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.

*  *  *

2019 WL 4192294 (U.S.) (Appellate Brief)

Supreme Court of the United States.

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

Brief Amici Curiae of the American Civil Liberties Union and the ACLU of Puerto Rico, Supporting the First Circuit’s Ruling on the Appointments Clause Issue

David D. Cole, American Civil Liberties, Union Foundation, 915 15th Street, NW, Washington, DC 20005.

William Ramírez, Fermín Arraiza, ACLU of Puerto Rico, Union Plaza, Suite 1105, 416 Ave. Ponce de León, San Juan, Puerto Rico 00918.

Adriel I. Cepeda Derieux, Alejandro A. Ortiz, Cecillia D. Wang, American Civil Liberties Union Foundation, 125 Broad Street, New York, NY 10004, (212) 549-2500, acepedaderieux@aclu.org.

****

*1 INTEREST OF AMICI CURIAE¹

[1] The American Civil Liberties Union (ACLU) is a nationwide, non-profit, non-partisan organization with approximately two million members and supporters dedicated to the principles of liberty and equality enshrined in the Constitution. The ACLU of Puerto Rico is the ACLU affiliate for Puerto Rico of the national ACLU.

[2] The ACLU has an abiding interest in the civil and democratic rights of residents of Puerto Rico and other unincorporated U.S. territories - including the approximately four million U.S. citizens among them. As it explained in a report it published over 80 years ago, the ACLU is committed to the “[m]aintenance of civil liberties in the [territories],” which it considers “essential to political or economic reforms of any sort.”²

SUMMARY OF ARGUMENT

[3] The Insular Cases, which impose a second-class constitutional status on all who live in so-called “unincorporated” territories, explicitly rest on outdated racist assumptions about the inferiority of “alien races,” and depart in unprincipled ways from the fundamental constitutional tenet of limited government. *2 Handed down at the turn of the last century after a burst of overseas expansion, the Insular Cases created an untenable distinction between “incorporated” and “unincorporated” U.S. territories. Incorporated territories such as Alaska were destined for statehood, the Court assumed, and the Constitution applied in full there. In “unincorporated” territories, however, those not bound for statehood, the Constitution applied only “in part.” Boumediene v. Bush, 553 U.S. 723, 757 (2008). That double standard was never grounded in the Constitution’s text, was intended to be temporary, and was expressly justified by racist assumptions about the territories’ inhabitants. Yet to this day, the doctrine the Insular Cases set forth casts a pall on the rights of residents of Puerto Rico, including more than three million U.S. citizens, and close to 500,000 more in other so-called “unincorporated” territories.

[4] I. Amici take no position on whether the Financial Oversight and Management Board (FOMB) of Puerto Rico violates the Appointments Clause. Our brief is limited to the proposition that however that question is decided, the Insular Cases should play no role. At a minimum, the Court should make clear that the Insular Cases are strictly limited to their precise holdings, and may not be relied upon to render any other provisions of the Constitution inapplicable simply because a territory is “unincorporated.” Over 60 years ago, in Reid v. Covert, 354 U.S. 1 (1957), the Court warned that the Insular Cases and their territorial incorporation doctrine are “very dangerous” and directed that they should not be “given any further expansion,” in effect limiting them to their specific holdings that a handful of constitutional provisions do not apply in the unincorporated territories, including Puerto Rico. Id. at 14 (plurality op.). The Court *3 should reiterate that warning today, and hold that the Appointments Clause applies to federal entities operating in Puerto Rico just as it does to federal entities operating in Rhode Island or New York.

[5] II. While reaffirming the limits of the Insular Cases would be sufficient to resolve this case, the Court should take this opportunity to overrule them once and for all. As it did in Trump v. Hawaii, 138 S. Ct. 2392 (2018), where the Court went out of its way to overrule Korematsu v. United States, 323 U.S. 214 (1944), because of that decision’s express racist assumptions, so, too, here, the Court should lay the Insular Cases to rest. Wrong when they were decided, they are even more objectionable over a century later. As four members of the Court argued in dissent even then - and others have echoed since - the territorial incorporation doctrine departed from over a century of precedent, spurned historical practice, and could not be reconciled with principles of a national government restrained by enumerated powers. And even then, they were expressly designed to apply only temporarily. More than a century after they were initially applied to Puerto Rico, it is high time for this Court to repudiate the Insular Cases.

