hear argument next in case fifteen one await the commonwealth of puerto rico versus  mr chief justice i may please the court this case turns on the straightforward point that the people of puerto rico are the source of authority for the laws of puerto rico that means that a prior federal conviction has no double jeopardy implications for the enforcement of the commonwealth's criminal laws because commonwealth law and federal law and an eight from different sources of authority the people of puerto rico on the one hand and congress on the other well they could certainly amend that statute your honor with respect to federal prosecutions in puerto rico pursuant to its authority over federal prosecutors your question your honor raises a very intricate question with it worth both way in the statute your honor does because there's no question puerto rico is in a unique status that is different than guam the virgin islands and american samoa precisely because those are all territories governed as traditionally by organic acts of congo and it is either northern marianas your honour's they are in an interesting position that is generally more analogous to puerto rico in the sense that they are a commonwealth of the northern marian compact of their own that was very much modeled on puerto rico although it's somewhat different than the puerto rico model but there's a a profound distinction that goes to the heart of this case between the home rule territories where congress to be sure has delegated a measure of self government to those particular territories but the each of them the virgin islands and american samoa are still governed by organic acts of congress as was puerto rico prior to  given that it is back to puerto rico i would say your honor that that raises a very interesting and tricky issue with respect to the compact that the nine hundred fifty public law six hundred offered the people of puerto rico that was accepted not saying this myself i'm quoting this court congress relinquished control over the organization of the internal affairs of the island now one point to make very very clear our position today on the double jeopardy issue does not turn on that relinquishment issue but to answer your hypothetical specifically if congress started to tell the puerto rico prosecutors what cases they may prosecute that might raise some serious questions on our everything on it just take the fifty two has never attempted to do anything like that to tell the people to exercise control over what the government officials in order requires immediate could that doesn't necessarily mean it couldn't law is it essential to your case that we recognize puerto rico as a sovereign it is not essential that you recognize puerto rico as a sovereign with a capital is the lesson of the wheeler case where the court was the ninth circuit said gee these indian tribes don't look like sovereigns to us because they are subject to the plenary control of congress that's not what we typically think of as sovereigns and this court says you're missing the point ninth circuit what we mean in the context of double jeopardy that the language we're construing is the same offense laws create a fence is created by two different entities are not the same offense if they flow from different sources i don't understand how that helps you mr landau you're saying that the test is what the source of authority is and you're saying that the source of authority here is the puerto rican people correct but that seems to be just you're not taking another step that what's the source of authority of the puerto rican people the source of authority of the puerto rican people was a congressional act if you go back the ota meant source of authority is congress that your honor is the crux of the case and with all respect i disagree with that with the suggestion that this that the ultimate source here is congress congress could be what the what your honor just described is very much like a home rule jurisdiction where let's say you have the virgin islands legislature that passes the virgin islands law but that government of the virgin islands is itself a creature of congress as was the government of the philippines in the early one nine hundred and puerto rico in the thirty's at the time of the shell case what made all the difference in the world course it won't but if it felt like it could congress go back on that decision well this then goes to the relinquishment issue your honor in terms of what is the nature of the compact that this has been a very otieno and hot button issue in puerto rico as right do you then lose your case absolutely not your honor and that is why because this is again the lesson of wheeler it was uncontested in wheeler that can that plenary congressional control over the indians over the indian tribes meant that congress could abrogate indian sovereign immunity with the stroke of a pen and even abrogate the tribes indeed recognize the tribes but that didn't mean that the existing tribal law and laws at the time were not considered the class sovereignty in a first class i'm rene well you know i think i couldn't agree more with your insight that sovereignty is a slippery slope reward if you got twelve political philosophers they would all give you a different answer as to what sovereignty means and i think that is precisely why wheeler said we can't have judges and courts trying to decide double jeopardy questions by asking abstract questions of sovereignty because you know even the state sovereignty is different than the sovereign independent nations they don't have a caught what this court has made clear is the test in the double jeopardy context is all about the source of authority for the boss and going back to justice kennedy's question which i think cuts to the heart of the case into this particular case congress right and this is pursuant to demands for by the people of puerto rico for government by consent the people of puerto rico said we are tired of being a colony we want to create our own government and so the constitution of puerto rico could not be more explicit on this score that it says the political power of the