Aurelius’s Article III Revisionism: Reimagining Judicial Engagement with the Insular Cases and “The Law of the Territories”
abstract. The Supreme Court’s unanimous decision upholding the appointments structure of Puerto Rico’s controversial Financial Oversight and Management Board in FOMB v. Aurelius has, to date, yielded commentary fixated on what the Justices did not say. The bulk of that commentary criticizes the Court for declining to square up to and overturn the Insular Cases, the series of early twentieth-century decisions holding that the Constitution does not fully apply to Puerto Rico and other “unincorporated” possessions populated by “savages” and persons of “uncivilized race.” However, Aurelius teaches that the core constitutional problems of territorial exceptionalism and status manipulation run far deeper than the doctrinal framework of the Insular Cases—such that those cases’ ceremonious judicial overthrow is unlikely to spell an end to the harms of the legal order they represent.
Observing the Aurelius Court’s inclination to erase overseas expansion from its account of Article III doctrine, this Article questions the wisdom of urging judicial overthrow of the Insular Cases without a coherent rubric for the many doctrinal universes that might emerge from such an intervention. Together, the framing problems on display in Aurelius and the lessons from the recently overturned Japanese-internment case Korematsu v. United States suggest that although the Insular Cases are plainly indefensible, ill-considered judicial intervention will pose a grave threat to procedurally legitimate self-determination and to path-dependent interests with roots in that troubled framework. This Article reorients a conversation inclined to view judicial overthrow of the Insular Cases as an end in itself toward more informed and productive judicial engagement that secures legal recognition of territories’ agency in charting their own future. Formally condemning or overruling the Insular Cases will mean little if judges fail to account for the threshold ambiguities enabling territorial status manipulation across constitutional domains, which Aurelius shows can be effected with or without express reliance on the Insular Cases or the Incorporation Doctrine. Ultimately, this Article proposes a conversation with Federal Indian law as a starting point for theorizing judicial engagement with the Insular Cases and the so-called “law of the territories.”
author. Yale Law School, J.D. 2020; Yale College, B.A. 2013. Alex Munson, Armando Ghinaglia Socorro, Aziz Rana, Ela Leshem, Evan Walker-Wells, Jade Ford, Julian Aguon, Kathy Campbell, Maggie Blackhawk, Phil Kaplan, Rosa Hayes, Soren Schmidt, and Valeria Pelet del Toro: si yu’os ma’åse for your humbling intellectual generosity. I am indebted to many others, especially Joe Linfield and the editors of the Yale Law Journal, for helping me through the writing process. I dedicate this Article to my mom.
Introduction
Heading into the 2020 Supreme Court Term, Financial Oversight & Management Board v. Aurelius Investment, LLC had the makings of a blockbuster. The case presented the first major constitutional hurdle for Congress’s newly christened Financial Oversight and Management Board for Puerto Rico (FOMB), a novel, quasi-governmental entity chartered to wrest control over Puerto Rico’s financial affairs from the island’s elected government.1 Less than a month after the Court granted certiorari, a series of massive protests erupted in Puerto Rico demanding the governor’s resignation and dissolution of “la junta,” a now-popularized nickname for the FOMB within the territory.2 In an immediate sense, the constitutional challenges to the FOMB threatened to upend the very foundation of the island’s $129 billion public-debt restructuring,3 and, with it, many trillions of dollars’ worth of claims.4 More significantly, the uncertain constitutionality of the FOMB’s powers and composition pointed toward some of Puerto Rico’s most difficult and enduring legal ambiguities: the limits of congressional power to interfere with the island’s self-government and the future of Puerto Rico’s relationship to the United States after what will soon mark 124 years in a supposedly “temporary” constitutional limbo.5
Aurelius presented the most inviting opportunity in decades to reconsider the Insular Cases,6 the long-controversial series of Supreme Court precedents that gave birth to that constitutional limbo. The Insular Cases, while not easily summarized,7 are today invoked principally for the proposition that at least some parts of the Constitution do not “follow the flag”8—in other words, that the federal government is not bound by certain otherwise-applicable constitutional rights and guarantees when it acts upon overseas possessions. To accomplish this purpose, the early twentieth-century decisions invented a doctrinal distinction between “incorporated” territories—those the Court viewed as firmly destined for statehood (e.g., the Northwest Territory)—and “unincorporated” ones—possessions of uncertain relationship, to which only “fundamental” constitutional provisions would be guaranteed (e.g., the Philippines, Guam, and Puerto Rico).9 This “territorial incorporation doctrine,” as that distinction is now known, was fashioned not from any recognized legal principle, but from the Justices’ varied concerns about the racial and ethnic makeup of islands newly acquired after the Spanish-American War.10 Confronted with the specter of adding some ten million people of “alien”11 and “uncivilized race”12 to the American body politic, the Court licensed the political branches to maintain and develop these newly ambiguous “unincorporated” territories without citizenship and without constitutional impediment—at least “for a time.”13
As a result, nearly four million residents of Puerto Rico, Guam, the U.S. Virgin Islands, American Samoa, and the Commonwealth of the Northern Mariana Islands (CNMI)14 are unrepresented across all branches of our national government, even in the four territories where U.S. citizenship is guaranteed by birth.15 They have no electoral-college votes for President, no senators, and no voting representation on the floor of the House.16 Only Puerto Rico has Article III protections for its district-court judges.17 Meanwhile, Americans in the territories are singled out for widespread discrimination in federal programs and public assistance despite having some of the nation’s lowest per-capita income metrics and highest cost of living.18 This remains true even as the people of the territories have fought and died in significant numbers during every American conflict of the past century.19 Even today, the per-capita rate of military enlistment in some territories exceeds those of all fifty states.20