[6] More importantly, the Insular Cases explicitly rest on anachronistic and deeply offensive racial and cultural assumptions. The decisions sought to draw a distinction between a limited category of “fundamental” rights that could be extended to the non-English speaking peoples inhabiting the new U.S. insular possessions and a broader set of rights particular to Anglo-American traditions, which would not. Other cases resting on strikingly similar racist assumptions have been rejected. See  *4 Plessy v. Ferguson, 163 U.S. 537 (1896), overruled by Brown v. Bd. Of Educ, 347 U.S. 483 (1954); Korematsu, 323 U.S. at 214, overruled by Trump, 138 S. Ct. at 2392. The Insular Cases deserve the same fate.

ARGUMENT

I. THE INSULAR CASES DO NOT BAR THE APPLICATION OF THE APPOINTMENTS CLAUSE TO THE PROMESA BOARD.

[7] Amici take no position on the ultimate question of whether the convening of the Financial Oversight and Management Board (FOMB) satisfies the Appointments Clause. But the answer to that question should be no different because the FOMB happens to operate in Puerto Rico. The Insular Cases, which declined to apply a handful of constitutional provisions to “unincorporated territories” like Puerto Rico, at a minimum should be limited to their particular facts, and as such should pose no bar to application of the Appointments Clause in Puerto Rico.

A. Because They Are So Contrary to Foundational Constitutional Principles, the Insular Cases Should At a Minimum Be Limited to Their Specific Facts and Holdings.

[8] The Court has already cautioned that “neither the [Insular Cases] nor their reasoning should be given any further expansion.” Reid v. Covert, 354 U.S. 1 (1957) (plurality op.). “The concept that the Bill of Rights and other constitutional protections … are inoperative when they become inconvenient … would destroy the benefit of a written Constitution ….” Id.

[9] This Court had good reason to constrain the Insular Cases in Reid. Territorial incorporation was from the start “a very dangerous doctrine [which] if allowed *5 to flourish would destroy the benefit of a written Constitution and undermine the basis of our government.” Id. Members of the Court have warned of its dangers for more than a century.

[10] By 1901, the year the first set of Insular Cases was decided, it was already well established that in governing territory, “Congress [was] supreme, and … ha[d] all the powers of the people of the United States, except such as [were] … reserved in the prohibitions of the Constitution.” First Nat’l Bank v. Yankton Cty., 101 U.S. 129, 133 (1879) (emphasis added). Consistent with those principles, this Court had explained that the national government was constrained by the Constitution - even when it acted within acquired territory. See Murphy v. Ramsey, 114 U.S. 15, 44 (1885).

[11] These principles of constraint reflected concerns expressed at the founding about the danger posed by a government free to act without limit in national territory. The Articles of Confederation gave Congress no power to regulate existing territory. Yet the national government had taken broad action there “without the least color of constitutional authority.” The Federalist No. 38, at 239 (Madison) (Rossiter, ed., 1961). It not only “proceeded to form new States,” but also “assumed” their “administration,” “erect[ed] temporary governments … and [] prescribe[d] the conditions on which such States [would] be admitted into the Confederacy.” Id.

[12] The Framers pointedly noted the potential for mischief in such an arrangement. Writing in Federalist 38, Madison cautioned against allowing “[a] great and independent fund of revenue” to pass into the hands of a “single body of men, who c[ould] raise *6 troops … and appropriate money to their support for an indefinite period of time.” Id. By expressly constraining the federal government’s power to govern territory in defined ways, concluded Madison, a Constitution would “guard the Union against [its] future powers and resources.” Id.

