Susan K. Serrano, Elevating the Perspectives of U.S. Territorial Peoples:  Why the Insular Cases Should Be Taught in Law School, 21 J. Gender Race & Just. 395 (2018)

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 THE INSULAR CASES IN SOCIO-HISTORICAL CONTEXT

Today’s stark limits on territorial peoples’ self-determination are rooted in the strategic U.S. embrace of “empire” following the Spanish-American War.⁴³ The Territorial Clause of the U.S. Constitution, which empowers Congress “to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States,”⁴⁴ gave the United States authority to exercise power over its late-nineteenth century colonial conquests.⁴⁵ The Clause today governs five unincorporated territories of the United States--Puerto Rico, Guam, the U.S. Virgin Islands, American Samoa, and the Northern Mariana Islands--with a collective population of around four million people.⁴⁶ This makes the United States “the largest overseas territorial power in the world.”⁴⁷

Prior to the United States’ 1898 territorial “acquisitions,” the settled policy governing U.S. territorial expansion led to the eventual admission of new territories as states.⁴⁸ The Northwest Ordinance of 1787, which covered the territory northwest of the original thirteen states, was viewed as “the governing statute for the newly acquired territories by the courts or was followed as the model in other governing legislation.”⁴⁹ The Spanish-American War and the resulting takeover of Puerto Rico, the Philippines, Guam, and Cuba triggered a change in the settled model.⁵⁰ Rather than directing the territories toward eventual statehood, the Treaty of Paris, which concluded the war, left the determination of the “civil rights and political status of the native inhabitants” to Congress.⁵¹ This meant that the peoples of the territories were not to “enter into and form a part of the American family,”⁵² and were promised no civil or political rights under U.S. rule.

The United States’ conquest of “distant lands” inhabited by “alien” and “semi-civilized” peoples unleashed intense popular debates over the proper way to rule them.⁵³ The territories were viewed as “far off, not contiguous to the continent, densely populated, unamenable to colonization by settlement on the part of Anglo-Americans, and, above all, inhabited by alien peoples untrained in the arts of representative government.”⁵⁴ One judge, for example, warned against bestowing constitutional guarantees upon the “ignorant” and “half-civilized” peoples of Puerto Rico and the Philippines:

Our Constitution was made by a civilized and educated people. It provides guaranties of personal security which seem ill adapted to the conditions of society that prevail in many parts of our new possessions. To give the half-civilized Moros of the Philippines, or the ignorant and lawless brigands that infest Puerto Rico, or even the ordinary Filipino of Manila, the benefit of such immunities ... would, of course, be a serious obstacle to the maintenance there of an efficient government.⁵⁵

Decision-makers proclaimed that the United States should not “incorporate the alien races, and civilized, semi-civilized, barbarous, and savage peoples of these islands into our body politic as States of our Union.”⁵⁶ A report by the Committee on the Pacific Islands and Puerto Rico warned against the inclusion of “people of wholly different character ... and incapable of exercising the rights and privileges guaranteed by the Constitution.”⁵⁷ If a territory is inhabited by such people, it argued, Congress should “withhold from [them] the operation of the Constitution and the laws of the United States, and, continu[e] to hold the territory as a mere possession of the United States.”⁵⁸ The Foraker Act of 1900,⁵⁹ which established a civil government for Puerto Rico, was therefore “premised on the view that the United States could constitutionally acquire territories, free of constitutional restrictions, and govern them indefinitely as dependencies without steering them towards statehood.”⁶⁰

Thus, the settled view of eventual statehood for territories was upended, and the United States expanded its empire and global reach “without the necessity of fully accepting the people of color that inhabited the newly acquired territories.”⁶¹ As discussed below, the Insular Cases,⁶² a series of U.S. Supreme Court decisions defining the status of the new U.S. territories, provided constitutional legitimacy for this American colonialism.⁶³

1. Downes v. Bidwell and the Doctrine of Territorial Incorporation

The Insular Cases further entrenched the notion that Congress had nearly unfettered authority over U.S. insular possessions.⁶⁴ In wrestling with persisting questions about the status of the territories and the rights of their inhabitants, the justices’ approaches were distinctly shaped by the academic and popular debates of the time. Did the Constitution apply in full force to the territories, thereby conferring full-fledged citizenship on their inhabitants?⁶⁵ Did Congress, like the European colonizers before them, have absolute power over the territories without constitutional constraints?⁶⁶ Or, did Congress have sweeping power over the territories, with some constitutional limitations?⁶⁷ According to this final theory, the constitutional provisions that apply to a territory (and therefore serve to limit Congress’s and the executive’s power) depend on that territory’s relationship to the United States. This final approach came to be the dominant framework in the Insular Cases.

The U.S. Supreme Court heard the first nine Insular Cases in its 1900 Term, and issued decisions on May 27, 1901.⁶⁸ The Insular Cases were at the center of constitutional debate in their day--they were heard over a ten-day period, and the resulting decisions filled up “hundreds of pages over two volumes of the U.S. Reports.”⁶⁹ Called “the most hotly contested and long continued duel in the life of the Supreme Court,”⁷⁰ the cases “reportedly stimulated stronger feelings among the justices of the Supreme Court than any case since Scott v. Sandford (the Dred Scott case).”⁷¹

Most of the first Insular Cases involved disputes over the imposition of tariffs on agricultural goods shipped from Puerto Rico to the continental United States.⁷² In De Lima v. Bidwell, for example, De Lima sought to recover duties levied under protest for importation of sugar from Puerto Rico after that territory was “ceded” to the United States, but before the Foraker Act was passed in 1900.⁷³ The Court held that the cession of Puerto Rico to the United States transformed Puerto Rico from “foreign” to “domestic”; thus, duties were illegal.⁷⁴ In Dooley v. United States, the Court ruled that duties levied on products sent from the continental United States to Puerto Rico before ratification of the Treaty of Paris were legal, but those levied on goods shipped after the Treaty’s ratification were illegal because Puerto Rico was no longer foreign.⁷⁵ These and other cases set the stage for the main case of Downes v. Bidwell.

In Downes v. Bidwell, the most important of the Insular Cases, the U.S. Supreme Court held that the Foraker Act’s express imposition of duties on goods shipped between Puerto Rico and the continental United States did not violate the Uniformity Clause and was thus constitutional.⁷⁶ Directly contradicting the earlier cases, the Court sanctioned the imposition of duties on goods shipped from Puerto Rico.⁷⁷ Five justices filed separate opinions, and no opinion garnered a majority. According to Justice Brown, who delivered the judgment of the Court, the issue was not only whether the Foraker Act violated the Uniformity Clause of the Constitution, but also whether the Uniformity Clause, of its own force, “extend[ed] ... to ... newly acquired territories.”⁷⁸ For him, the Clause did not apply to Puerto Rico because “the island of Porto Rico is a territory appurtenant and belonging to the United States, but not a part of the United States within the revenue clauses of the Constitution.”⁷⁹

Justice Brown, like other decision-makers of his day, warned of the consequences for U.S. sovereignty if the United States incorporated racially distinct peoples. For him, peoples of different “race[s], habits, laws and customs” from “outlying and distant possessions” threatened the very heart of white Anglo-Saxon dominance.⁸⁰ He warned of the “extremely serious” consequences if the offspring of the colonies’ inhabitants, “whether savages or civilized,” would become “entitled to all the rights, privileges and immunities of citizens.”⁸¹ He thus concluded that nothing forbade Congress from exercising wide-ranging political power over those possessions “inhabited by alien races, differing from us in religion, customs, laws, methods of taxation, and modes of thought.”⁸²

Justice White’s concurring opinion, which later became the controlling “doctrine of territorial incorporation,” fashioned a new category of territory--the “unincorporated” territory. According to Justice White, whether particular provisions of the Constitution apply in a territory depends on “the situation of the territory and its relations to the United States.”⁸³ Therefore, the question whether the Foraker Act’s tax on Puerto Rican goods was proper depended on a determination whether Puerto Rico was “incorporated into the United States.”⁸⁴ Because Congress did not intend to incorporate Puerto Rico through the Treaty of Paris, the Foraker Act, or by other means, Justice White determined that it was an unincorporated territory.⁸⁵

According to Justice White’s reading of international law and the U.S. Constitution, sovereign nations held the inherent right to acquire territory and, concomitantly, by “the terms stipulated in the treaty of cession or on such as its new master shall impose,”⁸⁶ to decide the nature of the relationship between that nation and its territory. He maintained that the United States specifically intended to incorporate all of the previously acquired territories, and that such intention was--and must be--made by Congress either expressly or implicitly.⁸⁷ One prior indicator of congressional intent to incorporate was whether the territory’s people were given U.S. citizenship; but as the U.S. Supreme Court later decided in Balzac v. Porto Rico, the granting of citizenship to a territory’s inhabitants does not evince Congress’ intent to incorporate a territory.⁸⁸ Therefore, Puerto Rico was not immediately incorporated after its acquisition. For Justice White, a decision to immediately incorporate had grave consequences: it implicated “bring[ing] all the alien people residing in acquired territory into the United States, and thus divid[ing] with them the rights which peculiarly belong to the citizens of the United States.”⁸⁹

Thus, perplexingly, Puerto Rico was both foreign and domestic at the same time. Justice White explained:

[W]hile in an international sense Porto Rico was not a foreign country, since it was subject to the sovereignty of and was owned by the United States, it was foreign to the United States in a domestic sense, because the island had not been incorporated into the United States, but was merely appurtenant thereto as a possession.⁹⁰

Pursuant to its plenary power under the Territorial Clause, Congress therefore could determine which portions of the Constitution apply, limited only by “restrictions of so fundamental a nature that they cannot be transgressed, although not expressed in so many words in the Constitution.”⁹¹

In dissent, Chief Justice Fuller rejected indefinite and unlimited congressional control over the territories.⁹² Fuller maintained that regarding the imposition of taxes, the Constitution requires “geographical uniformity”⁹³ in both states and territories. He repudiated the idea that Congress had the power to keep acquired territory “like a disembodied shade, in an intermediate state of ambiguous existence for an indefinite period.”⁹⁴ For Fuller, the majority’s theory would empower the United States to conquer distant countries and govern them “by different rules” in an “exercise of unrestricted power.”⁹⁵ Similarly, in dissent, Justice Harlan contended that the Constitution applied to all “who are subject to the authority of the United States.”⁹⁶ He also flatly rejected Congress’ ability to act outside of the Constitution to “engraft upon our republican institutions a colonial system such as exists under monarchical governments.”⁹⁷

As Judge José Cabranes later recognized, although the specific legal issue involved the legality of customs duties, the U.S. Supreme Court in Downes affirmed Congress’ power to distinguish between unincorporated and incorporated territories, which “gave judicial approval to the birth of ‘the American Empire.”’⁹⁸ Indeed, the first nine Insular Cases “ushered us into a second age of expansion” that did not admit territories through statehood, but held “colonies subject to almost absolute congressional authority.”⁹⁹ Judge Torruella similarly asserted that “the Supreme Court placed its imprimatur on a colonial relationship in which Congress could exercise virtually unchecked power over the unincorporated territories ad infinitum.”¹⁰⁰

1. Balzac v. Porto Rico and the Aftermath of the Insular Cases

Nearly twenty years after Downes, the U.S. Supreme Court rejected the notion that the granting of U.S. citizenship operated to incorporate an unincorporated territory.¹⁰¹ Jesus Balzac, an editor of a Puerto Rican newspaper, was charged with misdemeanor libel for comments published about Puerto Rico’s governor.¹⁰² Balzac argued that he was entitled to a trial by jury under the Sixth Amendment to the U.S. Constitution, even though Puerto Rico’s code of criminal procedure provided for jury trials only in felony cases.¹⁰³ The U.S. Supreme Court held that residents of unincorporated territories do not have a Sixth Amendment right to a jury trial.¹⁰⁴