Largely for their overtly racist reasoning, the Insular Cases have emerged as some of the most controversial precedents still cited approvingly in modern courts.21 The late First Circuit Judge Juan R. Torruella summarized these cases as the lynchpin of “a de jure and de facto condition of political apartheid for the U.S. citizens that reside in Puerto Rico and the other territories,” noting that the decisions “contravened established doctrine . . . to meet the political and racial agendas of the times.”22As scholars increasingly explore the cases’ historical and doctrinal links to Plessy v. Ferguson,23 the Insular Cases have come to be viewed as “central documents in the history of American racism”24 and a pillar of constitutional law’s “anticanon.”25
Importantly, Aurelius landed on the Court’s docket just one term after a 5-4 majority formally overruled another long-reviled precedent: Korematsu v. United States. In Trump v. Hawaii, that majority reached well beyond the question presented to ceremoniously overturn the Court’s infamous 1944 decision upholding the wartime relocation and internment of Japanese Americans—as “gravely wrong the day it was decided.”26 Widely credited as a “long overdue . . . repudiation of a shameful precedent,” the Court’s unanticipated repudiation of Korematsu led many to believe that the Insular Cases and their progeny were not long for this world.27
And yet, Aurelius was anything but a blockbuster.The merits of the case centered on the application of Article II’s Appointments Clause to the FOMB, asking (1) whether the Appointments Clause applies to activities in Puerto Rico and (2) if so, whether Congress ran afoul of it by authorizing the President to appoint FOMB board members without Senate confirmation.28 Throughout lower court proceedings, the United States, FOMB, and others insisted that Article II and other structural separation-of-powers constraints do not apply to federal activities in Puerto Rico, relying both directly and indirectly on the Insular Cases.29 A unanimous First Circuit panel rejected those arguments and declared the appointments unconstitutional.30 The Circuit held that FOMB appointees, whose positions had been created by Congress and endowed with significant authority under federal law, fell within Article II’s definition of “Officers of the United States.”31 By the time the case reached the Supreme Court, however, lawyers defending the FOMB’s constitutionality had abandoned their reliance on the Insular Cases. Instead, they offered a more general argument that because the FOMB had technically been created as a part of Puerto Rico’s territorial government, Article IV’s Territory Clause permitted Congress to evade separation-of-powers principles that otherwise constrain the federal government.32
FOMB’s challengers did not follow suit. At oral argument, counsel for Puerto Rico’s electrical union, Unión de Trabajadores de la Industria Eléctrica y Riego (UTIER), committed her entire allotted time to persuading the Justices to overrule the Insular Cases. In doing so, she highlighted other parties’ strategic abandonment of those precedents at the Supreme Court33 after having relied on them throughout lower court proceedings, where judges lacked the authority to overrule them.34 Even so, the Justices displayed little interest in her arguments.35
Rather than confront the Insular Cases or the broader legacy of constitutional liminality that denies key rights and political participation to millions, the majority narrowed its focus to the appointment power. It held that (1) Article II’s Appointments Clause does apply to federal activities in Puerto Rico, but that (2) presidential appointments to the congressionally created FOMB do not trigger that Clause because of a new functional test that asks whether officers’ responsibilities are “primarily local versus primarily federal.”36 While the Court’s approach offers little clarity as to the future classification of federal and territorial officers under the Constitution’s separation-of-powers framework, it successfully minimized disruption to Puerto Rico’s politically contentious debt restructuring while evading all of the deeper and thornier questions about Puerto Rico’s political status and the limits of federal power over territorial governments.
The most the Court could muster on the Insular Cases was a passing acknowledgment that they are “much-criticized.”37 The majority nodded to uncertainty surrounding “their continued validity,” but held only that it “[would] not extend them” in Aurelius.38 Even Justice Sotomayor, whose apprehensive concurrence expressed significant doubts about the FOMB’s intrusions on Puerto Rican self-government, did not mention the Insular Cases.39
Unsurprisingly, Aurelius has attracted a range of criticism, almost all of which remains fixated on what the Justices failed to say.40 On a surface level, it is right to observe that Aurelius was a missed opportunity to reconsider the Insular Cases and a sign of the Court’s uneasiness about those precedents’ continued validity or expansion. But Aurelius has much more to say about the Court’s broader difficulty with the foundational constitutional dilemmas that flow from the nation’s overseas expansion. This Article contends that the Aurelius Court’s interpretive approach to the Appointments Clause is just as important to thinking about the constitutional future of U.S. territories as anything the case said (or did not say) about the Insular Cases themselves.
Aurelius offers an important—and often unobserved—window into the modern dynamics of colonialism and constitutionalism. While all nine Justices appeared to oppose the idea of constitutional “exceptions” in abstract, the Court’s approach to the Appointments Clause only deepened the underlying ambiguity that attends U.S. territories’ relationship to the Constitution. The case warns of threshold analytical obstacles to meaningful judicial engagement with the constitutional future of the territories. Aurelius at once demonstrates (1) that the underlying problem of territorial exceptionalism is not coterminous with the Insular Cases, and (2) that new dangers inhere in the Court’s inclination to sweep the history of American overseas expansion into a purely domestic account of constitutional development.41
In Aurelius,the Court interpreted the Appointments Clause by analogizing to Article III.42 But in doing so, it overlooked the fact that Article III is itself shot through with problems of territorial exceptionalism. For example, the majority’s account of non-Article III territorial courts relied exclusively on the examples of the District of Columbia (D.C.) and territorial courts on the early North American frontier, ignoring important transformations in territorial-courts jurisprudence that occurred only as a result of overseas imperialism.