commonwealth emanates from the people that document was submitted to the puerto rico voters to your puerto rico voter you see this is what i'm going for it was submitted to the president of united states and congress who approved that particular list to learn of and then we have a situation as a result of the decision of the supreme court of puerto rico i think it was two of the justices who said when we get into this business about the constitution we think interpreting our own double jeopardy provision somebody should not be tried a second time so that's kind of the end of the puerto rico that's the if the puerto rico supreme court said that then we would have the situation that led us to grant cert in this case that is if you have a prosecution first in the federal government then puerto rico women have a second prosecution you have it first in puerto rico federal government three to institute a second prosecution he writes who it was you're absolutely right runner and that was the position of two of the nine justices on the supreme court of puerto rico that position did not command a majority which is why there is no adequate an independent state around here the majority was very explicit they could if the majority told majority go wrong nothing would prevent them from agreeing with those two justices that's actually right  and about twenty one they said there's no way you could break that situation of having it depends on which let's just making those first that's correct your honor and that's that that that is true in about twenty one states that is a matter of state law either statutory or constitutional do not allow a subsequent prosecution but again that doesn't change the point what what made the circumstance appropriate and intolerable was that the federal was the difference between the federal and state courts in puerto rico on the federal constitutional question it was john and you split if it were one were federal state missile and then there's something you said that resonates with this i've been trying to find a definition of sovereignty and one has been created in the briefing by saying that states are sovereign yet if you look at international usage so i guess the constitution does something else with that work what is it what are the elements of sovereignty with respect to  double jeopardy clause that you think are commanded by our caseload there is a there's more than just the puerto rican people say absolutely and it can't be that  it's the compact alone so what is it what are the principles absolutely that you meet to that would create sovereignty in the double jeopardy sense to take your question in turn your honor this court has made it clear in a series of cases starting in wheeler in one nine hundred seventy eight that really tries to synthesize what the court has been saying with respect to the dual sovereignty doctrine for over a century and what the court said is in the double jeopardy context we are trying to decide whether offenses from different entities are the same offense that is traditionally been called dual sovereignty but what we mean by dual sovereignty in this context doesn't require this broader let's say i'll call it sovereignty with a capital s inquiry it is a against their peace and dignity two can enact laws without the interference of the other and three draws authorities to punish the offender and this is the one that you've been arguing from a said well the indian tribes don't fit the law as a definition because congress has plenary authority to overrule any time so that goes to the first part of question to the second part of your question it is the congress acting in tandem with the people of puerto rico that's critical in other words it is certainly not the people of puerto rico that could unilaterally and without reference to congress this is guess what we are the source of authority of our own laws and that would be end of this is orlando i thought it was in the case of are certainly not saying that we are absolutely on all fours with the indian tribes there are what your honor said is true although one thing to keep in mind of course is that not all tribes preceded the creation of the united states in fact if congress can recognize indian tribes to this day the standard is under twenty five c f r eighty three point seven and an entity that existed as recently as one thousand eight hundred can still be considered an indian tribe that's a rats  and it says puerto rico is sovereign that has an enormous implication it does the insular cases are totally changed in their application of the political implications i'll just stay away from on the other hand if we write an opinion that says it's just a territory that has tremendous implications right how did we tell the un it wasn't a colony why are we not reporting on this colony every year either way between those two the implications in law and in politics and in everything else are overwhelming therefore you argue a third and middle position your position pointing to four cases in this court you have very good authority is for double jeopardy purposes there is a different question the question is what are the sources of the law and i pine for cases that say just what you say ok now you say the sources of law the sources of criminal law here are different because congress invited in public law six hundred congress said we recognize the principle of government by consent that is something that we as congress writing best political issues and that's what i think justice  trying to stay away from this is very simple question ok all right can the federal government override a puerto rican law your own and they this goes to supporter rican no absolutely not they cannot who makes these laws the people of puerto rico but legislative assembly that pollute the the legislative powers of which were vested by the people of puerto rico in the legislative assembly in other words the puerto rico constitution could not be more specific in saying we the people of puerto rico in law's eyes have made our non puerto rico's comparable calm that is correct your honor and this is i think the point i'd really like to