Chief Judge Gustavo Gelpí of the District Court of Puerto Rico spoke with Guam attorneys and law students at the Guam Museum on Monday morning, discussing the nebulous relationship between United States territories and the Constitution, just days before the nation celebrates its 242nd birthday.
While Gelpí covered a number of constitutional questions, he repeated several times that territories remain in a "constitutionally scary" situation, in which the territories remain at the mercy of Congress.
"What Congress giveth, Congress can taketh away," he said.
Gelpí himself is a perfect example of federal rights in the territories: In 2006, former President George W. Bush appointed Gelpí as a federal judge. Ironically, Gelpí had no say – and still doesn't – in choosing the person to appoint him, as the court he serves on is the U.S. District Court for Puerto Rico, which, like Guam, is prohibited from voting in presidential elections.
Born and raised in the Caribbean commonwealth, he noted that while living in Massachusetts for law school, he was able to register and vote in federal elections. Then, when he returned to his home territory, he once again lost that right.
The question of who can vote for president has been raised in the courts yet again, as Guam resident Luis Segovia, a member of the Guam Army National Guard, has filed a suit against the United States, arguing that he and several other plaintiffs – all former state residents – were unconstitutionally denied the right to vote after moving to U.S. territories.
The law at issue allows U.S. citizens who live in a state to vote via absentee ballot if they move overseas, including to the Commonwealth of the Northern Mariana Islands. But if they move to Guam, Puerto Rico or the U.S. Virgin Islands, that right is lost.
Gelpí noted that it's not the first case – and likely won't be the last – of its kind, calling the issue an "uphill battle."
The Segovia case now heads to the Supreme Court, which is expected to decide whether it will hear the case in September.
Because three federal courts have now upheld laws barring residents in U.S. territories from presidential elections, Gelpí said, he thinks it's unlikely the Supreme Court will take the case.
"The fact that it's not democratic doesn't mean that it's unconstitutional, so far," Gelpí said.
Other issues faced by territories include enforcing federal mandatory minimum sentences without having a say in what those minimums are, and dealing with "unequal constitutional rights," Gelpí said.
Congress decided that Puerto Rico falls under the Commerce Clause, he said, because it functions similar to a de facto state, with its own constitution and three branches of commonwealth government. Despite not being a formal state, Puerto Rico cannot pass any laws that interfere with interstate commerce.
Guam does not fall under this clause, remaining free to establish laws that promote the island's own economy at the expense of other states; but, Gelpí said, there's nothing to stop Congress from changing that.
Although unlikely, Gelpí said, "it's a scary notion that unless Guam becomes a state ... at any point ... Congress still retains that right to unilaterally legislate." Though he said he doesn't necessarily advocate for it, "the only way to govern ourselves ... is through statehood."