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Backgrounder on Campaign to Overrule Insular Cases

Posted by 35sc on June 30, 2022 · Flag ·   Add your reaction

“The Insular Cases have no foundation in the Constitution and rest instead on racial stereotypes. They deserve no place in our law.” – Justice Gorsuch, U.S. v. Vaello Madero (concurring)

“[The Insular Cases] were premised on beliefs both odious and wrong.” – Justice Sotomayor U.S. v. Vaello Madero (dissenting)

Background

As the United States reckons with systemic racism, there is a growing campaign focused on the importance of overruling the Insular Cases, a series of Plessy-era Supreme Court decisions that labeled Puerto Rico and other overseas territories as so-called “unincorporated” territories. The Insular Cases were expressly grounded in racism towards the residents of these islands–who were and are almost entirely Hispanic, Afro-Caribbean, Pacific Islander, and other racial or ethnic minorities–and their harm today is real. Constitutional law scholar Sanford Levinson calls the Insular Cases “central documents in the history of American racism.” Further, as Professor Michael Ramsey explains “[t]he distinction between ‘incorporated’ and ‘unincorporated’ territories” invented by the Insular Cases “has no basis in the Constitution's text or founding-era commentary.”

Ultimately, the ongoing legacy of the Insular Cases is a colonial framework grounded in white supremacy that has denied the 3.6 million residents of Puerto Rico, Guam, the U.S. Virgin Islands, the Northern Mariana Islands, and American Samoa equal rights, self-determination, and left them structurally disenfranchised for nearly 125 years. As Justice John Marshall Harlan wrote in a powerful dissent to the Insular Cases, “[t]he idea that this country may acquire territories anywhere upon the earth … and hold them as mere colonies or provinces—the people inhabiting them to enjoy only such rights as Congress chooses to accord to them—is wholly inconsistent with the spirit and genius, as well as with the words, of the Constitution.”

It is increasingly clear that America has a colonies problem – and that it refuses to recognize it. This is starting to change as momentum builds for the Supreme Court to finally overrule the Insular Cases and for Congress and the President to work to dismantle the colonial framework it established.

  • In 2016, Equally American, an organization that advocates for equality and civil rights in S. territories, along with former Solicitor General Theodore Olson filed a petition for certiorari in Tuaua v. United States asking the Supreme Court to overrule the Insular Cases in a case that examined whether the Constitution’s guarantee of birthright citizenship applies to people born in U.S. territories. They were joined by a politically and ideologically diverse range of amici represented by prominent Supreme Court counsel. Nonetheless, that June an eight-Justice Supreme Court denied review. Notably, that same month the Supreme Court ruled that the federal government is the “ultimate source” of sovereignty in U.S. territories and Congress enacted PROMESA establishing an undemocratic oversight board that has near-total authority over Puerto Rico’s finances.
  • In 2019, the ACLU, Equally American, and one of the parties at oral argument called on the Supreme Court to overrule the Insular Cases in FOMB v. Aurelius Investment, a case challenging the constitutionality of the Puerto Rico oversight board’s appointment process. With the Justice Department disclaiming any reliance on the Insular Cases, the Supreme Court passed on this invitation, while acknowledging that the Insular Cases are “much criticized” and “should not be further extended.”
  • In 2020, the Yale Law Journal Forum hosted a symposium titled “The Insular Casesin Light of Aurelius” that included an introduction by Justice Stephen Breyer and several essays from leading scholars and practitioners critiquing the Insular Cases. Both the Yale Law Journal and the Columbia Human Rights Law Review recently completed special issues on the Insular Cases and the Law of U.S. Territories.
  • On April 21, 2022 Justice Gorsuch and Justice Sotomayor responded to calls by LatinoJustice PRLDEF, Hispanic Federation, and others who admonished the Supreme Court to overrule the Insular Cases in United States v. Vaello Madero, a case involving the denial of Supplemental Security Income (SSI) benefits in U.S. territories. Gorsuch and Sotomayor both expressed “hope [that] the Court will soon recognize that the Constitution’s application should never depend on … the misguided framework of the Insular Cases.”
  • On April 27, 2022, Equally American filed a petition for certiorari to the U.S. Supreme Court in Fitisemanu v. United States expressly asking “whether the Insular Cases should be overruled.” The NYT and SCOTUSblog have both highlighted the importance of the petition, recognizing that Justice Gorsuch cited Fitisemanu three times in his concurring opinion in Vaello Madero.

Things to Watch in 2022

Will the Biden-Harris Administration Continue to Embrace the Insular Cases?

