The Volokh Conspiracy
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Some Legal Questions About Greenland, Puerto Rico, and Alberta
I realize many of the things that Trump says have no chance of becoming reality. But it is foolish to ignore him. I have a few legal questions about the logistics for some of Trump's territorial aspirations.
First, let's talk about Greenland. One of the primary reasons to acquire Greenland would be for its natural resources--in particular, the rare earth metals. I don't pretend to know the first thing about how to extract those resources from the ground. But I do know that federal environmental regulations would create significant obstacles to obtaining those resources. Moreover, the dreaded National Environmental Protection Act (NEPA) would erect countless road blocks. Were the United States to acquire Greenland, could it by statute simply exempt that territory from all federal environmental laws? I think that sort of move would stimulate corporate investments needed to facilitate a potential acquisition of the territory. (The Truman administration offered Denmark about $100 million in gold and oil rights in 1946.) Moreover, could Congress grant exclusive jurisdiction for all Greenland cases to (let's say) the Fifth Circuit? It never made sense to me why Puerto Rico is in the First Circuit, in far-away New England, rather than much closer in the Eleventh-formerly-Fifth Circuit.
Second, speaking of Puerto Rico, I suspect Trump's aspirations may include adding some territories and dropping others. There is an ongoing debate whether Puerto Rico should be granted statehood or become independent. I realize the Puerto Rican people have not made a final decision on that issue. Congress has the "Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States." Could Congress decide on its own to grant Puerto Rico independence, and deem it no longer a territory of the United States? Or is the United States obligated to maintain a territory forever?
I don't know the answer. The United States granted the Philippines independence through a treaty. But could it be done unilaterally by statute? Justice Sotomayor alluded to this issue, indirectly in the PROMESA case:
Further, there is a legitimate question whether Congress could validly repeal any element of its earlier compact with Puerto Rico on its own initiative, even if it had been abundantly explicit in its intention to do so. The truism that *494 "one Congress cannot bind a later Congress," Dorsey v. United States, 567 U.S. 260, 274, 132 S.Ct. 2321, 183 L.Ed.2d 250 (2012), appears to have its limits: As scholars have noted, certain congressional actions are not subject to recantation. See, e.g., Magruder, The Commonwealth Status of Puerto Rico, 15 U. Pitt. L. Rev. 1, 14 (1953) (listing as examples the congressional grant of independence to the Philippine Islands and congressional grant of private title to public lands under homestead laws); Issacharoff, 94 Ind. L.J., at 14 ("Once a Congress has disposed of a territory, of necessity it binds future Congresses to the consequences of that decision"); T. Aleinikoff, Semblances of Sovereignty: The Constitution, the State, and American Citizenship 90 (2002) ("The granting of neither statehood nor independence may be revoked, nor may land grants or other 'vested interests' be called back by a subsequent Congress").
Fin. Oversight & Mgmt. Bd. for Puerto Rico v. Aurelius Inv., LLC, 590 U.S. 448, 493–94, 140 S. Ct. 1649, 1677–78, 207 L. Ed. 2d 18 (2020) (Sotomayor, J., concurring).
Third, on New Year's eve, I had occasion to point out an error the Chief Justice made about the Articles of Confederation. (Yes, the Articles provide for courts and judges.) There is another provision of the Articles that surprisingly has not gotten much attention of late. (On the first day of ConLaw, I cover the entire Declaration, Articles, as well as the Constitution; my students get it.)
Article XI of the Articles of Confederation provides:
Canada acceding to this confederation, and joining in the measures of the united states, shall be admitted into, and entitled to all the advantages of this union: but no other colony shall be admitted into the same, unless such admission be agreed to by nine states.
Who else knew that was in one of our organic documents? Now, I will make an argument to infuriate people. The Supremacy Clause provides:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.
Treaties which "shall be made" under the Constitution shall be the Supreme Law of the Land. But also, treaties previously "made" under the Articles of Confederation government remain the Supreme Law of the Land. For example, the Treaty of Paris was negotiated under the Articles government, and remained binding just the same.
Could it be argued that the invitation made to Canada to join the "confederation" remains valid, since it has not yet been rescinded? Could Canada obtain statehood with "all the advantages of this union" without having to be formally admitted as a state? I told you I would infuriate people.
But would Trump really want all of Canada? Or maybe just Alberta, a fairly conservative province with vast oil and gas deposits, that could be exempted from NEPA. Maybe the people of Alberta might even favor statehood. And the Articles of Confederation may provide a fast-pass for admission.
Fourth, I've long thought about a constitutional amendment that would allow the people to redraw the state boundaries everyone so often by popular referendum. The states would be required to accept incoming property and to surrender outgoing property. The number of states would have to remain fixed, and the moves would have to be contiguous. But the people, perhaps on a county-by-county basis, can jump around. Consider a few examples. My home town of Staten Island could vote to join New Jersey. Eastern Washington and Oregon could vote to join Idaho. Northern and Eastern California could join Nevada (California would stretch from Sacramento to San Diego). Northern Virginia could join Maryland. El Paso could leave Texas and join New Mexico. The Florida Panhandle could join Alabama. The people of upstate New York can join Vermont. The Upper Peninsula of Michigan could join Wisconsin (and generation of Michiganders would no longer have to demonstrate where they live by holding out their hands). Western New York could join Pennsylvania. Philadelphia could join Delaware to basically become its own state. Some parts of Western Pennsylvania could join Ohio. And Northern Maryland could join Pennsylvania--rejigger the Mason-Dixon line. Maybe the state of Alberta could be stretched out to reach Alaska! This proposal would allow people to join states that more closely align with their values. Red states would become redder, blue states would become bluer, and purple states would be harder to find.
I realize nothing will likely come from any of this, but it is fun to ponder how the Constitution interacts with these issues.
