is self-
executing. It is the unanimous view of every other circuit that
the ICCPR is not self-executing.
that case, the Court addressed a provision of the Hague Convention
on the Civil Aspects of International Child Abduction, Oct. 24,
1980, T.I.A.S. No. 11670, which Congress had explicitly implemented
through the International Child Abduction Remedies Act, 42 U.S.C.
§ 11601 et seq. Id. at 1987.
14
Medellín did not purport to undercut Sosa. As a circuit
court, we are not empowered to determine that a Supreme Court
decision has been overruled. Citizens United v. Fed. Election
Comm'n, 130 S. Ct. 876, 893 (2010).
15
Carefully considered Supreme Court dicta, though not
binding, "must be accorded great weight and should be treated as
authoritative." Crowe v. Bolduc, 365 F.3d 86, 92 (1st Cir. 2004)
(quoting United States v. Santana, 6 F.3d 1, 9 (1st Cir. 1993))
(internal quotation mark omitted). Although the Supreme Court may
ignore its own dicta, we are a lower court bound by the Supreme
Court. Neither the brevity of the discussion in Sosa nor the
concessions of the petitioner in that case suggests that the
Supreme Court did not carefully consider its conclusions about the
ICCPR.
-29-
Six circuits reached this conclusion before the Supreme
Court's decision in Sosa and our decision in Igartúa III. See
Bannerman v. Snyder, 325 F.3d 722, 724 (6th Cir. 2003); United
States v. Duarte-Acero, 296 F.3d 1277, 1283 (11th Cir. 2002); Hain
v. Gibson, 287 F.3d 1224, 1243 (10th Cir. 2002); United States ex
rel. Perez v. Warden, FMC Rochester, 286 F.3d 1059, 1063 (8th Cir.
2002); Beazley v. Johnson, 242 F.3d 248, 267-68 (5th Cir. 2001);
see also Dutton v. Warden, FCI Estill, 37 F. App'x 51, 53 (4th Cir.
2002).
The four remaining circuits have relied on some
combination of Sosa, Medellín, and Igartúa III. See Serra v.
Lappin, 600 F.3d 1191, 1196-97 (9th Cir. 2010) (citing Medellín and
Sosa); Clancy v. Office of Foreign Assets Control of the U.S. Dep't
of the Treasury, 559 F.3d 595, 603-04 (7th Cir. 2009) (citing
Sosa); Ballentine v. United States, 486 F.3d 806, 814-15 (3d Cir.
2007) (citing Sosa and Igartúa III); Guaylupo-Moya v. Gonzales, 423
F.3d 121, 133, 137 (2d Cir. 2005) (citing Igartúa III).
In the absence of countervailing authority, there is no
ground to revisit Igartúa III's holding that the ICCPR is not self-
executing. Circuit precedent does not call Igartúa III into doubt;
it reinforces the en banc court's conclusions.
Our conclusions in Igartúa III remain binding law,
including our conclusion that the ICCPR is not self-executing.
This case does not present an occasion to revisit those
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conclusions. Given that the ICCPR is not self-executing, we are
obligated to go no further. This is not merely a matter of
judicial discipline. It is a matter of constitutional dimension
under Article III. Federal courts have "neither the power 'to
render advisory opinions nor to decide questions that cannot affect
the rights of litigants in the case before them.'" Preiser v.
Newkirk, 422 U.S. 395, 401 (1975) (quoting North Carolina v. Rice,
404 U.S. 244, 246 (1971)).
III.
We affirm the dismissal of the action. No costs are
awarded. So ordered.
-Concurring Opinion Follows-
-31-
LIPEZ, Circuit Judge, concurring in the judgment).
Despite our court's 2005 en banc decision rejecting the right of
Puerto Rico's four million residents to vote in presidential
elections, the issue of federal voting rights for these
longstanding United States citizens remains a compelling legal
problem. The unequal distribution of the fundamental privilege of
voting among different categories of citizens is deeply troubling
and, not surprisingly, the legal arguments in favor of
enfranchising Puerto Rico residents have continued to evolve.
Although the en banc decision forecloses this panel's
reconsideration of issues the full court resolved, that decision
should not be the final word on the subject. Judge Torruella's
dissent highlights important issues that deserve consideration in
a new en banc proceeding. As I shall explain, if each of those
issues were decided in plaintiffs' favor, United States citizens
residing in Puerto Rico would have a viable claim to equal voting
rights under the International Covenant on Civil and Political
Rights ("ICCPR").
Thus, while I agree with Chief Judge Lynch that our panel
must adhere to the precedent set five years ago by the en banc
court on the constitutional and treaty interpretation issues
addressed in the majority opinion, I cannot agree that the
plaintiffs' claims should be dismissed without review by the full
court. Given the magnitude of the issues and Judge Torruella's
-32-
forceful analysis, this is one of those rare occasions when
reconsideration of an en banc ruling is warranted.
I. The Constitutional Argument
In the 2005 en banc, the majority rejected the
plaintiffs' contention that the Constitution required giving
citizens who reside in Puerto Rico the right to vote for President
and Vice President of the United States. See Igartúa-de la Rosa v.
United States (Igartúa III), 417 F.3d 145, 147 (1st Cir. 2005) (en
banc). In this appeal, the plaintiffs attempt to distinguish
presidential and vice-presidential voting from the election of
members of the House of Representatives, emphasizing that the
latter is governed by a different constitutional provision.
Compare U.S. Const. art. II, § 1, cl. 2 with id. art. I, § 2, cl.
1.16
16
Article II, Section 1, Clause 2 describes the process for
electing the President and Vice President, in part, as follows:
Each State shall appoint, in such Manner as
the Legislature thereof may direct, a Number
of Electors, equal to the whole Number of
Senators and Representatives to which the
State may be entitled in the Congress . . . .
The Twelfth Amendment specifies that the electors shall meet "in
their respective states" to cast ballots for President and Vice
President. U.S. Const. amend. XII.
Article I, Section 2, Clause 1 provides:
The House of Representatives shall be composed
of Members chosen every second Year by the
People of the several States, and the Electors
in each State shall have the Qualifications
-33-
That distinction makes no difference, however, because
the two constitutional provisions similarly enfranchise only
individuals residing in "States." Since Puerto Rico is not a
"State," the 2005 en banc decision precludes us from holding that
the Constitution requires extending the right to vote for full-
status members of the House of Representatives to the residents of
Puerto Rico. Moreover, if the issue were before us as a matter of
first impression, I would join my colleagues in concluding that the
denial of that right to Puerto Rico citizens does not violate
Article I, Section 2 of the Constitution.
To say that the Constitution does not require extension
of federal voting rights to Puerto Rico residents does not,
however, exclude the possibility that the Constitution may permit
their enfranchisement under another source of law. The 2005 en
banc majority also concluded, at least implicitly, that the
Constitution prohibits enfranchising Puerto Rico residents in
presidential elections because the privilege of voting is
restricted to electors who are chosen by citizens of "State[s]."
See Igartúa III, 417 F.3d at 148 (noting that "the franchise for
choosing electors is confined to 'states'") (emphasis added).
Because Article I, Section 2 defines those eligible to vote for
members of the House in that similarly narrow way, Igartúa III's
requisite for Electors of the most numerous
Branch of the State Legislature.
-34-
holding is also binding in this appeal on the question whether the
Constitution "confine[s]" voting for members of Congress to State
residents.
I have doubts, however, about the correctness of the
judgment that the Constitution allows only citizens who reside in
states to vote. To be sure, the unstated premise of my concurrence
in the 2005 en banc was that the Constitution restricted the right
to vote to residents of states. My view was – and remains – that
the plaintiffs' claims under the ICCPR are not justiciable if the
Constitution itself prohibits equal voting rights for Puerto Rico
residents. A constitutional amendment or Puerto Rico's admission
as a state would then be the only ways to remove the barrier. See
Igartúa III, 417 F.3d at 153 (Lipez, J., concurring). I concluded
that, in such circumstances, even if the plaintiffs' arguments had
merit as a matter of treaty interpretation, court intervention
would be inappropriate because the possibility of a remedy would be
overly speculative. Id. at 158.
Indeed, and perhaps more to the point, it would be
meaningless for a court to consider whether the United States is in
violation of a treaty provision that conflicts with the
Constitution. The Constitution trumps the treaty and, if a treaty
purports to do something the Constitution forbids, a court would
have no choice but to conclude that the treaty, not the
Constitution, must give way. Saying or doing more than that would
-35-
be inappropriate; it is not the court's role to tell the federal
government how to meet international obligations in the face of a
constitutional prohibition. See id. at 155 (quoting Chicago & S.
Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 113 (1948) ("[I]f
the President may completely disregard the judgment of the court,
it would be only because it is one the courts were not authorized
to render.")).
Everything changes, however, if the Constitution permits
equal voting rights to be conferred on the residents of Puerto Rico
under another source of law, such as legislation or a self-
executing international treaty. If the Constitution does not
prohibit extending the right to vote to citizens who reside outside
"the several States," an enforceable treaty could provide the
governing domestic law on that issue. See Medellín v. Texas, 552
U.S. 491, 518 (2008) (noting that a self-executing treaty is
"'equivalent to an act of the legislature'" (citation omitted)).
The Constitution itself makes treaties "the supreme Law of the
Land" where they do not conflict with the Constitution's own terms.
See U.S. Const. art. VI, cl. 2. This is not a view of the ICCPR
that I contemplated in 2005, but it is one that I now consider
worthy of serious examination.
As Judge Torruella points out, the view that the
Constitution does not necessarily forbid extensions of the rights
it delineates has been articulated in scholarly writing, and it
-36-
underlies the effort to legislate voting rights for residents of
the District of Columbia. See Opinion of Torruella, J.; see also
José R. Coleman Tió, Comment, Six Puerto Rican Congressmen Go to
Washington, 116 Yale L.J. 1389, 1394 (2007). Judge Torruella aptly
invokes as well precedent applying the same notion of the
Constitution's reach – i.e., that it neither requires nor prohibits
conferring rights on citizens outside the States – in the context
of diversity jurisdiction. That precedent, including the Supreme
Court's decision in National Mutual Insurance Co. v. Tidewater
Transfer Co., 337 U.S. 582 (1949), confirmed Congress's power to
extend diversity jurisdiction to the District of Columbia even
though the provisions of Article III creating such jurisdiction
refer only to States. By analogy, such cases support the argument
that references in Article I to the voting rights of the people of
"the States" are not necessarily negative references to the voting
rights of citizens residing in other United States jurisdictions.
Cf. Adams v. Clinton, 90 F. Supp. 2d 35, 95 (D.D.C. 2000)
(Oberdorfer, J., dissenting in part) ("[T]he use of the term
'State' in the diversity jurisdiction clause of the Constitution
cannot mean 'and not of the District of Columbia.'" (citing
Tidewater)).
Moreover, the redressability concern that underlay my
concurrence in Igartúa III stemmed in large part from the courts'
inability to order Congress to take the only actions that I thought
-37-
could deliver the remedy the plaintiffs sought – "to either admit
Puerto Rico as a state or to propose a Constitutional amendment
allocating electors to Puerto Rico." See 417 F.3d at 154. If
Puerto Rico residents' right to vote originates from a source of
United States law other than the Constitution, however, it is
possible that declaratory relief could properly involve individual
government officials rather than Congress. For example, precedent
indicates that the Secretary of Commerce is empowered to take the
steps necessary to conform the apportionment process to the law.
See Franklin v. Massachusetts, 505 U.S. 788, 802 (1992) (plurality
opinion) (noting that "injunctive relief against executive
officials like the Secretary of Commerce is within the courts'
power") (citing Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579(1952)); Adams, 90 F. Supp. 2d at 41 (noting that the Secretary of
Commerce is tasked with reporting the population of each state to
the President for congressional apportionment).
I do not mean to suggest that I already have concluded
that the Constitution in fact permits giving the plaintiffs the
right to vote like any other United States citizen for members of
the House of Representatives. Rather, my point is that the
question is important and complex, and it deserves re-examination
by the full court with the benefit of the best advocacy we can
enlist on both sides of the issue. As I describe in the next
-38-
section, however, it is only one of the issues warranting such
reconsideration.
II. The Status and Impact of the ICCPR
If we were to conclude that the Constitution permits
Congress to give Puerto Rico residents voting rights with respect
to members of the House of Representatives equivalent to those
afforded the residents of the States, our inquiry would then need
to focus on plaintiffs' claim that the ICCPR provides such
enfranchisement. The status of the ICCPR also was addressed in the
2005 en banc decision, which held that the treaty was not self-
executing and did "not adopt any legal obligations binding as a
matter of domestic law." Igartúa III, 417 F.3d at 150. That
determination may not be considered anew by the panel in this case.
However, the en banc majority's conclusion that the ICCPR
is non-self-executing is also ripe for reconsideration in a new en
banc proceeding. The 2005 majority accepted without analysis two
comments by the Supreme Court in Sosa v. Alvarez-Machain, 542 U.S.