underscore because i think it's critical here is this arrangement was not something that puerto rico did as a rogue usurpation of authority this was pursuant to the invitation of congress and with the blessing of congress that was submitted to the congress the congress saw that in saying that mr land you're put in congress in the driver's seat here it was done at the invitation of congress congress approved it presumably congress can unapproved it ever wish to so if congress is in the driver see why isn't congress the source of authority for the purposes of our double jeopardy jury because ins which seems to make that the issue i mean you could imagine a different double jeopardy jurisprudence where the issue was who just exercises authority in the real world but that seems not to be what we have yes that's correct that's correct and i think that the key point that i would like to make your honor is that you have to look at congress has plenary authority over the territories under the territorial cla our position is that congress is not the prisoner of its plenary authority it is the master of its plenary of the word and therefore when congress can decide that for the long term future of puerto rico it does not think that it is appropriate  good for puerto rico or the united states to have direct or delegated federal power in puerto rico it says we accede to the request of the puerto rican people to create their own government and to be the source of authority of their own law so that's what congress invite the people of puerto rico accept the invitation they enact the constitution that is entirely explicit saying the political power of the commonwealth creates the structure creates a legislative authority vests the courts of puerto rico with judicial authority  of a dichotomy such as you suggest you are and i did i just don't know the answer i think that in a sense the danger of that is that's already going back to asking about concepts of sovereignty and i think the more one asks those more abstract questions it gets away from what is a much simpler question which is i think this goes back to justice sotomayor is point which is what is that we have before us here we this is a specific case or controversy nobody's asking the court to make a bro political state all we want to know is mae puerto rico me the commonwealth prosecutor's prosecute these particular puerto rico commonwealth gun charges and ammunition charges ok the  source of authority for these particular laws is the legislature of puerto rico and that legislative authority does not come from delegated power from congress that is what it is saying which is this for municipalities i'm sorry why does does the commonwealth of puerto rico have that authority where did it come from the a thought congress can recognize an invite and exercise of sovereignty just like this court recognized in lara but it had complete authority under the i think the key point is it invited puerto rico and what it did is the constitution the puerto rico adopted in the congress then accepted it specifically says political power emanates from the people so your honor i why is i mean you seem to fix uninvited is somehow different than authorized or even if you said i guess the point is authorized to make sounds like a delegation of authority i think the point is congress said look you go adopt your own constitution that in itself doesn't necessarily answer the question of where the authority from that constitution comes from but again when it says fully recognizing the principle govern by consent this is what the people of puerto rico wanted they wanted to create their own government they didn't want to have another that was the tradition in the nineteenth century we cited a number of cases of course there weren't a lot of these kind of cases in one thousand century because the federal government had very very limited criminal power so that in these come up in things like counterfeiting money and had been recognized by this court as early as the eight hundred forty s in other words that two offenses for double jeopardy purposes were not the same if they were created by differently these was something that this court had it was something that was continue it has been an issue that has divided people in the court in the more recent cases since the one nine hundred fifty s it has not been a particularly divisive issue and just to be clear in this case there is no call by the other side to overrule twenty two when prohibition is what really suddenly had federal criminal laws that were quite widespread throughout the country and law is i think the first case you can characterize as a square holding of this case on the dual sovereignty doctrine it continue to because those are the other ones are home rule legislatures in other words there is a virgin islands organic act there is a guam organic act so congress creek and the d c home rule act congress create created that government structure and endowed it with authority if it pursuant to what congress did the people have a certain degree of autonomy they like their legislatures d c has d c laws the virgin islands has virgin islands law you know to some extent or other those can be vetoed maybe by congress if you say that the issue is the source of the law in question it seems to me that the territorial legislature is as much the source of a law as is the legislature puerto rico the question your honor is the ultimate source of authority for the law so when you have a home rule jurisdiction again this is i'm not saying this is what this court has held that when you have a home  jurisdiction this is the waller case for instance what's i mean it's a pallet and it's clearly the city council was the source of the law but the ultimate source of the law was delegated power from the state the critical point here is that the commonwealth of puerto rico the is it is true the local legislature the source of the law and there is double jeopardy there too or if well you so i guess that would be a nother way of looking at the at the issue and that frankly was the historical way of looking at it if you go back to the hundred fifty s