[13] The Insular Cases ignored these elemental concerns in proposing that parts of the Constitution could be withheld from territories until Congress saw fit to “incorporate” them. They carved a wholly unprecedented exception to the principle of constitutionally limited government. No prior case had held inapplicable to the federal government “a limitation of the power of Congress over personal or proprietary rights” “within the territory of the United States.” Henry W. Biklé, The Constitutional Power of Congress Over the Territory of the United States, 49 Am. L. Reg. 11, 94 (1901)The Constitutional Power of Congress Over the Territory of the United States, 49 Am. L. Reg. 11, 94 (1901). As another contemporaneous commentator put it in the Harvard Law Review, “[t]he Insular Cases, in the manner in which the results were reached, the incongruity of the results, and the variety of inconsistent views … [were] without a parallel in our judicial history.” Charles E. Littlefield, The Insular Cases, 15 Harv. L. Rev. 169, 170 (1901).

[14] Several members of the Court recognized this problem in the deeply fractured Insular Cases themselves.³ Dissenting in Downes v. Bidwell, for example, *7 Chief Justice Fuller admonished that the concept of territorial incorporation:

assumes that the Constitution created a government empowered to … govern [] [acquired countries] by different rules than those obtaining in the original states and territories, and substitutes for [our] system of republican government a system of domination over distant provinces in the exercise of unrestricted power.

182 U.S. 244, 372-73 (1901) (Fuller, C.J., dissenting). Justice Harlan joined Chief Justice Fuller’s dissent, but also wrote separately to stress that Congress is “a creature of the Constitution. It has no powers which that instrument has not granted, expressly or by necessary implication.” Id. at 382 (Harlan, J., dissenting). Justice Harlan dismissed the notion that the United States could retain territories “as mere colonies or provinces” as “wholly inconsistent with the spirit and genius, as well as the words, of the Constitution.” Id. at 380.

[15] These dissenting opinions correctly reflected historical practice and longstanding principles of republican governance. No case or doctrine supported the paradoxical “theory that Congress, in its discretion, can exclude the Constitution from a domestic territory of the United States, acquired … in virtue of the Constitution.” Id. at 386 (emphasis added). If Congress can decide for itself when the Constitution’s *8 protections apply to constrain its actions, then those protections are effectively extinguished.

[16] The Court’s most recent pronouncement on the reach of constitutional limits beyond the 50 states, moreover, hews more closely to the Insular Cases’ dissents than to their majority or plurality opinions. Addressing the reach of the constitutional right of habeas corpus to a U.S. naval base in Guantanamo Bay, Cuba, the Court wrote that “[t]he Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply.” Boumediene, 553 U.S. at 765 (emphasis added).

[17] The Insular Cases, in short, cannot be squared with what predated them, or with what followed. They are a glaring anomaly in the fabric of our constitutional law. The notion that “the political branches have the power to switch the Constitution on or off at will,” id., in domestic territory under complete U.S. control is diametrically opposed to fundamental concepts of a limited federal government of enumerated powers. See Hawaii v. Mankichi, 190 U.S. 197, 240 (1903) (Harlan, J., dissenting) (a system where subject peoples are “controlled as Congress may see fit … not … as the people governed may wish” is “entirely foreign to … our government and abhorrent to the principles that underlie and pervade the Constitution”).

*9 B. Properly Limited to Their Specific Holdings and Facts, the Insular Cases Do Not Bar the Application of The Appointments Clause.

[18] Given their anomalous character, the Insular Cases should at a minimum be limited to their precise facts and holdings. As none of the cases addresses the Appointments Clause, the Insular Cases should pose no bar to its application in Puerto Rico. Moreover, reinforcing the highly limited character of the Insular Cases would assist lower courts as they seek to determine how the decisions should be applied to constitutional provisions not already expressly addressed.