Significantly, the Court ruled that the Jones Act, which had conferred U.S. citizenship on Puerto Rico’s inhabitants in 1917, did not operate to “incorporate[] Porto Rico into the United States.”¹⁰⁵ The U.S. Supreme Court proclaimed that residents of Puerto Rico could not demand a trial by jury because “[i]t is locality that is determinative of the application of the Constitution, in such matters as judicial procedure, and not the status of the people who live in it.”¹⁰⁶

Unlike Alaska, which was “sparsely settled” and amenable to settlement by white American citizens, the Court again viewed the Philippines and Puerto Rico as “distant ocean communities of a different origin and language from those of our continental people.”¹⁰⁷ As such, the Court did not believe a jury right should be imposed on these “ancient communities” with little knowledge of popular government.¹⁰⁸ The peoples of the unincorporated territories are therefore entitled only to “guaranties of certain fundamental personal rights declared in the Constitution.”¹⁰⁹ These fundamental rights are not those deemed “fundamentally important in a colloquial sense” or those that are “necessary to [the] []American regime of ordered liberty.”¹¹⁰ Instead, fundamental rights in the territorial context are those “which are the basis of all free government, which cannot be with impunity transcended.”¹¹¹

Therefore, to determine whether a constitutional guarantee applies to a territory, the Court asks whether extending such provision would be “impracticable and anomalous.”¹¹² In other words, when determining whether a constitutional guarantee has “extraterritorial effect,” the Court considers the “particular circumstances, the practical necessities, and the possible alternatives which Congress had before it.”¹¹³ Courts have employed this framework to decide whether to extend an array of constitutional protections to the unincorporated territories with mixed results.¹¹⁴

Most recently, in Boumediene v. Bush, the U.S. Supreme Court reaffirmed the Insular Cases and employed the “impracticable and anomalous” test to hold that “enemy combatants” confined at Guantánamo Bay Naval Station have a constitutional right to habeas corpus review of their detention.¹¹⁵ Finding that applying the constitutional right to habeas in Guantánamo would not be impracticable and anomalous, the Court held that the Suspension Clause of the Constitution “has full effect at Guantanamo Bay.”¹¹⁶ Scholars have analyzed the propriety of the Court’s reliance on the Insular Cases and the “impracticable and anomalous” test in Boumediene.¹¹⁷ Legal scholar Gerald Neuman contends that Boumediene presented “a sanitized account of the motivations for the Insular Cases doctrine, underplaying the racial element in U.S. colonialism,” and ignored modern-day effects.¹¹⁸ Indeed, according to Pedro Malavet, “[t]he Court reasserted a rule of plenary power over territorial citizens while barely acknowledging those citizens’ existence ....”¹¹⁹

1. Ongoing Impacts of the Doctrine of Territorial Incorporation

Although unacknowledged by the U.S. Supreme Court, the Insular Cases have long-lasting detrimental impacts on the peoples of the U.S. territories. Scholars assert that the Insular Cases reflect a discourse of exclusion and frame territorial peoples as perpetual “foreigners,” “outsiders,” and “others,” thereby facilitating their marginalization.¹²⁰ For example, legal scholar Efrén Rivera Ramos maintains that the Insular Cases reflect “a discourse that stresses the separateness between the conquering people and the conquered.”¹²¹ For Rivera Ramos, the “doctrine of incorporation” fosters the prevailing practice of constructing “the ‘other’ as a ‘separate,’ but subordinated, identity” to justify unequal treatment.¹²²

Rivera Ramos similarly recognizes that by describing Puerto Ricans as an inferior racial group incapable of self-governance, instead of as a people with a history and aspirations, the Supreme Court “defined Puerto Ricans not as a nation, but as inhabitants of an island that had become a possession of the United States.”¹²³ As legal scholar Juan Perea contends, “[p]lacing the political fate and identity of Puerto Ricans in the discretion of Congress guaranteed that racism would play a major role in shaping that fate.”¹²⁴ That racism and denial of humanity legitimates today’s continued control and exclusion.

In concrete terms, that exclusion impacts the everyday lives of the peoples of Puerto Rico, Guam, American Samoa, the U.S. Virgin Islands, and the Northern Mariana Islands in far-reaching ways--from the political to the economic, and the social to the cultural.¹²⁵ Residents of the territories lack political power on the national stage--they cannot vote in U.S. presidential elections¹²⁶ and have no voting representatives in Congress.¹²⁷ Territorial residents are statutory U.S. citizens (except for American Samoans, who are U.S. nationals), and, as some scholars have argued, this citizenship is second-class because Congress can revoke it at any time.¹²⁸

In the socio-economic sphere, territorial residents are also disadvantaged. For example, the U.S. Supreme Court has held that if there is a rational basis for doing so, federal programs can provide less aid to territorial residents.¹²⁹ Similarly, the Court held that it is constitutional for the Social Security Administration to discontinue Supplemental Security Income benefit payments to aged, blind, and disabled persons who move to the territories.¹³⁰

The Insular Cases framework also threatens customary rights and cultural practices in the territories. For example, an individual challenged Indigenous ancestry-based restrictions on certain acquisitions of land in the Northern Mariana Islands, which were designed to further the self-determination of Indigenous Chamorros and Carolinians.¹³¹ Courts have permitted these restrictions by holding that the relevant provisions of the U.S. Constitution (such as the Equal Protection Clause) do not apply in that territory.¹³² American Samoa’s ancestry-based restriction on the alienation of land also has been challenged, but the High Court of American Samoa held that the restriction survived strict scrutiny.¹³³

For many in the territories, the inability to decide their own political fate is deeply subordinating. These harms “are not isolated abstract ideas but are found in people’s ‘lived experiences,’ grounded in their ‘everyday lives.”’¹³⁴ Drawing on the work of Joe R. Feagin and Melvin P. Sikes on racism against African Americans, legal scholar Eric Yamamoto observes that these harms of injustice “have a cumulative impact on particular individuals, their families, and their communities.”¹³⁵ They are, over time, “stored not only in individual memories but also in family stories and group recollections,” and “shape both ‘one’s way of living ... and one’s life perspective.”’¹³⁶ Legal scholar Julian Aguon poignantly describes how many Indigenous Chamorus of Guam feel “a sense of resignation” and defeat, and “have given up on the hope that [self-determination] will ever happen, so there’s kind of like a ‘learned helplessness.”’¹³⁷ Individuals and communities thus experience the psychic harm of having their histories and selves continually defined by others--of being “spectators of [their] history without being able to do anything.”¹³⁸

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1. Five Modern-Day Cases: The Insular Cases’ Lasting Impacts on Territorial Peoples’ Self-Determination Efforts

Five present-day cases, each in different ways implicating the Insular Cases, further reveal territorial peoples’ multifaceted self-determination efforts. Two cases lay bare Puerto Rico’s colonial relationship with the United States in both constitutional and statutory contexts. Another underscores American Samoans’ dispute over U.S. citizenship as a source of needed rights on the one hand or an encroachment on tradition and custom on the other. Yet another shines light on Indigenous Chamorus’ strategic employment of the Insular Cases to preserve a measure of self-determination. Finally, another exposes the incongruity of disallowing some territorial residents who formerly lived in one of the states from voting in U.S. presidential elections, while allowing individuals overseas who formerly lived in one of the states to do so. Each of these efforts confronts head-on the lasting legacy of the Insular Cases.

1. The Puerto Rico cases

During its October 2015 term, the U.S. Supreme Court decided two cases exposing the long-lasting effects of U.S. colonization in Puerto Rico. In Puerto Rico v. Sánchez Valle, the Court determined that, for purposes of the Double Jeopardy Clause, Puerto Rico and the United States are not separate sovereigns.²⁵⁶ In Puerto Rico v. Franklin California Tax-Free Trust, the Court ruled that Puerto Rico’s municipalities cannot file for Chapter 9 bankruptcy, but, at the same time, Puerto Rico cannot enact its own municipal bankruptcy law.²⁵⁷ This Section briefly describes both cases and their impacts. 

1. Puerto Rico v. Sánchez Valle

For some, Puerto Rico v. Sánchez Valle “is the most important case on the constitutional relationship between Puerto Rico and the United States since the establishment of the Commonwealth in 1952.”²⁵⁸ In 2008, defendants Luis Sánchez Valle and Jaime Gómez Vázquez were separately indicted for selling a firearm without a permit in violation of the Puerto Rico Arms Act of 2000.²⁵⁹ While those charges were pending, federal grand juries indicted the two men, based on the same transactions, for violations of similar U.S. gun trafficking statutes.²⁶⁰ Both defendants pleaded guilty to the federal charges and moved to dismiss the Commonwealth of Puerto Rico charges, arguing that the Puerto Rico charges violated the constitutional protection against double jeopardy.²⁶¹ The trial courts dismissed the charges, but the Puerto Rico Court of Appeals reversed.²⁶² The Supreme Court of Puerto Rico then reversed the appellate court, holding that their prosecutions on the Puerto Rico charges violated the Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution.²⁶³

The U.S. Supreme Court agreed and held that Puerto Rico and the United States are not separate sovereigns for purposes of the Double Jeopardy Clause.²⁶⁴ In so holding, the Court determined that “sovereignty” in the double jeopardy context “does not bear its ordinary meaning.”²⁶⁵ For the Court, “[t]he degree to which an entity exercises self-governance-- whether autonomously managing its own affairs or continually submitting to outside direction--plays no role in the analysis.”²⁶⁶ Equally unimportant is an entity’s “ability to enact and enforce its own criminal laws”²⁶⁷ or whether it “possesses the usual attributes, or acts in the common manner, of a sovereign entity.”²⁶⁸ Instead, the Court looks only to the “ultimate source” or “deepest wellsprings” of the entity’s self-governing power.²⁶⁹

According to the Court, states and Indian tribes are separate sovereigns from the federal government because the source of their power is “primeval”--it pre-existed the formation of the Union.²⁷⁰ In contrast, “the oldest roots of Puerto Rico’s power to prosecute lie in federal soil.”²⁷¹ The Court traced the history of Puerto Rico’s relationship with the United States, starting in 1898 when Spain “ceded” Puerto Rico to the United States, through the next century when the two “forged a unique political relationship, built on the island’s evolution into a constitutional democracy exercising local self-rule.”²⁷²

In 1952, Puerto Rico adopted its own constitution and became the Commonwealth of Puerto Rico, a new and “exceptional” self-governing entity.²⁷³ At the same time, the U.S. Supreme Court recognized Puerto Rico as holding “a measure of autonomy comparable to that possessed by the States.”²⁷⁴ However, for the Court, these intervening indicators of Puerto Rico’s self-governance “do[] not break the chain.”²⁷⁵ Therefore, in tracing Puerto Rico’s prosecutorial power “all the way back, [the Court] arrive[d] at the doorstep of the U.S. Capitol.”²⁷⁶

Nowhere in the opinion did the Court mention the concept of the “unincorporated” territory or refer to Puerto Rico as a U.S. colony.²⁷⁷ Nor did it analyze the Insular Cases themselves,²⁷⁸ save a passing reference to Grafton v. United States,²⁷⁹ in which the U.S. Supreme Court held that the Philippines--then a U.S. territory--had no power to prosecute a defendant for murder after a federal court had acquitted him.²⁸⁰ In a seemingly incongruent fashion, the Court rejected the applicability of Grafton because “[f]ollowing 1952, Puerto Rico became a new kind of political entity, ... governed in accordance with, and exercising self-rule through, a popularly ratified constitution.”²⁸¹ Nonetheless, for the Court, the result “ends up the same”: the source of Puerto Rico’s power is the U.S. Congress.²⁸²