692, 728 (2004), in dicta,17 that the ICCPR is not a self-executing
17
Although I recognize that Supreme Court dicta may be more
persuasive than such statements made by other courts, the Supreme
Court itself has recognized the limitations of its dicta: "[W]e are
not bound to follow our dicta in a prior case in which the point
now at issue was not fully debated." Cent. Va. Cmty. Coll. v.
Katz, 546 U.S. 356, 363 (2006) (quoting Cohens v. Virgina, 6 Wheat.
264, 399 (1821) ("It is a maxim not to be disregarded, that general
expressions, in every opinion, are to be taken in connection with
the case in which those expressions are used. If they go beyond
the case, they may be respected, but ought not to control the
judgment in a subsequent suit when the very point is presented for
-39-
treaty. See Igartúa III, 417 F.3d at 150. The Supreme Court, in
turn, had accepted without scrutiny the Senate's declaration that
"the substantive provisions of the document were not self-
executing." See Sosa, 542 U.S. at 728.18 In adopting its view of
the treaty, the 2005 majority rejected Judge Howard's thoughtful
analysis in dissent explaining why the Senate lacks the authority
to declare the status of a treaty. See Igartúa III, 417 F.3d at
189-91 (Howard, J., dissenting).19 In his dissent in this case,
decision.")).
18
In that first reference to the ICCPR, the Court in Sosa
stated that the Senate has at times "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."
542 U.S. at 128. Later in the decision the Court stated: "[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 735. As
Judge Torruella notes, however, both of the Supreme Court's
observations were dicta because "the question of the ICCPR's self-
execution was never presented to the Court" and the petitioner had
conceded that it was not self-executing.
19
Judge Howard explained that the Senate's non-self-
execution declaration concerning the domestic effect of the ICCPR
was "in reality[] an attempt to legislate concerning the internal
implementation of a treaty," which the Senate lacked the power to
do. Igartúa III, 417 F.3d at 190-91 (dissenting opinion). Judge
Howard noted that the declaration was therefore "merely an
expression of the Senate's view of domestic policy . . . [with] no
domestic effect." Id. at 191. The Supreme Court in Sosa did not
conclude otherwise. See id. at 191 n.63 ("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.").
-40-
Judge Torruella builds on Judge Howard's earlier decision and
argues plausibly that the surrounding circumstances demonstrate
that the ICCPR should be construed as a self-executing treaty.
In 2005, my view of the case made it unnecessary for me
to evaluate Judge Howard's conclusion that the courts, rather than
the Senate, have the responsibility to determine whether a treaty
is self-executing. My view was that, whatever the status of the
treaty, it was not the role of a court to declare that the
plaintiffs had voting rights that were inconsistent with the
limitations built into the Constitution. Having now accepted the
possibility that the Constitution does not bar federal voting
rights for Puerto Rico residents, I also must confront the ICCPR's
status.
The passage of time has only strengthened Judge Howard's
analysis. The Supreme Court has recently confirmed that
determining whether a treaty is self-executing "is, of course, a
matter for [the courts] to decide." Medellín, 552 U.S. at 518.
Hence, the Senate cannot on its own "declare" the status of a
treaty. As Judge Howard observed, a Senate "'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.'" Igartúa III, 417 F.3d
at 190 (quoting Stefan A. Riesenfeld & Frederick M. Abbott,
Foreword: Symposium on Parliamentary Participation in the Making
-41-
and Operation of Treaties, 67 Chi.-Kent L. Rev. 293, 296 (1991)).
In other words, "the Senate's view is relevant," id. at 191, but
"'[t]he Senate's declaration is not law,'" id. at 190 (quoting
Riesenfeld & Abbott, 67 Chi.-Kent L. Rev. at 296-97).
In describing the courts' independent "obligation to
interpret treaty provisions to determine whether they are self-
executing," the Court in Medellín emphasized the central importance
of the treaty language. See 552 U.S. at 514, 518-19 ("It is well
settled that the [i]nterpretation of [a treaty] . . . must, of
course, begin with the language of the Treaty itself.") (internal
quotation marks omitted); id. at 514 (referring to the "time-
honored textual approach" for interpreting treaties); see also
Abbott v. Abbott, 130 S. Ct. 1983, 1990 (2010) ("The interpretation
of a treaty . . . begins with its text." (quoting Medellín, 552
U.S. at 506)). With respect to the specific treaty before it in
Medellín, the Court also looked to the "'postratification
understanding' of signatory nations," id. at 516, "general
principles of interpretation," id. at 517, and the consequences of
reading the treaty in a particular way, id. at 517-518. See also
Sanchez-Llamas v. Oregon, 548 U.S. 331, 344 & n.3, 347 (2006)
(considering other signatories' understanding of the treaty at
issue). Neither the 2005 majority nor the Supreme Court in Sosa
performed such an examination of the ICCPR, which necessarily makes
them unreliable precedent on its status.
-42-
Again, I do not want to suggest that I have reached an
ultimate view on whether the ICCPR is self-executing. I am saying
only that, if the plaintiffs succeed before the en banc court on
the threshold issue of the Constitution's reach, they would be
entitled to reconsideration by the en banc court of the ICCPR's
status. That is so because the 2005 majority improperly rejected
the plaintiffs' claim that the treaty is self-executing without
conducting an independent analysis of its language and, if the
language is unclear, the "'postratification understanding' of
signatory nations" and other surrounding circumstances.
Even if we were to find that the treaty is self-
executing, however, difficult questions would remain. Among them
are whether the treaty's provisions in fact oblige the United
States to provide all of its citizens the right to elect voting
members of the House of Representatives and whether the treaty
provides for a private right of action as a vehicle for pursuing
that right. Also of consequence is the unique political
relationship between Puerto Rico and the United States government.
Whether a generally stated commitment to provide the right to vote
to all citizens should supersede the specific political negotiation
that has led to Puerto Rico's status is not an easily answered
question. The fact that the questions are difficult, however, is
not a reason to avoid them.
-43-
III. Summarizing the Prerequisites for a Claim
Unquestionably, the plaintiffs face a series of hurdles
in demonstrating their entitlement to declaratory relief. Their
claims are much more potent, however, than Chief Judge Lynch's
opinion acknowledges. If the Constitution permits extension of
voting rights to Puerto Rico residents by means of a treaty,20 and
if the ICCPR is a self-executing treaty whose terms support
assertion of a private cause of action, the plaintiffs' claims
could not be so easily dismissed.
At its core, this case is about whether a substantial
group of United States citizens should be given a right that our
country and the international community agree is a fundamental
element of a free society. Article 25 of the ICCPR states, in
relevant part, that "[e]very citizen shall have the right and the
opportunity . . . [t]o vote and to be elected at genuine periodic
elections which shall be by universal and equal suffrage."
(Emphasis added.) At a minimum, given the importance of the issues
and the evolving debate, fairness dictates that the plaintiffs'
claims receive considerably more deliberation than our panel is
authorized to provide. The entire court should be engaged in
20
Whether Congress's plenary authority to regulate Puerto
Rico under the Territory Clause of the Constitution also could
provide a basis for such action is a question beyond the scope of
this case. See U.S. Const. art. IV, § 3, cl. 2 ("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 . . . .").
-44-
considering and resolving these issues, with the best advocacy
available in support of all parties. Indeed, as a case
"involv[ing] a question of exceptional importance," this action
fits squarely within the guidelines for en banc review. See Fed.
R. App. P. 35(a) (2).
Thus, while I agree that the district court's judgment
must be affirmed by the panel, I urge the court to reconsider the
constitutional and treaty issues in a new en banc proceeding.
-Opinion Concurring in Part and Dissenting in Part Follows-
-45-
TORRUELLA, Circuit Judge (Concurring in part; Dissenting
in part). Although in a different format than presented on prior
occasions, we once more have before us issues that arise by reason
of the political inequality that exists within the body politic of
the United States, as regards the four million citizens of this
Nation who reside in Puerto Rico.
This is a fundamental constitutional question that will
not go away notwithstanding this Court's repeated efforts to
suppress these issues.21 We can now add to that dismal list the
endeavors of the lead opinion. This is a most unfortunate and
denigrating predicament for citizens who for more than one hundred
years have been branded with a stigma of inferiority, and all that
follows therefrom.
At the root of this problem is the unacceptable role of
the courts. Their complicity in the perpetuation of this outcome
is unconscionable. As in the case of racial segregation, see
Plessy v. Ferguson, 163 U.S. 557 (1896) (overruled by Brown v. Bd.
21
"In this en banc decision, we now put the constitutional
claim fully at rest . . . . 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." Igartúa-de la Rosa v. United States, 417
F.3d 145, 148 (1st Cir. 2005) ("Igartúa III"). By this maneuver,
the panel was prevented from reconsidering its original decision.
This action, that is, convoking an en banc court to prevent a panel
from reaching an outcome contrary to that which non-panel members
favored, is unprecedented in the history of this court and is at
least one of the reasons why I do not feel bound by this oppressive
action. Others reasons will follow.
-46-
of Educ., 347 U.S. 482 (1954)), it is the courts that are
responsible for the creation of this inequality.22 Furthermore, it
is the courts that have clothed this noxious condition in a mantle
of legal respectability.
But perhaps even more egregious is the fact that it is
this judiciary that has mechanically parroted the outdated and
retrograde underpinnings on which this invented inferiority is
perpetuated. This result is now reached without so much as a
minimum of analysis or consideration for the passage of time and
22
See Downes v. Bidwell, 182 U.S. 244 (1901); Balzac v.
Porto Rico, 258 U.S. 298 (1922). See generally James E. Kerr, The
Insular Cases: The Role of the Judiciary in American Expansionism
(1982); see also Rubin Francis Weston, Racism in U.S. Imperialism:
The Influence of Racial Assumptions on American Foreign Policy,
1893-1946 at 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 American
constitutional rights to people of color? The
actions of the federal government during the
imperial period and the relegation 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. (citation
omitted).
-47-
the changed conditions, both legal and societal.23 These changed
conditions have long undermined the foundations of these judge-made
rules, which were established in a by-gone era in consonance with
the distorted views of that epoch.24 Although the unequal treatment
of persons because of the color of their skin or other irrelevant
reasons, was then the modus operandi of governments, and an
accepted practice of societies in general, the continued
enforcement of these rules by the courts is today an outdated
anachronism, to say the least. Such actions, particularly by
courts of the United States, only serve to tarnish our judicial
system as the standard-bearer of the best values to which our
Nation aspires. Allowing these antiquated rules to remain in
place, long after the unequal treatment of American citizens has
23
Cf. Califano v. Gautier Torres, 435 U.S. 1, 3 n.4 (1978)
("Puerto Rico has a relationship to the United States 'that has no
parallel in our history.'") (citing Examining Bd. of Engineers,
Architects and Surveyors v. Flores de Otero, 426 U.S. 572, 596
(1976)); Boumediene v. Bush, 553 U.S. 723, 758 (2008) ("It may well
be that over time the ties between the United States and any of its
Territories [have] strengthen[ed] in ways that are of
constitutional significance.").
24
As Justice Brennan stated in Torres v. Puerto Rico, 442
U.S. 465 (1979), "Whatever the validity of the [Insular Cases] in
the particular historical context in which they were decided, those
cases are clearly not authority for questioning the application of
the Fourth Amendment -- or any other provision of the Bill of
Rights -- to the Commonwealth of Puerto Rico in the 1970's." Id.
at 475-6 (Brennan, J., concurring); see also Boumediene, 553 U.S.
at 758 (quoting the above language from Torres and noting "that
'the specific circumstances of each particular case' are relevant
in determining the geographic scope of the Constitution" (quoting
Reid v. Covert, 354 U.S. 1, 54 (1957) (Frankfurter, J.,
concurring)).
-48-
become constitutionally, morally and culturally unacceptable in the
rest of our Nation, see Brown v. Bd. of Educ., 347 U.S. 483, is an
intolerable state of affairs which cannot be excused by hiding
behind any theory of law.25
The conclusions of the lead opinion in refusing to
consider the merit of Appellants' claims is particularly
inexcusable because, as will be further elaborated, the present
decision cannot be legitimately grounded on the Supreme Law of the
Land, which requires that Appellants be provided an effective
judicial remedy for the correction of the wrongs they allege. See
International Covenant on Civil and Political Rights, art. 2, § 3,
Dec. 19, 1966, 999 U.N.T.S. 171 (hereinafter ICCPR) ("Each State
Party [including the United States] . . . undertakes [t]o ensure
that any person whose [ICCPR] rights are violated shall have an
effective remedy," and to ensure that these rights are "determined
by competent judicial, administrative, or legislative authorities
. . . ."). The suggestion that Appellants seek a political rather
than a judicial remedy to correct the grievous violation of their
25
See also Dick Thornburgh, Puerto Rico's Future: A Time to
Decide 53 (2007) (characterizing Balzac as "a federal judicial
mandate for a less-than-equal class of U.S. citizenship for
residents of the unincorporated territories," and noting that
"Congressional acquiescence in and eventual statutory confirmation
of this judicial policy has left nearly 4 million U.S. citizens in
Puerto Rico, as well as the many citizens of smaller island
territories . . . without government by consent of the governed or
equal rights and duties of national citizenship, or any federally
recognized tools of self-determination to end their
disenfranchisement").