cases they said territories which at that time were creatures of congress that was considered to be a separate sovereign for double jeopardy that's the historical antecedent but in the twentieth century particularly in wheeler and the more recent cases the court has said the question is the ultimate source of authority the ultimate source of authority for the laws of puerto rico unlike the ultimate source with henri for the laws of the virgin islands is the people of puerto rico not congress i'd like to reserve the balance of my time thank you counsel as such it cannot be considered sovereign for double jeopardy purposes an unbroken line of this court's double jeopardy cases has stated both before and after the next meant of the one nine hundred fifty two constitution of puerto rico that territories are not sovereign for two responses one yes i disagree with that and two even if i agreed with that we do think that there is a sharp dividing line between states and territories for constitutional purpose a kind of character is it is eight we think there's only one type  just wonder as it appears in the constitution of puerto rico well the alternative of the word commonwealth will iranians wonder what it is we believe that the constitution does not include that as a constitutional category just as it doesn't does it say in the constitution that congress cannot after all congress can admit a state it says that specifically it's or not it's about territories so you're saying congress and the president to do not have the authority to associate with some other entity under the form of recognized in constitution calls just cause we do not recognize explicitly in the constitution commonwealth therefore there is no common ground is that would you want to say i want to say that this court has already held in the harris case that puerto rico is a territory and not only that but some purposes but the issue here as i see it which may be able to take a second is there for cases to say we don't have to reach these grand questions all we have to do is decide what the source of power is now their argument is that even if you go back to the four acre act which indeed did have the people of puerto rico making laws and if you then add the resolution six hundred which delegated the authority to make the constitution the constitution itself which speaks of we the people of puerto rico making the law the fact that later congress and the president said puerto rico has a republican form of government the fact that subs we went to the united nations and had them withdraw the requirement to report on a colony because puerto rico is not a colony and you know the words as well as i and they sure sound like solvent and in value which no one mention that in fact all these laws and he was talking about civil but i suppose it applies to commonwealth too are to be interpreted in light of the civil code tradition of europe which was the tradition that applied prior to nine thousand nine hundred and not the common law i don't see when you put all those things together if you're looking at the facts of what the law of puerto rico is in the area it sounds to me like it's civil code coming out of a constitution which i grant you was given by authority of congress so there we are now five things they listed there that make it different not only from anything you can think of but from anything i could think of so why don't you reply to those five things if you want your honor those five things established take your time but i think those features of puerto rico and others established that puerto rico has undoubtedly achieved a significant degree of autonomy but those characteristics are not the characteristics that matter for sovereignty purposes or for double jeopardy purposes the question is the ultimate source of power and here the ultimate source of power is congress which delegated the authority to enact the puerto rican constitution and i also point out that if one looks at the characteristics of sovereignty as defined in the constitution and this court's cases puerto rico doesn't happen for instance in the olden cases this court explained one of the reasons we call states sovereign is that one cannot frame their generally general police power as the delegation of federal power because the federal government doesn't have a general police power in sovereignty was conferred by agreement with the federal government and states were admitted by agreement and sovereignty were confirmed on them by agreement and so are you telling me that if let's say one of the islands in the caribbean i'll make one up ok at lantus has been never kicked out its foreign colonial status two hundred years ago but it really doesn't have any resources and it comes to the united states and it says i want to treaty you'll take care of all of our external affairs we'll follow whatever you say with respect to external affairs we're even going to use the american dollar because it's convenient but you can't touch our internal affairs and congress  proves that treaty with that for double jeopardy purposes not the a sovereign i think it wouldn't be a sovereign if that was not part of the united states not subject i couldn't hear well would or wouldn't it wouldn't so for instance we can see that micronesia and pull out which are now independent countries i believe in the united nations are genuinely sovereign even though there are defense agreements with the united states because the united states has foreign allies with whom they have many treaties and relationships power why doesn't have similar power under its rule and regulation of the constitution there's no limiting principle what rules and regulations congress can make constitution but what kinds of treaties congress can make and it makes an awful large number of it does your honor but let me refer to both the constitutional text and structure as the basis of our argument beginning with the t article four characterizes territories as quote belonging to the united states and we believe that is into fed a call to the concept of sovereignty congress does have the ultimate power to enact a wide variety of governmental