In dissent, Justice Breyer, joined by Justice Sotomayor, rejected the conclusion that Congress is the ultimate source of Puerto Rico’s prosecutorial power. He questioned the majority’s attempt to seek the “furthest-back” power source.²⁸³ “We do not trace Puerto Rico’s source of power back to Spain or to Rome or to Justinian,” he wrote, “nor do we trace the Federal Government’s source of power back to the English Parliament or to William the Conqueror or to King Arthur.”²⁸⁴

He thus urged the Court to consider “the broader context of Puerto Rico’s history.”²⁸⁵ For him, “congressional activity and other historic circumstances can combine to establish a new source of power.”²⁸⁶ He noted in particular that, in response to the adoption of Puerto Rico’s constitution, the United States in 1953 reported to the United Nations that Puerto Rico was no longer a non-self-governing territory.²⁸⁷ The United States’ memorandum to the United Nations declared that Puerto Rico had reached “the full measure of self-government”²⁸⁸ and that “Congress has agreed that Puerto Rico shall have, under [its] Constitution, freedom from control or interference by the Congress in respect to internal government and administration.”²⁸⁹ The United Nations thereby removed Puerto Rico from the list of non-self-governing territories, and the U.N. General Assembly determined that “the people of the Commonwealth of Puerto Rico have been invested with attributes of political sovereignty which clearly identify the status of self-government attained by the Puerto Rican people as that of an autonomous political entity.”²⁹⁰ Thus, for Justice Breyer, the “history of statutes, language, organic acts, traditions, statements, and other actions, taken by all three branches of the Federal Government and by Puerto Rico” indicated “that the ‘source’ of Puerto Rico’s criminal law ceased to be the U.S. Congress and became Puerto Rico itself, its people, and its constitution.”²⁹¹

For some, Sánchez Valle drastically altered the long-held belief that Puerto Ricans had a collective right to self-government.²⁹² For others, the outcome validated what they had consistently argued--Puerto Rico’s Commonwealth status did not alter its political identity as a colony.²⁹³ On the one hand, looking to the bottom reveals valuable protection for criminal defendants in Puerto Rico against multiple prosecutions for the same misconduct,²⁹⁴ but, on the other, it unmasks Puerto Rico’s glaring lack of “wide-ranging self-rule,”²⁹⁵ rooted in part in the Insular Cases. As discussed below, Puerto Ricans increasingly call on the United States to repair the enduring imbalance of power between the island and its overseer,²⁹⁶ but many disagree on the precise method to restore their self-determination.²⁹⁷ Sánchez Valle, along with Puerto Rico v. Franklin California Tax-Free Trust, described below, shines light on the colonial experience of millions of Puerto Rico’s people under U.S. rule. As attorney Andrés González Berdecía contends, the two cases “illustrate [] perfectly why Puerto Rico remains a 21st century colony of the United States.”²⁹⁸

1. Puerto Rico v. Franklin California Tax-Free Trust

In Puerto Rico v. Franklin California Tax-Free Trust, the U.S. Supreme Court again sharply delineated the limits of Puerto Rico’s self-governing power. Mired in over seventy billion dollars in public debt, Puerto Rico enacted the Puerto Rico Corporation Debt Enforcement and Recovery Act, which sought to enable Puerto Rico’s public utilities to restructure their debt.²⁹⁹ Investors brought separate suits against Puerto Rico and government officials, challenging the validity of the Act.

In a case involving Puerto Rico’s ability to respond to the most severe fiscal crisis in its history,³⁰⁰ the U.S. Supreme Court held that Chapter 9 of the federal Bankruptcy Code preempted Puerto Rico’s Recovery Act.³⁰¹ Writing for the majority, Justice Thomas explained that Puerto Rico is not a “State,” pursuant to the 1984 amendments to the Bankruptcy Code, “for the purpose of defining who may be a debtor under chapter 9,” and therefore it cannot authorize its municipalities to file for Chapter 9 relief.³⁰² At the same time, it “remains a ‘State’ for other purposes related to Chapter 9, including that chapter’s preemption provision,” so its Recovery Act is preempted by federal law.³⁰³ Thus, because Puerto Rico is not a “State,” its municipalities cannot file for bankruptcy under Chapter 9, but because it is a “State,” Chapter 9’s preemption provision “bars [it] from enacting its own municipal bankruptcy scheme ....”³⁰⁴

The majority viewed the case as one of simple statutory construction: “The plain text of the Bankruptcy Code begins and ends our analysis.”³⁰⁵ Any mention of the Insular Cases was conspicuously absent. However, the Court *433 could not have reached such a straightforward result unquestionably affirming Congress’s plenary power over Puerto Rico without reliance--however implicitly--on the Insular Cases doctrine.

In dissent, Justice Sotomayor, joined by Justice Ginsburg, criticized the majority for failing to read the statute in the context of the overall statutory scheme.³⁰⁶ For Justice Sotomayor, “[t]he structure of the Code and the language and purpose of [the preemption provision] demonstrate that Puerto Rico’s municipal debt restructuring law should not be read to be prohibited by Chapter 9.”³⁰⁷ Instead, she wrote that the preemption provision “by its terms presupposes that Chapter 9 applies only to States who have the power to authorize their municipalities to invoke its protection.”³⁰⁸ Therefore, “[b]ecause Puerto Rico’s municipalities cannot pass through the [provision governing who may be a debtor] gateway to Chapter 9, nothing in the operation of a Chapter 9 case affects Puerto Rico’s control over its municipalities.”³⁰⁹

Justice Sotomayor also criticized the majority for ignoring the real-world impacts on the Puerto Rican people and for “reject[ing] contextual analysis in favor of a syllogism.”³¹⁰ She contended that “[p]re-emption cases may seem like abstract discussions of the appropriate balance between state and federal power[, b]ut they have real-world consequences.”³¹¹ She warned that preemption would imperil public services like electricity, drinking water, roads, and public transportation.³¹² She then acknowledged that Puerto Rico would be “powerless” to avert this “looming ‘humanitarian crisis.”’³¹³ For these reasons, she stated that “[s]tatutes should not easily be read as removing the power of a government to protect its citizens.”³¹⁴

Justice Sotomayor’s call to heed “real-world consequences” elevated the perspective of those most affected: Puerto Rico’s people. For her, the majority’s decision left Puerto Rico’s government powerless to exercise a measure of self-governance to assist its people in a humanitarian crisis. That humanitarian crisis was triggered in part when the U.S. government phased out tax incentives for U.S. corporations operating in Puerto Rico, causing a recession.³¹⁵ Severe government cuts to education and healthcare directly affected families who relied on government services.³¹⁶ Public schools were closed, public workers’ benefits were cut, “the sales tax was increased to 11.5%,”³¹⁷ and the Department of Health suffered $135 million in budget cuts from 2011 to 2015.³¹⁸

Soon after Franklin California Tax-Free Trust was decided, Congress passed and President Obama signed the Puerto Rico Oversight, Management, and Economic Stability Act (“PROMESA”--ironically, “promise” in Spanish), which gave sweeping power to a seven-member financial oversight board to take over negotiations with Puerto Rico’s creditors.³¹⁹ Among other things, the board has the power to decide which projects are funded, to approve budgets, and to veto debt issuances, without regard to Puerto Rico’s constitution or the decisions of Puerto Rico’s government.³²⁰ The oversight board’s seven members are appointed by the President of the United States,³²¹ and Puerto Rico’s Governor (or designee) is only an ex officio member.³²²

Many commentators argue that Puerto Rico’s inability to restructure its own debt and the concomitant enactment of PROMESA are manifestations of U.S. colonialism that negatively impact those already at the bottom.³²³ PROMESA requires “the reduction of the federal minimum wage from $7.25 to $4.25 an hour for workers 25 years old and younger,” unchangeable by Puerto Rico’s Governor without the oversight board’s approval.³²⁴ In January 2017, the oversight board ordered Puerto Rico’s Governor “to present a plan that would generate $4.5 billion a year in revenue or savings through 2019” and include drastic cuts to healthcare and higher education.³²⁵ The board recommended the closure of 300 public schools and teacher furloughs, and, as of May 2017, 178 schools were slated for closure and thousands of teachers’ contracts were not renewed.³²⁶ It also recommended a $450 million cut over four years to Puerto Rico’s public university, though Puerto Rico’s Governor has proposed a lesser, though still dire, cut of $241 million, as $450 million “would be a ‘dramatic negative’ that would be ‘difficult for the university to absorb.”’³²⁷ In addition, $850 million in Affordable Care Act funds are slated for elimination in 2018.³²⁸ Puerto Rico’s Governor acknowledged that “[t]here has to be sacrifice everywhere,” but underscored that low-income individuals without healthcare and parents of public schoolchildren would be the hardest hit.³²⁹ This is particularly alarming in light of Puerto Rico’s twelve percent unemployment and forty-five percent poverty rates,³³⁰ the catastrophic impacts of Hurricane Maria,³³¹ and ongoing massive emigration to the continental United States.³³²

Puerto Rico is now in the midst of a massive bankruptcy-like restructuring process pursuant to PROMESA.³³³ As creditors battle over what is due, observers point to the colonial conditions laid bare by Puerto Rico’s economic crisis.³³⁴ One commentator observed that PROMESA “continues to treat Puerto Rico and its debt as an anomaly--neither state, nor municipality, which leaves it in a nebulous space ....”³³⁵ Many Puerto Ricans worry that their futures are in the hands of a faraway oversight board and federal judge,³³⁶ who may not “take into account basic essentials of safety, health and education.”³³⁷ Others criticize the across-the-board cuts to salaries, hours, pensions, education, and services, as well as the looming choices Puerto Ricans will have to make between basic necessities like housing and healthcare.³³⁸

In light of Puerto Rico’s re-illuminated colonial status, Puerto Ricans have called for meaningful repair of the long-standing harms of injustice. Although all focus on redressing multiple political, economic, and social harms stemming from U.S. colonization, each group has a different approach. For example, some have renewed their calls for statehood.³³⁹ Puerto Rico’s Governor Ricardo Rosselló, a statehood supporter, approved a non-binding referendum allowing voters to choose between statehood or independence/free association.³⁴⁰ Connecting Puerto Rico’s financial crisis with its colonial status, Governor Rosselló argued, “If we compare ourselves with the other 50 states, the fundamental difference is our lack of rights, our lack of participation, and our lack of resources to move our jurisdiction forward .... Our colonial condition creates a situation of incredible inequality.”³⁴¹

At the same time, others continue to push for independence.³⁴² For example, María de Lourdes Santiago, a senator from the Puerto Rican Independence Party, warned that “[s]even unelected people are going to be controlling our lives,” much like “a dictatorship,” and called for “a legitimate process of decolonization.”³⁴³ Others who had embraced Puerto Rico’s Commonwealth status underscore Puerto Rico’s lack of meaningful self-rule.³⁴⁴ In 2016, Puerto Rico’s then-Governor Alejandro García Padilla, a Commonwealth supporter, told the U.N. Special Committee on Decolonization that the United States must fulfill the promises it made to the United Nations in 1953, when it requested that Puerto Rico be removed from the list of non-self-governing territories.³⁴⁵ He argued that the U.S. Supreme Court’s Franklin California Tax-Free Trust decision directly contradicted the United States’ stance that Puerto Rico was not a colony:³⁴⁶ “Starting from the right of self-determination of the Puerto Rican people, ... equality and respect must exist in the relationship between Puerto Rico and the United States based on the will of both peoples, and not one over the other.”³⁴⁷ The committee “call[ed] on the Government of the United States to assume its responsibility to expedite a process that would allow the people of Puerto Rico to exercise fully their right to self-determination and independence.”³⁴⁸

While the political status debate is waged in Puerto Rico and Washington, D.C., Puerto Ricans continue to protest PROMESA as an extension of U.S. colonialism and decry the harsh impacts on those most in need.³⁴⁹ At bottom, their calls underscore their efforts to secure a measure of self-governance and “their determination to have control of their own destiny.”³⁵⁰