-49-
rights claimed in this action, is, at a minimum, ironic given that
it is precisely the lack of political representation that is the
central issue in this case. It is this lack of any political power
by these disenfranchised U.S. citizens, and the cat and mouse games
that have been played with them by the United States government,
including its courts, that have resulted in their interminable
unequal condition.
When this status of second-class citizenship is added to
the also judicially-established rule that grants Congress plenary
powers over the territories and their inhabitants, i.e., that
recognizes in Congress practically unfettered authority over the
territories and their inhabitants,26 one has to ask what effective
political process is the lead opinion suggesting be turned to by
Appellants to resolve the constitutional issues raised by this
case? In fact, the referral by the lead opinion to the exercise of
political power by these disenfranchised citizens, as the solution
to their political inequality is nothing more than the promotion of
the continued colonial status that has existed since Puerto Rico
was acquired by the United States as booty after the Spanish-
26
See Territory of Guam v. Olsen, 431 U.S. 195, 205 (1977)
(Marshall, Stewart, Rehnquist, and Steven, JJ, dissenting) ("[W]e
do not doubt that Congress has the authority in the exercise of its
plenary powers over Territories of the United States . . . to
reverse Guam's decision to reorganize its local court system.")
(internal citation omitted); Downes, 182 U.S. at 285(characterizing the "Territorial Clause" as "absolute in its terms,
and suggestive of no limitations upon the power of Congress in
dealing with them").
-50-
American War of 1898.27 As such, this suggestion is totally lacking
in consequence or substance, and undeserving of a serious response.
With the primary vehicle for exerting effective political
pressure being barred by the lack of elected voting representatives
in Congress, it is a travesty to tout the political process as a
means of vindicating the fundamental inequality of the United
States citizens who reside in Puerto Rico. The lead opinion's
ruling is the equivalent of having decided, before Brown v. Board
of Education, that African-Americans should forgo their right to
judicial action under the Constitution as the road map to
overruling the inequality promoted by Plessy.
The present situation is the quintessential condition for
the exercise by this court of the judicial powers pronounced by the
Supreme Court in Carolene Products in 1938:
[P]rejudice against . . . 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 which may call
for correspondingly more searching judicial
inquiry.
27
It should be noted that under Spanish rule, at the time
of the invasion of Puerto Rico by the United States, Puerto Ricans
were not only full Spanish citizens, but they had full voting
rights and were represented by twelve delegates and six senators in
the Spanish Cortes (Parliament). Today, Puerto Rico has one so-
called "Resident Commissioner," who sits in the House of
Representatives, but does not have a vote. 48 U.S.C. § 891.
-51-
United States v. Carolene Prods Co., 304 U.S. 144, 152 n.4 (1938)
(emphasis added).28
The lead opinion makes much of the language in Article I
of the Constitution, but conveniently devalues the importance and
applicability of other parts of this document. This is a strategy
that is not acceptable, for the Constitution is not an instrument
that can be picked at, or chosen from, at random. The principled
implementation of the Constitution requires that it be honored in
its totality, and in an integrated way. Cf. Colgrove v. Battin,
413 U.S. 149, 187 (1973) (Marshall and Stewart, JJ, dissenting)
("The Constitution is, in the end, a unitary, cohesive document and
every time any piece of it is ignored or interpreted away in the
name of expedience, the entire fragile endeavor of constitutional
government is made that much more insecure."). Nonetheless, it is
precisely this principle which has been disregarded in the
continued haste to "put the constitutional claim fully at rest,"
Igartúa III, 417 F.3d at 146, and forces me to dissent.
28
"Undoubtedly, the right of suffrage is a fundamental
matter in a free and democratic society. Especially 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).
-52-
I. Appellants' allegations under Article I Section 2
of the Constitution
Article I states, in relevant part, that "[t]he House of
Representatives shall be composed of Members chosen every second
Year by the People of the several States." U.S. Const. art. I,
§ 2, cl. 1. This clause, when considered within the context in
which the term "State" is used in other structural provisions of
the Constitution,29 does not by its own force endow citizens
residing in Puerto Rico with the "right" to vote for members of the
House of Representatives. For purposes of this clause, the term
"State" means a political entity that has been admitted as such
into the Union. Cf. U.S. Const. art. IV, § 3, cl. 1. Puerto Rico
has not been admitted as a "State" into the Union, and therefore,
citizens residing there do not qualify as "People of the Several
States." Accordingly, I agree that under the present circumstances
the denial of the right to vote for representatives in Congress to
United States citizens who reside in Puerto Rico does not violate
the provisions of Article I. Cf. Trailer Marine Transp. Corp. v.
Rivera Vázquez, 977 F.2d 1, 7 (1st Cir. 1992) (stating that
although "[t]oday the government of the Commonwealth of Puerto Rico
in many respects resembles that of a state. . . Puerto Rico is not
formally a state").
29
U.S. Const. art. I. § 3, cl. 2-3; art. I, § 4; art. II,
§ 1, cl. 2; Amend. XIV, § 2.
-53-
It should be pointed out, however, that notwithstanding
this outcome, Appellants' expansive reading of the term "State" to
Puerto Rico is not as far-fetched as is intimated by the lead
opinion. As recently as last year, Justice Sandra Day O'Connor
indicated that Puerto Rico "seem[s] to have become a State within
a common and accepted meaning of the word." United States v. Laboy
Torres, 553 F.3d 715, 721 (3d Cir. 2009) (O'Connor, Associate
Justice, Retired) (quoting United States v. Steele, 685 F.2d 793,
805 n.7 (3d Cir. 1982) (internal citations omitted)). In fact, this
denomination is consistent with how this term has been used in
numerous and varied constitutional settings by both the Supreme
Court and by this court. E.g., Torres v. Puerto Rico, 442 U.S.
465, 469-70 (1979) (fundamental protections of the Constitution
extend to the inhabitants of Puerto Rico); Examining Bd. of
Engineers, Architects and Surveyors, 426 U.S. at 599-601 (same re
equal protection rights); Calero-Toledo v. Pearson Yacht Leasing
Co., 416 U.S. 663, 668-69, 673 (1974) (same re due process and
equal protection rights; Puerto Rico a "State" for purposes of the
Three-Judge District Court Act under 28 U.S.C. § 2281); Rodríguez
v. Popular Democratic Party, 457 U.S. 1, 8 (1982) (in the context
of an election for the Puerto Rico Legislature, "[i]t is clear that
voting rights of Puerto Rico citizens are constitutionally
protected to the same extent as those of all other citizens of the
United States"); Nieves-Márquez v. Puerto Rico, 977 F.2d 1, 7 (1st
-54-
Cir. 1992) (Puerto Rico a "State" for Eleventh Amendment purposes);
Trailer Marine Transp., 977 F.2d at 7 (Puerto Rico is a "State" for
purposes of the dormant commerce clause of the Constitution);
United States v. López Andino, 831 F.2d 1164, 1168 (1st Cir. 1987)
("Puerto Rico is to be treated as a state for purposes of [a
criminal defendant's protection under] the double jeopardy
clause."); 48 U.S.C. § 737 (1950) ("The rights, privileges, and
immunities of citizens of the United States shall be respected in
Puerto Rico to the same extent as though Puerto Rico were a State
of the Union . . . ."); 48 U.S.C. § 734 (1955) (statutory laws of
the United States generally "have the same force and effect in
Puerto Rico as in the United States"); 42 U.S.C. § 1973ff-6(6)
(under the Uniformed and Overseas Citizens Absentee Voting Act, the
term "State" is defined to mean, inter alia, "a State of the United
States, the District of Columbia, the Commonwealth of Puerto
Rico").
Moreover, in keeping with the unfortunate agenda of
"put[ting] the constitutional claim fully at rest," Igartúa III,
417 F.3d at 148, the lead opinion goes further than is required
given the issues Appellants raise regarding Article I, by
suggesting that "the text of the Constitution . . . plainly limits
the right to choose members of the House of Representatives to
citizens of a state," and that this limitation is in fact
"deliberate and go[es] to the heart of the Constitution." Maj. op.
-55-
at 4-5 (emphasis supplied). These propositions are incorrect, and
startling in their breadth. First, while the text of Section 2,
Article I does not grant to citizens of Puerto Rico the right to
vote for members of the House of Representatives, neither does it
prohibit them that right, nor act as a limitation on the federal
government's authority to extend the franchise to territorial
residents under other constitutional powers. Cf. Romeu v. Cohen,
265 F.3d 118, 127-30 (2d Cir. 2001) (Leval, J., writing separately)
(arguing that Congressional authority over state voting laws
encompasses extending the presidential vote to citizens residing in
the territories); Nat'l Mut. Ins. Co. of Dist. of Col. v. Tidewater
Transfer Co., 337 U.S. 582, 588-91 (1949) (holding that, although
the District of Columbia is "not a state" as used in the diversity
jurisdiction provisions of Article III, "[t]his conclusion does not
. . . determine that Congress lacks power under other provisions of
the Constitution to enact . . . legislation" to extend the federal
courts' diversity jurisdiction to District residents); Adams v.
Clinton, 90 F. Supp. 2d 35, 95 (D.D.C. 2000) ("[T]he use of the
term 'State' in the diversity jurisdiction clause of the
Constitution cannot mean 'and not the District of Columbia.'")30
30
See also José R. Coleman Tió, Six Puerto Rican
Congressmen Go to Washington, 116 Yale L.J. 1389, 1394 (2007)
("Absent a clear constitutional intent to deny Congress the power
to treat Puerto Rico as a state for purposes of representation in
the House, the broad language of the Territorial Clause seems at
least to provide a clearer source of power to enfranchise nonstate
citizens than does the Seat of Government Clause [for D.C.
-56-
Most importantly, Congress possesses sufficient
constitutional authority to address this democratic deficit. Cf.
Missouri v. Holland, 252 U.S. 416 (1920) (holding that Congress can
act beyond its enumerated powers in Article I when implementing a
treaty obligation). As one example, under the Territory Clause of
the Constitution, Congress exercises plenary authority to "make all
needful Rules and Regulations respecting the Territory . . .
belonging to the United States," including Puerto Rico. U.S.
Const. art. IV, § 3, cl. 2; see Romeu, 265 F.3d at 130 ("Congress's
source of constitutional authority [under the Territory Clause] to
extend the presidential vote to citizens residing in the
territories is clearer than its power to enact the [Uniformed and
Overseas Citizens Absentee Voting Act] or the durational residency
rules discussed in Oregon [v. Mitchell, 400 U.S. 112 (1970)]"); see
also, e.g., Dávila-Pérez v. Lockheed Martin Corp., 202 F.3d 464,
468 (1st Cir. 2000) ("This power the Constitution confers in broad
terms."); Tidewater Transfer Co., 337 U.S. at 589; Downes, 182
U.S. at 285 (characterizing the "territorial clause" as "absolute
in its terms, and suggestive of no limitations upon the power of
Congress in dealing with them"). This power, among others we shall
discuss, is plain enough to permit Congress to grant citizens
residing in Puerto Rico the right to vote for members of the House
of Representatives. Cf. Tidewater Transfer Co., 337 U.S. at 589-
residents].").
-57-
91. The lead opinion's suggestion that Article I's failure to
provide voting rights to territorial residents prevents the United
States from achieving political equality through other means lacks
support in the text of the Constitution and the Supreme Court's
jurisprudence. It is also based on a flawed historical rationale.
The lead opinion relies on an unsupportable distinction
between the Constitution's use of the word "State" and "territory"
in its structural provisions to conclude that Puerto Rico's
political inequality was a deliberate choice of the Framers,
requiring either its admission as a state or a constitutional
amendment to remedy this situation. But "[i]ndefinite colonial
rule by the United States is not something that was contemplated by
the Founding Fathers nor authorized per secula seculorum by the
Constitution." Igartúa-de la Rosa v. United States, 229 F.3d 80,
89 (1st Cir. 2000) (emphasis in original); see also 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.").
Indeed, while the Founders may have "acted purposefully
in denying federal enfranchisement to the District [of Columbia],
they possessed no comparable qualms about extending the same
-58-
benefits to the territories." Coleman Tió, supra note 7, at 1393-
4 (explaining that proposed amendments to grant D.C. residents the
right to vote were considered and rejected; "[t]he Founders denied
self-government to the District in order to protect the federal
government from undue external influence").31
31
For this reason also, the lead opinion is incorrect in
its suggestion that, because D.C. residents were granted the right
to vote for president through the 23rd Amendment, the same solution
is necessarily required for Puerto Rico. The District of Columbia
and Puerto Rico are different breeds of political entity. See
District of Columbia v. Carter, 409 U.S. 418, 432 (1973) ("Unlike
either the States or Territories, the District is truly sui generis
in our governmental structure."); Coleman Tió, supra at 1395 ("The
District clearly does not possess the most basic attributes of a
state: it has no governor and no local legislature analogous to a
state legislature, it is not governed by a written constitution,
and it is not sovereign over matters not governed by the U.S.
