What has the Supreme Court said recently about the Insular Cases and U.S. territories?


In 2020, the Supreme Court in FOMB v. Aurelius Investment, LLC questioned the continued validity of the Insular Cases, indicating "that the Insular Cases should not be further extended," indicating that "the Insular Cases should not be further extended," calling them "much-criticized".


In 2008, the Supreme Court in Boumediene v. Bush explained that “[i]t may well be that over time the ties between the United States and any of its unincorporated Territories strengthen in ways that are of constitutional significance.”  The Court then cited approvingly to Justice William Brennan’s view in an earlier case that directly rejected relying on the Insular Cases to deny constitutional rights in U.S. territories today.


The Supreme Court went on to explain in Boumediene 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.”  The Court expressly rejected the idea that “the political branches have the power to switch the Constitution on or off at will.”  It explained that “[t]he test for determining the scope of [a constitutional] provision must not be subject to manipulation by those whose power it is designed to restrain.” 


Based on these Supreme Court decisions and other developments, Congressman Gregorio Kilili Sablan recently cautioned that the Insular Cases are “an anchor, not a life preserver” for those seeking to keep afloat laws that protect land and culture in U.S. territories. 


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