2. Tuaua v. United States

Tuaua v. United States explicitly employs the Insular Cases framework to resolve a clash between a small group of American Samoans on the U.S. continent who desire U.S. citizenship and American Samoans in American Samoa who do not.³⁵¹ In Tuaua, the plaintiffs were American Samoans living on the U.S. continent, who are non-citizen nationals and ineligible for civil service jobs.³⁵² They filed suit arguing that those born in American Samoa are citizens under the Fourteenth Amendment’s Citizenship Clause.³⁵³ In 2015, the District of Columbia Circuit Court of Appeals held that in light of the Insular Cases and American Samoa’s own wishes, American Samoans are not entitled to birthright citizenship.³⁵⁴ In 2016, the U.S. Supreme Court declined to hear the case.³⁵⁵

Acknowledging that the Insular Cases “may now be deemed politically incorrect,” the D.C. Circuit Court of Appeals, in an opinion written by Judge Brown, noted that the Cases’ “framework remains both applicable and of pragmatic use in assessing the applicability of rights to unincorporated territories.”³⁵⁶ The court, therefore, applied the Insular Cases’ framework to determine whether the right to birthright citizenship is “fundamental” for persons born in the U.S. territories.³⁵⁷ According to the court, “fundamental” has a distinct meaning in the territorial context: It applies “only to the narrow category of rights and ‘principles which are the basis of all free government.”’³⁵⁸ In contrast, “non-fundamental” rights are “those artificial, procedural, or remedial rights that ... are nonetheless idiosyncratic to the American social compact or to the Anglo-American tradition of jurisprudence.”³⁵⁹

The court declared that it was “unconvinced a right to be designated a citizen at birth under the jus soli tradition, rather than a non-citizen national, is a ‘sine qua non for “free government”’ or otherwise fundamental under the Insular Cases’ constricted understanding of the term.”³⁶⁰ The court explained that it must ask “which guarantees of the Constitution should apply in view of the particular circumstances, the practical necessities, and the possible alternatives which Congress had before it.”³⁶¹ In other words, it must query “whether the circumstances are such that recognition of the right to birthright citizenship would prove ‘impracticable and anomalous,’ as applied to contemporary American Samoa.”³⁶²

The court determined that “the American Samoan people have not formed a collective consensus in favor of United States citizenship. In part this reluctance stems from unique kinship practices and social structures inherent to the traditional Samoan way of life, including those related to the Samoan system of communal land ownership.”³⁶³ The court pointed to aiga, or extended families, who “communally own virtually all Samoan land,” and matais, or chiefs, who “have authority over which family members work what family land and where the nuclear families within the extended family will live.”³⁶⁴ The government of American Samoa was “concern[ed] that the extension of United States citizenship to the territory could potentially undermine these aspects of the Samoan way of life.”³⁶⁵ Specifically, it feared that “the extension of citizenship could result in greater scrutiny under the Equal Protection Clause of the Fourteenth Amendment, imperiling American Samoa’s traditional, racially-based land alienation rules.”³⁶⁶ The court thus believed “it anomalous to impose citizenship over the objections of the American Samoan people themselves, as expressed through their democratically elected representatives.”³⁶⁷

Calling the United States’ imposition of citizenship on American Samoa “an exercise of paternalism--if not overt cultural imperialism,”³⁶⁸ the court refused to “forcibly impose a compact of citizenship--with its concomitant rights, obligations, and implications for cultural identity--on a distinct and unincorporated territory of people, in the absence of evidence that a majority of the territory’s inhabitants endorse such a tie and where the territory’s democratically elected representatives actively oppose such a compact.”³⁶⁹ Citing the U.N. Charter, the court determined that it could “envision little that is more anomalous, under modern standards, than the forcible imposition of citizenship against the majoritarian will.”³⁷⁰

On the one hand, it is easy to understand how the denial of U.S. citizenship to American Samoans contributes to their marginalization. American Samoans are unable to obtain civil service jobs and certain military positions, must pay for and navigate the naturalization process if they desire U.S. citizenship, are disadvantaged in sponsoring foreign-national family members for immigration visas, are denied the right to vote in national, state, and local elections, cannot serve on juries, and experience a feeling of otherness and exclusion.³⁷¹

Indeed, many civil rights attorneys and scholars viewed the denial of birthright U.S. citizenship as a stark violation of American Samoans’ constitutional rights.³⁷² Many amicus curiae briefs supporting Tuaua’s writ of certiorari to the U.S. Supreme Court reflect this view. For example, a brief by citizenship scholars contends “that the United States government cannot assert authority over its territories and demand allegiance from individuals born on United States soil without also recognizing that, by definition and common-law tradition, those individuals are entitled to the rights and privileges enjoyed by all citizens of the United States.”³⁷³ The brief of the League of United Latin American Citizens, Asian Americans Advancing Justice, and the National Asian Pacific American Bar Association similarly argues that American Samoans are wrongfully being “denied U.S. citizenship based on racial and cultural stereotypes.”³⁷⁴ Other commentators frame the issue as one simply of “the insult of second-class status and the injury of uncertainty [with respect to citizenship],” and describe the American Samoan government’s concerns as “more emotionally than legally compelling.”³⁷⁵

On the other hand, however, looking to the bottom reveals that many American Samoans--as an exercise of their right to self-determination--rightly do not desire U.S. citizenship. As reflected in the brief of the government of American Samoa and Congressman Eni F.H. Faleomavaega, American Samoans are concerned that U.S. citizenship will invite further scrutiny of their way of life and encroachment on local government.³⁷⁶ For example, the brief argues that judicial imposition of birthright citizenship “would have unintended negative consequences for” American Samoa’s culture and tradition, which Congress has protected for over a century.³⁷⁷ It contends particularly that fa’a Samoa “would likely face heightened scrutiny under the United States Constitution ...,” and the communal land system that “is protected by Samoan law restricting the sale of community land to anyone with less than fifty percent racial Samoan ancestry” could be threatened.³⁷⁸

The brief also maintains that “[t]he imposition of birthright citizenship would upset a political process that ensures self-determination for the people of unincorporated territories.”³⁷⁹ It argues that the Insular Cases allow American Samoa and Congress together “to maintain a deliberate distance between the territory and the law of the United States” to protect American Samoa’s cultural autonomy.³⁸⁰ It also argues that if this framework is upended by a novel extension of the Citizenship Clause to American Samoa, “new challenges to aspects of the fa’a Samoa will be subject to new analysis consistent with newly articulated constitutional principles.”³⁸¹

Arguing for the retention of the Insular Cases and against U.S. citizenship may seem counterintuitive, but not surprising in light of the deep connections American Samoans have to their Indigenous traditions and culture. “The communal land and matai systems are such pillars of the cultural system that there is a widespread fear that any change to the political structure may affect their durability.”³⁸² Many believe that “[o]nce the system of land ownership is put in jeopardy, ‘the whole fiber, the whole pattern of the Samoan way of life will be forever destroyed.”’³⁸³ To that end, American Samoans “have potentially given up many rights and benefits for which they would otherwise be eligible” in order to maintain their ability to practice their culture and traditions as they see fit.³⁸⁴

*443 It is also not surprising in view of the gradual dismantling of Indigenous sovereignty in the territories. For example, in the Davis v. Commonwealth Election Commission case, the Ninth Circuit Court of Appeals upheld the district court’s decision to strike down a Commonwealth of the Northern Mariana Islands law restricting voting in certain elections to “persons of Northern Marianas descent.”³⁸⁵ The law specified that only those of Northern Marianas descent could vote on proposed constitutional amendments that govern restrictions on the alienation of land to Indigenous Chamorros and Carolinians.³⁸⁶ Such voting limitations were put in place to protect the Northern Mariana Islands’ ancestry-based land-alienation provisions.³⁸⁷

Although the Ninth Circuit previously upheld the Northern Mariana Islands’ ancestry-based land-alienation laws by recognizing that “[t]he Bill of Rights was not intended ... to operate as a genocide pact for diverse native cultures,”³⁸⁸ the Ninth Circuit’s decision in Davis reveals that threats to Indigenous practices in the territories persist. American Samoa and its people thus seek to preserve their profound connections to their land as a crucial component of their self-determination. For them, this means maintaining the status quo--as is their self-determined right--in order to avoid further scrutiny and gradual encroachment on their Indigenous ways of life. 

3. Davis v. Guam

In Davis v. Guam, looking to the bottom reveals seemingly counterintuitive attempts to proactively use the Insular Cases as a shield against reverse discrimination attacks. In 2011, Arnold Davis, a white resident of Guam, sued Guam in federal district court, alleging that the territory unlawfully discriminated against him when it prohibited him from registering to vote in a political status plebiscite that limited eligibility to “Native Inhabitants of Guam.”³⁸⁹ “Guam law directs the territory’s Commission on Decolonization to ‘ascertain the intent of the Native Inhabitants of Guam as to their future political relationship with the United States of America.”’³⁹⁰ It also provides for a future plebiscite in which “Native Inhabitants of Guam”--individuals who became U.S. citizens by virtue of the 1950 Organic Act of Guam and their descendants--will choose between independence, free association with the United States, or statehood.³⁹¹ “Guam will conduct the plebiscite if and when 70 percent of eligible Native Inhabitants register.”³⁹² The Commission on Decolonization will then “transmit the plebiscite’s results to the President, Congress and the United Nations ....”³⁹³

Davis alleged that Guam’s law racially discriminated against him in violation of the Equal Protection and Due Process Clauses of the Fourteenth Amendment, the Fifteenth Amendment, the Voting Rights Act, and the Organic Act of Guam.³⁹⁴ The U.S. District Court for the District of Guam dismissed the case for lack of standing and ripeness.³⁹⁵ The Ninth Circuit Court of Appeals reversed and remanded.³⁹⁶

On remand, in his motion for summary judgment, Davis denied the existence of colonization’s harms to Guam’s Indigenous Chamorros.³⁹⁷ For him, Guam cannot articulate “a compelling state interest to justify its discriminatory voting scheme” because it cannot show “that Native Inhabitants of Guam are entitled to reparations for any alleged wrongs committed against them as a race.”³⁹⁸ For the conservative advocacy group representing Davis, the Center for Individual Rights, Chamorros are instead a “favored” race above all others--the voting limitation is a “tactic” waged by Chamorros to “build[] a racial identity for a favored ‘native’ race in opposition to ‘other’ races.”³⁹⁹

It is significant that a white U.S. citizen is once again claiming reverse discrimination to dismantle a benefit for “Native Inhabitants” in the style of Rice v. Cayetano, in which the U.S. Supreme Court ruled that a Native Hawaiian-only voting limitation was an unlawful proxy for race.⁴⁰⁰ But perhaps most significant about the Davis case is Guam’s strategic use of the Insular Cases framework to advance a limited measure of self-determination for Chamorros. Guam argues that Congress, pursuant to its plenary power under the Territorial Clause, can treat territories in ways that would otherwise offend the Constitution.⁴⁰¹ Thus, as an instrumentality of Congress and in employing Congress’s “Native Inhabitant” classification, Guam can also limit its political status plebiscite to a particular group of people, even if based on ancestry.⁴⁰²

In particular, Guam argues that in the unincorporated territories, Congress can make ancestry-based restrictions “so long as the discriminatory classification is supported by any conceivable rational basis.”⁴⁰³ Key to Guam’s argument is that the Guam law in question, though a territorial law, was “enacted in response to a federal measure,” Guam’s Organic Act.⁴⁰⁴ In Guam’s Organic Act, Congress identified a class of persons--“Native Inhabitants of Guam”--“to whom it extended citizenship and a limited measure of self-government, with the understanding that a fuller measure would one day follow.”⁴⁰⁵ Because it was enacted in response to that measure, Guam argues that its law limiting voting in the political status plebiscite should likewise be subject to rational basis review.⁴⁰⁶