Constitution. By contrast, Puerto Rico's internal government
structure is exactly like that of a state." (citing Texas v. White,
74 U.S. (7 Wall.) 700, 721 (1868) ("A state, in the ordinary sense
of the Constitution, is a political community of free citizens,
occupying a territory of defined boundaries, and organized under a
government sanctioned and limited by a written constitution, and
established by the consent of the governed.")). Indeed, the
District is subject to Congress's authority under a distinct
constitutional provision. See U.S. Const. art. I, § 8, cl. 17
("[The Congress shall have Power] To exercise exclusive Legislation
in all Cases whatsoever, over such District (not exceeding ten
Miles square) as may, by Cession of particular States, and the
Acceptance of Congress, become the Seat of the Government of the
United States.").
In any event, I express no opinion on the controversial issue
of what may be necessary for D.C. residents to obtain the right to
vote for Members of the House of Representatives. See generally
Sen. Orrin G. Hatch, Essay, "No Right is More Precious in a Free
Country": Allowing Americans in the District of Columbia to
Participate in National Self-Government, 45 Harv. J. on Legis. 287,
303 (2008) (concluding that the District of Columbia House Voting
Rights Act of 2007 is constitutional; "neither a constitutional
amendment nor statehood is necessary for the District's residents
to be granted representation in the House"); Lawrence M. Frankel,
-59-
In fact, full enfranchisement seems to
have been the ultimate goal of territorial
expansion for more than a century after the
Founding. The Northwest Ordinance of 1787 not
only guaranteed the existing territories
eventual enfranchisement through admission
into the Union, but further stipulated that
once a territory had "sixty thousand free
Inhabitants," it would "be admitted by its
Delegates into the Congress of the United
States on equal footing with the original
States." All U.S. territories acquired
between 1787 and the Spanish-American War also
achieved congressional representation through
statehood.
The evidence therefore suggests that
territorial disenfranchisement was meant to be
temporary; territories would be held as
states-in-waiting. Only the territorial
incorporation doctrine devised by the Insular
Cases permitted a sharp deviation from prior
practice. But holding colonies like Puerto
Rico without the possibility of eventual
enfranchisement still runs against the very
principles upon which the nation was founded
and the Constitution enacted.
Id. at 1394.
Given this background, the use of the term "State" in
certain structural provisions of the Constitution says nothing
about the Framers' intentions with regard to the apparently
permanent and long-standing political inequality of citizens living
in Puerto Rico for more than a century. Without some further
indication to the contrary, and recognizing the doctrine of
Comment, National Representation for the District of Columbia: A
Legislative Solution, 139 U. Pa. L. Rev. 1659, 1708 (1991) ("The
legislative solution . . . represents a proper exercise of federal
and congressional power.").
-60-
territorial incorporation for what it is -- in Justice Harlan's
words, "wholly inconsistent with the spirit and genius, as well as
with the words, of the Constitution" -- I cannot agree with the
lead opinion's assertion that Article I somehow demands the
disenfranchisement of millions of United States citizens.32
In short, although Appellants may not have a claim to
enfranchisement under Article I, § 2, cl. 1, that provision in no
way limits the power of the federal government to provide the right
to vote by other means.
II. Appellants' allegations under the Supremacy Clause
In this case, Appellants contend that they have been
granted the right to vote by actions taken under another
(complementary) grant of constitutional authority: the Supremacy
Clause, which, in relevant part, provides that "all Treaties made,
or which shall be made, under the Authority of the United States,
shall be the supreme Law of the Land." U.S. Const. art. VI, cl. 2.
They further contend that by failing to include Puerto Rican
citizens in the apportionment process, and denying them the
opportunity to elect Representatives, the United States is in
violation of the Law of the Land. As I will explain, this claim is
on more solid footing.
32
The approximate total population of all U.S. territories
and possessions, including Puerto Rico, is about five million.
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A. The role of international law under our
constitutional system
We commence by stating what is beyond cavil:
"[i]nternational law is part of our law, and must be ascertained
and administered by the courts of justice . . . ." The Paquete
Habana, 175 U.S. 677, 700 (1900). This is not a new or remarkable
concept. International law has been an integral part of our
constitutional system since the founding of our Nation. See, e.g.,
Sosa v. Álvarez-Machain, 542 U.S. 692, 729 (2004) ("For two
centuries we have affirmed that the domestic law of the United
States recognizes the law of nations."); The Nereide, 13 U.S. 388,
423 (1815) (Marshall, C. J.) ("[T]he Court is bound by the law of
nations which is a part of the law of the land."). Although
customary international law is part of the "law[] of the United
States" within the meaning of Article III and the Supremacy Clause,
e.g., Sosa, 542 U.S. at 726, our primary infusion of international
law into domestic law comes from the treaties entered into by the
President on behalf of the Nation, which thereafter become part of
our municipal law upon ratification by the Senate. U.S. Const.
art. II, §2, cl. 2; see Sosa, 542 U.S. at 729.
As stated by the Supreme Court in Sosa, "it would take
some explaining to say now that federal courts must avert their
gaze entirely from any international norm intended to protect
individuals." Id. at 730. Notwithstanding this firm advice, which
is based on two centuries of jurisprudence, the government invites
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us not only to "avert our gaze" from our international obligations,
but to bury our head in the sand. The Supremacy Clause requires
more than that of the Courts of the United States. The Paquete
Habana, 175 U.S. at 700.
Following the dictates of Sosa, our first step is to
inquire into the existence of "any international norm intended to
protect individuals" to which the United States may have agreed.
Although Appellants claim the protection of a host of international
commitments by the United States,33 we need only consider one. This
treaty is the International Covenant on Civil and Political Rights.
B. The United States' obligations under the
ICCPR
The ICCPR, which has 72 signatories and 165 parties,
became the law of the land of the United States upon its
33
See, e.g., Universal Declaration of Human Rights, G.A.
Res. 217(111)A, U.N. Doc. A/RES/217(111) (Dec.10, 1948);
Organization of American States, American Declaration of Rights and
Duties of Man, OAS Res. XXX (1948); OAS, Inter-American Democratic
Charter, OAS Doc. OEA / Ser. P./ AG RES.1 (XXVIII-E/01) (Sept. 11,
2001); ICCPR.
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ratification by the Senate on June 8, 1992.34 See 138 Cong. Rec.
S4781, S4784 (daily ed. Apr. 2, 1992).
Article 25 of the ICCPR establishes that:
Every citizen shall have the right and
opportunity . . .
(a) To take part in the conduct of public
affairs, directly or through freely chosen
representatives; [and]
(b) To vote and to be elected at genuine
periodic elections which shall be by universal
and equal suffrage . . . .
ICCPR art. 25 (emphasis supplied). Plainly, the continued lack of
political representation of Appellants is a violation of the United
States' treaty obligations under Article 25.
Additionally, pursuant to Article 2(1), the United States
"undertakes to respect and to ensure to all individuals within its
territory and subject to its jurisdiction the rights recognized in
the present Covenant, without distinction of any kind." Id. Art.
34
The United States was a member of the Drafting Committee,
a sub-organ of the Commission on Human Rights of the United
Nations, since this committee began drafting the ICCPR at its first
session on June 9-25, 1947. Marc J. Bossuyt, Guide to the "travaux
préparatoires" of the International Covenant on Civil and Political
Rights, XIX (1987). It was not until December 16, 1966, after ten
sessions of the Drafting Committee, and multiple drafts and
amendments, that the General Assembly adopted the ICCPR by 106
votes for approval, 2 votes against approval, and 38 votes of
abstention. The ICCPR entered into force on March 23, 1976, with
85 states becoming parties to both the ICCPR and the Optional
Protocol by January 1, 1987. Id. at XX. The United States was not
one of them. It became a signatory party on October 5, 1977, and
a full party on June 8, 1992, after the Senate had ratified the
treaty.
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2(1) (emphasis supplied). The United States further agrees "to
take the necessary steps, in accordance with its constitutional
processes and with the provisions of the present Covenant, to adopt
such laws or other measures as may be necessary to give effect to
the rights recognized in the present Covenant." Id. Art. 2(2).
Most importantly, under this treaty the United States specifically
commits itself "[t]o ensure that any person whose rights or
freedoms as herein recognized are violated shall have an effective
remedy." Id. Art. 2(3) (a) (emphasis supplied). In furtherance of
this provision the United States is obligated "[t]o ensure that any
person claiming such a remedy shall have his right thereto
determined by competent judicial, administrative or legislative
authorities, or by any other competent authority provided for by
the legal system of the State, and to develop the possibilities of
judicial remedy." Id. (emphasis supplied). The lead opinion, at
the government's urging, concludes that the exacting language of
the ICCPR just quoted is meaningless and ineffective, because it is
allegedly "non-executing." This is an erroneous conclusion which
is the result of the court's failure to live up to its
constitutional duty to independently assess and interpret the
meaning of a treaty entered into by the United States. The Paquete
Habana, 175 U.S. at 700.
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C. The Government's opposition to the domestic
application of the ICCPR
Appellants' claim for relief under the ICCPR and the
Supremacy Clause is rejected on essentially three general grounds:
(1) the ICCPR is not a "self-executing" treaty and thus does not
create individual rights that are enforceable in federal court; (2)
the issues raised by this appeal involve "political questions,"
which the courts should abstain from deciding; and (3) no
"effective" remedy can be granted to Appellants by the courts, and
therefore there is no "Case and Controversy" and we lack
jurisdiction.35 The common thread that runs through these three
contentions is the fact that they are all judicially-created
doctrines, used to avoid passing upon issues that the courts may,
for a variety of reasons, wish not to confront.
35
Indeed, the repeated actions by the Government in this,
and other similar cases, in so opposing Appellants' claims to equal
voting rights are in themselves flagrant violations of accords
entered into by the United States under Article 2, paragraph 3, of
the ICCPR, in which it undertook "[t]o ensure that any person whose
[ICCPR] rights or freedoms . . . are violated shall have an
effective remedy," and further agreed to ensure that these rights
be "determined by competent judicial, administrative, or
legislative authorities, or by any other competent authority
provided for by the legal system of the State, and to develop the
possibilities of judicial remedy." ICCPR art. 2(3). Far from
this, the Government has consistently opposed Appellants' attempts
to obtain an effective remedy. Furthermore, it could be argued with
considerable logic that this court's repeated actions in failing to
enforce these international commitments, themselves result in
placing the United States in violation of the ICCPR assurances that
an enforceable judicial remedy would be available.
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(1) The doctrine of self-execution of treaties
and its relevance to the ICCPR36
(a) The doctrine of self-execution of
treaties
The doctrine of self-execution of treaties, or stated in
the negative, of non-self-execution, is a judicially-created theory
which has, at convenient times, been used to avoid international
commitments, particularly where human rights are concerned.37
Today, this theory promotes a rule whereby treaties are presumed to
be non-self-executing, when in fact the text and history of the
Supremacy Clause counsel exactly the opposite. Cf. Safety Nat'l
Cas. Corp. v. Certain Underwriters, 587 F.3d 714, 737 (5th Cir.
2009) (en banc) (Clement, J., concurring in the judgment)
(explaining that while "there may be a growing judicial consensus
that multilateral treaties are presumptively non-self-executing,"
that "consensus" does not override the Supreme Court's plain-text
approach to questions of self-execution).
36
The following discussion draws from Judge Howard's
dissenting opinion in Igartúa III, 417 F.3d at 185-92.
37
Courts and commentators have used the term "self-
execution" or "non-self-execution" to include several related but
differing scenarios. See David N. Cinotti, Note, The New
Isolationism: Non-Self-Execution Declarations and Treaties as the
Supreme Law of the Land, 91 Geo. L.J. 1277, 1279-80 (2003)
(providing three definitions of "non-self-executing" treaties,
namely treaties that (a) are nonjusticiable, (b) convey no private
right of action, or (c) require Congress to enact implementing
legislation); see also Columbia Marine Servs. Inc. v. Reffet Ltd.,
861 F.2d 18, 21 (2d Cir. 1988) (defining "self-executing" as
prescribing rules for determining private rights).
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(i) The British Rule
The idea that treaties entered into by the executive
branch are not self-executing has its source in Great Britain
where, by virtue of their constitutional system, the Crown enters
into treaties without any intervention by Parliament, before or
after the treaty is signed. Thus, Parliament must pass specific
legislation before a treaty is incorporated into the municipal law
of Great Britain.38
This, of course, is different with regards to the United
States, in which the complementary constitutional roles of the
President and Senate in the negotiation and ratification of
treaties allow intervention by both branches of government before
the treaty comes into effect and becomes part of our domestic law.