Its historically selective Article III analogy jettisons a complicated history of judicial federalism in overseas territories. Even as the Court insisted that its new test is “illuminated by historical practice,” it entirely omitted the effect of overseas imperial expansion on the fabric of our federal judicial system.43 In surveying the constitutional history of D.C.’s courts to reach the conclusion that “[i]ndeed, the Appointments Clause has no Article IV exception,”44 the Aurelius Court hid from the strain that today’s territorial courts in Guam, the CNMI, and the U.S. Virgin Islands have added to the long-running debate over Article III’s own “exceptions.”45
Aurelius’s Article III revisionism elides how the Court’s vague antiexceptionalist pronouncements end up reinforcing the very harms for which the Insular Cases are shorthand. Although the Court rejects the idea that the Appointments Clause “does not apply” to Puerto Rico, it manipulates the Article III analogy to fashion a novel and expansive reading of the constitutional text.46 Aurelius ostensibly brings Puerto Rico within the protection of the Constitution’s separation-of-powers framework with respect to appointments. But this new “textual” approach conveniently accommodates the legal regime that the Court had previously advertised as relying on the Insular Cases. In other words, Aurelius reinforces territorial exceptionalism while ostensibly saying the opposite. At an even higher level of generality, Aurelius clarifies that the territories’ self-government, rights, and autonomy are menaced not only by the continued survival of extratextual inherent-to-sovereignty or plenary-power understandings of constitutional doctrine (i.e., the Insular Cases’ proposition that parts of the Constitution “do not apply” to Puerto Rico),47 but also by judicial moves that ostensibly “enumerate” or retether federal power over the territories to the text.
But Aurelius’s troubles do not end there. More than import existing exceptionalism into
text, it overwrote constitutional doctrine in a way that made it nearly
impossible to reckon with the depth of its entanglement with American overseas
imperialism. This approach paves the way for wholesale deletion—rather than
considered management—of promises and legal interests lodged in the territories’
path-dependent
idiosyncrasies.48
Aurelius teaches that ill-considered
judicial intervention threatens more than an empty repackaging of the status
quo; it poses an imminent threat to Indigenous-rights and self-determination
interests that have yet to be disentangled from the Insular Cases framework.
In this way, the most important lesson of Aurelius is that the constitutional problems of territorial exceptionalism run far deeper than the specific doctrinal holdings of the Insular Cases, such that those cases’ precipitous judicial overthrow is unlikely to spell an end to the core harms of the legal order they represent.49 Marketing the Insular Cases as doctrinal relics “long ‘overruled in the court of history,’”50 those who urged the Aurelius Court to overturn the Insular Cases—and who now criticize it for failing to do so—paint them as discrete aberrations that can be shored up in a single knockout blow. But it is Aurelius’s orientation to the doctrine—not the doctrine itself—that reveals the potential for the worst of both worlds: an empty repudiation of historical racism that both recharters second-class status within the text and erases existing promises to protect land, culture, or autonomy, and self-determination.
To date, little has been offered in the way of a workable framework to replace the Insular Cases that would allow the Court to curtail the problems of unreviewable federal power and status manipulation51 while securing recognition of path-dependent promises.52 More development of such a framework is required before the Insular Cases resurface at the Court, as a pending certiorari petition on the question of American Samoa’s birthright citizenship captures.53 While many have traveled the historical and doctrinal connections between the Insular Cases and Plessy v. Ferguson, none have followed this popular comparison to its next logical station: the robust scholarly debate on how Plessy was actually overturned.54 The prevailing call for judicial intervention asks the Court to mimic its approach to Korematsu in Trump v. Hawaii—ignoring the substantial critiques that see Trump v. Hawaii as a largely symbolic, nonsubstantive repudiation that redeploys the logic of Korematsu by swapping “one ‘gravely wrong’ decision with another.”55
There are many untapped lessons in the robust practical and theoretical scholarship on both Brown and Trump v. Hawaii.56 Federal Indian law is similarly replete with unobserved doctrinal lessons for the territories that complicate the Insular Cases-Plessy parallel.57 These include the ramifications of migrating extratextual plenary-power understandings into textual readings of the Constitution, the availability of alternatives to the Reconstruction Amendments’ dominant paradigm of minority-rights protection, conceptualizing colonial path dependencies within the Constitution, and the usefulness of legal interventions outside the judicial sphere.58
This Article makes no attempt to defend, redeem, or repurpose the Insular Cases.59 They are plainly untenable. But that is not an invitation to discard Aurelius’s lessons and charge ahead with theories of judicial intervention that would martyr promise keeping and self-determination to empty repudiations of past racism or an artificial coherence for its own sake.60 Empire’s role in constitutional development and the range of unique interests owing to it are too complex to be respectively unraveled and protected without a positive vision for managing them. Indeed, far beyond “preservation-through-transformation,” ceremoniously overruling the Insular Cases on vague and open-ended terms may invite new, more pernicious harms for Americans in U.S. territories.61
This Article proposes a conversation with Federal Indian law and McGirt v. Oklahoma as a guidepost for theorizing judicial engagement with the colonial condition of U.S. territories,62 with or without the Insular Cases.63 The objects of that judicial engagement need not be framed as a binary choice between territorial exceptionalism and constitutional equality. Federal Indian law teaches that mediating doctrinal tensions in the service of promise keeping is faithful to our constitutional tradition. At the same time, advocates need not ask courts to repurpose the Insular Cases or harden “the law of the territories” into a permanent substantive domain to secure legal recognition of negotiated promises, Native cultures, or territorial self-government. Instead, judicial engagement with the Insular Cases must be reoriented toward empowering local political processes that have been stunted by federal disenfranchisement and unchecked discrimination under the Insular Cases’ untenable status quo—so that the territories may chart their own course out of it. Ultimately, judges who find themselves confronted with these intractable problems must commit themselves to what Philip P. Frickey termed the “hard work”64: navigating doctrinal tension to undo the legacies of colonialism in politically legitimate ways.
Part I describes how the Aurelius Court simultaneously held that the Appointments Clause indeed applies to Puerto Rico, but that FOMB appointees fall outside its text. Part II illuminates how the Court’s approach to Article II flows from a warped Article III analogy that erases the equivalent problems of territorial exceptionalism that have long plagued the latter doctrinal context. Part III uses Aurelius to show that the underlying constitutional problems of territorial exceptionalism are not contained within the Insular Cases or any other discrete doctrinal device. Part IV adapts these unobserved lessons from Aurelius to today’s prevailing calls to overturn the Insular Cases, highlighting various dimensions along which these calls remain undertheorized while exploring the harms that ill-considered judicial interventions are likely to visit upon territorial communities. Finally, Part V reorients the conversation on the Insular Cases’ future towards more informed engagement with the territories’ colonial condition as we encounter it—appreciating the usefulness of a “law of the territories.”
