Gregorio IGARTÚA, et al., Plaintiffs, Appellants, v. UNITED STATES of America, et al., Defendants, Appellees, 626 F.3d 592

LYNCH, Chief Judge. Plaintiff Gregorio Igartua 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 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.l, and

Section III of Chief Judge Lynch’s opinion. He expresses additional views in his concurring opinion. 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 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 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. 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). 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 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. (3 How.) 212, 216, 11 L.Ed. 565 (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. 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 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.

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, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964) (detailing the debate over representation). That compromise was explicitly predicated on the definition of statehood contained in the Constitution. See Wesbenry, 376 U.S. at 13, 84 S.Ct. 526 (“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, 122 S.Ct. 2191, 153 L.Ed.2d 453 (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, 19 L.Ed. 227 (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 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. 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 Rico 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 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, 128 S.Ct. 2229, 171 L.Ed.2d 41 (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. 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) (“[Residents of 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 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.”).

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. 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, 128 S.Ct. 2229, 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, 128 S.Ct. 2229. 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 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, 128 S.Ct. 2229.

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, 128 S.Ct. 2229 (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, 128 S.Ct. 2229.

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 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 Bourn,ediene 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. 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 Columbia v.

Carter, 409 U.S. 418, 420, 93 S.Ct. 602, 34 L.Ed.2d 613 (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 Bournediene, 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, 452-58, 2 L.Ed. 332 (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 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, 7 L.Ed. 242 (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, 4 L.Ed. 44 (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, 121 S.Ct. 336, 148 L.Ed.2d 270 (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 “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, citizenship alone does not trigger the right to vote. 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.

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) (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 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. 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 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 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. Guzman, 419 F.3d 27, 31 (1st Cir.2005)). a. Controlling Authority Reinforces Igartúa III Not only has there been no Supreme Court decision that calls Igartúa III into question, the Supreme Court’s decision in Medellin v. Texas, 552 U.S. 491, 128 S.Ct. 1346, 170 L.Ed.2d 190 (2008), reinforces our en banc decision and analysis. Our conclusions here are a required result of the judicial function under Medellin, 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 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, 124 S.Ct. 2739, 159 L.Ed.2d 718 (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, 124 S.Ct. 2739. 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-exeeuting.’ ” 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 self-executing treaties. In Medellin, 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. Medellin, 552 U.S. at 505, 128 S.Ct. 1346.

It summarized this holding by quoting Igartúa Ill’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). Medellin adds further weight to this court’s deference to the political branches in construing treaties like the ICCPR. Medellin emphasized that the courts may not supplant the constitutional role of the political branches in making and approving treaties.

Id. at 515, 128 S.Ct. 1346. It gave deference to the executive branch’s

interpretation of whether the treaty at issue in that case was domestically enforceable. Id. at 513, 128 S.Ct. 1346. 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, 128 S.Ct. 1346 (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.

Medellin 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. 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. 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. 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 Fed. Appx. 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 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, 95 S.Ct. 2330, 45 L.Ed.2d 272 (1975) (quoting North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971)). III. We affirm the dismissal of the action. No costs are awarded. So ordered. . The term "People” clarifies that Representatives are not to be chosen by state legislatures. Seth Lipsky, The Citizen’s Constitution 5 n. 12 (2009). .

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). . Indeed, the thirteen former colonies’ identity as “states” predated the Constitution. See, e.g., Wesberry v.

Sanders, 376 U.S. 1, 9, 84 S.Ct. 526, 11 L.Ed.2d 481 (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.”). . 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). .

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. . 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 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. . 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 Caribbean Cardiovascual Center Corp., 322 F.3d 56, 63 (1st Cir.2003). . The residents of Puerto Rico have the federal writ of habeas corpus available to them by statute. 48 U.S.C. § 872. . 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, 112 S.Ct. 1846, 119 L.Ed.2d 5 (1992); Harper v. Va. State Bd. of Elections, 383 U.S. 663, 667, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966); Reynolds v. Sims, 377 U.S. 533, 560, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) (quoting Wesberry, 376 U.S. at 17-18, 84 S.Ct. 526); see also Dep’t of Commerce v. Montana, 503 U.S. 442, 112 S.Ct. 1415, 118 L.Ed.2d 87 (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, 84 S.Ct. 526; Heald v.

District of Columbia, 259 U.S. 114, 124, 42 S.Ct. 434, 66 L.Ed. 852 (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”). . The government of Puerto Rico does not join this argument. . 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). .

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, 40 S.Ct. 382, 64 L.Ed. 641 (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, 252 U.S. at 432-33, 40 S.Ct. 382. 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, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008) (discussing the Insular Cases). .

Contrary to Igartúa and the dissent’s assertions, the Supreme Court's engagement with international law in Abbott v. Abbott, — U.S. -, 130 S.Ct. 1983, 176 L.Ed.2d 789 (2010), only reinforces our conclusion. In that case, the Court addressed a provision of the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 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. . Medellin 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, - U.S. -, 130 S.Ct. 876, 893,-L.Ed.2d-(2010). . 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.