Indeed, in some cases from the Pacific Island territories, territorial peoples have employed the Insular Cases framework as a vehicle for limited self-determination. In Wabol v. Villacrusis, for example, the Ninth Circuit upheld Congress’s power under the Territorial Clause to shield ancestry-based restrictions on certain acquisitions of land from the Equal Protection Clause.⁴⁰⁷ Article XII of the constitution of the Commonwealth of the Northern Mariana Islands “provides that ‘[t]he acquisition of permanent and long-term interests in real property within the Commonwealth shall be restricted to persons of Northern Marianas descent.”’⁴⁰⁸ The Ninth Circuit determined that applying the Equal Protection Clause in this instance would frustrate the interests of both the people of the Northern Mariana Islands and the United States, as well as threaten Native culture, property, and social identity:

We think it clear that interposing this constitutional provision would be both impractical and anomalous in this setting. Absent the alienation restriction, the political union would not be possible .... For the NMI people, the equalization of access would be a hollow victory if it led to the loss of their land, their cultural and social identity, and the benefits of United States sovereignty. It would truly be anomalous to construe the equal protection clause to force the United States to break its pledge to preserve and protect NMI culture and property. The Bill of Rights was not intended to interfere with the performance of our international obligations. Nor was it intended to operate as a genocide pact for diverse native cultures.⁴⁰⁹

As Guam contended in its motion for summary judgment, Congress similarly “saw fit [by way of Guam’s Organic Act] to uphold its international obligations vis-à-vis the island’s ‘native inhabitants,’ guaranteeing them a limited measure of self-government, with the understanding that the ultimate expression of self-determination had yet to occur.”⁴¹⁰ “[Guam’s Organic Act] contribute[s] toward fulfillment of the obligation assumed by the United States under article 73 of the United Nations Charter to promote the political, economic, social, and educational advancement of the inhabitants of the non-self-governing Territories under United States administration.”⁴¹¹ As such, Guam argues, its law limiting voting in the political status plebiscite, which employs the Guam Organic Act’s “Native Inhabitant” definition, furthers the United States’ obligation to repair the lasting harms of colonization.⁴¹²

On March 8, 2017, the U.S. District Court for the District of Guam ruled in Davis’s favor.⁴¹³ The court held “that the Plebiscite statute impermissibly imposes race-based restrictions on the voting rights of non-Native Inhabitants of Guam, in violation of the Fifteenth Amendment,” and also violates the Fourteenth Amendment.⁴¹⁴ The court flatly rejected Guam’s Insular Cases argument because Congress “explicitly extended the Fifteenth Amendment and the Equal Protection Clause of the Fourteenth Amendment to Guam when it enacted the Organic Act of Guam.”⁴¹⁵ Guam has appealed to the Ninth Circuit Court of Appeals.⁴¹⁶

If Davis ultimately prevails, Guam’s commitment to repair historical harms will be significantly impaired. All voters in Guam--even those not within the class of intended beneficiaries of the right to decolonization--will be able to vote in a future political status plebiscite. This result discounts the need to rectify injustices uniquely suffered by the “Native Inhabitants of Guam”--those identified in Guam’s Organic Act as holding the right to exercise their collective self-determination through a future decolonization process. This impending threat to the “Native Inhabitant” vote is particularly critical today, when some are increasingly calling for independence from the United States to facilitate Guam’s decolonization.⁴¹⁷

Moreover, if the appellate court agrees that “Native Inhabitant” is an impermissible racial classification, other Chamorro programs are at risk. The Chamorro Land Trust Act, which requires the Chamorro Land Trust Commission “to advance the social, cultural and economic development and well-being of the Chamorro people by way of residential, agricultural and commercial land distribution and economic assistance programs,”⁴¹⁸ uses the same “Native Inhabitants” definition.⁴¹⁹ If a recently filed lawsuit by the U.S. Department of Justice⁴²⁰ successfully dismantles this program, as many fear, Chamorros could lose land being held in trust in part to restore a limited measure of self-determination.

Similar fears accompanied the U.S. Supreme Court’s decision to strike down a Native Hawaiian-only voting limitation in elections for trustees to the quasi-state agency, the Office of Hawaiian Affairs (OHA), in Rice v. Cayetano.⁴²¹ By characterizing programs for Native Hawaiians as “racial preferences,” Rice not only undermined that Native Hawaiian self-governance effort, but it “ignite[d] a rash of new ‘civil rights’ lawsuits to dismantle Hawaiian health care, education, housing, and cultural programs.”⁴²² In the 2016 election, a conservative Native Hawaiian, who is opposed to the OHA’s support of Native Hawaiian programs, won a seat as an OHA trustee by appealing to non-Native Hawaiian voters who gained the right to vote in Rice.⁴²³

Thus, Chamorro attempts to deploy the Insular Cases framework as a shield against reverse discrimination attacks and “to fight for liberation”⁴²⁴ have urgent and far-reaching consequences. The outcome will impact not only the Davis case, but ongoing Chamorro efforts to support their material and cultural needs and heal persisting wounds of U.S. colonization.

4. Segovia v. Board of Election Commissioners

Segovia v. Board of Election Commissioners reveals the Insular Cases’ constriction of territorial peoples’ rights to participation in the larger U.S. polity. Six U.S. citizens who are former residents of Illinois and who now reside in Puerto Rico, Guam, and the U.S. Virgin Islands challenged the constitutionality of the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA).⁴²⁵ They claimed that UOCAVA violates their rights to equal protection and due process because it bars them from casting Illinois absentee ballots in federal elections now that they reside in those three territories.⁴²⁶ In contrast, U.S. citizens who are former Illinois residents can cast Illinois absentee ballots if they move to the Northern Mariana Islands, American Samoa (pursuant to the Illinois Military and Overseas Voter Empowerment Act), or a foreign country.⁴²⁷ The plaintiffs argued that UOCAVA’s “selective enfranchisement” of absentee voters in the Northern Mariana Islands deprives absentee voters in Puerto Rico, Guam, and the U.S. Virgin Islands of the fundamental right to vote.⁴²⁸

Pursuant to UOCAVA, “State” refers to a U.S. State, the District of Columbia, the Commonwealth of Puerto Rico, Guam, the Virgin Islands, and American Samoa.⁴²⁹ An “overseas voter” is “a person who resides outside the United States and is qualified to vote in the last place in which the person was domiciled before leaving the United States.”⁴³⁰ Since Puerto Rico, Guam, the U.S. Virgin Islands, and American Samoa are considered “States,” the Segovia plaintiffs under UOCAVA are not “overseas voters.”⁴³¹

In 2016, Judge Gottschall of the U.S. District Court for the Northern District of Illinois granted the defendants’ motion for summary judgment as to the plaintiffs’ equal protection claim.⁴³² The court acknowledged the anomalous situation faced by many territorial residents in part rooted in the Insular Cases: “[T]he current voting situation in Puerto Rico, Guam, and the U.S. Virgin Islands is at least in part grounded on the Insular Cases, which have been described as ‘establish[ing] a less-than-complete application of the Constitution in some U.S. territories,’ based on explicitly racist views ....”⁴³³

However, the court ruled that “under the rational basis standard, the challenged provisions of the UOCAVA are constitutional.”⁴³⁴ The right to vote is “fundamental,” stated the court, but only for “citizens of a state.”⁴³⁵ In contrast, territorial residents do not have a constitutional right to vote in federal elections, and “[w]ithout a constitutional right, there can be no fundamental right.”⁴³⁶ “This is critical,” noted the court, “as only ‘[t]he guaranties of certain fundamental personal rights declared in the Constitution’ apply to the territories.”⁴³⁷ Because U.S. citizens residing in territories do not have a fundamental right to vote, “the fact that the individual plaintiffs are United States citizens who used to be able to vote in Illinois does not mean that they retain their fundamental right to vote when they move from Illinois to Puerto Rico, Guam, or the U.S. Virgin Islands.”⁴³⁸

The court acknowledged that UOCAVA treats voters who now reside in the Northern Mariana Islands differently than those who now reside in Puerto Rico, Guam, or the U.S. Virgin Islands, but because Congress has wide latitude to make rules and regulations respecting the territories, UOCAVA’s distinction between U.S. territories does not trigger strict scrutiny review.⁴³⁹ Instead, Congress rationally treated the Northern Mariana Islands differently than the other territories.⁴⁴⁰ As such, the court held that UOCAVA’s exclusion of the Northern Mariana Islands from the definition of “State” was rational.⁴⁴¹ The plaintiffs appealed to the Seventh Circuit Court of Appeals.⁴⁴²

On appeal, the plaintiffs argued that the lower court erred in improperly expanding the now-discredited Insular Cases to hold that the right to vote is not “fundamental” in the territories.⁴⁴³ They contended, among other things, that “[t]he district court’s conclusion ...--that heightened scrutiny never applies to the statutory extension of voting rights to new groups of individuals who are not constitutionally secured such rights--is a misapplication of equal-protection jurisprudence.”⁴⁴⁴ Instead, “[w]hen Congress or the states extend voting rights beyond the scope mandated by the Constitution,” as Congress did with UOCAVA, “that extension must satisfy heightened scrutiny when it excludes some citizens from voting, regardless of whether those voters would have a constitutional right to vote absent that legislative action.”⁴⁴⁵

Segovia is one of many lawsuits in which territorial residents have fought to secure the right to more fully participate in U.S. democracy. Territorial peoples have advanced both constitutional and international law arguments to obtain the right to vote in U.S. presidential elections.⁴⁴⁶ Courts have held that the denial of the right to vote in such elections to territorial residents does not offend the U.S. Constitution, and neither international treaties nor customary international law obligate the United States to grant territorial peoples the right to vote.⁴⁴⁷ Thus, territorial residents are subject to the plenary power of the United States, but have very little power to participate in the government that controls them. Indeed, as Judge Torruella noted in Igartúa-de la Rosa v. United States, “[n]o effective political pressure can be exercised by the subjects of this colonial relationship on the national political institutions with power to solve the problem.”⁴⁴⁸ This effectively insulates the United States from the transformative political pressures that could force it to repair centuries of colonization in the unincorporated territories.

*  *  *

1. The Territorial Clause of Article IV of the U.S. Constitution and the Insular Cases

The United States includes five populated territories: American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands. The United States has indefensibly held some of these territories in second-class status for more than a century.⁹³ The United States's claimed authority for what can only be described as colonial possession of its territories is the Territorial Clause of the Constitution, along with the notorious and judicially invented⁹⁴ “distinction between ‘incorporated’ and *1741 ' unincorporated' territories.”⁹⁵ This justification, known as the “territorial incorporation doctrine,” was established in the Insular Cases.⁹⁶

The Territorial Clause of the Constitution states that Congress may “make all needful Rules and Regulations respecting the Territory ... belonging to the United States.”⁹⁷ As Justice Kavanaugh asserted in Vaello Madero, “[t]he text of the Clause affords Congress broad authority to legislate with respect to the U.S. Territories.”⁹⁸ The Territorial Clause, however, does not authorize Congress to exercise power over U.S. territories indefinitely and requires constitutional safeguards.⁹⁹

The Territorial Clause is part of Article IV of the Constitution, which provides for the admission of new states¹⁰⁰ and the treatment of territories or other “property” belonging to the United States.¹⁰¹ It gives Congress plenary power over U.S. territories only pending their admission as states.¹⁰² And this understanding of the clause as affording Congress temporary plenary power over inhabited U.S. territories prevailed in law and fact with respect to incorporated territories.¹⁰³ It also was understood at the time that full constitutional rights and principles of justice extended to all territories under U.S. dominion.¹⁰⁴ But this understanding changed with the signing of the *1742 Treaty of Paris of 1898,¹⁰⁵ which ended the Spanish-American War and ceded several noncontiguous territories to the United States.¹⁰⁶

The Territorial Clause's original meaning conceived of territorial status as temporary, with the eventual goal of statehood or deannexation.¹⁰⁷ Territorial acquisition was understood to be part of a process toward incorporation into the United States, not a process of indefinite (or permanent) colonization.¹⁰⁸

Moreover, reading the Territorial Clause as permitting Congress to exercise perpetual plenary power over the territories with limited constitutional application is incompatible with the Constitution's structure. The Supreme Court articulated the notion in Reid v. Covert¹⁰⁹ that “no agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution.”¹¹⁰ Those restraints should safeguard the principles of individual liberty, separation of powers,¹¹¹ an independent judiciary, federalism, and state sovereignty. Thus, both a so-called “originalist”¹¹² view and a structural understanding of the Territorial Clause support decolonization.¹¹³

*1743 Other scholars agree.¹¹⁴ For example, Judge Torruella noted:

[The Supreme Court] clearly expressed the lack of constitutional authority for the United States to rule as a colonial power in Scott v. Sanford [sic] ....