See generally Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA), Pub. L. No. 114-187, 130 Stat. 549 (2016) (codified at 48 U.S.C. § 2101 (2018)) (outlining the organizational structure and responsibilities of the Financial Oversight and Management Board (FOMB)). PROMESA (Spanish for “promise”), passed in response to Puerto Rico’s spiraling public-debt crisis, has been the subject of intense controversy in Puerto Rico from its inception. See, e.g., Hon. Juan R. Torruella, Remarks at the Asamblea del Colegio de Abogados y Abogadas de Puerto Rico, YouTube, at 10:00-15:30 (Sept. 11, 2016), https://www.youtube.com/watch?time_continue=626&v=UGUDEQ9CSe8&feature=emb_title [https://perma.cc/W4QZ-NYNT] (“If PROMESA does not confirm the existence of our colonial relationship with the United States, tell me where my mistake lies. In reality, this law makes holding elections in November superfluous. Even more than superfluous, it makes them irrelevant. . . . The imposition of this ‘Junta’ over Puerto Ricans with the powers that are granted to it by PROMESA represents the most denigrating, disrespectful, anti-democratic, and colonial act that has ever been seen in the course of our relationship with the United States. . . . What PROMESA does is—it perpetuates [Puerto Rico’s colonial status], and it only leads to a new way of more directly and vulgarly administering the colony.” (English subtitle translation)).
Massive Protests Held in Puerto Rico After Governor Refuses to Step Down, BBC (July 23, 2019), https://http://www.bbc.com/news/world-us-canada-49075683 [https://perma.cc/DCU7-6FC4]; Alex Lubben, Puerto Ricans Aren’t Done Protesting. “La Junta” Is Why., VICE News (July 25, 2019, 3:26 PM), https://www.vice.com/en/article/9kxxxy/puerto-ricans-arent-done-protesting-la-junta-is-why [https://perma.cc/G2JH-XS5D]. The 2019 protests merged ongoing public opposition to PROMESA with a newer political scandal over controversial leaked chat messages between the then-Governor and other Puerto Rican officials. Public demonstrations denouncing the FOMB and PROMESA have been ongoing since early 2017, when the FOMB announced it would impose austerity measures on the island. Indeed, months before Hurricane Maria’s devastating impacts amplified public unease, these demonstrations were already among the largest in Puerto Rico’s history. See Valeria M. Pelet del Toro, Note, Beyond the Critique of Rights: The Puerto Rico Legal Project and Civil Rights Litigation in America’s Colony, 128 Yale L.J. 792, 795 (2019) (observing in the context of 2017 demonstrations that “[a] protest of that size and manifesting such palpable anticolonial sentiment” was, until that moment, “unheard of in Puerto Rico”).
Mary Williams & Karl Russell, $129 Billion Puerto Rico Bankruptcy Plan Could Be Model for States, N.Y. Times (June 1, 2020), https://www.nytimes.com/2019/09/27/business/puerto-rico-bankruptcy-promesa.html [https://perma.cc/5JFE-K4J3]; Ryan Boysen, PROMESA Board Is Unconstitutional, Aurelius Tells Justices, Law360 (Aug. 23, 2019, 4:53 PM), https://www.law360.com/articles/1191868/promesa-board-is-unconstitutional-aurelius-tells-justices [https://perma.cc/2B6W-4RHE].
See Objection of FOMB at 12, In re Fin. Oversight & Mgmt. Bd., No. 17 BK 3283 (D.P.R. Oct. 13, 2020), ECF No. 14547 (noting that approximately 44,000 claims had been processed, eliminating roughly $42 trillion in outstanding claims against Puerto Rico); see also Transcript of Omnibus Hearing at 20, In re Fin. Oversight & Mgmt. Bd., No. 17 BK 3283 (D.P.R. Apr. 24, 2019), ECF No. 6538 (noting “about 165,000 claims filed”); cf. La Brega, The Bankruptcy Letters, WNYC Studios, at 14:30 (Feb. 24, 2021), https://www.wnycstudios.org/podcasts/la-brega/articles/bankruptcy-letters [https://perma.cc/NUJ9-SZJJ] (exploring the outlook of PROMESA’s claims process for Puerto Rico’s microcreditors).
De Lima v. Bidwell, 182 U.S. 1, 198 (1901) (“The theory that a country remains foreign with respect to the tariff laws until Congress has acted . . . presupposes that a country may be domestic for one purpose and foreign for another. . . . [And] [t]hat this state of things may continue 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 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. It is true the nonaction of Congress may occasion a temporary inconvenience; but it does not follow that courts of justice are authorized to remedy it by inverting the ordinary meaning of words.”); Reid v. Covert, 354 U.S. 1, 14 (1957) (noting that the Insular Cases “involved the power of Congress to provide rules and regulations to govern temporarily territories with wholly dissimilar traditions and institutions” (emphasis added)); see Act of Apr. 12, 1900, ch. 191, 31 Stat. 77. But see Christina Duffy Ponsa-Kraus, The Insular Cases Run Amok: Against Constitutional Exceptionalism in the Territories, 131 Yale L.J. 2449, 2453 (2022) (insisting that “every account of the Insular Cases agrees” that they stand for the proposition that “the federal government has the power to keep and govern territories indefinitely, without ever admitting them into statehood (or de-annexing them, for that matter)”). Puerto Rico became a U.S. territory in 1898 as part of the Treaty of Paris between the United States and Spain following the Spanish-American War. See Treaty of Peace Between the United States and Spain, Spain-U.S., Dec. 10, 1898, S. Treaty Doc. No. 57-182 (1902).
See Adriel I. Cepeda Derieux, The Supreme Court Has a Chance to Bring Constitutional Equality to Puerto Rico, Slate (Oct. 10, 2019, 3:28 PM), https://slate.com/news-and-politics/2019/10/puerto-rico-constitutional-rights-supreme-court.html [https://perma.cc/FHN8-4AT4].
