The Supreme Court Weighs State Sovereignty and the Status of Puerto Rico

One of the ways in which the U.S. Supreme Court recognizes the interests of the states is through a doctrine known as state sovereign immunity. This doctrine says that a state generally may not be sued in federal court unless it consents to it. A state is, of course, free to waive its sovereign immunity. And Congress may sometimes waive a state’s sovereign immunity, too, whether the state likes it or not. However, the Supreme Court held in Atascadero State Hospital v. Scanlon (1985), “Congress may abrogate the States’ constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute.”

The Supreme Court heard oral arguments this week in a case that applies those sovereign immunity principles to the U.S. territory of Puerto Rico. Centro de Periodismo Investigativo is a Puerto Rican nonprofit news organization that seeks to obtain public documents, via a Freedom of Information Act-like request, from the Financial Oversight and Management Board for Puerto Rico, an agency established by the U.S. Congress to implement the Puerto Rico Oversight, Management, and Economic Stability Act of 2016 (PROMESA). Among other things, PROMESA says that “any action against the Oversight Board, and any action arising out of [this law], in whole or in part, shall be brought in a United States district court for the covered territory or, for any covered territory that does not have a district court, in the United States District Court for the District of Hawaii.”

That statutory language, the oversight board argues in Financial Oversight and Management Board for Puerto Rico v. Centro de Periodismo Investigativo, fails the “unmistakably clear” test for abrogating the sovereign immunity of the board, which gets its sovereign immunity as an arm of the Puerto Rican government, which itself