forms in the territories but the scenic one territory is that in fact congress does possess that power and also refer to the constitutional structure the framers of our constitution split the atom of sovereignty between the federal government and the states and i think that presupposes that the question of what types of sovereigns would exist in the united states is a question of constitutional the mystery of the housing it sure seems as though in the early one nine hundred fifty s congress with respect to puerto rico said we want to give it some sovereign authority we want to give it an enormous amount of home rule authority basically everything and we also have some idea and our heads that puerto rico ought to be a sovereign with all the things that sovereigns have like a constitution and we the people clause and and why isn't that something it's it's an unusual idea to be sure such a sovereign territory but congress seems to have wanted to do exactly that w your premise i don't think that's what congress wanted to do i think that the history of the legislative history and the the events the historical record show that congress wanted to delegate autonomy which is different from creating a sovereign so first i turned to the issue with section twenty which congress just unceremoniously stripped a portion of the puerto rican constitution and permanently barred puerto rican from inactivity reenacting it that is not consistent with what i think we ordinarily consider sovereign and i also point to the legislative history and record i mean there's testimony from the secretary be interior from the resident commissioner of puerto rico from the governor of puerto rico in the house report in the senate report all of that seemed to contemplate that the political status puerto rico wouldn't change and this was just delegation i mean there's actually a hearing we quote on page thirty of our brief where the chairman of the relevant senate committee basically tells everybody that in fact congress has powers over puerto rico wouldn't be altered at all that ultimately this was a delegation of power but one that was revoked and wouldn't change congress's ultimate power over puerto rico so i actually think that it's petitioners position that really is fundamentally inconsistent with the historical record as it existed at that time we don't dispute that there's to the people of puerto rico and it was very historically important and remains important today but there's a difference a meaningful constitutional difference between the delegation of power and the conferral of sovereignty the former occurred in puerto rico as it has occurred in other territories the latter can only apply to states within our union and it's as argument so abstract that it doesn't acknowledge the real practicalit of multiple prosecutions of course mr landau couldn't come up and say please forget he even we were in walter grafton let's do something other than sovereignty as there's been any suggestion  commentators and so forth that this whole inquiry of sovereignty and sort of source of power is a little bit misplaced of course you have the problem with the cities within it within one state which seems ought to be subject to the single rule but there been any common commentaries that lead us to another approach altogether and i think we're going to rule four cases i would acknowledge that there have been some larger articles suggesting that this whole line of cases is  wrong in the courtroom up to something else to autonomy but certainly this court's cases going back a century haven't followed that approach at all and i actually think the municipality example is a very good one for us because some cities regularly enact home rule charters through a very similar type of democratic process that petitioner describes for puerto rico the fundamental principle of petitioners position here is that the enactment of a charter of local self government setting forth the parameters for local self government in and of itself leads to sovereignty that's how they distinguish the shell case but if that's true the there is no limiting principle because yunis apologies do that all the time i didn't fully understand unicast use you said before that congress didn't mean to confer sovereignty here do you think congress could do that no your honor it could not we think that the constitution prohibits that and congress has exercised its powers was fully consistent with that constitution apply i'm sorry you're saying to me that congress can't  make border rico independent of course it could your honor so if you can do then why can't it have other arrangements with puerto rico the way it has with everybody else why are we saying that with respect to territories they don't have that power honor i think that if congress if puerto rico is to remain a territory which it is under article four as this court has held then congress must retain the ultimate power i think that follows from the constitutional structure which the framers contemplated splitting the  you i mean we told the un this doesn't sound like we said it was a municipality your honor un said the puerto rico has been invested with the attributes of political sovereignty which clearly identify the status of self government i have you read the same thing we are about ten words such as republic not a colony attributes of political sovereignty repeated in five or six key documents i do not everyone does happen to think that what we tell the un to get it removed from the colonies status bears some consideration i grant you not everyone agrees with that but that's my view right and i guess i  forget the run or we don't see any inconsistency between what the state department said and our position today you said it was like a municipality i just think that having the attributes of political sovereignty and being a republic and saying that the constitution of puerto rico is the basic document whatever the languages if there don't sound like a municipality you want there are differences between a municipality and puerto rico such as puerto rico has a much more delegated not criminal infractions they can only