Examining Bd. v. Flores De Otero, 426 U.S. 572 (1976)

MR. JUSTICE REHNQUIST, dissenting in part.

I agree with the Court’s conclusion that the United States District Court for the District of Puerto Rico had jurisdiction of appellees’ claim under 28 U.S.C. § 1343(3), and that it was not obligated to abstain from reaching the merits of that claim. I believe that I have some understanding of the difficulties which the Court necessarily encounters in then determining whether either the Fifth Amendment or the Fourteenth Amendment to the United States Constitution applies to Puerto Rico. But, without attempting to recapitulate the doctrine of the cases from Downes v. Bidwell, 182 U.S. 244 (1901), to Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663 (1974), I do not think the inquiry lends itself to the facile "either-or" answer upon which the Court ultimately settles.

The Fourteenth Amendment is, by its terms, applicable to States: Puerto Rico is not a State. Doubtless, constitutional inquiries shrouded as this one is in both history and case law cannot be definitively answered so simply as this, but I would be inclined to reject the claim that the Fourteenth Amendment is applicable to Puerto Rico until a case sufficiently strong to overcome this "plain meaning" obstacle, found in the language of the Amendment itself, is made out.*

The Fifth Amendment, of course, applies to Congress, and, had this statute been enacted by Congress, it would be subject to the strictures of the Fifth Amendment. But, just as certainly, it was not enacted by Congress, but by the Legislature of Puerto Rico. I could perhaps understand in this regard a theory that, under the Foraker Act, which reserved to Congress the right to annul laws of the Puerto Rican Legislature with which it disagreed, see ante at 586 n. 16, that legislature should be treated as the delegate of Congress equally subject to the strictures of the Fifth Amendment. But any such theory would, of course, face very substantial obstacles in view of the fact that Congress subsequently provided, in the Organic Act of 1917, a bill of rights giving Puerto Ricans "nearly all the personal guarantees found in the United States Constitution." Ante at 591 (emphasis supplied).

If the constitutional limitations expressly directed to Congress, such as the Fifth Amendment, also directly restrict the Puerto Rican Legislature by virtue of its being a delegate of Congress, it would not only have been superfluous for Congress to provide an additional bill of rights; it would have been quite impossible for it to endow its delegate with more power to disregard individual liberties than it itself may possess. I would thus find it extremely difficult to see how constitutional limitations upon the power of Congress may be thought to apply ex proprio vigore to the power of the Puerto Rican Legislature. Moreover, following the passage of the Act of July 3, 1950, and Puerto Rico’s acceptance of Commonwealth status, see ante at 593-594, I would have thought that the only restrictions upon the elected Legislature of Puerto Rico were those embodied in the Constitution enacted as a condition of assuming that status or directly imposed by Congress by statute.

In short, I am not nearly as certain as the Court appears to be that either the Fifth Amendment or the Fourteenth Amendment must govern the acts of the Legislature of Puerto Rico. It seems to me it is quite possible that neither provision operates as a direct limitation upon the authority of that elected body. Even if I am wrong in this, I would not have thought it as easy as does the Court to avoid more focused inquiry in this case into which provision may be applicable. For even if a State could not, consistent with the Equal Protection Clause of the Fourteenth Amendment, pass the statute challenged by appellees, it surely does not follow that the Fifth Amendment’s due process limitation upon the exercise of federal authority requires an identical conclusion. See Hampton v. Mow Sun Won, ante at 100-101. For if, for some reason, it were to be concluded that the restrictions placed upon the Federal Government were somehow directly applicable to the actions of appellants, it would seem that they would be able equivalently to assert whatever additional authority that Government possesses with regard to aliens. Indeed, rejection of this approach would raise an even more difficult question: why should a restriction upon the authority of the Government of the United States, which may be thought of as granting concomitant rights to United States citizens, have any bearing upon how the people of a Territory of the United States may deal with aliens within their Territory?

If the answers to these questions were dispositive of my vote in this case, I would feel compelled to explore them in much more detail than does the Court today. But even if I were to conclude that one part of the Court’s either/or assumption was correct, I could not agree with the result which it believes is compelled by that assumption. I do not agree either that the statute in question violates the Equal Protection Clause of the Fourteenth Amendment, for the reasons stated in my dissent in Sugarman v. Dougall, 413 U.S. 634, 649 (1973), or that, if the statute were subject to the limitations of the Fifth Amendment, it is infirm by reason of their application. Hampton v. Mow Sun Wong, ante, p. 117 (REHNQUIST, J., dissenting). I would therefore reverse the decision of the District Court.

* The wording of the Thirteenth Amendment shows that the Framers of the post-Civil War Amendments knew how to word those provisions where it was intended that their guarantees have application in all Territories of the United States, rather than just as a limit upon the authority of state government.