38
See J.G. Starke, Introduction to International Law 79-80
(10th ed. 1984) (noting that British law has developed
independently of customary international law in that, while the
Crown possesses the power to enter treaties, Parliament must enact
enabling legislation because otherwise the Crown would be able to
unilaterally legislate domestic law without Parliament's consent);
see also Ware v. Hylton, 3 U.S. (3 Dall.) 199, 275 (1796)
(explaining that treaties are traditionally non-self-executing in
Great Britain in part because "no man living will say that a bare
proclamation of the King, upon the ground of treaty" is adequate
authority for enacting domestic law); The Parliament Belge, 4 P.D.
129 (1879) (holding that a British treaty was non-self executing
for the same reasoning previously stated); Carlos Manuel Vázquez,
Treaty-Based Rights and Remedies of Individuals, 92 Col. L. Rev.
1082, 1111 (1992) (describing long-standing British law that a
treaty does not have domestic effect until Parliament enacts
implementing legislation).
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(ii) The American Rule
In the United States, as evidenced by the unambiguous
language of the Supremacy Clause, as well as by the intent of its
framers, treaties are presumed to be self-executing. See U.S.
Const. art. VI, cl. 2 ("[A]ll Treaties made, or which shall be
made, under the Authority of the United States, shall be the
supreme Law of the Land").
The historical record sustaining this proposition is
unquestionable. During the Constitutional Convention, a proposal
to the effect that treaties be sanctioned by the legislature before
they had "the operation of law" was specifically rejected. See
James Madison, Notes of Debates in the Federal Convention of 1787
597 (W.W. Norton 1987) (1840). An alternative proposal, which was
also rejected, would have established two types of treaties: one
requiring only action by the President and the Senate, and a second
requiring additional action by the House of Representatives. 2 The
Records of the Federal Convention of 1787 538 (Max Farrand ed.
rev. ed. 1966). 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 struck this language because it was redundant,
considering the clear language of the Supremacy Clause. Id. at
389-90. The rejection of these proposals illustrates that the
language of the Supremacy Clause was not coincidental, but rather
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chosen after due deliberation, and deliberately, to mean what it
says.
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. In The
Federalist No. 22, for example, Alexander Hamilton explained that
"[t]he 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 150 (Alexander Hamilton) (Clinton 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 from the moment they are made. They involve in
their nature not only our own rights, but those of foreigners [and
should be protected by our judiciary]." Jordan J. Paust, Self-
Executing Treaties, 82 Am. J. Int'l L. 760, 762 (1988) (quoting 4
The Debates in the Several State Conventions on the Adoption of the
Federal Constitution 27 (J. Elliot ed., 1941) (1830) (documenting
the statements of William Davie, a North Carolina delegate to the
Constitutional Convention) (brackets in original)). Even those
opposing ratification shared this view: "Brutus," in criticizing
Article III, stated that he could "readily comprehend what is meant
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by deciding a case under a treaty. For as treaties will be the law
of the land, every person who have rights or privileges secured by
a treaty, will have of courts . . . in recovering them." 16 The
Documentary History of the Ratification of the Constitution 172
(John P. Kaminski & Gaspare J. Saladino eds., 1986).
(iii) The American Rule is modified:
Foster v. Neilson
In Foster v. Neilson, decided by Chief Justice Marshall
in 1829, the Court concluded that the treaty in question was not
self-executing because, by its terms, it did not establish a right
in the individual claimant, but rather placed an obligation on the
legislative branch to act. 27 U.S. (2 Pet.) 253, 314-15 (1829),
overruled in part by United States v. Perchman, 32 U.S. (7 Pet.) 51
(1833). Although the Foster rule has since come into vogue,
particularly in denying the application of human rights treaties,39
properly applied it is a rule that makes sense, for a treaty is
what amounts to a contract between nations, and as such, what needs
to be done at the outset, as in the case of a contract between
39
See Louis Henkin, U.S. Ratification of Human Rights
Conventions: The Ghost of Senator Briker, 89 Am. J. Int'l L. 341,
348-50 (1995) (hereinafter Henkin, U.S. Ratification) (noting
political efforts to undermine treaty obligations that give rise to
greater human rights obligations); David Sloss, The Domestication
of International Human Rights: Non-Self-Executing Declarations and
Human Rights Treaties, 24 Yale J. Int'l L. 129, 172-3 (1999)
(noting the Senate's reluctance to allow the United States to be
bound by "nonredundant" human rights obligations -- that is, human
rights obligations not already enacted into domestic law -- arising
from treaties).
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private parties, is to inquire into the content of the agreement to
determine the obligations established thereunder, and to establish
the scope of the various rights and duties within its purview.
See, e.g., Sea Hunt v. Unidentified Shipwrecked Vessel, 221 F.3d
634, 646 (4th Cir. 2000) ("Treaties are contracts between
sovereigns, and as such, should be construed to give effect to the
intent of the signatories.") (citation omitted). Plainly put, what
determines whether a treaty is self-executing, or not, is the
language of the treaty as interpreted by the courts, not the nature
of the rights established therein as opined by the Senate that
ratifies the treaty.
Thus, when placed within its proper perspective, the
Foster rule simply requires courts to examine the treaty in
question to determine from its text (or when not apparent, from the
history of the treaty), whether the treaty has created individual
rights or whether it is non-self-executing, and therefore requires
further legislative action to put it into effect domestically.
See, e.g., Abbott v. Abbott, __ U.S. __, 130 S. Ct. 1983, 1990
(May 17, 2010) ("The interpretation of a treaty . . . begins with
its text.") (citation omitted); Medellín v. Texas, 522 U.S. 491,
562 (2008) (explaining that "explicit textual expression" is the
focus of the self-execution analysis); United States v. Álvarez-
Machain, 504 U.S. 655, 663 (1992) (stating that courts look first
to a treaty's terms to determine their content); United States v.
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Stuart, 489 U.S. 353, 365-66 (1989) ("The clear import of treaty
language controls unless application of the words of the treaty
according to its obvious meaning effects a result inconsistent with
the intent or expectations of the signatories.") (internal
quotation and citations omitted); see also Diggs v. Richardson, 555
F.2d 848, 851 (D.C. Cir. 1976) ("In 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.").
(iv) The legal import of the Senate's
declaration regarding the ICCPR
Notwithstanding these established rules, the Government's
contentions regarding the alleged non-self execution of the ICCPR
rely exclusively on statements made in the ratification process of
the ICCPR before the Senate.40 The Government contends that the
Senate's declaration, purporting to establish that the substantive
provisions of that treaty would not be self-executing, ipso facto
results in making the treaty non-self-executing, and argues that
40
See S. Exec. Rep. No. 102-23 (1992), reprinted in 31
I.L.M. 645, 657 (conditioning the Senate's consent on the United
States' declaration that the treaty be non-self-executing); see
also id. at 660 (reprinting a letter from the President to the
Senate requesting ratification of the ICCPR). But see 138 Cong.
Rec. 8070 (1992) (statement of Sen. Daniel Moynihan) ("Even though
the Convention is non-self-executing, the[] [provisions of the
ICCPR] will now become binding obligations of the United States.").
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this declaration by the Senate is binding on the courts. The
government is wrong for several reasons.
First of all, a declaration is a statement of position by
the Senate that "is not presented to the other international
signatories as a request for a modification of the treaty's terms."
Igartúa III, 417 F.3d at 190 (Howard, J., dissenting). Thus a
declaration is not part of the treaty, but instead "is directed
primarily toward United States courts to express 'the sense of the
Senate' that the treaty should . . . be interpreted [in the manner
proposed by the Senate]." Id.
In the case of the ICCPR, the Senate also made several
reservations, which were specifically directed at Articles 7, 10,
15 and 20 of the ICCPR.41 A reservation is a "unilateral statement
. . . whereby . . . [a State] purports to exclude or to modify the
legal effect of certain provisions of the treaty in their
application to that State." Vienna Convention on the Law of
Treaties, art. 2(1) (d) (May 23, 1969), 1155 U.N.T.S. 331. In
contradistinction with a declaration, a reservation has an actual
41
See 138 Cong. Rec. 8070-71 (stating that the United
States would not take any steps to comply with Article 20 that
would infringe on the right to free speech and association, deeming
the ICCPR article 7 prohibitions against 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 as adults under certain circumstances,
notwithstanding the provisions of ICCPR article 10, paragraphs 2(b)
and 3, and article 14, paragraph 4).
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effect on the terms of the treaty. See Michael J. 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)
(noting that in exchange for ratification the Senate can require
the President to enter a reservation to the treaty and to obtain
the other signatory's consent to this change). There is no
question 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); see also Restatement (Third) of Foreign Relations Law of
the United States § 314 cmt. d (1986) (noting that when the United
States accedes to a treaty with reservations, this statement has
domestic legal effect, whereas other indications that the President
or Senate assigned a distinct meaning to the treaty, such as
declarations, are only pertinent to treaty interpretation in "the
same way that the legislative history of a statute is relevant").
It is important to note that the Senate made no
reservations regarding the rights provided for in Article 25,42 or
Article 2 paragraphs 1,43 2,44 and 3.45
42
"Every 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.
43
The United States "undertakes to respect and to ensure to
all individuals within its territory and subject to its
jurisdiction the rights recognized in the present Covenant,
without distinction of any kind." Id. art. 2, para. 1.
44
"Where not already provided for by existing legislati[on]
. . . each State Party . . . undertakes to take the necessary
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The Senate's declaration that the ICCPR is non-self-
executing is ultra vires with respect to the ratification process
and as such that declaration is not binding on the courts, who are
required to exercise their independent judicial power under the
Supremacy Clause in interpreting the meaning and import of all
treaties entered into by the United States.
[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 the ratification of
treaties, not to pass domestic legislation. A
declaration is not a 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 . . . 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
steps, in accordance with its constitutional processes and with the
provisions of the present Covenant, to adopt such laws or other
measures as may be necessary to give effect to the rights
recognized in the present Covenant." Id. art. 2, para. 2.
45
The United States agreed to an enforcement mechanism to
realize and secure the rights recognized by the Covenant, and
undertook "[t]o ensure that any person whose [ICCPR] rights or
freedoms . . . are violated shall have an effective remedy" and to
ensure that these rights are "determined by competent judicial,
administrative or legislative authorities, or by any other
competent authority provided for by the legal systems of the State
and to develop the possibilities of judicial remedy." Id. art. 2,
para. 3.
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does not have the power to make law outside
the treaty instrument.
Stephan A. Riesenfeld & Frederick M. Abbott, Foreword: Symposium on
Parliamentary Participation in the Making and Operation of
Treaties, 67 Chi-Kent L. Rev. 293. 296-97 (1991). This is the
unanimous view of treaty-law scholars.46
It is also the conclusion reached in the only case to
have directly passed upon this specific issue, Power Auth. of N.Y.
v. Fed. Power Auth., 247 F.2d 538 (D.C. Cir. 1957), vacated as
moot, 355 U.S. 64 (1957). In this case, the District of Columbia
Court of Appeals held that a "reservation"47 by the Senate in a
46
See, e.g., Louis Henkin, Foreign Affairs and the
Constitution of the United States, 202 (2d ed. 1996) (describing
the Senate's practice of declaring treaties non-self-executing as
"anti-Constitutional in spirit"); Henkin, supra note 15, at 346
(arguing that non-self-executing declarations by the Senate may be
unconstitutional); Cinotti, supra note 13, at 1291 (contending that
"the President and the Senate do not have constitutional authority
to make a non-self-execution declaration legally binding"); Jordan
J. Paust, Avoiding "Fraudulent" Executive Policy: Analysis of Non-
Self Execution of the Covenant on Civil and Political Rights, 42
Dapple L. Rev. 1257, 1265 (1993) (quoting with approval the
International Law Association's statement that it "may well be that
a non-self-executing declaration . . . does not bind the judicial
branch"); John Quigley, The International Covenant on Civil and
Political Rights and the Supremacy Clause, 42 Dapple L. Rev. 1287,
1298 (1993) (arguing that courts, rather than the Senate, should
determine whether or not a treaty is non-self-executing); see also
Charles Dearborn, III, Note, The Domestic Legal Effect of
Declarations that Treaty Provisions Are Not Self-Executing, 57 Tex.
L. Rev. 233, 251 (1979) (arguing that declarations might be "an
invalid attempt by the Senate to enact domestic legislation without
the concurrence of the House").
47
Although the opinion uses the term "reservation"
throughout, it is clear that what is involved is a "declaration" by
the Senate. Power Auth. of N.Y., 247 F.2d at 541 (calling the
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bilateral treaty with Canada was ineffective because the
"reservation" (i.e., declaration) only involved U.S. domestic law.