[19] As this Court noted in Boumediene, “the Court [in the Insular Cases] held that the Constitution had independent force in the territories that was not contingent upon acts of legislative grace.” 553 U.S. at 757. Indeed, that the Constitution applied to U.S. territories was deemed “self-evident” at the time. Downes v. Bidwell, 182 U.S. 244, 291 (1901) (White, J., concurring). After more than a century of continental expansion, it was well established that the Constitution applied in territory belonging to the United States. See, e.g., Loughborough v. Blake, 18 U.S. (5 Wheat.) 317, 319 (1820) (Marshall, C.J.) (“[T]erritory west of the Missouri, is not less within the United States, than Maryland or Pennsylvania[.]”). The premise that constitutional protections extended past the States and into federal territory took root at the founding and only strengthened thereafter. Even the otherwise deplorable decision in Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), recognized the full force of the Constitution in the territories. Id. at 446 (“[N]o power [is] given by the Constitution to the Federal Government *10 to establish or maintain colonies … to be ruled and governed at its own pleasure ….”); see also Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 73-74 (1872) (persons born in territories are “citizens of the United States without regard to … citizenship of a particular State”).

[20] The Insular Cases broke new ground, however, by crafting out of whole cloth an unprecedented distinction between “incorporated” and “unincorporated” territories: those destined for full inclusion in the United States through their admission into statehood, and those whose future remained uncertain. As discussed more fully in Point II.B, infra, the distinction was grounded in the view that inhabitants of the “unincorporated” territories were undeserving of full inclusion and constitutional protection because of their different (and presumed inferior) racial and cultural makeup. See, e.g., Balzac v. Porto Rico, 258 U.S. 298, 310 (1922) (denying right to jury trial in Puerto Rico because “Porto Ricans” “living in compact and ancient communities” were incapable of implementing “this institution of Anglo-Saxon origin”).

[21] Efforts to distill a general guiding principle for which rights apply in “unincorporated” territories and which rights do not apply have been a failure. As it is often unhelpfully described, the doctrine holds that Congress may govern as it pleases, limited only by “restrictions … so fundamental in nature that they cannot be transgressed ….” Downes, 182 U.S. at 291 (White, J., concurring). This hardly affords a useful yardstick. See Examining Bd. Of Eng’rs, Architects & Surveyors v. Flores de Otero, 426 U.S. 572, 599 (1976) (“The Court’s decisions respecting the rights of the *11 inhabitants of Puerto Rico have been neither unambiguous nor exactly uniform.”).

[22] That lack of clarity has led some lower courts to invoke the doctrine with disturbing results. In Rayphand v. Sablan, the district court held that the “one person, one vote” principle was not a fundamental constitutional right guaranteed to residents of the Commonwealth of the Northern Mariana Islands (“CNMI”). 95 F. Supp. 2d 1133 (D.N. Mar. I. 1999), aff’d sub nom. Torres v. Sablan, 528 U.S. 1110 (2000). The court based its ruling on its understanding that “the Insular Cases have long provided the legal framework and justification for allowing otherwise unconstitutional practices to continue in United States territories.” Id. at 1139. The court neither addressed nor distinguished Rodriguez v. Popular Democratic Party, 457 U.S. 1 (1982), in which this Court recognized the same “one person, one vote” principle as applicable in Puerto Rico. See id. at 10.

[23] Similarly, in Conde Vidal v. Garcia-Padilla, the district court ruled that the constitutional right of same-sex couples to marry - “ ‘fundamental … in all States’ ” - had not been incorporated to Puerto Rico. 167 F. Supp. 3d 279, 286-87 (D.P.R. 2016) (quoting Obergefell v. Hodges, 135 S. Ct. 2584, 2607 (2015)). The district court based its ruling on its understanding of the territorial incorporation doctrine. See id. at 286 (“[P]uerto Rico remains … subject to the plenary powers of Congress …. [T]he question of whether a constitutional guarantee applies to Puerto Rico is subject to determination by [the] Supreme Court of the United States.”). The First Circuit, in response, granted mandamus and reversed. In re Conde Vidal, 818 F.3d 765, 767 (1st Cir. 2016).

[24] *12 These rulings illustrate the difficult position in which the doctrine places lower courts - having to demarcate, with little or no guidance, which constitutional rights apply in the territories and which do not. The applicability of the one-person, one-vote principle or marriage equality ought not be different in the CNMI, Puerto Rico, and New York.