pass laws with respect to a very limited amount of issues the states have control over many many other things in their substantially different why would we have bothered talking about the structure of florida's system with municipalities and waller we went through how the state controlled all of the  most of the internal affairs of municipalities and we said they're not separate sovereigns because of this control oh we could have said is what you want us to say now which is  municipalities ultimate source is the state government but we did something very different in that case yes your honor i think that already as of shell puerto rico already enjoyed that broad police power that's why argument turns entirely on the existence of the constitution of puerto rico and our point is that the act of constitution making we don't think in concert can for sovereignty thank you  council mr chief justice and man please the court i think to respond to some of the questions that have come up i'd like to go back and address what the court has said this test is for dual sovereignty in the double jeopardy context and why it's been using that test and the test that the court has consistently used for the past one hundred years is by looking to the ultimate source of the authority the laws are prosecuting and the already across that you and the reason that the court has said that it's looked to that ultimate source is because the dual sovereignty doctrine rests on the basic structure of our federal system that's what the court said in wheeler and the court has been very careful to guard who is a sovereign under the constitution and who is not because after all we're talking about a weighty power here which is the ability of sovereigns to prosecute a person for an offense with the same elements so if you trace the history of what this court has done it started with graft in lands it was a case about the federal government as opposed to the states and the court said should they have this power to do a prosecute or we look to the constitution and the unique structure that was put in place the splitting the atom of sovereignty and we are in a circumstance where both the states and the federal government have the sovereign power they should both be able to prosecute but then the case the court turned to cases about the territories which was the shell case about puerto rico but then also the grafton case about the philippines and it said no the territories derive their ultimate power from congress that's true by virtue of the territory clause now one thing that the court is considered in the course of those cases as they've evolved i think is the suggestion that justice kennedy made which is maybe we should focus on something else like autonomy and the ability to prosecute and what it looks like practically on the ground and the court has the court pointed to the fact that when these islands pass laws they could be vetoed by congress or were that was the organic act in all of these places congress was a point being their legislature in part or they were appointing colonial governors and we went through in each one of them very carefully what the issues of control remains that didn't make them sovereign in any way that made them classic territories so it's not that we didn't that we shoot looking at that i don't think that's right and i'd like to just look at the specific example of puerto rico that the court considered in the shell case as you say by that point puerto rico or as you suggested there had already been significant self government in puerto rico there were two houses of the legislature elected and the court when asking this question about whether there could be both puerto rico antitrust offenses and federal antitrust offenses went through the situation in puerto rico and said there is significant self government in here now it defined puerto rico as having an autonomous similar to that of the states that in one thousand nine hundred thirty seven and said that congress had given it a sweeping grant of legislative authority but the court nonetheless said that under our constitutional system as a territory of the united states subject to congress's authority that puerto rico was not a separate sovereign but you forget that congress could veto those laws the before nine hundred fifty two congress could veto puerto rico's laws it has relinquished that right i don't think that that's right i don't think that that's right in to the extent the petitioner suggests it it's just not consistent with the territory clause of the constitution which after all and gives mary power to congress this is it's very interesting what you're saying remember that one of the provisions of the puerto rico constitution which congress approved and said it was a republican form of government is that criminal actions shall be conducted in the name and by the  people of puerto rico now that sounds like a delegation of authority as to source to go back to the spanish system if they want now if i take your view then i guess you have to say and it has considerable implication but that doesn't matter because congress can take back what they gave now is that the position of the government or the executive branch is that has tremendous implication obviously there is an argument as to whether what congress and the president gave in resolution six hundred followed by the constitution followed by what happened at the u n under the a forty and were looking to felix frankfurter for guidance who said that the constitution prison provides us with many forms of possible relationship that's what his view was and now is the biz ition of the executive branch i mean you want to take a position on this that that congress if it wishes can take all that back and puerto rico has no more independence in principle  n any of the other places that were territories a lot so that's a big question but you see it's an important question and i want to know if the government's position rests upon because it's an important statement for the executive in my well to two responses to that question the first i think is the first part of your question this statement in