Igartua v. United States

626 F.3d 592, 2010 WL 4751781

• Court: Court of Appeals for the First Circuit
• Decided: November 24, 2010
• Docket: 09-2186
• Status: Published

Opinion

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

-2- 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.

-3- 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

-4- 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

-5- 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.

-6- 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).

-7- 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).

-8- 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.").

-9- 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

-10- 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.

-11- 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

-12- 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.

-13- 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).

-14- 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

-15- 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

-16- 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.

-17- 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

-18- 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

-19- "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,

-20- 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.

-21- (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

-30- 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.

-61- 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

-62- 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.

-63- 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.

-64- 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

-65- 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.

-66- (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).

-67- (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).

-68- (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

-69- 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

-70- 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).

-71- 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.

-72- 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.").

-73- 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).

-74- 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

-75- 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.

-76- 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

-77- 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").

-78- 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.").

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

-79- 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

-80- 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.

-81- 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

-82- 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

-83- 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.").

-84- 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

-85- 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).

-86- 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

-87- 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).

-88- 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

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"

-89- 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;

-90- 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.

-91- 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,

-92- 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.

-93- 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

-94- 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.

-95- (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 . . . .").

-96- 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").

-97- 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

-98- 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 . . . ."

-99- 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

-100- "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

-101- 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

-102- 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

-103- 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).

-104- 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.

-105- 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.").

-106- 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

-107- 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.

-108-