[25] To avoid such confusion, this Court should at a minimum clearly and unequivocally reaffirm that the Insular Cases and their territorial incorporation doctrine must be limited to their precise original holdings - that a handful of particular constitutional clauses do not apply in those territories, and should not be relied upon to render any other constitutional provisions inapplicable to U.S. territories.

[26] “[T]he real issue in the Insular Cases was not whether the Constitution extended to [territories], but which of its provisions were applicable by way of limitation upon … executive and legislative power ….” Boumediene, 553 U.S. at 758 (emphasis added). And there is no longer any basis for holding that other provisions of the Constitution ought not extend to Puerto Rico to the same extent that they extend to the District of Columbia.

[27] The Court has already effectively treated the Insular Cases as limited in this way. Not once since the Insular Cases has this Court found any other constitutional provision inoperable within Puerto Rico or other unincorporated territory. Rather, the decisions have been limited to the four constitutional provisions they addressed. In the first group of cases concerning the territories - then narrowly described as the “Insular Tariff Cases,” Be Lima v. Bidwell, 182 U.S. 1, 2 (1901) - the Court held that specific constitutional *13 provisions concerning tariffs and taxation did not apply to Puerto Rico. See Dooley v. United States, 183 U.S. 151, 156-57 (1901) (Export Clause bar on taxation of exports from any state inapplicable to goods shipped to Puerto Rico); Downes, 182 U.S. at 347 (Gray, J., concurring) (reference to “the United States” in Uniformity Clause did not include Puerto Rico). In later cases, the Court resolved that the Fifth and Sixth Amendment rights to indictment by grand jury and to a jury trial were inoperative in the territorial courts of the Philippines and the local courts of Puerto Rico. See Balzac, 258 U.S. at 309; Ocampo v. United States, 234 U.S. 91, 98 (1914); Dorr v. United States, 195 U.S. 138, 143 (1904).⁴ These are the only provisions the Court has deemed inapplicable in unincorporated territories. The line stopped there.

[28] Since the Insular Cases, the Court has repeatedly and consistently found constitutional provisions or safeguards “applicable” in Puerto Rico when it has considered them. See El Vocero de P.R. v. Puerto Rico, 508 U.S. 147, 148 n.1 (1993) (First Amendment Free *14 Speech Clause “fully applies to Puerto Rico”); Rodriguez, 457 U.S. at 8 (“[I]t is clear that the voting rights of Puerto Rico citizens are constitutionally protected to the same extent as those of all other citizens of the United States.”); Torres v. Puerto Rico, 442 U.S. 465, 470 (1979) (Fourth Amendment protections against unreasonable searches and seizures applicable against Puerto Rican government); Examining Bd., 426 U.S. at 600 (equal protection and due process applicable); Califano v. Torres, 435 U.S. 1, 4 n.6 (1978) (per curiam) (assuming “there is a virtually unqualified constitutional right to travel between Puerto Rico and any of the 50 States”).⁵

[29] To extend the Insular Cases at this juncture to preclude application of the Appointments Clause, a provision never addressed in those cases, would contravene the Court’s admonition that the cases should be limited to their particular holdings. The answer to the Appointments Clause question presented here should be determined not based on the fact that the FOMB *15 operates in Puerto Rico, but by determining whether members of the FOMB are “Officers of the United States,” and, if so, whether they are “principal or inferior” officers. See Morrison v. Olson, 487 U.S. 654, 670-72 (1988). The same analysis that applied in Morrison should apply here.

II. THE INSULAR CASES SHOULD BE OVERRULED.

[30] The Insular Cases are so at odds with our constitutional tradition, and so infected by invidious racial stereotypes, that the Court should go further and overrule them. Because the territorial incorporation doctrine continues to endorse the “striking anomaly” of the “political branches hav[ing] the power to switch the Constitution on or off at will,” the Court should lay it to rest. Boumediene, 553 U.S. at 765. The cases were always intended to provide only temporary and transitional rules, and the status of the unincorporated territories is no longer temporary or transitional. And the decisions were predicated on offensive racial assumptions that should have no place in our constitutional law.