the puerto rico constitution that the authority to prosecute comes from the people of puerto rico and that it's in the name of the people of puerto rico that's been true since one thousand eight hundred that was in the one nine hundred  true in one nine hundred seventeen puerto rico is not claiming that it was a sovereign and so i i would not rely on that but the second and obviously more weighty question that you raise is the question of could congress revise the arrangement that has with puerto rico and we think the answer is yes and that that follows from the structure of the constitution and its history i want to explain why that's why but first i think it's very important for us to say that congress is position towards puerto rico starting in one thousand nine hundred three one nine hundred seventeen with the elected legislature elected legislators one nine hundred forty seven the elected governor and then this act in one nine hundred fifty has been one of increasing self government recognizing the benefits of that to the people of puerto rico that's why congress authorized the enactment of the constitution we think that that's a good thing we have no reason to believe the congress would revisit that we think it's had many benefits for the people of puerto rico in the united states but asking the constitutional question which is what the court has asked in its double jeopardy cases about whether congress could revise the arrangement with puerto rico the answer is yes and we think that that follows from its status as a united states territory because a few parts of the territory clause the first is that territories belong to the united states meaning that they're under the sovereignty of the united states and then second that congress is the one who makes the rules and if i could just make one more point which is historically the fact that congress was that the united states was the sovereign the only sovereign in the territories which very important at the time that the constitution was put together you may recall that the united states had land there through the northwest ordinance that it was trying to figure out what to do with and there were questions with the states what would happen and so that this provision needed to be added to the constitution to make clear that congress was the one who is going to make rules for the territories and that it would be under the sovereignty of the united states but there are some in this ng is the go back to in the cases right there there are different kinds of territories it's because of that the frankfurters says that the constitution has left the field of invention open the decisions in the insular cases mean this if they mean anything that there's nothing to do from that hamper the responsibility of congress in working out a range if that's so why couldn't congress delegate without the power to take it  to puerto rico to work out its old criminal code subject to the constraints of the bill of rights and so why couldn't it i mean if it's right or do you take the opposite position that one thing the insular cases we're talking about something different and narrower which is whether all the protection of the bill of rights apply to the territories by their own force but to answer the broader question that you answered or ask we think that it's inconsistent with a grant of authority to congress in the constitution for a territory to be a territory but no longer be sovereign because the territory clause defines territories of the united states as subject to the authority of the united states it's not possible mr whoriskey i mean putting aside whether congress has done it here but you think it's simply not possible for congress to confer sovereignty in the sense that would matter for the double jeopardy clause well it certainly could by making it a state yes or by making an independent but but but not short of that we think that that would just be fundamentally inconsistent with the constitutional design and if i could just maybe give the last part of my historical answer is i think it's very important is when this was when this provision was put into the constitution it was coupled with the new states clause and it was understood that the options for sovereignty were statehood it was not that that if this was a territory that the territory was controlled by the united states i think it would have been very surprising to the states in the constitutional conventions to think that when states were to find such important things in the constitution sharing the sovereignty with the united states puerto rican law it will be the same the same corner will be prosecuted under federal law i think there are say that if you want i think there are two different options congress can define what crimes are and whether they are crimes in puerto rico as opposed to some so if that's what you're suggesting yes i think that's what congress could do what we don't think that congress could do is change the meaning of the fifth amendment in the double jeopardy clause because that's something for this court will certainly congress cannot cannot deny double jeopardy effect to something that that would be double jeopardy but i'm talking about a statute that says even though it might have double jeopardy if we say you say no well i write in what i'm saying is i think congress  ability is to define crimes and to set out where what they are and where they are but if the question is what the fifth amendment permits and doesn't permit we really think that that's up to this morning a matter of what the system of permits congress just says we will will not prosecute a crime that has already been prosecuted in puerto rico right and the justice department can work with puerto rico to decide who will prosecute what crimes in fact we do that as a general matter so that there's usually not many hopes i know i know i don't i and i do understand that now i just want to make sure that i just want to make sure that i'm being clear because i think this case does raise a lot of important questions and i do think that th defended it in a brief in opposition to this court where we also said the