Id. at 541. For the reservation (i.e., declaration) to be binding
on the judiciary, the court reasoned, it had to constitute an
actual part of the treaty:
A true reservation which becomes part of a
treaty is one which alters "the effect of the
treaty in so far as it may apply in the
relations of (the) 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. (internal citations omitted). Because the "reservation" (i.e.,
declaration) was merely an expression of the Senate's views
concerning domestic policy, it was not part of the treaty; and,
ergo, it did not become domestic law under the Supremacy Clause.
Accordingly, it was not binding on the court. See also N.Y.
Indians v. United States, 170 U.S. 1, 23 (1898) ("The power to make
treaties is vested by the Constitution in the president and senate,
and, while this proviso was adopted by the senate, there is no
evidence that it ever received the sanction or approval of the
president. It cannot be considered as a legislative act, since the
power to legislate is vested in the president, senate and house of
representatives. There is something, too, which shocks the
conscience in the idea that a treaty can be put forth as embodying
Senate's statement a "reservation" but noting that the statement
"made no change in the treaty" and was not a counter-offer").
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the terms of an arrangement with a foreign power or an Indian
tribe, a material provision of which is unknown to one of the
contracting parties, and is kept in the background to be used by
the other only when the exigencies of a particular case may demand
it.").
More recently, the Supreme Court has affirmed the
separate and distinct roles assigned to the Senate and Executive by
the Constitution under Article II. In Medellín, the Court held
that an executive memorandum purporting to grant individuals rights
under a non-self-executing agreement was invalid because, while
"[t]he President has an array of political and diplomatic means
available to enforce international obligations . . . unilaterally
converting a non-self-executing treaty into a self-executing one is
not among them. The responsibility for transforming an
international obligation arising from a non-self-executing treaty
into domestic law falls to Congress," through, for example, the
enactment of implementing legislation. 552 U.S. at 525-26. The
Court explained:
The requirement that Congress, rather than the
President, implement a non-self-executing
treaty derives from the text of the
Constitution, which divides the treaty-making
power between the President and the Senate.
The Constitution vests the President with the
authority to "make" a treaty. If the
Executive determines that a treaty should have
domestic effect of its own force, that
determination may be implemented in "mak[ing]"
the treaty, by ensuring that it contains
language plainly providing for domestic
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enforceability. If the treaty is to be
self-executing in this respect, the Senate
must consent to the treaty by the requisite
two-thirds vote, consistent with all other
constitutional restraints.
Id. at 526 (emphasis added) (internal citation omitted). Thus, as
the Supreme Court has reinforced, the constitutional prerogative to
"make" treaties, and to set their domestic legal effect, falls in
the first instance to the executive. While the Senate's views
regarding self-execution may be relevant to the interpretation of
an ambiguous treaty, see Stuart, 489 U.S. at 366-8; Restatement
(Third) of Foreign Relations Law of the United States § 314, cmt.
d (1987) ("indication that . . . the Senate ascribed a particular
meaning to the treaty is relevant to the interpretation of the
treaty by a United States court in much the same way that the
legislative history of a statute is relevant to its
interpretation"),48 those views are not capable of supplanting the
48
Nonetheless, as Justice Scalia points out in his
concurrence in Stuart:
Of course the Senate has unquestioned power to
enforce its own understanding of treaties. It
may, in the form of a resolution, give its
consent on the basis of conditions. If these
are agreed to by the President and accepted by
the other contracting parties, they become
part of the treaty and of the law of the
United States. If they are not agreed to by
the President, his only constitutionally
permissible course is to decline to ratify the
treaty, and his ratification without the
conditions would presumably provide the basis
for impeachment. Moreover, if Congress does
not like the interpretation that a treaty has
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plain language of an agreement. Stuart, 489 U.S. at 373 (Scalia,
J., concurring) ("Only when a treaty provision is ambiguous have we
found it appropriate to give authoritative effect to extratextual
materials."); see also Air France v. Saks, 470 U.S. 392, 399-400
(1985); Nielsen v. Johnson, 279 U.S. 47, 52 (1929).
In conclusion, the declaration by the Senate to the
effect that the ICCPR is non-self-executing is not binding on the
courts, which are required by the Supremacy Clause to make an
independent judgment of that issue, based on the language of the
treaty and, if that is not clear, on the negotiating history of the
treaty in question.
The en banc court's reliance on dicta49 in the Supreme
Court's Sosa decision to conclude otherwise was plainly erroneous.
See Igartúa III, 417 F.3d at 150. In relevant part, the issue in
been given by the courts or by the President,
it may abrogate or amend it as a matter of
internal law by simply enacting inconsistent
legislation. But it is a far cry from all of
this to say that the meaning of a treaty can
be determined, not by a reservation attached
to the President's ratification at the
instance of the Senate, nor even by formal
resolution of the Senate unmentioned in the
President's ratification, but by legislative
history of the sort that we have become
accustomed to using for purpose of determining
the meaning of domestic legislation.
Stuart, 489 U.S. at 375 (Scalia, J. concurring) (emphasis
added).
49
Even the lead opinion recognizes that Sosas's statement
that the ICCPR is non-self executing is dicta. See op. at 29.
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Sosa was whether the petitioner's detention violated customary
international law and not the ICCPR. See 542 U.S. at 735. The
question of the ICCPR's self-execution was never presented to the
Court; indeed, the petitioner expressly conceded that "this treaty
is not self-executing and may not be relied upon by individuals in
domestic court proceedings." Brief of Petitioner, Sosa v. Álvarez-
Machain, 524 U.S. 692 (2004), No. 03-339, 2004 WL 162761 at 41. As
Chief Justice Marshall aptly observed, "[i]t is extremely dangerous
to take general dicta upon supposed cases not considered in all
their bearings, and, at best, inexplicitly stated as establishing
important law principles." Alexander v. Baltimore Ins. Co., 8 U.S.
370, 379 (1808). The lead opinion's reliance on Sosa illustrates
his point. In its haste to dispose of Appellant's treaty-based
claims, the en banc majority all but abandoned the Supreme Court's
established plain-text approach to questions of self-execution, and
turned on its head the Treaty Clause's careful separation of
powers. See U.S. Const. art. II, § 2, cl. 2 ("[The President]
shall have Power, by and with the Advice and Consent of the Senate,
to make Treaties, provided two thirds of the Senators present
concur . . . .")
It is appropriate at this time to bypass and correct this
decision not only because, as admitted by the lead opinion, it was
based on dicta in Sosa, see op. at 29, but also because more recent
Supreme Court precedent places its bare majority conclusions in
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serious doubt. The political ties between the United States and its
territories have continued to evolve and have become ever more
integrated. Cf. Boumediene, 553 U.S. at 758 ("It may well be that
over time the ties between the United States and any of its
unincorporated Territories strengthen in ways that are of
constitutional significance."). The only thing that has not
changed is the political inequality of the class of United States
citizens residing in Puerto Rico. I would hold that the task of
determining whether the ICCPR is self-executing, and gives rise to
enforceable rights, is for the courts. The lead opinion's reliance
on dicta in Sosa essentially prevents that examination. As will be
shown, recourse to the plain language of that treaty, and to its
drafting history, demonstrates that it is in fact a self-executing
agreement that, upon ratification, became the Law of the Land and
thus must be enforced by this court.
(b) The plain language of the ICCPR counsels
that individual rights were created and that
the United States agreed to provide a forum
and remedies for the vindication of those
rights to those of its citizens who claim a
violation of those rights.
The text of the ICCPR unequivocally spells out individual
rights and establishes the obligations of the contracting parties
regarding their enforcement by individual citizens who claim
violations of these rights. A straightforward reading of this
language should leave little doubt that the United States has
entered into an international agreement creating individual rights
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ipso facto: at a minimum, the United States has agreed that
"[e]very citizen shall have the right and opportunity . . . [t]o
vote . . . at genuine and periodic elections which shall be by
universal and equal suffrage." ICCPR art. 25, para. b (emphasis
added). Upon ratification of this treaty by the Senate, these
rights have become the supreme law of the land. Further, the
United States has agreed to provide an effective remedy for the
violation of these rights. Id. art 2, para. 3 (emphasis added).
Moreover, the United States "undert[ook] to respect and ensure [the
right to vote of] all individuals within its territory and subject
to its jurisdiction . . . without distinction . . ." Id. at art.
2, para. 1. Further, it agreed "that any person claiming such a
remedy shall have the right thereto determined by competent,
judicial, administrative, or legislative authorities, or by any
other competent authority provided for by the legal system of the
State, and to develop possibilities of judicial remedies." Id. art
2, para. 3 (emphasis added). Nonetheless, in contravention of
these obligations, the United States government has not only failed
to act in support of the same, but it has actively obstructed their
realization. See Igartúa III, 417 F.3d at 175 (Torruella, J.,
dissenting) ("[I]t 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.").
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There is nothing "aspirational" or "precatory" in the
language used by the treaty. See Fund for Animals, Inc. v.
Kempthorne, 472 F.3d 872, 881 (D.C. Cir. 2006) (explaining that one
way courts may find a treaty non-self-executing is if its
"provisions are precatory, aspirational, or otherwise too vague to
be judicially enforceable"); see also Edye v. Robertson, 112 U.S.
580, 598-99 (1884) ("A treaty ... is a law of the land as an act of
[C]ongress is, whenever its provisions prescribe a rule by which
the rights of the private citizen or subject 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." (emphasis
added)). Rather, it speaks to the establishment of specific
individual rights. Compare ICCPR art. 25 ("Every citizen shall
have the right and the opportunity, without any of the distinctions
mentioned in article 2 and without unreasonable restrictions ...
[t]o vote and to be elected at genuine periodic elections which
shall be by universal and equal suffrage ... .") (emphasis added),
with Jogi v. Voges, 480 F.3d 822, 833-4 (7th Cir. 2007) (holding
that Article 36.1(b) of the Vienna Convention, which "states,
plainly enough, that authorities 'shall inform the person concerned
without delay of his rights under this sub-paragraph'" confers
"individual rights," notwithstanding general language of preamble
providing that "the purpose of [the Convention's] privileges and
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immunities is not to benefit individuals"), and British Caledonian
Airways, Ltd. v. Bond, 665 F.2d 1153, 1161 (D.C. Cir. 1981) (use of
language "shall have the right" to codify rights under the so-
called Chicago Convention means that the treaty's provisions "may
not be qualified or modified through legislation or administrative
regulations enacted by the individual signatory nations" and are,
therefore, self-executing).50 It is as precise and as mandatory as
any law on the subject would be, had it been enacted directly by
Congress. Cf. Medellín v. Dretke, 544 U.S. 660, 687 (2005)
(O'Connor, J., dissenting from dismissal of writ of certiorari as
improvidently granted) ("[I]f [like Article 36 of the Vienna
Convention] a statute were to provide, for example, that arresting
authorities 'shall inform a detained person without delay of his
right to counsel,' I question whether more would be required before
50
The ICCPR's language requiring the United States to
provide a remedy for violations is no less clear and capable of
giving rise to enforceable rights. Compare ICCPR art. 2 (United
States undertakes to "ensure that any person whose rights or
freedoms as herein recognized are violated shall have an effective
remedy," and that "any person claiming such a remedy shall have his
right thereto determined by competent judicial, administrative or
legislative authorities," and "ensure that the competent
authorities shall enforce such remedies when granted"), with People
of Saipan by Guerrero v. U.S. Dep't of Interior, 502 F.2d 90, 97
(9th Cir. 1974) (holding that Article 6 of Trusteeship Agreement
with Micronesia, which "require[d] the United States to 'promote
the economic advancement and self-sufficiency of the inhabitants,
and to this end ... regulate the use of natural resources' and to
'protect the inhabitants against the loss of their lands and
resources'" gave rise to "rights enforceable by an individual
litigant in a domestic court of law" to challenge proposed
construction of hotel on Trusteeship territory).
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a defendant could invoke that statute to complain in court if he
had not been so informed.").
The ICCPR's language certainly does not countenance the
narrow interpretation advocated by the government and by the lead
opinion. See, e.g., Stuart, 489 U.S. at 368 ("[A] treaty should
generally be construe[d] . . . liberally to give effect to the
purpose which animates it and . . . [e]ven where a provision of a
treaty fairly admits of two constructions, one restricting, the
other enlarging, rights which may be claimed under it, the more
liberal interpretation is to be preferred . . . .") (internal
quotation marks omitted); Asakura v. City of Seattle, 265 U.S. 332,
342 (1924) ("Treaties are to be construed in a broad and liberal
spirit, and, when two constructions are possible, one restrictive
of rights that may be claimed under it and the other favorable to
them, the latter is to be preferred.").
That these commitments did not require implementing
legislation to give rise to enforceable, individual rights is
further evidenced not only by the plain language of the treaty but
also by the representations of the Executive Branch which, in
negotiating the treaty on behalf of the United States, indicated
that "existing U.S. law generally complies with the Covenant,
hence, implementing legislation is not contemplated." See S. Exec.
Rep. No. 102-23, at 19 (1992), reprinted in 31 I.L.M. 645 (1992);
see also id. at 10 ("In general, the substantive provisions of the
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Covenant are consistent with the letter and spirit of the United
States Constitution, and laws, both state and federal.").