...

Yet, in its treatment of the territories acquired after the Spanish-American War, the United States has followed the colonial formula to this very day, a path authorized by the Supreme Court's unwarranted reversal of established constitutional and historical precedent in the Insular Cases.¹¹⁵

Whereas the Insular Cases' subject matter varied, taken together, they stand for the proposition that overseas territories were unincorporated and not destined for statehood.¹¹⁶ Suffice it to say that the Insular Cases not only invented an incorporation doctrine with absolutely no grounding in the U.S. Constitution,¹¹⁷ but they also determined that, under that doctrine, the Constitution did not apply in full to the unincorporated territories on a racist and arbitrary basis.¹¹⁸ Residents of the territories were not guaranteed, for *1744 example, constitutional tax uniformity,¹¹⁹ jury trial rights,¹²⁰ voting rights,¹²¹ or full constitutional citizenship.¹²²

The Insular Cases' description of the scope of Congress's power and the application of the Constitution in the territories is intolerably ambiguous. Indeed, the Insular Cases do not “provide any analytical framework--much less a principled one--on how to determine which constitutional provisions are ‘fundamental’ enough to apply in unincorporated territories.”¹²³ The Insular Cases thus placed unincorporated territories in a perpetual state of limbo,¹²⁴ often with a “heads I win, tails you lose”¹²⁵ mentality favoring the *1745 United States while offering limited local leeway in matters regarding taxes, trade, voting, statutory citizenship, legal proceedings, and territorial governance.¹²⁶ That leeway allowed for local governance and some territorial constitutions to establish a kind of “spectral sovereignty” while also allowing for continuous “status manipulation” to keep the territories in check and operating in satisfaction of U.S. prerogatives.¹²⁷ Professor Sam Erman describes the doctrine as reminiscent of an “Alice in Wonderland” experience:

Rather than decide how constitutional rights operate in a territory, the Court focuses on what is insulated from their operation: colonial governance. Formally, this what is really a where: unincorporated territory. And that where is at bottom a who. Ultimately, colonized people are the ones who lack rights, and it is the ostensible nature of a population that drives Congress' decisions to incorporate and admit to statehood. The process is not reversible. Knowing what, where, and who does not reveal how citizenship, juries, equal protection, and other important constitutional guarantees will operate. The applicability of such guarantees remains largely unsettled where colonized people subject to colonial governance in unincorporated territories are concerned.¹²⁸

Thus, the Insular Cases invented the territorial incorporation doctrine, which is the idea that the U.S. territories are subject to Congress's plenary power indefinitely and that certain constitutional rights do not apply to their residents.¹²⁹ The Insular Cases' racist premises and flawed reasoning, and the resulting colonial condition of the territories, have been strongly criticized by scholars,¹³⁰ advocates,¹³¹ politicians,¹³² and, at times, even by the Supreme Court. Reid v. Covert provides an example:

*1746 [I]t is our judgment that neither the [Insular Cases] nor their reasoning should be given any further expansion. The concept that the Bill of Rights and other constitutional protections against arbitrary government are inoperative when they become inconvenient or when expediency dictates otherwise is a very dangerous doctrine and if allowed to flourish would destroy the benefit of a written Constitution and undermine the basis of our government.¹³³

Later, in Boumediene v. Bush, the Court clarified that it has “read the Insular Cases to teach that whether a constitutional provision has extraterritorial effect depends on the ‘particular circumstances, the practical necessities, and the possible alternatives that Congress had before it.”’¹³⁴ And, quoting from Reid, the Court noted that the extraterritorial question depends in particular on “whether judicial enforcement of the provision would be ‘impracticable and anomalous.”’¹³⁵ This perplexingly ambiguous “impractical and anomalous” standard has been used to determine whether a particular constitutional guarantee applies outside of the mainland United States.¹³⁶ For example, the U.S. Court of Appeals for the Tenth Circuit reiterated this test in Fitisemanu v. United States¹³⁷ and characterized it as the “lodestar of the Insular framework.”¹³⁸ The court then said that, “[a]s with all extraterritoriality questions, the answer turns on ‘objective factors and practical concerns,”’ such as “whether the circumstances are such that recognition of the right to birthright citizenship would prove impracticable and anomalous, as applied to contemporary American Samoa.”¹³⁹ This standard is so ambiguous as to be no standard at all. It simply gives power to a reviewing court to decide whether and when to extend full constitutional guarantees to U.S. territories and their residents.

The endurance of the Insular Cases under current law is an affront to core constitutional notions of equal protection and fair treatment, as well as to basic principles of human dignity and self-determination.¹⁴⁰ While the *1747 Supreme Court has explicitly overruled or minimized other cases rooted in racism and a national self-conception deemed intolerable today--most recently Korematsu v. United States¹⁴¹--the Insular Cases remain “good law.”¹⁴² Indeed, in October 2022, the Supreme Court denied a petition for certiorari in Fitisemanu, avoiding a clear opportunity to overrule the Insular Cases.¹⁴³

Worse yet, while repeatedly declining to overrule the Insular Cases, the Supreme Court appears to be shifting the doctrinal bases for maintaining the colonial subordinated status of the U.S. territories under the Territorial Clause and other constitutional doctrines. For example, in Vaello Madero, the Court not only ignored the Insular Cases' influence on its interpretation of the Territorial Clause, but also interpreted the clause to permit a form of rational basis review so weak as to render the Equal Protection Clause meaningless as applied to the U.S. territories.¹⁴⁴ Under this approach, the Court accepts whatever justification the U.S. government offers for its differential treatment of the territories as rational simply because it applies to the territories. It is unclear whether this is an intentional or subliminal adoption of the perpetual plenary power doctrine established under the Insular Cases' incorporation framework.¹⁴⁵ Either way, the rational basis standard applied in Vaello Madero is unsound and should be abandoned as being no standard at all.

1. The Supreme Court's Arbitrary and Irrational Treatment of Puerto Rico Under a Colonialist Territorial Framework

Vaello Madero is just one of several recent decisions in which the Supreme Court simultaneously ignored and doubled down on Puerto Rico's colonial status¹⁴⁶ to the extreme political, social, and economic detriment of the territory and its residents. A sampling of these cases reveals the arbitrary, unequal, and indeed, irrational treatment of Puerto Rico under U.S. colonial rule.

To begin, in Puerto Rico v. Sanchez Valle,¹⁴⁷ the Court determined that Puerto Rico is not a separate sovereign for constitutional double jeopardy *1748 purposes.¹⁴⁸ The opinion by Justice Kagan notes (without irony) that “Congress granted Puerto Rico additional autonomy” by statute in 1917 and that, “later, Congress enabled Puerto Rico to embark on the project of constitutional self-governance.”¹⁴⁹ Justice Kagan seems to acknowledge the “faux” sovereignty “allowed” to Puerto Rico while glibly concluding that because Puerto Rico was a colony “under Spanish sovereignty,”¹⁵⁰ its prosecutorial “authority derived from, rather than pre-existed association with, the Federal Government.”¹⁵¹ Without addressing parallels with the U.S. states' previous status as British colonies, she goes on to dismiss the Constitution of the Commonwealth of Puerto Rico by stating that, “[b]ack of the Puerto Rican people and their Constitution, the ‘ultimate’ source of prosecutorial power remains the U.S. Congress.”¹⁵² Thus, the Sanchez Valle Court, in a 7-2 decision, blithely ignored historical facts and mutually agreed upon laws and structures--including the determination of sovereignty with respect to local criminal law in Puerto Rico's constitution--to determine that Puerto Rico is not a separate sovereign for double jeopardy purposes.¹⁵³

That same year, the Court held in Puerto Rico v. Franklin California Tax Free Trust¹⁵⁴ that Puerto Rico could not reorganize its debt under the Puerto Rico Public Corporation Debt Enforcement and Recovery Act,¹⁵⁵ nor could it use the U.S. Bankruptcy Code to do so.¹⁵⁶ According to the Court's interpretation, the federal bankruptcy code treats Puerto Rico as a state such that the code preempts Puerto Rico's bankruptcy law but does not treat Puerto Rico as a state for the purposes of accessing the provisions of the code that authorize municipal debt reorganization.¹⁵⁷ Thus, the Court determined that Puerto Rico was a “state for some purposes of the Code but not others,”¹⁵⁸ thereby eliminating Puerto Rico's ability to address its fiscal crisis through either its own or the federal government's bankruptcy laws. To respond to *1749 this conundrum,¹⁵⁹ Congress did not amend the bankruptcy code¹⁶⁰ but instead passed the Puerto Rico Oversight, Management, and Economic Stability Act¹⁶¹ (PROMESA). PROMESA established a Fiscal Management and Oversight Board (FOMB) with broad federal statutory powers to reorganize Puerto Rico's debt and manage its fiscal affairs but without any meaningful local representation.¹⁶² FOMB was created by Congress under PROMESA, and its board members are appointed by the president, with no input by the Puerto Rican government or people.¹⁶³

FOMB was the subject of a 2020 case, Financial Management Oversight Board for Puerto Rico v. Aurelius Investment, LLC,¹⁶⁴ involving a challenge under the Appointments Clause.¹⁶⁵ Plaintiffs argued that FOMB board members were appointed without the advice and consent of the U.S. Senate *1750 in violation of the Appointments Clause, while defendants argued that the appointments were valid pursuant to the plenary powers granted by the Territorial Clause of Article IV.¹⁶⁶ Following a determination by the First Circuit that “the Board Members ... must be, and were not, appointed in compliance with the Appointments Clause,”¹⁶⁷ the Supreme Court reversed and held that the Appointments Clause did not apply to FOMB because the board was a “local” territorial entity.¹⁶⁸ As Justice Stephen Breyer put it, “whether the Board members are officers of the United States such that the Appointments Clause requires Senate confirmation ... turns on whether the Board members have primarily local powers and duties.”¹⁶⁹ Justice Breyer acknowledged that the Appointments Clause applies to Congress's actions under Article IV and noted that the “Board possesses considerable power--including the authority to substitute its own judgment for the considered judgment of the Governor and other elected officials.”¹⁷⁰ Yet he concluded that the Board's “power primarily concerns local matters,” and therefore, the Board members are not “Officers of the United States.”¹⁷¹

At the time of this Essay's publication, there was a case pending before the Supreme Court that involves FOMB resisting a document request by a Puerto Rican nonprofit media organization that relied on the general right of access to public documents enshrined in Puerto Rico's constitution.¹⁷² In Financial Oversight & Management Board for Puerto Rico v. Centro de Periodismo Investigativo, Inc.,¹⁷³ FOMB claims that it is entitled to sovereign immunity from private suit under the Eleventh Amendment to the Constitution, and that Congress has neither waived nor abrogated that immunity.¹⁷⁴ For those who, like me, wonder how either Puerto Rico or FOMB can claim either sovereignty or sovereign immunity, the government offers an odd “no-win” rationale. The argument is summarized by the U.S. solicitor general:

As a territory, Puerto Rico is not encompassed within the Eleventh Amendment, which speaks to the sovereign immunity of States. Nevertheless, this Court has long recognized that the government established in Puerto Rico is sovereign and entitled to sovereign immunity *1751 that prevents the territorial government from being sued without its consent.¹⁷⁵

Under this argument, even though Puerto Rico's sovereign immunity does not derive from the Eleventh Amendment, the requirement of a clear statement of intent to abrogate or waive sovereign immunity nonetheless applies.¹⁷⁶ The First Circuit noted that the trial court assumed without deciding that the FOMB “is an arm of the government of Puerto Rico entitled to assert sovereign immunity,” then itself determined that PROMESA provisions providing for federal court jurisdiction abrogated that sovereign immunity.¹⁷⁷ This question was presented to the Supreme Court on a petition for a writ of certiorari.¹⁷⁸

This situation is absurd. Consider, for example, the following sentence in the solicitor general's brief: “Congress has the power to organize all of Puerto Rico's government, and its exercise of that authority does not nullify the sovereign status of the Commonwealth's government.”¹⁷⁹ One observer notes:

The [FOMB] is an entity created by federal law, pursuant to the most sweeping power of Congress. It responds directly to the federal government, in the form of reports which describe its progress, and its members are only removable by the President of the United States. It does not respond to the people nor to the government of Puerto Rico. It is a force of unbridled federal power, unrelated to the will of Puerto Ricans.¹⁸⁰

It is bizarre to assert that Puerto Rico has “sovereign status” while attempting to thwart a claim under Puerto Rico's constitution.