issue didn't matter but since that time we have revisited this issue given substantial attention to it both within the department of justice and within many agencies of the federal government and our position as set out in our brief is that it is not a separate sovereign and we think that that's entirely consistent with the other things that we've learned and testimony that d o j and others have given to congress about puerto rico's current status and its options for the future the end of our brief talks about the task force that the president has put in place that has issued reports three times over the past decade and a half which has said this is the constitutional status puerto rico has now to the extent the people of puerto rico want to change it here are the options that are consistent with the constitution tell us what you want and then congress will decide where to go from there so i would not want to suggest that as a result of this case that puerto rico's options are set in stone we don't think that they're set in stone we just think that right now puerto rico is a territory of the united states and as a result it's not a separate sovereign under the double jeopardy clause and just to give the court the three data points where the court has said we're going to focus on sovereignty under the constitution and we're not going to focus on autonomy or level of control you have the puerto rico versus shell case which was where the court said puerto rico already has autonomy but they're still not a double jeopardy sovereign you have waller which is about municipalities and the state of florida trying to basically treat its municipalities and sovereign in the courts said no no no you are not in the same relationship to municipalities as the states are the federal government the municipalities are more like the territories there's a different ultimate source of authority and then the court with respect to the indian tribes said even though congress has the ability to legislate for the tribes they still have this inherent source of authority that predated the constitution and was recognized in the constitution so for the court to turn away from that we think would really append that precedent and not for good reason because i think i'd like to conclude if i can where i started which is this power this dual sovereignty power is a weighty power that the court has reserved for those entities that have the ultimate power under our constitution defined in our constitution and for that reason puerto rico despite its significant self government is not a sovereign under the constitution thank you council for minutes  justice i could very briefly just say that there are two real questions here as the questioning is brought out first what happened in one nine hundred fifty to fifty two and b if so is that constitutional there's no question if you look at the documents of one hundred fifty to fifty two the congress required puerto rico to have a republican form of government which is a government by the people of the people this was understood at the time to be a new experiment this was not just another organic act and the constitution of puerto rico which was approved by congress and the president says the power the political power of the commonwealth emanates from the people and congress recognize that ok so that goes to the what happens then you go to the real meat of the case which is the constitutional argument it is shocking that the respondents in the united states govern this case are using the territorial clause as a restriction on power a limitation on power of government this is so ironic for exactly what justice briar was saying that as the insular cases if they stand for anything mean that congress has plenary control over the territories that means that congress can come up with inventive solutions which are broader than the only menu that they give which is a colony govern pursuant to direct or delegated federal power statehood or independence where do they get this view that you can't come up with something inventive like the commonwealth or the other leave it as we'll see although as justice prior said this is the genius of our system they did allows and it has the concept of associated and state and establish its do you know why they didn't use that phrase in the compact with the united states i think they thought that that commonwealth was the more natural english word but i'm not sure you want to i believe because i've seen the act that they didn't because states have a different meaning in the united states and again we are certainly not saying that we are a state that we're looking at double jeopardy we're looking at something different well looking at territory versus states you agree with that meeting of the shut case of graft and i absolutely do not agree that graft said that in any and all contexts that regard list of what of any kind of territory it is invariably going to have that political relationship grafton was describing the particular relationship there where the governor of puerto rico of the philippines was appointed by the president about show that was just to finish at one point your honor graft it is called grafton versus united states because the philippine prosecution was brought in the name of the united states shell is exactly the same thing the shell case said that was pursuant to an organic act but things changed in the fifty's fundamentally as i'm not just saying this this court recognized in the whole series of decisions in the seventy's that there was a fundamental transformation and the puerto rico represents a very unique constitutional experiment our history about how we have an unincorporated territory that exists in long term association with the united states but being the creator of its own government which is very important to the people of the concept of government if there's one thing you read please in our vibratory that frankfurt memo because he as the law officer in the department of war addressed exactly this issue and please do not take the constitution of puerto rico away from the people of puerto rico thank you count so the case was submit