A. The Territorial Incorporation Approach Was Intended As Temporary And Should Be Abandoned More Than A Century After Its Conception.

[31] The territorial incorporation doctrine at the heart of the Insular Cases was never intended to last this long. The decisions themselves were conceived as transitional only, and were not meant to have enduring effect. Territorial “incorporation” was at most designed to provide a temporary and flexible framework through which Congress could govern “[then-]distant ocean communities.” Balzac, 258 U.S. at 311.

[32] *16 In De Lima, 182 U.S. 1 (1901), the Court considered whether tariffs assessed on goods transported to New York from Puerto Rico could be collected under laws taxing imports from “foreign countries.” A plurality of the Court held they could not. Id. at 196. It reasoned that once Congress ratified the treaty ending the Spanish-American War, Puerto Rico “became territory of the United States,” and therefore “domestic” for tariff purposes. Id. at 196-97. Rejecting the argument that Puerto Rico could remain a “foreign,” taxable country to the United States until Congress “embraced it within the Customs Union,” the Court explained that the proposed theory led to untenable results, as it:

[33] presupposes that territory may be held indefinitely by the United States …. for years, for a century even, but that until Congress enacts otherwise, it still remains a foreign country. To hold that this can be done as a matter of law we deem to be pure judicial legislation. We find no warrant for it in the Constitution or in the powers conferred upon this court. Id. at 198 (emphasis added).

[34] In Downes, decided the same day as De Lima, another plurality of the Court determined that Puerto Rico was not part of the “United States” for purposes of the Constitution’s Uniformity Clause; thus leaving the island “foreign to the United States in a domestic sense,” as Justice White observed. Downes, 182 U.S. at 341-42 (White, J., concurring).

[35] But even the two principal opinions in Downes - Justice Brown’s, announcing the judgment, and *17 Justice White’s, reflecting the later-adopted incorporation framework - clarified that the new territories could be left at a remove from the Constitution only temporarily. Differing “religion, customs, laws … and modes of thoughts” of the possessions’ “alien races,” Justice Brown wrote, counseled that “large concessions … be made for a time” in the “administration of government and justice, according to Anglo-Saxon principles.” Id. at 287 (opinion of Brown, J.) (emphasis added). Justice White cautioned that “it would be a violation of duty under the Constitution” for Congress to “permanently hold territory which is not intended to be incorporated.” Id. at 343-44.

[36] Later decisions reaffirmed that the territorial incorporation doctrine at most gave Congress transitory license to govern territories when they were new to the country - now almost 120 years ago. At midcentury, in Reid, the Court distinguished the Insular Cases from prosecutions of U.S. citizens abroad during peacetime by explaining that the Insular Cases “involved the power of Congress to … govern temporarily territories with wholly dissimilar traditions and institutions.” Reid, 354 U.S. at 13-14 (emphasis added); cf. Torres, 442 U.S. at 475-76 (Brennan, J., concurring) (“Whatever the validity of the [Insular Cases] in the particular historical context in which they were decided, those cases are clearly not authority for questioning the application of … any [] provision of the Bill of Rights … to the Commonwealth of Puerto Rico in the 1970’s.”). And most recently in Boumediene, the Court identified the Insular Cases as addressing the “constitutional protections” available in “territories the United States did not intend to govern indefinitely.” 553 U.S. at 768-69 (emphasis added).

[37] *18 To be sure, this Court has never limited Congress to a timetable by which to resolve the status of annexed territory. However, it has acknowledged “that over time the ties between the United States and … its unincorporated Territories [may] strengthen in ways that are of constitutional significance.” Id. at 758. For Puerto Rico, those ties have strengthened for close to 120 years, a period that cannot be deemed “temporary” under any common sense meaning of the term. It is time to declare that the Insular Cases have passed their sell-by date.