See, e.g., Aurelius Inv., LLC v. Puerto Rico, 915 F.3d 838, 854 & n.12 (1st Cir. 2019); Gustavo A. Gelpí, The Constitutional Evolution of Puerto Rico and Other U.S. Territories (1898-Present) 104 (2017); Kal Raustiala, Does the Constitution Follow the Flag?: The Evolution of Territoriality in American Law 81-87 (2009); Juan R. Torruella, The Insular Cases: The Establishment of a Regime of Political Apartheid, 29 U. Pa. J. Int’l L. 283, 284 n.5 (2007). There is some contestation around this shorthand. Christina D. Ponsa-Kraus maintains that Boumediene v. Bush rejected the notion that the Insular Cases stand for the proposition that the Constitution “does not follow the flag” to the unincorporated territories, as the Court announced that “the Constitution ha[d] independent force in [the] territories that was not contingent upon acts of legislative grace.” Christina Duffy Burnett [Ponsa-Kraus], A Convenient Constitution? Extraterritoriality After Boumediene, 109 Colum. L. Rev. 973, 984 (2009) (quoting Boumediene v. Bush, 553 U.S. 723, 726 (2008)). However, immediately following that passage (which refers to “territories” generally, without differentiation), Boumediene declared that “the Court adopted the doctrine of territorial incorporation, under which the Constitution applies in full in incorporated Territories surely destined for statehood but only in part in unincorporated Territories.” Boumediene, 553 U.S. at 726 (emphasis added). Thus, another way to read this part of Boumediene is that the Court held that the Constitution has at least some independent force in the unincorporated territories, such that the political branches do not have discretion to “switch . . . off” the entire Constitution “at will.” Id. at 727; cf. 1 Philip C. Jessup, Elihu Root 348 (1938) (“[A]s near as I can make out the Constitution follows the flag—but doesn’t quite catch up with it.”). To be sure, there are many possible ways of understanding the Insular Cases. The term encompasses more than two decades of internally inconsistent rulings that are united in large measure by their indeterminacy. This Article makes no attempt to argue from a “correct” interpretation of those decisions in aggregate because there are undoubtedly many such interpretations. Because it invites discourse on contemporary judicial engagement, this Article’s view of what the Insular Cases stand for is tethered first and foremost to what the Supreme Court tells us it stands for. See Fin. Oversight & Mgmt. Bd. v. Aurelius Inv., LLC, 140 S. Ct. 1649, 1665 (2020) (explaining that the reason the Insular Cases were not relevant in Aurelius was that the Court had already determined that “Constitution’s Appointments Clause applies,” despite the fact that FOMB board members fall outside the scope of the phrase “of the United States”); see also infra note 245 (discussing confusion over the Insular Cases at recent oral argument in United States v. Vaello Madero).
See Balzac v. Porto Rico, 258 U.S. 298, 305, 312 (1922); United States’ Memorandum of Law in Support of the Constitutionality of PROMESA at 8-12, 9 n.5, In re Fin. Oversight & Mgmt. Bd., 318 F. Supp. 3d 537 (D.P.R. 2018) (No. 17 BK 3283) (arguing that the Appointments Clause does not apply with respect to Puerto Rico because that Clause is not fundamental under the incorporation framework).
See Torruella, supra note 8, at 285, 308, 346; see also Andrew Kent, Boumediene, Munaf, and the Supreme Court’s Misreading of the Insular Cases, 97 Iowa L. Rev. 101, 110-11 (2011) (“[T]he Insular Cases . . . [entail] deplorable discussions of the supposed racial and cultural inferiority of inhabitants of the newly annexed island territories . . . .”); Michael D. Ramsey, Originalism and Birthright Citizenship, 109 Geo. L.J. 405, 433 (2020) (“The Justices . . . openly acknowledged their policy-driven concerns over potential U.S. citizenship for island natives . . . .”).
See Press Release, Chair Raúl M. Grijalva, Nat. Res. Comm. Grijalva Supports HR1, Highlights Many Ways It Increases Justice and Democracy in U.S. Territories Long Denied Political Representation (Mar. 3, 2021), https://naturalresources.house.gov/media/press-releases/grijalva-supports-hr-1-highlights-many-ways-it-increases-justice-and-democracy-in-us-territories-long-denied-political-representation [https://perma.cc/3H2H-EL48].
See Stacey Plaskett, The Second-Class Treatment of U.S. Territories Is Un-American, Atlantic (Mar. 11, 2021), https://www.theatlantic.com/ideas/archive/2021/03/give-voting-rights-us-territories/618246 [https://perma.cc/CE7G-GLP9]. The territories, like Washington, D.C., have nonvoting delegates (for Puerto Rico, the position is titled “Resident Commissioner”) to the U.S. House of Representatives. See 2 U.S.C. § 25a (2018) (Washington, D.C.); 48 U.S.C. §§ 891, 1711, 1731, 1751 (2018) (territories); Sam Erman, Accomplices of Abbott Lawrence Lowell, 131 Harv. L. Rev. F. 105, 112 (2018); see also U.S. Const. amend. XXIII (allowing residents of the District of Columbia to participate in presidential elections).
See Shadow Citizens: Confronting Federal Discrimination in the U.S. Virgin Islands, Disability Rts. Ctr. V.I. (Mar. 2021), https://www.drcvi.org/documents/general/DRCVI-ShadownCitizens.pdf [https://perma.cc/RRZ5-S4HP]; Aaron Steckelberg & Chiqui Esteban, More than 4 Million Americans Don’t Have Anyone to Vote for Them in Congress, Wash. Post (Sept. 28, 2017), https://www.washingtonpost.com/graphics/2017/national/fair-representation [https://perma.cc/7QFL-XSQJ].
