With Democrats pushing for Puerto Rican statehood, the Supreme Court had San Juan on its mind Wednesday as the justices heard oral arguments in Financial Oversight and Management Board for Puerto Rico v. Centro de Periodismo Investigativo.

Arguments flew over whether the territory and its appendages — gained in 1898 as a spoil of the Spanish-American War — could be called into court against its will. The case comes to the high court just months after Hurricane Fiona battered the island, thrashing its power grid and flooding its streets.

In 2016, Puerto Rico was in dire economic straits, in large part due to Hurricane Maria. The island bore more than $72 billion in debt and more than $55 billion in unfunded pension liabilities, but the high court rejected its effort to seek relief under the Bankruptcy Code.

That constitutional dead end spurred Congress to pass the Puerto Rico Oversight, Management, and Economic Stability Act, known as Promeso, which created the Financial Management and Oversight Board to manage Puerto Rico’s finances, such as they were. At issue is whether that board, a creature of Congress, is possessed of sovereign immunity. 

Sovereign immunity goes back to the time of King Edward I, who reigned as king of England and lord of Ireland between  1272 and 1307. It is rooted in the notion that “the king can do no wrong,” meaning the Crown is not subject to suit without its consent.

In the American context, this means that state and federal governments are not vulnerable to suit unless they waive that protection. Courts have generally required that waiver to be crystal clear. The 11th Amendment bans a citizen of one state from suing another state.   

Enter the Puerto Rican constitution, ratified in 1952, which encodes a right to gain access to public information under a provision that works like the Freedom of Information Act. A Puerto Rican nonprofit, Centro, sued the board in federal district court for stonewalling inquiries into its financial stewardship.

While all the parties agree that the suit would be appropriate in Puerto Rican courts, the board argues that it is protected by sovereign immunity, even though its enabling statute does not mention the issue — thus failing to meet the “clear-statement rule” necessary for piercing immunity.  This notwithstanding the reality that certain of its adjudications do transpire in federal court.

Centro argues that the financial board is not entitled to immunity because it is part of a territory, and thus governed by Article IV of the Constitution, which grants Congress the “power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.”

While the question before the justices is whether Congress was clear enough in telegraphing a waiver of sovereign immunity, this broader question — whether Puerto Rico and the board are entitled to that protection in the first instance — erupted into the staccato hour of questioning. 

The riders of the Court of Appeals for the First Circuit, which from time to time meets at the José V. Toledo United States Post Office & Courthouse at San Juan, have held that Puerto Rico is entitled to sovereign immunity. One of the government’s lawyers argued that such a position is a “necessary corollary to the existence of self-government.” 

Chief Justice Roberts appeared skeptical, noting that when the national parchment contemplates immunity it links it to “states” and not “things like states.” He wondered “how far you can stretch the analogy” from a territory like Puerto Rico to “state sovereign immunity,” a bedrock guarantor of American federalism.

Justice Neal Gorsuch was particularly alert to the implications of this case. He has long taken the position that “tribes are sovereigns” and wrote the opinion in McGirt v. Oklahoma holding that large swaths of Oklahoma are territory of the Creek Nation. He discerned that there had been no “clear expression of congressional intent” to abrogate the original treaty with that nation.   

The justice mused that the status of Puerto Rico was a “rather large and important constitutional question” with implications for American territories that span the globe. If Puerto Rico were entitled to sovereign immunity, then that would also be the case for Palau and Guam.  

Justice Amy Coney Barrett, sharing Justice Gorsuch’s hesitation and reluctance to extend the immunity of a state to Puerto Rico, asked the government: “Why not just vacate and remand to the First Circuit, given the complexities of this question?”