Puerto Rico’s 3.4 million residents are U.S. citizens, but because they live in a territory rather than a state, they do not enjoy the right to vote in U.S. federal elections.1 The U.S. Constitution specifies only that states may appoint presidential electors and be apportioned representatives to the House of Representatives.2 Recently, in Igartúa v. Trump,3 the First Circuit denied rehearing en banc to plaintiffs challenging the disenfranchisement of Puerto Rican citizens.4 The lead dissent invoked United States v. Carolene Products Co.5 to suggest that the court should have allowed unorthodox constitutional claims because of the importance of the right to vote.6 The rationale for judicial intervention embodied in Carolene Products is perhaps the plaintiffs’ best legal argument. However, its applicability to this case is dubious because of key differences between the issue of Puerto Rican representation and cases decided under a Carolene Products framework.
Gregorio Igartúa filed his first pro se suit against the United States and other government defendants in 1991.7 A U.S. citizen and resident of Puerto Rico, Igartúa claimed that U.S. citizens in Puerto Rico have the right to vote in presidential elections.8 The First Circuit dismissed the suit because Article II of the Constitution does not grant citizens the right to vote for President but rather allocates presidential electors to states.9 In 2008, Igartúa filed suit claiming that U.S. citizens in Puerto Rico have the right to vote for representatives to the U.S. House of Representatives and to be apportioned representatives to that body.10 Igartúa also argued that his constitutional claims should be referred to a three-judge court under 28 U.S.C. § 2284(a).11 That provision requires that “[a] district court of three judges” be convened when a suit “challeng[es] the constitutionality of the apportionment of congressional districts.”12 Igartúa argued that the federal government’s decision to not apportion Puerto Rico any representatives to the House of Representatives was unconstitutional and therefore must be reviewed by a three-judge court.13 The U.S. District Court for the District of Puerto Rico dismissed the suit in 2009.14 The First Circuit affirmed in 2010,15 relying on the principles of res judicata and stare decisis.16 This 2010 court mentioned the § 2284(a) question only in a footnote, stating simply that the constitutionality of apportionment was “not the issue in this case.”17
Igartúa again brought suit after the 2010 congressional apportionment.18 The First Circuit considered this new apportionment claim in November 2016.19 Writing for the panel, Senior Judge Lipez20 stated that he “now doubt[ed] the correctness of” the First Circuit’s 2010 footnote rejecting the application of § 2284(a).21 Judge Lipez explained that the Supreme Court’s 2015 discussion of § 2284(a) in Shapiro v. McManus22 might support Igartúa’s request for a three-judge court, because it and additional Supreme Court precedent endorsed a broader reading of § 2284(a).23 Despite arguments in favor of granting Igartúa’s request, Judge Lipez concluded that the panel was bound by the 2010 footnote.24 Judge Lipez argued the § 2284(a) issue “should be reconsidered by the full court in an en banc rehearing.”25
Despite this call to action, the First Circuit denied Igartúa’s petition for a rehearing en banc.26 Issuing a statement on the denial, Judge Kayatta27 acknowledged that “[t]he prolonged inability of our fellow citizens to vote for certain federal officials” was a matter of concern.28 However, he explained, Igartúa’s claims did not meet § 2284(a)’s requirements to convene a three-judge court. Article I, Section 2 of the U.S. Constitution provides that “[r]epresentatives . . . shall be apportioned among the several States.”29 Judge Kayatta suggested that other provisions of the Constitution could not render an apportionment scheme unconstitutional simply because the scheme apportioned representatives to states and not territories.30 Any such claim would be “wholly insubstantial”31 and thus not “justiciable in the federal courts.”32
Judges Torruella, Lipez, and Thompson each wrote separate dissents from the denial of rehearing en banc. In a lengthy dissent, Judge Torruella first described the “regrettable condition”33 of the “total national disenfranchisement” of Puerto Rican citizens.34 He criticized the majority’s “consistently shallow grounds”35 for disregarding Carolene Products, which calls for heightened scrutiny in instances of “prejudice against discrete and insular minorities . . . , which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities.”36 Turning to the substance of the decision, Judge Torruella argued that en banc review was proper because “the proceeding involves a question of exceptional importance,” per Rule 35(a)(2) of the Federal Rules of Appellate Procedure.37 Judge Torruella argued the question was of importance because (1) the First Circuit panel in 2016 had been bound by a footnote while deciding an issue related to the rights of millions of citizens,38 (2) the Supreme Court had previously indicated that § 2284(a) courts may consider nonapportionment claims,39 and (3) Congress provided for § 2284(a)’s three-judge court review precisely because challenges to apportionment were of importance.40 Judge Torruella concluded that the case presented questions “at the very heart of what it means to be a democracy” that merited consideration and deliberation by an en banc court.41
Judge Lipez reiterated the importance of the case, arguing that Rule 35(a)(2) review was proper. He called the majority’s decision “premature,” given the complexity of the nonapportionment issue, the lack of on-point precedent, and the centrality of the right at stake.42 Both Judge Lipez and, in a separate dissent, Judge Thompson emphasized the cursory nature of the 2010 footnote regarding § 2284(a) and urged for an en banc hearing supported by on-point briefings.43 Judge Thompson’s dissent concluded with a reminder that “‘the right to vote’ is ‘the wellspring of all rights in a democracy’”44 and called on the First Circuit to “at least take the time to explain our thinking in a binding en-banc opinion” “before depriving millions and millions of Americans of that right.”45
The First Circuit’s order, while addressing a narrow procedural question, reflects a larger debate on whether the judiciary can reverse Puerto Rico’s political disempowerment. Judge Torruella invoked Carolene Products to argue that the First Circuit’s decision contravenes the court’s role as a protector of minorities in the political process. The abstract rationale for judicial intervention embodied in Carolene Products may well be Igartúa’s best legal argument, given the failure of his specific constitutional, treaty-based, and statutory claims over the past twenty-five years. But although Igartúa does seem on its face to be a classic Carolene Products case, the comparison is inapt. Unlike jurisprudence based on Carolene Products, Igartúa (1) challenges constitutional text rather than a statute, and (2) was brought amid apathy on the U.S. mainland and divided opinion on statehood in Puerto Rico, rather than amid popular mobilization. Igartúa thus highlights the limits of Carolene Products and its progeny, demonstrating that Puerto Ricans must look beyond courts for political relief.