To summarize, recent Supreme Court cases have held that (1) Puerto Rican citizens may be treated unequally in the provision of direct federal SSI benefits;¹⁸¹ (2) Puerto Rico is not a separate sovereign from the U.S. for double jeopardy purposes;¹⁸² (3) Puerto Rico is a state for purposes of federal preemption under the U.S. Bankruptcy Code, but is not a state for purposes of accessing the code's reorganization provisions;¹⁸³ (4) the FOMB, established by Congress under PROMESA and composed entirely of presidential appointees, is exempt from the Constitution's Appointments Clause requirements because its power primarily concerns “local matters.”¹⁸⁴ Most recently, FOMB seeks to avoid disclosing documents by claiming *1752 sovereign immunity from an enforcement suit.¹⁸⁵ These cases exemplify the bizarre, untenable relationship wrought by the separate, unequal, and arbitrary colonial relationship between the United States and Puerto Rico and other U.S. territories.

The arbitrary and subordinate treatment of Puerto Rico and its more than three million U.S. citizens should draw outrage across the United States. Yet these cases barely made news on the U.S. mainland. Why?

Justice Kagan delivered the opinion of the Court.

A recently enacted federal statute establishes a financial oversight board within the Commonwealth of Puerto Rico’s government. The question presented is whether the statute categorically abrogates (legalspeak for eliminates) any sovereign immunity the board enjoys from legal claims. We hold it does not. Under long-settled law, Congress must use unmistakable language to abrogate sovereign immunity. Nothing in the statute creating the board meets that high bar.

I

Congress passed the Puerto Rico Oversight, Management, and Economic Stability Act of 2016 (PROMESA), 48 U. S. C. §2101 et seq., to deal with a fiscal emergency. Puerto Rico’s public debt had soared, to more than the annual output of the island’s economy. The Commonwealth could not service that level of debt through the bond markets. And it was not eligible to restructure debt under the Federal Bankruptcy Code. PROMESA offered a path out of the crisis, helping Puerto Rico “to achieve fiscal responsibility and access to the capital markets.” §2121(a). The idea was to set up a system for overseeing Puerto Rico’s finances, while also enabling the Commonwealth to gain bankruptcy protections similar to those available under the Code. See Financial Oversight and Management Bd. for Puerto Rico v. Aurelius Investment, LLC, 590 U. S. ___, ___–___ (2020) (slip op., at 3–4).

PROMESA creates, as its centerpiece, the Financial Oversight and Management Board for Puerto Rico—the petitioner here. The statute describes the seven-member Board as an “entity within the territorial government” of Puerto Rico. §2121(c)(1). And this Court has affirmed that the Board’s structure, duties, and powers make it “part of the local Puerto Rican government.” Id., at ___ (slip op., at 14). Under PROMESA, the Board approves and enforces the Commonwealth’s fiscal plans and budgets, and supervises the Commonwealth’s borrowing. See §§2141–2144, 2147. The Board also represents Puerto Rico in so-called Title III cases—judicial proceedings, modeled on federal bankruptcy proceedings, for restructuring the Commonwealth’s (and its instrumentalities’) debt. See §§2161–2177.

With one exception, PROMESA says nothing explicit about abrogating sovereign immunity. The exception is for Title III cases, and comes via the Federal Bankruptcy Code. PROMESA incorporates, as part of its mechanism for restructuring debt, the Code’s express abrogation of sovereign immunity. See §2161(a) (incorporating 11 U. S. C. §106 for “case[s] under [Title III]”). But as to all other matters PROMESA addresses, Congress did not mention sovereign immunity. In particular, no provision states that it is abrogating any immunity the Board possesses from legal claims.

At the same time, several provisions of PROMESA contemplate that, even outside the Title III context, the Board may confront legal claims against it. Most fundamentally, Section 2126(a), entitled “Jurisdiction,” states that “any action against the Oversight Board, and any action otherwise arising out of ” PROMESA, “shall be brought” in the Federal District Court sitting in Puerto Rico.[1] And Section 2126(c) anticipates that those actions may lead to orders “granting declaratory or injunctive relief against the Oversight Board”; under the provision, such orders cannot take effect until the litigation is over.

On the flipside, PROMESA sets certain limits on litigation targeting the Board. Section 2125 forecloses monetary liability against the Board, its members, and its employees for “actions taken to carry out” the statute. And Section 2126(e) provides that no district court will have jurisdiction over challenges to the Board’s “certification determinations”—mainly, decisions approving Puerto Rico’s fiscal plans and budgets. See §§2141(e), 2142(e) (describing those determinations).

The suit before us demands that the Board release various documents relating to its work. Respondent Centro de Periodismo Investigativo, Inc. (CPI) is a nonprofit media organization that has published many reports on Puerto Rico’s fiscal crisis and the debt-restructuring process. In 2016, CPI asked the Board to turn over a broad array of materials, including communications between the Board’s members and Puerto Rican and U. S. officials. When the request went unanswered, CPI sued the Board in the Federal District Court in Puerto Rico. CPI cited a provision of the Puerto Rican Constitution interpreted to guarantee a right of access to public records. And it requested an injunction ordering the records’ release.

The Board moved to dismiss the suit on the ground that, as an arm of the Puerto Rican government, it enjoys sovereign immunity. The District Court denied the motion, reasoning that Congress had abrogated the Board’s immunity in PROMESA—particularly, in Section 2126(a)’s jurisdictional provision. See App. to Pet. for Cert. 74a–76a. While the parties fought over unresolved privilege issues, CPI brought a second suit seeking another set of documents. The Board again invoked sovereign immunity, and the court again denied the defense. See id., at 56a–57a. Orders in both suits were consolidated for appeal.

The Court of Appeals for the First Circuit affirmed the denial of immunity, over a dissent. See 35 F. 4th 1 (2022). The court began by citing Circuit precedent that Puerto Rico (like a State or Indian tribe) enjoys sovereign immunity. It then “assume[d] without deciding” that the Board shares in Puerto Rico’s immunity, noting that CPI had not contested that issue. Id., at 15. That was the Board’s final piece of good news—for the court next held that PROMESA abrogates the Board’s (assumed) immunity. Congress may abrogate sovereign immunity, the court noted, “by making its intention unmistakably clear in the language of the statute.” Ibid. (quoting Kimel v. Florida Bd. of Regents, 528 U.S. 62, 73 (2000)). And Congress had done so, the court held, in Section 2126(a): The “grant of jurisdiction” there “unequivocally stated [Congress’s] intention that the Board could be sued” in federal district court. 35 F. 4th, at 17. The court found additional support for its holding in Sections 2126(c) and (e). The former, the court reasoned, “contemplates” orders of “declaratory and injunctive relief ” against the Board. Ibid. And the latter, in making certification challenges unreviewable, “implies” that all other claims against the Board fall within Section 2126(a)’s scope. Ibid. Judge Lynch disagreed. She would have held that Congress had not adequately “set[ ] forth an intent to abrogate” the Board’s immunity, whether in Section 2126(a)’s jurisdictional grant or in any other provision. Id., at 21.

We granted certiorari, 598 U. S. ___ (2022), and now reverse.

II

The question on which we granted certiorari is whether PROMESA—and particularly its jurisdictional provision—abrogates the Board’s immunity. See Brief for Oversight Board i. As thus framed, the question asks only about abrogation, while taking the Board’s underlying immunity as a given. That framing accords with how this case played out in the courts below. Because Circuit precedent had settled Puerto Rico’s own immunity, the lower courts barely addressed the question. See, e.g., 35 F. 4th, at 13–14. Similarly for the Board’s immunity. CPI never argued that the Commonwealth’s immunity did not extend to the Board; and for that reason, the courts below simply assumed the Board’s immunity before turning to the abrogation issue. See, e.g., id., at 14–15. We took the case on those terms, and we resolve it on those terms. See, e.g., Cutter v. Wilkinson, 544 U.S. 709, 718, n. 7 (2005) (“[W]e are a court of review, not of first view”). That means we assume without deciding that Puerto Rico is immune from suit in federal district court, and that the Board partakes of that immunity. We address only whether, accepting those premises, PROMESA effects an abrogation.[2]

The standard for finding a congressional abrogation is stringent. Congress, this Court has often held, must make its intent to abrogate sovereign immunity “unmistakably clear in the language of the statute.” E.g., Kimel, 528 U. S., at 73 (internal quotation marks omitted); see also Sossamon v. Texas, 563 U.S. 277, 287 (2011) (“[W]here a statute is susceptible of multiple plausible interpretations,” we will not read it to strip immunity). We have invoked that clear-statement rule, and applied it equivalently, in cases naming the federal government, States, and Indian tribes as defendants. See, e.g., FAA v. Cooper, 566 U.S. 284, 290–291 (2012); Kimel, 528 U. S., at 73; Michigan v. Bay Mills Indian Community, 572 U.S. 782, 790 (2014).[3] CPI argues that the rule should not likewise apply to Puerto Rico, citing Congress’s plenary power over Territories. See Brief for CPI 25–26 (“The concept of plenary power” is “incompatible with forcing Congress to express its intent unequivocally”). But we have similarly described Congress’s power over the tribes, and still demand that Congress “unequivocally express” an intent to abrogate their immunity. Bay Mills, 572 U. S., at 790 (internal quotation marks omitted); see ibid. (“Although Congress has plenary authority over tribes, courts will not lightly assume that Congress in fact intends” to abrogate their immunity). Our precedent thus conveys a consistent message: If a defendant enjoys sovereign immunity (which we are assuming the Board does), abrogation requires an “unequivocal declaration” from Congress. Dellmuth v. Muth, 491 U.S. 223, 232 (1989).