The territories’ exclusion from federal benefits varies widely from territory to territory. For example, the Commonwealth of the Northern Mariana Islands (CNMI) receives Supplemental Security Income (SSI) but not the Supplemental Nutrition Assistance Program (SNAP), while the opposite is true in the U.S. Virgin Islands. See Andrew Hammond, Territorial Exceptionalism and the American Welfare State, 119 Mich. L. Rev. 1639, 1675-76 tbls.1 & 2 (2021). The territories’ exclusion from federal benefits and infrastructure programs is most commonly defended on the ground that residents of U.S. territories generally do not pay federal income taxes to the federal treasury even though they do pay other forms of federal tax. See, e.g., Brief for Petitioner at 9, United States v. Vaello Madero, 142 S. Ct. 1539 (2022) (No. 20-303). This question was recently decided by the U.S. Supreme Court in United States v. Vaello Madero. See infra Part V. For an exploration of the various tax-based justifications for discriminating against Puerto Rico and other territories, see Brief of the National Disability Rights Network, Disability Rights Center of the Virgin Islands, and Guam Legal Services Corporation-Disability Law Center as Amici Curiae in Support of Respondent at 4-22, Vaello Madero, 142 S. Ct. 1359 (No. 20-303). Estimates show that there are currently forty-two states that, like Puerto Rico and the other territories, create a net-negative to the federal treasury—meaning that they do not pay in as much as they receive out from federal appropriations. Laura Schultz, Giving or Getting? New York’s Balance of Payments with the Federal Government (2021), Rockefeller Inst. Gov’t 12 (2021), https://rockinst.org/issue-area/balance-of-payments-2021 [https://perma.cc/74SB-C4V3].
See, e.g., Blaine Harden, Guam’s Young, Steeped in History, Line Up to Enlist, Wash. Post, Jan. 27, 2008, at A15; Josh Hicks, Guam: A High Concentration of Veterans, but Rock-Bottom VA Funding, Wash. Post (Oct. 29, 2014), https://www.washingtonpost.com/news/federal-eye/wp/2014/10/29/guam-a-high-concentration-of-veterans-with-little-va-funding [https://perma.cc/XU7H-6959]; Shannon Collins, Puerto Ricans Represented Throughout U.S. Military, U.S. Dep’t Def. (Oct. 14, 2016), https://www.defense.gov/News/News-Stories/Article/Article/974518/puerto-ricans-represented-throughout-us-military-history [https://perma.cc/KS4J-MQQE]; Igartúa-de la Rosa v. United States, 386 F.3d 313, 320 n.19 (1st Cir. 2004) (Torruella, J., dissenting) (noting that “Puerto Rico had the second highest per capita casualty rate in the Nation in the Korean Conflict”), vacated, 404 F.3d 1 (1st Cir. 2005); Tuskegee Airmen Honored in Government House Ceremony, St. Croix Source (Sept. 7, 2008), https://stcroixsource.com/2008/09/07/tuskegee-airmen-honored-government-house-ceremony [https://perma.cc/HQB6-SELA] (discussing members of the Tuskegee Airmen from the U.S. Virgin Islands); Mark Potter, Eager to Serve in American Samoa, NBCNews (Mar. 5, 2006, 6:56 PM), https://www.nbcnews.com/id/wbna11537737 [https://perma.cc/Y6AJ-C25M] (noting American Samoa as having the “highest per capita death rate of any U.S. state or territory” in Iraq to that date); Bryan Manabat, CNMI Honors Fallen Heroes During Memorial Day, Guam Daily Post (June 1, 2016), https://www.postguam.com/news/cnmi/cnmi-honors-fallen-heroes-during-memorial-day/article_10ad60be-26fb-11e6-8bca-4737da7814d4.html [https://perma.cc/Z7YH-EX7M] (“Though we are the newest member of the American family, the blood spilled in our islands, the sacrifices of our own sons and daughters and the service of those buried here binds us all to the long, sometimes turbulent, sometimes shameful history of our nation.” (quoting U.S. Congressman Gregorio Kilili Camacho Sablan)).
See, e.g., Our District: American Samoa—A Territory of the United States, Congresswoman Aumua Amata Coleman Radewagen, https://radewagen.house.gov/about/our-district [https://perma.cc/78DN-GBSE] (“American Samoa has the highest rate of military enlistment of any state or territory. They also have the sad distinction of having the highest per capita mortality rate of any state or territory.”); Shannon Togawa Mercer, What the Heck Is Guam: A Guide for the Perplexed, Lawfare (Aug. 15, 2017, 11:00 AM), https://www.lawfareblog.com/what-heck-guam-guide-perplexed [https://perma.cc/M8AQ-NQZV] (“Guam has a higher rate of enlistment than any U.S. state and four times the national average of casualty rates in Iraq and Afghanistan. In 2007, Guam ranked first in recruiting success for the Army National Guard. As far back as Vietnam, Guam servicemen suffered casualty rates nearly three times the national average.”).
Sanford Levinson, Why the Canon Should Be Expanded to Include the Insular Cases and the Saga of American Expansionism, 17 Const. Comment. 241, 245 (2000); see also Rubin Francis Weston, Racism in U.S. Imperialism: The Influence of Racial Assumptions on American Foreign Policy, 1893-1946, at 15 (1972) (“The actions of the federal government during the imperial period and the relegation of the Negro to a status of second-class citizenship indicated that . . . [t]he racism which caused the relegation of the Negro to a status of inferiority was to be applied to overseas possessions of the United States.”).
See, e.g., Retley Gene Locke, Jr., Absolute and Perpetual Liminality: The Insular Cases and Puerto Rico, Yale Hist. Rev. (Jan. 2020), https://www.yalehistoricalreview.org/absolute-and-perpetual-liminality [https://perma.cc/Y9PJ-LMXE]; see also Adriel I. Cepeda Derieux & Rafael Cox Alomar, Saying What Everybody Knows to Be True: Why Stare Decisis Is Not an Obstacle to Overruling the Insular Cases, 53 Colum. Hum. Rts. L. Rev. 721, 746-56 (2022); cf. Jamal Greene, The Anticanon, 125 Harv. L. Rev. 379, 390 n.62 (2011) (centering on four cases: Dred Scott, Plessy, Lochner, and Korematsu).