Congress has in fact acted in partial compliance with its
obligations under the ICCPR when, in 1961, just a few years after
the United Nations first ratified the ICCPR, it amended our
fundamental charter to allow the United States citizens who reside
in the District of Columbia to vote for the Executive offices. See
U.S. Const. amend. XXIII.51 Indeed, a bill is now pending in
Congress that would treat the District of Columbia as "a
congressional district for purposes of representation in the House
of Representatives," and permit United States citizens residing in
the capitol to vote for members of the House of Representatives.
See District of Columbia House Voting Rights Act, S. 160, 111th
Cong. (passed by Senate, February 26, 2009) (2009).52 However, the
United States has not taken similar "steps" with regard to the five
million United States citizens who reside in the other U.S.
territories, of which close to four million are residents of Puerto
Rico. This inaction is in clear violation of the United States'
obligations under the ICCPR.
51
Further, in 1977, the year in which the Carter
administration first submitted the ICCPR to the Senate for
ratification, Congress passed a proposed constitutional amendment
that would have granted the District of Columbia congressional
voting representation "as if it were a state." See H.R.J. Res.
554, 95th Cong., 92 Stat. 3795 (1978).
52
A similar bill was introduced in the House of
Representatives on January 6, 2009. H.R. 157, 111th Cong. (2009).
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Further, the conclusion that the ICCPR creates individual
rights, enforceable in the courts of the United States, is
abundantly clear from the negotiating history of the Treaty. See
generally Bossuyt, supra note 16. Illustrative of this is the
Report of the Commission on Human Rights, 5th Session (1949), 9th
Session (1953), which addresses the formulation of political rights
under what eventually became article 25 of the ICCPR. The report
states:
Two formulae were proposed: "Every citizen
. . . shall be guaranteed by the State the
right and the opportunity [to vote]" and
"Every citizen shall have the right and the
opportunity [to vote]," the former emphasizing
the obligation of the State, the latter the
rights of the citizen. The latter wording was
adopted.
Bossuyt, supra note 16, at 471 (internal citations omitted).
In a later discussion of Article 25, paragraph (b)
(providing the right "[t]o vote . . . at genuine periodic elections
which shall be by universal and equal suffrage"), the Report
states:
The various requirements of the article that
elections must be "genuine," "periodic," "by
universal and equal suffrage," and "by secret
ballot" did not give rise to much discussion,
except for the words "universal and equal
suffrage." The opinion was expressed that the
word "universal" was redundant in the light
of the introductory clause, "Every citizen
shall have the right;" so was the word
"equal", in view of the reference to the non-
discrimination clause of article 2. The
majority, however, considered that the
principle of "universal and equal suffrage"
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was a most fundamental one, and decided to
include it in the article. This provision, it
was thought, would leave States parties to the
Covenant free to regulate their own electoral
system, provided each vote carried equal
weight.
Id. at 474-75 (internal citations omitted). Article 25 was
approved at the 1096th meeting of the Third Committee, 16th Session
(1961), by a vote of 71 to none, with 4 abstentions. See id. at
477; A/C.3/SR.1096, § 79.
A proposal by the United States at the Second Session of
the Commission regarding the enforcement of the rights created by
the ICCPR pursuant to Article 2 also sheds light on the intentions
of the United States regarding both the question of self-execution
and the enforcement of these rights by the courts of the United
States. In its proposal, E/CN.4/37, the United States moved to
have Article 2 read:
Each High Contracting Party is under an
obligation to ensure:
a) that its law secure to all persons under
its jurisdiction, including citizens . . .,
the enjoyment of these human rights and
fundamental freedoms;
b) that any person whose rights or freedoms
are violated shall have an effective remedy,
whether the violation has been committed by
persons acting in an official capacity;
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c) that such remedies shall be enforceable by
a judiciary whose independence is secured
. . . .53
Bossuyt, supra note 16, at 49 (emphasis added) (quoting U.N. Doc
E/CN.4/37). Although this exact language was not approved, it
shows what the United States was attempting to achieve through this
treaty.
The provision of effective remedies under Article 2 for
violation of the individual rights established by ICCPR was the
subject of much discussion and debate, and also reflects the intent
of the contracting parties, including the United States, in
enacting the ICCPR. The representative of France was of the
opinion that "there was no need to specify the obligations of the
States parties in the event of a violation of the covenant, since
it was obvious that if the States undertook to abide by the
covenant, they would have to provide for effective remedies against
53
Commission on Human Rights, 2nd Session (1947) (emphasis
supplied). At a later session of the Commission, the United States
made a proposal that would have inserted into paragraph 2 of
Article 2, a statement to the effect that "[t]he provisions of this
Covenant shall not themselves become effective as domestic law."
See Bossuyt, supra note 16, at 62 (quoting U.N. Doc. E/CN.4/224).
The United States "contended that in some States a ratified treaty
became the supreme law of the country in accordance with its
constitution," while "[i]n others a treaty was not automatically
incorporated in the national legislation, but its provisions had to
be included in legislation in order that they might become
enforceable within the country." Id. Although the United States
argued that its proposal was intended to put all the States on
equal footing, its proposal was rejected. The Philippines made a
counter-proposal which provided the substance of the language of
the text eventually adopted. Amendment E/CN.4/318 (PI); see also
Bossuyt, supra note 16, at 62.
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infringements." E/CN.4SR.125, p.4 (F); Bossuyt, supra note 16, at
64 (discussing Commission on Human Rights, 5th Session (1949), 6th
Session (1950), 8th Session (1952)). Great Britain, whose views
were eventually generally accepted, argued that "the proper
enforcement of the provisions of the covenant depended on the
guarantees of the individual's rights against abuse, which
[required the assurance of] the following elements: [1] possession
of a legal remedy, [2] the granting of this remedy by national
authorities and [3] the enforcement of the remedy by the competent
authorities." E/CN.4/SR.125, p.8 (GB) (emphasis added); Bossuyt,
supra note 16, at 64.
These views were reinforced in the discussion of
Paragraph 2(b) of Article 2. As originally proposed, this
provision stated that any person whose rights were violated would
have his or her rights determined by competent "political,
administrative, or judicial" authorities. Bossuyt, supra note 16,
at 67 (quoting A12929, Ch. V, § 16). It was the opinion of some --
including France, Egypt, Denmark, and the United States -- that
"all remedy should be provided through recourse to independent
judicial authorities, which would include, where that was the case,
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administrative tribunals."54 Bossuyt, supra note 16, at 67 (citing
E/CN.4/SR 195 §6 (USA)).
It was considered particularly undesirable
that a person whose freedoms had been
violated, in all probability by the political
authorities of the State, should have his
right to a remedy determined by a political
organ, since the very same organ that had
violated his right might be the one that was
adjudicating his claim for a remedy.
Id. (citing E/CN.4/SR.138, §74-75 (USA)).55
The negotiating history of the ICCPR reinforces the clear
language of this treaty establishing individual, enforceable rights
on behalf of persons situated as are Appellants, and obligating the
United States to provide a judicial remedy in its courts to
54
It should be noted that in many European legal systems
and those modeled after them, including France, administrative
tribunals play an important role in deciding what we normally
consider constitutional law in the United States.
55
This concern was again repeated before the Third
Committee's 18th Session in 1983 by the representatives from Great
Britain, Italy, India and Australia, who sought to keep the
remedies "expressly reserved to an independent judiciary, and where
applicable, to administrative tribunals." Id. at 69. Saudi Arabia
then proposed substituting "legislative" for "political" in the
original language, A/C.3/SR.1259, §3 (SA) §10 (Chairman); Bossuyt,
supra note 16, at 69. After some parliamentary maneuvering, Saudi
Arabia's proposal was amended to read "competent judicial,
administrative, or legislative or by any other competent authority
provided for by the legal system of the State, and to develop the
possibilities of a judicial remedy," thus allowing a remedy to be
granted by the executive, as well as by action of parliamentary
commissions or ad hoc legislation designed to remedy a specific
wrong, yet avoiding the use of the word "political."
A/C.3/SR.1259, § 12 (SA), § 24 (UAR); Bossuyt, supra note 16, at
69. This language was adopted and passed at the 1259th meeting of
the Third Committee by a vote of 87 votes to none against, with one
abstention. Id.
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vindicate their violation. To conclude otherwise is to ignore the
plain words of the treaty as well as our basic constitutional duty
to interpret international agreements as the Law of the Land.
(2) The reliance on the political question
doctrine is misplaced
The political question doctrine is a judge-made rule of
abstention from deciding issues that are deemed "political" in
nature, and which the courts conclude should be resolved by the
political processes with a minimum of judicial input. The doctrine
has been much criticized because it is applied ad hoc and is, in
effect, a brand of judicial activism that abdicates the courts'
constitutional responsibility to pass upon constitutional
questions. See Thomas M. Franck, Political Questions/Judicial
Answers: Does the Rule of Law Apply to Foreign Affairs? 4-5 (1992)
("[T]he 'political-question doctrine' is not only not required
by[,] but is wholly incompatible with American constitutional
theory[.]"); Rachel E. Barkow, More Supreme Than Court? The Fall of
the Political Question Doctrine and the Rise of Judicial Supremacy,
102 Colum. L. Rev. 237, 334 (2002) ("Because the prudential
doctrine allows the Court to avoid deciding a case without a
textual analysis of the Constitution, it is this aspect of the
political question doctrine that seems to be an unjustified
dereliction of the Court's duty to 'say what the law is.'"); Michel
J. Glennon, Foreign Affairs and the Political Question Doctrine, 83
Am. J. Int'l L. 814, 815 (1989) ("In modern American society, these
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justifications for judicial abstention [under the political
question doctrine] seem to be calls for judicial abdication.");
Louis Henkin, Is There a "Political Question" Doctrine?, 85 Yale
L.J. 597, 601 (1976) ("The cases which are supposed to have
established the political question doctrine required no such extra-
ordinary abstention from judicial review; they called only for the
ordinary respect by the courts for the political domain.").
Irrespective of these well-earned criticisms, raising the
political question doctrine in this case is a red herring. Any
political questions of relevance to this case have already been
decided by the appropriate political branches: the Executive, which
negotiated the terms of ICCPR, and Congress, which through the
Senate exercised its constitutional prerogative of granting its
advice and consent to this treaty. It is now the courts'
nondelegable duty to interpret what their actions mean. See U.S.
Const. art III, § 2, cl. 1.
The avoidance of those issues by referring Appellants to
the "political processes" as the only source for the remedies they
seek is the same Catch-22 double-talk which the courts have engaged
in for over a century, to their everlasting shame.
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(3) Appellants present a justiciable "case and
controversy" which this court must decide
Finally, redressability is no bar to jurisdiction in this
case.56 Appellants seek relief under the Declaratory Judgment Act
(DJA), which provides that, "[i]n a case of actual controversy
within its jurisdiction . . . any court of the United States . . .
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) (emphasis supplied); see
also Larson v. Valente, 456 U.S. 228, 243 (1982) ("[A] plaintiff
satisfies the redressability requirement when he shows that a
favorable decision will relieve a discrete injury to himself," but
"[h]e need not show that a favorable decision will relieve his
every injury."); Connecticut v. Am. Elec. Power Co. Inc., 582 F.3d
309, 348 (2d Cir. 2009) ("[T]hat courts could provide some measure
of relief would suffice to show redressability...."). "[T]he
phrase 'case of actual controversy' in the [DJA] refers to the type
of 'Cases' and 'Controversies' that are justiciable under Article
III." MedImmune, Inc. v. Genentech, Inc. 549 U.S. 118, 127 (2007)
(citing Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240 (1937)).
To establish that an "actual controversy" exists, therefore,
56
Though couched in the language of Article III of the
Constitution, redressability is yet another judicially-created
doctrine. See Steel Co. v. Citizens for a Better Env't, 523 U.S.
83, 124 (1998) (Stevens, J., dissenting) ("'Redressability,' of
course, does not appear anywhere in the text of the Constitution.
Instead, it is a judicial creation of the past 25 years . . . .").
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Appellants must show, among other things, that 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, 560 (1992); see DaimlerChrysler Corp. v. Cuno, 547 U.S.
332, 342 (2006) (holding that a "'plaintiff must allege [1]
personal injury [2] fairly traceable to the defendant's allegedly
unlawful conduct and [3] likely to be redressed by the requested
relief'") (quoting Allen v. Wright, 468 U.S. 737, 751 (1984)).57
At the end of the day, redressability is a practical inquiry, and
courts should be mindful that limitations on jurisdiction should be
read "narrowly." Utah v. Evans, 536 U.S. 452, 463 (2002).
To be sure, this Court cannot compel Congress to pass
legislation to provide the citizens of Puerto Rico with equal
voting rights. But the effect of the ICCPR's self-executing
provisions is that Congress and the President have already granted
the United States citizens residing in Puerto Rico such rights.
