03 Jun Sonia Sotomayor’s Affirmative Action Plan for Puerto Rico
Judge Sonia Sotomayor’s student note in the 1979 Yale Law Journal is a piece of work. It makes an extravagant case for Puerto Rican statehood based on terms of accession that are more favorable to Puerto Rico than any other state in the Union. Her proposal is a sort of affirmative action plan for what she describes as a “small, economically poor dependency” acquired as a result of the “American experience with colonialism.”
While her legal arguments are complex, her economic and political conclusions are simple: Puerto Rico should become a state and accede to the Union in a manner that grants her ownership rights over the offshore oil, gas and mineral deposits within a two-hundred mile radius of Puerto Rico. It should do so despite the fact that no other state enjoys similar rights and despite over two centuries of federal practice that provide for states to enter the Union “on an equal footing with the original States in all respects whatever.”
Sotomayor argues that “[t]he island’s dearth of land-based resources and its ongoing economic stagnation and poverty, coupled with the possibility of offshore oil and mineral wealth, will create political pressure for Puerto Rico to demand exclusive rights to exploit its surrounding seabed…. The inclusion of such a provision in Puerto Rico’s compact of admission could be politically necessary and practically essential.”
She recognizes that such terms for statehood would meet with opposition because it would mean Puerto Rico would not enter the Union on an equal footing with other states. She also recognizes that Supreme Court precedent poses a serious problem, particularly restrictions that prevent accession terms limiting the “paramount power of the United States in favor of a State.” But she interprets this precedent as a statutory rather than a constitutional limitation, and argues that “Congress … can alienate seabed rights in any way it chooses” including in an agreement of accession to the Union. “Therefore,” she argues, “Puerto Rico should seek a specific grant of seabed rights in a compact of admission” that would grant Puerto Rico rights to explore, exploit, conserve and manage the living and non-living natural resources within a two-hundred mile radius.
Finally, to prevent federal environmental regulations from harming the value of these seabed rights, she argues that Puerto Rico should negotiate terms that would require the United States to pay for the right to regulate Puerto Rican waters. Recognizing that environmental regulations are not compensable takings under the Fifth Amendment, she argues that Puerto Rico should negotiate a special formula for compensation that would compensate Puerto Rico as if such environmental regulations were an unlawful taking. “Puerto Rico and the United States could agree that compensation be provided for those losses that courts normally find noncompensable, and could provide a formula for calculating the compensation” based on the fair market value of the loss profits that would result from such environmental regulation.
In short, in proposing preferential treatment for Puerto Rican statehood, Sotomayor manages to provide justifiable grounds to (1) upset environmentalists; (2) upset those sensitive to the equality of states; (3) upset those opposed to affirmative action and preferential treatment; and (4) upset those who do not take kindly to assertions that the United States is a colonial power. I would think almost every United States Senator falls into at least one of those four categories.