  • In June 2021, responding to discrimination against residents of U.S. territories in federal benefits programs, President Biden declared “there can be no second-class citizens in the United States of America.” While expressly disclaiming any reliance on the Insular Cases, the Biden-Harris Justice Department nonetheless argued to the Supreme Court that federal laws denying territorial residents Supplemental Security Income (SSI) benefits were constitutional, breaking a promise Biden had made as a candidate to abandon the case.
  • On September 8, 2021, Members of Congress – led by House Resources Chair Raúl Grijalva and joined by Nydia Velázquez, Ritchie Torres, Rashida Tlaib, and others – wrote a letter to the Biden-Harris Justice Department asking it to (1) publicly condemn the Insular Cases; and (2) stop relying on them in future cases.
  • On September 15, 2021, the Biden-Harris Justice Department fully embraced the Insular Cases to argue against review of Fitisemanu by the full Tenth Circuit. Indeed, DOJ relied on some of the most racist parts of Downes v. Bidwell, the most prominent of the Insular Cases, to argue against a right to citizenship in U.S. territories, citing passages by Justice Brown-the author of Plessy v. Ferguson- and Justice White expressing concern that “savages” and “uncivilized race[s]” in newly acquired territories would have a right to citizenship.
  • On November 9, 2021, during oral argument in Vaello Madero, Justice Gorsuch asked the Deputy Solicitor General three separate times to state the Justice Department’s position on the Insular Cases and whether they should be overruled. While the Deputy Solicitor General observed that the “reasoning and rhetoric [of the Insular Cases] is obviously anathema,” he repeatedly refused to say they should be overruled despite the insistent invitation from Justice Gorsuch.
  • In February 2022, ACLU, LatinoJustice PRLDEF, the Hispanic Federation, NAACP LDF, and other civil rights organizations wrote the Biden-Harris Justice Department calling on it to condemn the Insular Cases and stop citing them in pending and future cases.
  • In July 2022, Equally American, the ACLU, LatinoJustice PRLDEF, and former Acting Solicitor General Neal Katyal held a press conference calling on the Biden-Harris Administration to support rather than oppose calls to overrule the Insular Cases (video/transcript).  The event also announced a letter from twenty-three Members of Congress to President Biden and Vice President Harris calling on them to “reject the Insular Cases and the racist colonial framework they invented,” and a letter from the Fitisemanu petitioners to Solicitor General Prelogar “to urge the government to … join petitioners in asking the Supreme Court to finally and formally overturn the Insular Cases.”
  • The Justice Department will have to express its formal position on the Insular Cases when it responds to the Fitisemanu petition on August 29, 2022.

 Will the Supreme Court Grant Review in Fitisemanu v. United States to Overrule the Insular Cases?

  • John Fitisemanu was born on sovereign U.S. soil in American Samoa, holds a U.S. passport, and has been a tax-paying resident of Utah for more than twenty years. But based on a discriminatory federal law he and thousands of others born in American Samoa are citizens of nowhere, labeled instead as “non-citizen U.S. nationals.” As a result he cannot vote in federal or state elections, is ineligible for certain federal and state jobs, cannot serve on a jury, and more. Fitisemanu initially prevailed in federal district court, with Judge Waddoups writing a comprehensive 69-page opinion recognizing that people born in U.S. territories are citizens. Relying on the Insular Cases, the Tenth Circuit reversed in a divided 2-1 decision with three separate opinions, including a scholarly 55-page dissent by Judge Bacharach. Bacharach also wrote a separate 27-page dissent to the denial of en banc review, joined by Judge Moritz.
  • On April 27, 2022, the Fitisemanu plaintiffs, represented by Equally American, American Samoan Attorney Charles Ala’ilima, and Gibson Dunn, filed a petition for Supreme Court review .
  • In May 2022, leading civil rights organizations, politically diverse current and former elected officials and former judges from U.S. territories, ideologically diverse scholars of citizenship and constitutional law, and others called on the Supreme Court to grant Fitisemanu and overrule the Insular Cases.
  • The American Samoa government has opposed the case, arguing the question of citizenship should be answered by Congress based on concerns that citizenship would conflict with self-determination of cultural preservation. Equally American has an FAQ addressing concerns raised by elected officials in American Samoa, with American Samoan Attorney Charles V. Ala’ilima providing extensive written testimony to Congress addressing those concerns as well. Leading scholars have also addressed these concerns in law review articles published in the Yale Law Journal, the Texas Law Review, and the UCLA Pacific Basin Law Journal.
  • Former Acting Solicitor General Neal Katyal, who filed a brief on behalf of descendants of Dred Scott and Isabel Gonzalez criticizing the extension of the Insular Cases, explains that “[t]he Supreme Court has the rare opportunity here to correct its mistakes in Dred Scott and Gonzales. Inaction by the Supreme Court now would repeat the errors of those cases and perpetuate the idea that there can be racial limits on U.S. citizenship.”

Will Congress Take Action to Condemn the Insular Cases?

  • In 2021, the House Natural Resources Committee held the first-ever congressional hearing focused exclusively on the Insular Cases, considering a bi-partisan resolution, Res 279, that rejects the Insular Cases as racist and contrary to the text and history of the U.S. Constitution. Transcript here, committee document archive here.
  • The next steps would be for H.Res. 279 to be voted on by the House. Should H.Res. 279 pass it would be the first time a chamber of Congress has condemned the Insular Cases and the colonial framework they established.

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