Furthermore, and more to the point, the United States has agreed
"to take the necessary steps, in accordance with its constitutional
57
Because Appellants are seeking to vindicate their rights
under the ICCPR -- which, as discussed, has become domestic law
through operation of the Supremacy Clause and gives rise to
enforceable, individual rights -- and because it is beyond dispute
that the ongoing denial of those rights is traceable to actions and
inactions of the United States, the other elements of standing are
clearly satisfied in this case. See, e.g., United States v.
Thompson, 928 F.2d 1060, 1066 (11th Cir. 1991) (explaining that a
self-executing treaty confers standing on "an individual citizen to
. . . protest a violation of the treaty").
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processes and with the provisions of the [ICCPR], to adopt such
laws or other measures as may be necessary to give effect to the
rights recognized in the [ICCPR]." See ICCPR art. 2(2). It is
beyond cavil, nor does the government dispute, that no such steps
have been taken by the United States; in fact, the government
claims the U.S. does not have to take them because the ICCPR is
ineffective and legally nonexistent. Thus, by admission the United
States is in flagrant violation of its international commitments as
well as the Law of the Land.
We have the authority to declare as much. See Franklin
v. Massachusetts, 505 U.S. 788, 802 (1972). In Franklin, a
plaintiff challenged the method used by the Secretary of Commerce
to calculate the population of each state for census purposes as
"arbitrary and capricious" and contrary to certain statutes. Id.
at 790-91. In so doing, he sought to require the Secretary to
recalculate the population numbers, in the hope that this
recalculation would ultimately lead to a reapportionment that would
assign an additional Representative to his own State. Id. The
Court found that the plaintiff had stated a redressable injury. As
a plurality of the Court explained, "even though [the Secretary]
cannot herself change the reapportionment, she has an interest in
litigating its accuracy," and therefore, as a practical matter, "we
may assume it is substantially likely that the President and other
executive and congressional officials would abide by an
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authoritative interpretation of the census statute and
constitutional provision . . . even though they would not be
directly bound by such a determination." Id. at 803 (opinion of
O'Connor, J.); see also Evans, 536 U.S. at 460 (noting that, in
Franklin, "[e]ight Members of the Court found that the plaintiff
had standing").
Later, in Evans, the Court revisited this topic when the
State of Utah sought an injunction ordering the Secretary of
Commerce to recalculate the 2000 census numbers and recertify the
official result, believing that "the Secretary's recertification,
as a practical matter, would likely lead to a new, more favorable,
apportionment of Representatives." 536 U.S. at 460-61. The
Supreme Court rejected the argument that the plaintiff lacked a
redressable injury because "court-ordered relief" could not extend
beyond the Secretary's report to reapportionment itself,
explaining:
[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
Utah, the relevant calculations and consequent
apportionment-related steps would be purely
mechanical . . . . Under these circumstances,
it would seem, as in Franklin, "substantially
likely that the President and other executive
and congressional officials would abide by an
authoritative interpretation of the census
statute and constitutional provision . . . ."
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Moreover, in terms of our "standing"
precedent, the courts would have ordered a
change in a legal status (that of the
"report"), and the practical consequence of
that change would amount to a significant
increase in the likelihood that the plaintiff
would obtain relief that directly redresses
the injury suffered. We have found standing in
similar circumstances.
Id. at 463-64 (citations omitted); Harrell v. Fla. Bar, 608 F.3d
1241, 1260 (11th Cir. 2010) ("Redressability is established . . .
when a favorable decision "would amount to a significant increase
in the likelihood that the plaintiff would obtain relief that
directly redresses the injury suffered. . . .").
Here, too, the Appellants have sought a declaration of
their rights, challenging the failure of the United States to give
effect to the rights established under the ICCPR. A declaration to
that end, as in Franklin and Evans, would have the practical effect
of making it "substantially likely that the President and other
executive and congressional officials would abide" by our
interpretation of the law and proceed to act favorably on
Appellants' claims thereafter. Evans, 536 U.S. at 460 (quoting
Franklin, 505 U.S. at 803). Likewise, such a declaration would
effect "a change in a legal status" which would significantly
increase the likelihood that the Appellants would obtain relief
that directly redresses the injury suffered. Id. at 464.
Additionally, Appellants assert that they have been
injured by the failure of the United States to provide them with an
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"effective remedy" to cure their ongoing political inequality,
pursuant to Article 2 of the ICCPR. They seek a declaration that
the United States is in violation of this independent obligation.
One form of relief available under the DJA is to "'clarify[] and
settl[e] the legal relations in issue.'" Volvo Constr. Equip. N.
Am., Inc. v. CLM Equip. Co., 386 F.3d 581, 594 (4th Cir. 2004)
(quoting Aetna Casualty & Surety Co. v. Quarles, 92 F.2d 321, 325
(4th Cir. 1937)). In Powell v. McCormack, for example, an elected
Member of Congress sued various officials in the House of
Representatives, who had voted to exclude him from taking his seat
in the 90th Congress as a result of various improprieties. 395
U.S. 486 (1969). The Supreme Court explicitly rejected the
argument made by House officials that the case was nonjusticiable
because the plaintiff had "asked for coercive relief against the
officers of the House," and "federal courts [could not] issue
mandamus or injunctions compelling officers or employees of the
House to perform specific official acts." Id. at 517. Rather, the
Court held that regardless of whether "coercive relief" was
available to the petitioners, the case was justiciable because the
DJA "provides that a district court may 'declare the rights . . .
of any interested party . . . whether or not further relief is or
could be sought.'" Id. Likewise in this case, whether or not
"coercive relief" is otherwise available, a declaration that the
United States is in default of its obligations under the ICCPR to
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provide Appellants with a means to redress their lack of political
equality would, by clarifying the United States' obligations,
result in a significant increase in the likelihood that the
Appellants would obtain the remedy they seek. See Evans, 536 U.S.
at 464 (citing FEC v. Akins, 524 U.S. 11, 25 (1998) (standing to
obtain court determination that the organization was a 'political
committee' where that determination would make agency more likely
to require reporting, despite agency's power not to order
reporting); Bennett v. Spear, 520 U.S. 154, 169-171 (1997) (similar
with respect to determination of the lawfulness of an agency's
biological report); Metro. Washington Airports Auth. v. Citizens
for Abatement of Aircraft Noise, Inc., 501 U.S. 252, 264-265 (1991)
(similar in respect to determination that transfer of airport
control to local agency is unlawful)).
Past experience suggests that the Supreme Court's
presumption that executive officials will abide by an authoritative
declaration of United States law is a sound one. See Juda v.
United States, 13 Cl. Ct. 667 (1987) ("Juda II"); see also Juda v.
United States, 6 Cl. Ct. 441 (1984) ("Juda I"). In Juda II, the
court, invoking its duty to interpret international agreements,
persuaded the political branches of government to take action
consistent with those agreements. The issue in that case was
whether, as a matter of international law, the United States could
unilaterally terminate its trusteeship over the Marshall Islands
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and other Pacific island territories, without securing the prior
approval of the UN Security Council. After stating what is by now
an axiomatic constitutional rule, namely, that "[c]ourts of the
United States have final authority to interpret an international
agreement for purposes of applying it as law in the United States,"
Juda II, 13 Cl. Ct. at 678, the court held that the actions of the
President and Congress to resolve the status of the Pacific Island
Trust Territories had resulted in de facto, but not de jure,
compliance by the United States with its treaty obligations. Id.
at 682.
The ruling granted declaratory relief to the citizens of
the trust territory who had challenged the validity of Presidential
Proclamation 5564, which had pronounced that the trusteeship was no
longer in effect. Presidential Proclamation 5564, sec. 1, Fed.
Reg. 51, at 40399 (November 1986). Although the court did not
grant, on other grounds, the specific relief requested by the trust
territory citizens, the court agreed that the Proclamation was not
in compliance with international obligations of the United States,
including the UN Charter. Juda II, 13 Cl. Ct. at 678-682.
In response to this declaration, the United States took
steps to comply with these international obligations, and
eventually sought and received the UN Security Council's approval
for its actions on November 10, 1992. In the intervening seven-
year period, the United States complied with the Court's
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disposition of the case, notwithstanding the fact that the Court
did not retain jurisdiction over the controversy. The court also
rejected the government's argument to the effect that the Insular
Cases58 precluded the application of the Constitution to the Trust
Territory, concluding instead that, even in a territory with a non-
citizen population, governed under a treaty with the United Nations
rather than as a result of annexation (as in the case of Puerto
Rico), "[t]he concept that the Bill of Rights and other
constitutional protections against arbitrary government are to be
applied selectively on a territorial basis cannot be justified in
the 1980's." Juda I, 6 Cl. Ct. 441, 458 (1984). This is good
advice which unfortunately has fallen on deaf ears in this Circuit.
As the Juda cases demonstrate, the argument made in the
present controversy, that a declaratory judgment may not proceed
because there is a lack of an effective remedy, creating a non-
justiciable case and controversy because there is no assurance that
the government or Congress will take any action based on such a
declaration, is unavailing. As Juda shows, the contention that the
government would ignore a judgment declaring it in violation of its
ICCPR obligations, is, at best, entirely speculative, and speaks
58
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,
182 U.S. 244; Huus v. New York & Porto Rico Steamship Co., 182 U.S.
392 (1901).
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rather poorly of what the executive branch thinks of the rule of
law in this country.
In contrast, there is nothing speculative or hypothetical
about the controversy presented in this case. Cf. Defenders of
Wildlife, 504 U.S. at 564 n.2 (injury not redressable if "the
plaintiff alleges only an injury at some indefinite future time,
and the acts necessary to make the injury happen are at least
partly within the plaintiff's own control"); City of Los Angeles v.
Lyons, 461 U.S. 95, 105 (1983) (denying declaratory relief that
would bar the use of chokeholds by police, because plaintiff could
not establish the likelihood that he would be personally subjected
to a chokehold in the future, even though he had been so subjected
in the past); Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 42
(1976) (ultimate relief sought "speculative"); see also Steel Co.
v. Citizens for a Better Env't, 523 U.S. 83, 109 (1998) ("Because
respondent alleges only past infractions of [the Emergency Planning
and Community Right-to-Know Act of 1986], and not a continuing
violation or the likelihood of a future violation, injunctive
relief will not redress its injury.").
III. Conclusion
As the Supreme Court has recognized:
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.
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Wesberry v. Sanders, 376 U.S. 1, 17 (1964).59 There can only be one
class of U.S. citizenship, see U.S. Const. amend. XIV. Allowing
the creation of a second class of U.S citizens on a permanent, or
even indefinite, basis is not a proper exercise of the power of
Congress under the Territorial Clause60 or the Naturalization
Clause.61
The fact is that the United States assumed obligations
under the ICCPR that were undoubtedly aimed at the correction of
inequality, and in particular, political inequality, among its
citizenry. There is no question, nor does the government dispute,
that the United States has not complied with its obligations under
the ICCPR to recognize these rights, and to provide remedies for
their enforcement when, and where, appropriate. It is the courts'
59
See also 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); City of Phoenix, Ariz. v. Kolodziejski, 399 U.S.
204 (1970); Harper v. Virginia State Bd. of Elections, 383 U.S.
663, 667 (1966); Reynolds, 377 U.S. at 561-62.
60
See U.S. Const. art. IV, § 3, cl. 2 ("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; and nothing in this Constitution shall be so construed as
to Prejudice any Claims of the United States, or of any particular
State.").
61
See U.S. Const. amend. XIV, § 1 ("All persons born or
naturalized in the United States, and subject to the jurisdiction
thereof, are citizens of the United States and of the State wherein
they reside.").
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constitutional duty to pass upon the legal significance of the
United States' failure to act in this respect.
Can it be seriously argued that the solemn act by the
United States of entering into this international agreement with
well over half of the nations of this World has no legal
significance? Can the word of the United States be so valueless at
a time when we are imposing our democratic views throughout the
world at such high personal and material cost to our Nation? I
refuse to accept such a cynical view of what is the Law of Our
Land.
In the case of the centennial inequality perpetrated upon
the United States citizens of Puerto Rico, the political question
doctrine, issues of stare decisis, matters of circuit precedent,
allegations of lack of redressability, contentions of non-self
execution, and other such judge-made excuses for reaching
predetermined outcomes must be put aside, and this court must take
the action, long overdue here, that was provided in Carolene
Products: a "more searching judicial inquiry." Carolene Prod., 304
U.S. at 153 n.4. Only then will this court be justified in putting
the constitutional issues raised by Appellants to rest.
I would issue a declaratory judgement to the effect that
Appellants' rights under domestic law (arising from the ICCPR by
way of the Supremacy Clause) have been violated by the failure of
the United States to take any action to grant Appellants equal
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voting rights to those of other citizens of the United States, and
further I would declare that Appellants' rights have been violated
by the failure of the United States to meet its obligations under
the treaty to provide Appellants with an "effective remedy" to cure
their current lack of representation.
I dissent.
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