At first glance, Puerto Rican disenfranchisement appears to be a classic case for judicial protection of minorities. As residents of one of the five populated territories currently held by the United States,46 Puerto Rican citizens are not guaranteed all constitutional rights.47 They have no voting representative in the federal government,48 despite the government’s near-plenary power over Puerto Rican affairs.49 Federal welfare laws treat Puerto Rican residents and mainland U.S. citizens differently, a practice sanctioned by the Supreme Court.50 Meanwhile, the island territory suffers from a poverty rate of 46% and an unemployment rate of nearly 12%, over twice that of the level in the fifty states.51 Without a voting federal representative, the territory has little opportunity to advocate for change. In this context, the judiciary’s function of preventing “serious oppressions of [a] minor party”52 seems especially necessary.53
Jurisprudence based on Carolene Products framed federal courts as guarantors of minority rights and the political process.54 This function was summarized in the case’s footnote four, which Judge Torruella invoked in his Igartúa dissent. The footnote suggested that the Fourteenth Amendment’s Equal Protection Clause authorized courts to apply heightened scrutiny to cases where “prejudice against discrete and insular minorities” would obstruct “political processes ordinarily . . . relied upon to protect minorities.”55 Carolene Products thus provided an “anti-entrenchment and an antidiscrimination rationale for judicial intervention”; heightened judicial scrutiny is warranted if it targets systemic democratic failures that prevent a minority from achieving equality.56 This sort of systemic failure is arguably present in Puerto Rico’s current political status. The perceived injustice of Puerto Rico’s disenfranchisement appears to have animated Judge Torruella’s, Judge Lipez’s, and Judge Thompson’s spirited dissents, perhaps more so than did the procedural question of whether § 2284(a) applies to Igartúa’s claim.
But while Igartúa did feature a discrete and insular minority, Judge Torruella’s Carolene Products analogy is inapt. Igartúa’s case differs from traditional applications of Carolene Products in two ways. First, Igartúa challenged a process derived directly from a constitutional provision, whereas Carolene Products’ reasoning has usually been applied to scrutinize legislative action.57 Judicial activism has greater legitimacy in the latter case because, as Professor Bruce Ackerman describes, “the court is trumping the statutory conclusions of the deeply flawed real-world legislature by appealing to the hypothetical judgment of an ideally democratic legislature.”58 A court following Carolene Products is — according to this framework — not overruling the will of the people but rather ensuring that the legislature respects agreed-upon constitutional principles. Providing such an explanation in Igartúa is more difficult. Igartúa argued against Article I, Section 2’s specific directive that representatives be apportioned among the states. In contrast, plaintiffs in Brown v. Board of Education,59 Reynolds v. Sims,60 and other cases cited by Judge Torruella and Igartúa61 challenged legislative actions.62 Commentators have argued that courts can overcome this constitutional difficulty by, for example, treating Puerto Rico as a state for the purposes of Article I, Section 2 because of its structural similarities to a state.63 Embracing new interpretations of clear, specific constitutional provisions would arguably require greater judicial creativity than was required to invalidate state law in Brown or Reynolds.64
Second, Igartúa’s case was not supported by sociopolitical mobilization of the type that has previously encouraged courts to apply Carolene Products’ reasoning. The theory underlying Carolene Products allows the judiciary to expand civil rights while presenting itself as a prodemocracy actor.65 Courts are sometimes more willing to effect significant political change in the context of shifting public perceptions and large-scale movements.66 For example, in the year of the Brown decision, Justice Jackson “acknowledged the ‘profound change’ in public opinion that had occurred . . . as a consequence of American awareness [of] the racism which generated the Holocaust.”67 Former Director-Counsel of the NAACP Legal Defense Fund Theodore M. Shaw later emphasized that his organization’s post-Brown “legal struggle [was] most effective when it [was] part of a broader struggle.”68 More recently, participants in the gay rights movement affirmed that “extralegal, social movement–type efforts” could increase the “plausibility” of judicial claims.69 Igartúa’s claim, however, may lack this plausibility. Five referenda have been held on the political status of Puerto Rico since 196770: a majority of Puerto Rican voters first expressed a desire for statehood only in the most recent 2017 referendum — but critics dismissed the results of this referendum as illegitimate, and voter turnout was concerningly low.71 The First Circuit therefore had little impetus to countenance a new interpretation of the Constitution that would upend the current political balance and alter the rights of several million citizens.
Igartúa is thus left as an example of how Carolene Products can fall short. The judiciary might protect minorities in the political process, but that role is circumscribed by the clear text of the Constitution and by the scope of contemporary political debates. Unfortunately, these limits have left a clearly “discrete and insular” minority disempowered. Each remaining avenue for Puerto Rican relief — independence, statehood, legislative enfranchisement, or constitutional amendment72 — requires national mobilization, which is particularly difficult for a disenfranchised population to generate. Remedying the Puerto Rican injustice may therefore require political organizing on the mainland, in recognition that the United States’ maintenance of near-colonial holdings runs contrary to its founding principles.