B. The Insular Cases Rest on Racist Assumptions That Have No Place in Our Constitutional Law.

[38] More significantly, the Court should overrule the Insular Cases and their territorial incorporation doctrine because they rest on outmoded and pernicious racist assumptions that are plainly unacceptable today. Leaving these decisions standing taints the constitutional framework. Like Plessy v. Ferguson and Korematsu v. United States, they should be firmly and finally repudiated.

[39] The decisions themselves, and the double standard they concocted, were specifically prompted by overseas “expansion by the United States into lands already occupied by non-white populations.” Ballentine v. United States, No. Civ. 1999-cv-130, 2006 WL 3298270, at *4 (D.V.I. Sept. 21, 2006). As this Court recognized, it was only “[a]t this point Congress chose to discontinue its previous practice of extending constitutional rights to [U.S.] territories by statute.” Boumediene, 553 U.S. at 756. “For the first time in American history, ‘in a treaty acquiring territory for the United States, there was no promise of *19 citizenship … nor any promise, actual or implied, of statehood.’ ”⁶ Jose A. Cabranes, Citizenship and the American Empire, 127 U. Pa. L. Rev. 391, 431 (1978) (quoting J. Pratt, America’s Colonial Experiment 68 (1950)). That choice was expressly justified by “prevailing governmental attitudes presum[ing] white supremacy and approv[ing] of stigmatizing segregation.” Martha Minow, The Enduring Burdens of the Universal and the Different in the Insular Cases vii, Preface to Reconsidering the Insular Cases (Neuman & Brown-Nagin, eds.) (2015).

[40] Notions of Anglo-Saxon racial supremacy pervaded debates over America’s annexation of territories in the buildup to and wake of the Spanish-American War. “The division of opinion in the Congress over how, and to what extent, the Constitution applied to Puerto Rico,” was a key point of contention. Examining Bd., 426 U.S. at 599 n.30.

[41] Prominent voices on both sides of this debate found common ground in the belief that the new territories’ inhabitants were racially inferior. Senator William Bate, an avowed “anti-imperialist,” opposed the 1900 Foraker Act - establishing a civil government and a federal court in Puerto Rico - arguing that “expanding our authority once to the Europeans living in Louisiana” could not justify “the incorporation of millions of savages, cannibals, Malays, Mohammedans, head hunters, and polygamists into even the subjects of an *20 American Congress.” Cabranes, 127 U. Pa. L. Rev. at 431 (quoting 33 Cong. Rec. 2696 (1900)). Senator Ben Tillman opposed “incorporating any more colored men into the body politic.” B.R. Tillman, Causes of Southern Opposition to Imperialism, 171 North Am. Rev. 439, 445 (1900). And Congressman Thomas Spight “opined that the Filipinos and Puerto Ricans, who were Asiatics, Malays, negroes and of mixed blood ‘have nothing in common with us and centuries cannot assimilate them.”’ Consejo de Salud Playa de Ponce v. Rullan, 586 F. Supp. 2d 22, 28 n.9 (D.P.R. 2008) (quoting 33 Cong. Rec. 2105 (1900)).

[42] Proponents of annexation agreed that inhabitants of the new territories were unfit for U.S. citizenship. Thus, Senator Chauncey Depew endorsed the Foraker Act on the understanding that it would 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.” Cabranes, 127 U. Pa. L. Rev. at 432 (quotation marks omitted). And leading constitutional scholars sternly counseled against extending “[o]ur Constitution,” “made by a civilized and educated people,” to “the half-civilized Moros of the Philippines, or the ignorant and lawless brigands that infest Puerto Rico, or even the ordinary Filipino of Manila ….” Simeon E. Baldwin, The Constitutional Questions Incident to the Acquisition & Government by the U.S. of Island Territory, 12 Harv. L. Rev. 393, 415 (1899).

[43] The underpinnings of the doctrine of incorporation lay squarely on these racist assumptions, which infected both sides of the debate about territorial expansion. Those same assumptions were expressly repeated in the Insular Cases themselves, eerily echoing *21 the infamous reasoning of Plessy v. Ferguson, 163 U.S. 537 (1896), decided just five years earlier.

