The Volokh Conspiracy
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Justice Gorsuch Calls for Overruling the Insular Cases
In a forceful concurring opinion, he argues the Supreme Court should overrule longstanding precedents denying many constitutional rights to residents of Puerto Rico and other "unincorporated" US territories. Gorsuch is absolutely right. But he would do well to cast the same critical gaze on the very similar precedents that exempt immigration restrictions from normal constitutional scrutiny.
Earlier today, in United States v. Vaello-Madero, an 8-1 Supreme Court ruled that Congress can exclude residents of Puerto Rico and other federal territories from SSI benefits extended to residents of the fifty states. The ruling is consistent with precedent under which, among other things, Congress also exempts residents of Puerto Rico from most federal income, estate, and excise taxes. But Justice Neil Gorsuch took the opportunity to author a concurring opinion urging the Supreme Court to reverse the Insular Cases - longstanding precedents under which residents of Puerto Rico and other "unincorporated" territories are excluded from the protection of many of the constitutional rights that apply to residents of the states and conventional federally administered territories (including Washington DC).
As Gorsuch points out, this double standard has no basis in the text and original meaning of the Constitution, but is rooted in the racial and ethnic bigotry prevalent widely prevalent in the late 19th and early 20th centuries:
A century ago in the Insular Cases, this Court held that the federal government could rule Puerto Rico and other Territories largely without regard to the Constitution. It is past time to acknowledge the gravity of this error and admit what we know to be true: The Insular Cases have no foundation in the Constitution and rest instead on racial stereotypes. They deserve no place in our law…
The Insular Cases were the product of what John Hay called a "'splendid little war.'" … Ostensibly waged to liberate Cuba and avenge the sinking of the Maine, the Spanish-American War proved a boon for the country's burgeoning colonial ambitions….. The aging Spanish empire was in no position to defend its island possessions, and several fell to American forces in quick succession….
But these acquisitions, hard on the heels of the annexation of Hawaii, soon ignited a fierce debate. Some argued that our republican traditions prevented the United States from governing distant possessions as subservient colonies without regard to the Constitution. Others sought to devise new theories by which Congress could permanently rule the country's new acquisitions as a European power might, unrestrained by domestic law….
The debate over American colonialism made its first appearance in this Court in the form of a tax dispute in Downes v. Bidwell, 182 U. S. 244 (1901). Pursuant to the Foraker Act, Congress erected a civil government in Puerto Rico and imposed a tax on goods exported to, or imported from, the new Territory. See Act of Apr. 12, 1900, ch. 191, §§ 2–3, 31 Stat. 77–78. After incurring a $659.35 tax bill, an importer challenged the Act as inconsistent with the Constitution's Tax Uniformity Clause, which provides that"all Duties, Imposts, and Excises shall be uniform throughout the United States." Art. I, § 8, cl. 1….
To answer the question whether the Act complied with the Constitution, the Court resolved that it first had to decide whether the Constitution applied at all in Puerto Rico….
Justice Brown saw things in the starkest terms. Applying the Constitution made sense in "contiguous territor[ies] inhabited only by people of the same race, or by scattered bodies of native Indians." Id., at 282. But it would not do for islands "inhabited by alien races, differing from us in religion, customs, laws, methods of taxation, and modes of thought." Id., at 287. There, Justice Brown contended, "the administration of government and justice, according to Anglo-Saxon principles, may for a time be impossible…." On his view, the Constitution should reach Puerto Rico only if and when Congress so directed.
Justice White offered a different theory….. To Justice White, the Constitution's application depended on "the situation of the territory and its relations to the United States." Downes, 182 U. S., at 293 (concurring opinion). In some cases, Congress might express an intention to "incorporate" a Territory into the United States at a future date; in a Territory like that the Constitution must apply fully and immediately. Id., at 339. But in other cases, Justice White argued, only "fundamental" (if unspecified) aspects of the Constitution should have force… In his judgment, Puerto Rico fell into this second category and remained "foreign to the United States" because, unlike Territories in the American West, Congress had not done enough to indicate its intention to "incorporate" the island… Still, it would be a mistake to overstate the gap between the theories advanced by Justice White and Justice Brown. At bottom, both rested on a view about the Nation's "right" to acquire and exploit" an unknown island, peopled with an uncivilized race . . . for commercial and strategic reasons"—a right that "could not be practically exercised if the result would be to endow" full constitutional protections "on those absolutely unfit to receive [them]." Id., at 306 (White, J., concurring)….
The flaws in the Insular Cases are as fundamental as they are shameful. Nothing in the Constitution speaks of "incorporated" and "unincorporated" Territories. Nothing in it extends to the latter only certain supposedly "fundamental" constitutional guarantees. Nothing in it authorizes judges to engage in the sordid business of segregating Territories and the people who live in them on the basis of race, ethnicity, or religion.The Insular Cases can claim support in academic work of the period, ugly racial stereotypes, and the theories of social Darwinists. But they have no home in our Constitution or its original understanding.
Gorsuch is right that the Insular Cases were ultimately rooted in the racial bigotry of the time. It is no accident that Justice Henry Brown - author of the most extreme opinion in Downes v. Bidwell, also wrote the Court's opinion in Plessy v. Ferguson, a few years earlier.
Most of the points Gorsuch makes are not new. He echoes longstanding criticisms of the Insular Cases, some of which - as he notes - go back to forceful dissenting opinions in those cases themselves, by Justice John Marshall Harlan, and Chief Justice Melville Fuller. But it is nonetheless significant that these points are made by a prominent conservative Supreme Court justice. So far, only Justice Sotomayor, the sole dissenter in today's ruling, has expressed support for Gorsuch's position. But perhaps he can win over more justices in the future.
Over time, residents of "unincorporated" territories have been given the protection of some constitutional rights, either because Congress has legislated to that effect, or because the Supreme Court - following the reasoning of Justice White - declared them to be "fundamental." But some still don't apply to Puerto Rico and other similar territories. Gorsuch notes the example of the right to trial by jury, which most Americans would consider to be fundamental, but still isn't extended to Puerto Rico under current Supreme Court precedent.
Overruling the Insular Cases would not bring an end to all legal distinctions between residents of states and residents of federal territories. Congress could still make distinctions with respect to federal benefits and other government policies that do not touch on constitutional rights or structural constraints on federal power. For example, it could still exempt residents of Puerto Rico from some federal taxes and welfare programs. Thus, under Gorsuch's approach, today's ruling would likely come out the same way (unless there is proof that Congress denied Puerto Ricans SSI benefits for some constitutionally suspect reason, such as their race or ethnicity). But Congress would no longer be able to deny them constitutional rights, or circumvent other constitutional limits on federal power.
Justice Gorsuch would do well to extend his critique of the Insular Cases to the "plenary power" cases of the same era, which exempt immigration restrictions from most constitutional constraints, thereby, for example, allowing exclusion of potential migrants based on suspect classifications such as race, ethnicity, religion, and political speech. Much like the Insular Cases, they have no basis in the text and original meaning of the Constitution, and were the product of the bigotry of the exact same era - and most of the same Supreme Court justices - as those who gave us Plessy v. Ferguson and the Insular Cases.
Sadly, Gorsuch himself has helped perpetuate and extend the plenary power doctrine by voting with the majority in Trump v. Hawaii (2018), the "travel ban" case, in which the double standard exempting immigration restrictions from ordinary constitutional scrutiny was particularly egregious. In virtually any other context, the overwhelming evidence of bigoted motivation behind the policy in question would have led the Supreme Court (including Gorsuch himself) to invalidate it. I hope Gorsuch will rethink this position in light of his own compelling critique of the Insular Cases.