See id. at 2448 (Sotomayor, J., dissenting); Brief for Equally American Legal Defense and Education Fund as Amicus Curiae in Support of Neither Party at 3-4, Fin. Oversight & Mgmt. Bd. v. Aurelius Inv., LLC at 3-4, 140 S. Ct. 1649 (2020) (Nos. 18-1334, 18-1475, 18-1496, 18-1514 & 18-1521), 2019 WL 4192164 (urging the Court to overrule the Insular Cases “just as it recently overruled Korematsu v. United States in Trump v. Hawaii”).
See, e.g., Brief of Appellee Official Committee of Unsecured Creditors of all Puerto Rico Title III Debtors in Support of Affirmance at 1, Aurelius, 915 F.3d 838 (Nos. 18-1671, 18-1746 & 18-1787); United States’ Memorandum of Law in Support of Constitutionality of PROMESA, supra note 9, at 8-9; Brief for Appellee American Federation of State, County & Municipal Employees, Aurelius, 915 F.3d 838 (Nos. 18-1671, 18-1746 & 18-1787); cf. Brief for Appellee the Financial Oversight and Management Board for Puerto Rico and the Puerto Rico Fiscal Agency and Financial Advisory Authority at 15, Aurelius, 915 F.3d 838 (Nos. 18-1671, 18-1746 & 18-1787) (quoting a portion of Justice Alito’s dissent in Ortiz v. United States, 138 S. Ct. 2165, 2197 (2018), without noting the quoted portion’s reliance on Dorr v. United States, 195 U.S. 138, 148 (1904), which declined to extend part of the Constitution to Puerto Rico on a theory that the “result may be to work injustice and provoke disturbance rather than to aid the orderly administration of justice” where “the United States, impelled by its duty or advantage, shall acquire territory peopled by savages”); Brief for the United States at 18, Aurelius, 915 F.3d 838 (Nos. 18-1671, 18-1746, 18-1787 & 18-8014) (same).
See, e.g., Transcript of Oral Argument at 85-86, Aurelius, 140 S. Ct. 1649 (Nos. 18-1334, 18-1475, 18-1496, 18-1514 & 18-1521) (Roberts, C.J.) (“[A]s Justice Breyer has pointed out, none of the other parties rely on the Insular Cases in any way. So it would be very unusual for us to address them in this case, wouldn’t it?”); cf. id. at 86 (Jessica E. Mendez-Colberg, Counsel for Unión de Trabajadores de la Industria Eléctrica y Riego (UTIER)) (“Now it is very convenient for the other parties . . . to rely on the Insular Cases in the lower courts, where there is no authority to overrule those cases, . . . but then[,] when we come before this Court[,] to say that they are not relevant.”).
See, e.g., United States’ Memorandum of Law in Support of the Constitutionality of PROMESA, supra note 9, at 8-9; Brief for Appellee American Federation of State, County & Municipal Employees, supra note 29, at 1. Arguments invoking the Insular Cases for the proposition that the Appointments Clause does not apply to Puerto Rico did appear at the certiorari stage, however. Consolidated Opening Brief and Reply of Official Committee of Unsecured Creditors of All Title III Debtors Other than COFINA at 30-37, Off. Comm. of Unsecured Creditors of All Title III Debtors Other than COFINA v. Aurelius Inv., LLC, Nos. 18-1334, 18-1475, 18-1496, 18-1514 & 18-1521 (1st Cir. Sept. 19, 2019).
See, e.g., Transcript of Oral Argument, supra note 33, at 87 (Roberts, C.J.) (“I guess, again, I just don’t see the pertinence . . . of the Insular Cases.”); id. at 82 (Breyer, J.) (agreeing with counsel for one of the petitioners that the Insular Cases are “a dark cloud,” though suggesting that “it doesn’t matter here”).
Some commentators appear to attribute some of the Court’s unwillingness to overrule the Insular Cases in the same manner as Korematsu to Justice Sotomayor’s omission. See Adriel I. Cepeda Derieux & Neil C. Weare, After Aurelius: What Future for the Insular Cases?, 130 Yale L.J.F. 284, 286 (2020) (“Justice Sonia Sotomayor, whose invocation of Korematsu in her Trump v. Hawaii dissent had prompted the Chief Justice’s pointed response, observed only that ‘territorial status should not be wielded as a talismanic opt out of prior . . . constitutional constraints,’ with no mention of the Insular Cases. Not pressed to engage with the Insular Cases, the majority in Aurelius declined to go any further than it did. Thus, the invitation of multiple parties and amici on both sides to place the Insular Cases alongside Korematsu in the dustbin of history went unanswered.” (footnotes omitted)); see also Kyla Eastling, Danny Li & Neil Weare, The Supreme Court Just Passed Up a Chance to Overrule Appallingly Racist Precedents, Slate (June 1, 2020, 5:42 PM), https://slate.com/news-and-politics/2020/06/puerto-rico-insular-cases-supreme-court.html [https://perma.cc/376U-BSG2] (“Sotomayor was silent on the Insular Cases, both at oral argument and in her concurring opinion . . . . Thus, there was no similar pressure on Breyer’s majority opinion to explicitly condemn the Insular Cases.”).
See Cepeda Derieux & Weare, supra note 39; see also Ponsa-Kraus, supra note 7, at 107 (criticizing Justice Sotomayor’s concurring opinion for failing to give airtime to alternative views within the public and scholarly debate over Puerto Rican “compact theory,” opining that “[e]ither she does not know the debate exists, which is inconceivable, or she does and ignores it, which is unforgiveable”). In fact, in the Yale Law Journal Forum’s recent collection titled The Insular Cases in Light of Aurelius, only one of its three essays actually engages with the Court’s opinion in any meaningful depth. See Cepeda Derieux & Weare, supra note 39.