The Court has found that standard met in only two situations. The first is when a statute says in so many words that it is stripping immunity from a sovereign entity. Congress, for example, has provided that States “shall not be immune,” under any “doctrine of sovereign immunity, from suit in Federal court” for patent or copyright infringement. 35 U. S. C. §296(a); 17 U. S. C. §511(a). Those provisions, we have noted, “could not have made any clearer Congress’s intent” to abrogate immunity. Allen v. Cooper, 589 U. S. ___, ___ (2020) (slip op., at 5) (internal quotation marks and alterations omitted). The second is when a statute creates a cause of action and authorizes suit against a government on that claim. Take the Age Discrimination in Employment Act (ADEA) or the Family and Medical Leave Act (FMLA). We held that each abrogated sovereign immunity by authorizing suits against employers—specifically including governments—for violating the statute’s provisions (i.e., for discriminating or denying leave). See Kimel, 528 U. S., at 73–74; Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 721, 726 (2003). Or consider the Indian Gaming Regulatory Act (IGRA). We likewise saw an abrogation in its authorization of tribal suits against States for violating their statutory duty to negotiate about gaming compacts. See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 56–57 (1996). True enough, none of those Acts expressly declared sovereigns non-immune (as the patent and copyright laws did). But all expressly authorized suits against sovereigns in service of enforcing statutory requirements. And recognizing immunity would have negated those authorizations: The very suits allowed against governments would automatically have been dismissed.

PROMESA fits neither of those two molds. Except in Title III debt-restructuring proceedings (not at issue here), the statute does not provide that the Board or Puerto Rico is subject to suit. See supra, at 2. And indeed, the exception implies the opposite as a general rule. The immunity provision that PROMESA borrows from the Bankruptcy Code for Title III cases states: “[S]overeign immunity is abrogated as to a governmental unit,” including a “Territory.” 11 U. S. C. §106(a), incorporated by 48 U. S. C. §2161(a); 11 U. S. C. §101(27). Congress chose not to adopt similar language to govern other kinds of litigation involving the Board. See, e.g., Badgerow v. Walters, 596 U. S. ___, ___ (2022) (slip op., at 8) (“When Congress includes particular language in one section of a statute but omits it in another section of the same Act, we generally take the choice to be deliberate”). Too, PROMESA does not create any cause of action (or otherwise approve any claim) for use against the Board or Puerto Rico. So recognizing immunity under PROMESA would not—as in the ADEA, FMLA, and IGRA cases—authorize a suit against a sovereign with one hand, only to bar it with the other. Instead, immunity would operate in the ordinary way—to protect a sovereign from a host of claims Congress has not otherwise said may proceed. The upshot is evident: Congress has not, through a means we have recognized, “ma[de] its intention” to abrogate immunity “unmistakably clear.” Kimel, 528 U. S., at 73 (internal quotation marks omitted).

CPI contends we can still find a clear statement in PROMESA, based on the statute’s establishment of a judicial review scheme. The primary provision in CPI’s argument (as in the First Circuit’s, see supra, at 4) is Section 2126(a): “[A]ny action against the Oversight Board, and any action otherwise arising out of ” PROMESA, “shall be brought” in the Federal District Court for Puerto Rico. In CPI’s view, that provision—especially when combined with Section 2126(c)’s allusion to “declaratory or injunctive relief against the Oversight Board”—expresses Congress’s “clear intent to subject the Board to suit in federal court.” Brief for CPI 16. CPI backs up that argument by pointing to provisions insulating the Board (and its members and employees) from monetary liability and barring suits challenging the Board’s budgetary decisions. See id., at 15–16, 38–40; see supra, at 3. Those protections, CPI maintains, would have no point “if the Board were immune generally.” Brief for CPI 16. So taken together (says CPI), PROMESA’s judicial review provisions are “incompatible with sovereign immunity.” Id., at 35.

But all those provisions serve a function without our reading an abrogation of immunity into PROMESA. In Sections 2126(a) and (c), Congress indeed contemplated the possibility of suits—and of relief—against the Board. And wisely so—because litigation against the Board can arise even though the Board enjoys sovereign immunity generally. For one thing, statutes other than PROMESA abrogate the Board’s immunity from particular claims. See generally supra, at 7. Consider Title VII of the Civil Rights Act, prohibiting various kinds of employment discrimination. That law, this Court has held, validly abrogates the immunity of “governments” and “governmental agencies” from all actions it authorizes. 42 U. S. C. §§2000e(a)–(b); see Fitzpatrick v. Bitzer, 427 U.S. 445, 447–448 (1976). So if a Board employee were fired because of race, Section 2126(a) would tell him where to bring his suit and Section 2126(c) would govern the timing of injunctive and declaratory relief. And for another thing, the Board could decide to waive its immunity from particular suits or claims. Were it to do so, Sections 2126(a) and (c) would again kick in. So PROMESA’s judicial review scheme—absent a categorical abrogation of immunity—still has plenty of work to do. For similar reasons, this Court has held that other jurisdictional and judicial review provisions were insufficient to establish an abrogation. See Blatchford v. Native Village of Noatak, 501 U.S. 775, 786, and n. 4 (1991); Dellmuth, 491 U. S., at 231. Here, as there, providing for a judicial forum does not make the requisite clear statement.

Nor do the litigation protections in PROMESA fill the gap. At the most basic level, it would be peculiar to read shields from lawsuits as unmistakably subjecting the Board to lawsuits (by abrogating immunity). But aside from that, CPI is wrong to think that those shields would be “pointless” or “superfluous” unless PROMESA generally abrogates the Board’s immunity. Brief for CPI 38. Consider first Section 2125’s protection of the Board, its employees, and its members from monetary liability for carrying out PROMESA. That provision would do work whenever, as discussed above, some other law abrogated or waived the Board’s immunity from specific claims. In such a case, the claim could go forward, but Section 2125 would stop the award of money damages. Of particular note, that section would limit the Board’s liability in Title III cases, in which PROMESA has indeed abrogated immunity. See supra, at 2. And last, Section 2125 protects individuals—the Board’s members and employees—not covered by the Board’s sovereign immunity. All in all, that seems like more than enough to explain the provision’s existence. Similarly for Section 2126(e), which prevents challenges to the Board’s fiscal and budgetary decisions. Yes, sovereign immunity insulates the Board itself from those attacks. But without Section 2126(e), a plaintiff might get around that immunity via an Ex parte Young action—a suit against an individual Board member for injunctive relief. See Virginia Office for Protection and Advocacy v. Stewart, 563 U.S. 247, 254–255 (2011) (describing the Ex parte Young “limit on the sovereign- immunity principle”). Section 2126(e) precludes that possibility. So it too has a role to play in a scheme with sovereign immunity.

In short, nothing in PROMESA makes Congress’s intent to abrogate the Board’s sovereign immunity “unmistakably clear.” Kimel, 528 U. S., at 73. The statute does not explicitly strip the Board of immunity. It does not expressly authorize the bringing of claims against the Board. And its judicial review provisions and liability protections are compatible with the Board’s generally retaining sovereign immunity. We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.

It is so ordered.

+++++++++

Justice Thomas, dissenting.

At every stage of these proceedings, respondent has argued that petitioner lacks state sovereign immunity. Petitioner has consistently replied that it has that immunity and that nothing abrogates it. The courts below, bound by Circuit precedent, held that petitioner does have state sovereign immunity—but they also held that the immunity has been abrogated. The Court today disagrees with only that latter conclusion, holding that nothing abrogates petitioner’s immunity, but it “assume[s] without deciding” the logically antecedent question whether petitioner enjoys that immunity in the first place. Ante, at 5. In doing so, the majority effectively decides the outcome of this case. Because I would reach the antecedent question and hold that petitioner lacks the only immunity it has ever asserted, I respectfully dissent.

Respondent, Centro de Periodismo Investigativo, Inc. (CPI), sued petitioner, the Financial Oversight and Management Board for Puerto Rico, over a document-disclosure dispute. The Board moved to dismiss the lawsuit by invoking state sovereign immunity, which the Board claimed to possess as an arm of the Puerto Rican territorial government. CPI responded (both in the District Court and on appeal) that Puerto Rico has no such immunity and that, even if it did, that immunity would be abrogated by the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA), 48 U. S. C. §2101 et seq. Bound by Circuit precedent holding that Puerto Rico enjoys state sovereign immunity, each court below rejected CPI’s first argument. See 35 F. 4th 1, 14 (CA1 2022). But the courts below also agreed with CPI’s second argument that the Board’s immunity was abrogated.

When the Board asked us to review that holding, CPI once again raised its lead argument, pointing out that we logically could not reverse the First Circuit’s judgment without first addressing whether the Board actually has the immunity that the Board claims has not been abrogated. And, in its merits brief, CPI made Puerto Rico’s lack of state sovereign immunity its lead argument. There is nothing more that CPI could have done to preserve this antecedent, dispositive argument.

Yet the majority skips it entirely, “assum[ing] without deciding that Puerto Rico is immune from suit in federal district court”—while also deciding that PROMESA does not abrogate that assumed immunity. Ante, at 5. In doing so, it effectively consigns CPI’s case to the dustbin, remanding back to a Circuit where Circuit precedent will dictate the outcome. CPI might be forgiven for wondering whether we granted certiorari only insofar as our review would favor the Board.

The majority asserts that it need not address CPI’s argument because “[t]he proceedings below did not examine these matters, and we agreed to tackle only the abrogation question.” Ibid. But it is unclear why the court below would have examined the matter any further, given its precedent.[1] And, “[t]his issue is predicate to an intelligent resolution of the question presented,” as it makes no sense to analyze whether PROMESA abrogates state sovereign immunity without first determining whether that immunity is implicated at all. United States v. Grubbs, 547 U.S. 90, 94, n. 1 (2006) (internal quotation marks omitted).[2] Because I think the Court has a duty to pass upon issues that are fairly presented, preserved by the parties, and necessary to support its judgment, I would consider whether the Board has the immunity it asserts.

From the start, the Board has asserted only that it possesses what it has called “ Eleventh Amendment immunity.” The First Circuit agreed, explaining that it “has long treated Puerto Rico like a state for Eleventh Amendment purposes.” 35 F. 4th, at 14. However, the plain text of the Eleventh Amendment applies only to lawsuits brought against a State by citizens of another State. And, because CPI is a resident of Puerto Rico, I can only assume that the Board and the First Circuit meant to refer to the sovereign immunity that is inherent in the 50 States. See Allen v. Cooper, 589 U. S. ___, ___ (2020) (slip op., at 4).

As we have explained, inherent state sovereign immunity reflects the original design of the Constitution. See Franchise Tax Bd. of Cal. v. Hyatt, 587 U. S. ___, ___–___ (2019) (slip op., at 5–12). At the Founding, the “States considered themselves fully sovereign nations,” and part of that sovereignty “was their immunity from private suits.” Id., at ___ (slip op., at 6) (internal quotation marks omitted). When advocating for the Constitution’s ratification, leading Federalists then assured their opponents that the Constitution would not allow private citizens to hale States into federal court without their consent. See ibid. Though this Court held otherwise soon thereafter in Chisholm v. Georgia, 2 Dall. 419 (1793), the Eleventh Amendment’s swift ratification confirmed that Chisholm was wrong. See Hyatt, 587 U. S., at ___–___ (slip op., at 11–12). Thus, in general, the Constitution does not allow federal or state courts to hear cases against States without their consent. See id., at ___–___ (slip op., at 13–16); Alden v. Maine, 527 U.S. 706, 730–731 (1999). This deeply rooted rule “inheres in the system of federalism” that the Constitution establishes. See id., at 730.[3]

Here, however, all sides agree that Puerto Rico is a Territory, not a State. See Puerto Rico v. Sánchez Valle, 579 U.S. 59, 75–77 (2016). Accordingly, it is difficult to see how the same inherent sovereign immunity that the States enjoy in federal court would apply to Puerto Rico. To be sure, the United States has urged us to hold that Puerto Rico enjoys a form of common-law immunity that, it claims, territorial governments can invoke in federal court. See Brief for United States as Amicus Curiae 16–19. But the Board has, at every stage, argued only that it possesses the same immunity as States. That argument appears untenable. And, as the party asserting an immunity, the Board should have the burden of establishing its immunity. Because the Board has failed to do so, I would rule in CPI’s favor and affirm the judgment below.

I respectfully dissent.