[44] As in Plessy, so in the Insular Cases, the perceived inferiority of the race and culture of non-white peoples drove the outcome. In Downes, for example, Justice Brown, the author of Plessy, justified a rule preventing the Constitution from applying fully in Puerto Rico due to the “grave questions” “aris[ing] from differences of race … which may require action on the part of Congress that would be [] unnecessary in … territory inhabited only by people of the same race.” 182 U.S. at 282 (opinion of Brown, J.) (emphasis added). In effect, Justice Brown reasoned, Puerto Rico’s inhabitants were ill-suited to form part of the Nation and its polity. He cautioned further that “[i]f [distant] possessions are inhabited by alien races … the administration of government and justice, according to Anglo-Saxon principles, may for a time be impossible.” Id. at 287 (emphasis added).

[45] Justice White’s concurring opinion was similarly guided in part by the “evils,” id. at 342, of admitting “millions of inhabitants,” id. at 313, of “unknown island[s], peopled with an uncivilized race, yet rich in soil” whose inhabitants were “absolutely unfit to receive” citizenship, id. at 306 (emphasis added). Quoting from a leading contemporary treatise, he added: “if the conquered are a fierce, savage and restless people,” the conqueror may “govern them with a tighter rein, so as to curb their impetuosity, and to keep them under subjection.” Id. at 302 (quotation marks omitted). And in Balzac, the last Insular case, this Court reasoned that residents of Puerto Rico were not entitled to jury trials because they “liv[ed] in compact and ancient communities, with … customs and political *22 conceptions” alien to “institution[s] of Anglo-Saxon origin.” 258 U.S. at 310.

[46] Deploying the antiseptic language of “incorporation,” the Insular Cases ratified a discriminatory framework no less offensive to the Constitution than Plessy’s “separate but equal” structure. Both doctrines endorsed racially segregated systems of civic membership, as Justice Harlan explained in dissent in both cases. See Plessy, 163 U.S. at 563-64 (Harlan, J., dissenting) (laws segregating blacks from whites “place in a condition of legal inferiority a large body of American citizens, now constituting a part of the political community, called the ‘People of the United States’ ”); Downes, 182 U.S. at 380 (Harlan, J., dissenting) (the judgment permits Congress to “engraft upon our republican institutions a colonial system such as exists under monarchical governments”). And both sought constitutional legitimacy for their holdings by claiming that pernicious distinctions drawn among races were natural, not discriminatory. As Justice Brown put it in Plessy: “If one race be inferior to the other socially, the constitution of the United States cannot put them upon the same plane.” 163 U.S. at 552.

[47] Fifty-eight years after this Court decided Plessy, it rightly abrogated its odious “separate but equal” doctrine. See Brown v. Bd. OfEduc, 347 U.S. 483 (1954). More recently, it overruled Korematsu v. United States, 323 U.S. 214 (1944), which also legitimized policy premised “explicitly on the basis of race” and “morally repugnant” racial and cultural assumptions, Trump v. Hawaii, 138 S. Ct. 2392, 2423 (2018). Yet the Insular Cases endure, notwithstanding equally abhorrent views about the inferiority of certain races *23 long “overruled in the court of history.” Id. Lower courts and commentators have long criticized the decisions for that reason.⁷ But only this Court can bring its jurisprudence into line with now-accepted constitutional norms - by overruling them once and for all.

CONCLUSION

[48] The Insular Cases are a stain on this Court’s constitutional jurisprudence. For the reasons stated above, the Court should at a minimum hold that they are strictly limited to their specific holdings and thus pose no bar to application of the Appointments Clause. But because they rest on explicitly racist assumptions that have no place in our constitutional firmament, the Court should overrule them altogether.

*24 Respectfully submitted,

David D. Cole

American Civil Liberties Union Foundation

915 15th Street, NW

Washington, DC 20005

William Ramírez

Fermin Arraiza

American Civil Liberties Union of Puerto Rico