In the Court’s most recent case about Puerto Rico, United States v. Vaello Madero, two Justices condemned the Insular Cases and expressed the view that they should be overturned “soon.” See 142 S. Ct. 1539, 1557 (2022) (Gorsuch, J., concurring); id. at 1560 n.4 (Sotomayor, J., dissenting). Yet only one of them believes that the Constitution prevents Congress from discriminating against the lowest-income disabled, blind, and elderly residents of Puerto Rico to deny them access to nationwide federal benefits. See id. at 1559-62 (Sotomayor, J., dissenting). Indeed, without any resort to the Insular Cases or the idea that some parts of the Constitution “do not apply” to Puerto Rico, eight of nine Justices agreed that the Constitution itself still permits Congress to cut Puerto Rico’s most vulnerable populations out of SSI—the nation’s largest income-assistance program—and deny those populations access to a lifeline that lifts millions of elderly Americans and Americans with disabilities out of extreme poverty throughout all fifty states, Washington, D.C., and the CNMI. Id. at 1542 (majority opinion); see Brief of the National Disability Rights Network et al., supra note 18, at 5-7.
See Sam Erman, Truer U.S. History: Race, Borders, and Status Manipulation, 130 Yale L.J. 1188, 1192-98 (2021) [hereinafter Erman, Truer U.S. History] (reviewing Daniel Immerwahr, How to Hide an Empire: A History of the Greater United States (2019)) (distinguishing problems of status from those of “status manipulation,” made possible by constitutional and political narratives that obscure U.S. imperialism and empire building to achieve subordination “from the shadows”); Sam Erman, Status Manipulation and Spectral Sovereigns, 53 Colum. Hum. Rts. L. Rev. 813 (2022) [hereinafter Erman, Status Manipulation and Spectral Sovereigns].
While the Yale Law Journal’s and Harvard Law Review’s recently curated collections in this topic area may be “a notable token of atonement,” Rose Cuison Villazor, Problematizing the Protection of Culture and the Insular Cases, 131 Harv. L. Rev. F. 127, 133 (2018), they have not generated anything resembling the iterative doctrinal exploration rivaling that which gave birth to the Insular Cases from these pages a century ago, see, e.g., Elmer B. Adams, The Causes and Results of Our War with Spain from a Legal Stand-Point, 8 Yale L.J. 119 (1898); Simeon E. Baldwin, The Constitutional Questions Incident to the Acquisition and Government by the United States of Island Territory, 12 Harv. L. Rev. 393, 412 (1899); John Kimberly Beach, Constitutional Expansion, 8 Yale L.J. 225, 234 (1899); William Bradford Bosley, The Constitutional Requirement of Uniformity in Duties, Imposts and Excises, 9 Yale L.J. 164 (1900); C.C. Langdell, The Status of Our New Possessions: A Third View, 13 Harv. L. Rev. 155 (1899); Carman F. Randolph, Constitutional Aspects of Annexation, 12 Harv. L. Rev. 291 (1898); James Bradley Thayer, Our New Possessions, 12 Harv. L. Rev. 464, 484 (1899). Nor have they adequately questioned the role that these pages should play in unwinding ideas incubated a century ago in their earliest volumes. See infra Part V. But see Julian Aguon, The Properties of Perpetual Light 65-67 (2021); Erman, supra note 15, at 105 (noting the Harvard Law Review’s role in incubating the Insular Cases and the appeal of framing today’s scholarship as an exercise in “you break it, you fix it,” but noting also that “rereading . . . with nonjudicial officials in mind provides new insights and optimism as well as grounds for skepticism”).
See American Samoa and the Citizenship Clause: A Study in Insular Cases Revisionism, 130 Harv. L. Rev. 1680, 1686 (2017) (“Where the doctrine once served colonial interests in an era of mainland domination of the territories, a revisionist argument would see it repurposed today to protect indigenous cultures from a procrustean application of the federal Constitution. The journey of this controversial theory from the academy in the 1980s to the D.C. Circuit’s unanimous panel in 2015 tells a compelling story of shifting ideology in a complicated doctrinal area.”); cf. Ponsa-Kraus, supra note 7, at 128 (discussing attempts to reappropriate the Insular Cases towards the ends of self-determination).
See Philip P. Frickey, (Native) American Exceptionalism in Federal Public Law, 119 Harv. L. Rev. 431, 435 (2005) (discussing the need to resist the judicial “seduction of coherence,” which often ignores the fact that “resolving . . . incoherence becomes not just a methodological challenge, but also an ideological struggle” (quoting Vicki C. Jackson, Seductions of Coherence, State Sovereign Immunity, and the Denationalization of Federal Law, 31 Rutgers L.J. 691, 698 (2000))).
A new book by Judge Jeffrey Sutton helpfully sketches the colonial condition of territories. Their experience fundamentally “echoe[s] the experiences of the first thirteen states. Noblesse oblige went only so far in the British Empire. Parliament did not treat the residents of its colonies in the same way it treated British citizens, often failing to heed their complaints, always denying them a way to protect their interests: the right to vote. [The right to vote] of course was the central complaint that triggered the Revolution, a lack of representation of the American colonies in Parliament and ‘the long train of abuses and usurpations’ that resulted. A comparable problem arose in the American territories. Instead of colonies of the British Empire, they became territories of an American Empire—often ignored, often frustrated by a lack of representation in the national government, a lack of local authority over their own affairs, and a lack of local understanding by the federally appointed officials who ruled them.” Jeffrey S. Sutton, Who Decides: States As Laboratories of Constitutional Experimentation 137 (2021). Interestingly, Judge Sutton’s book devotes an entire chapter to extensive historical exploration of territorial judging and territorial governance as a lens on the meaning of America’s “fifty-one constitutions” (Puerto Rico’s, the CNMI’s, and American Samoa’s do not count, apparently). Id. at 101-43. However, the book does not include in its analysis (or otherwise acknowledge the existence of) overseas territories. It does not appreciate the particular modes of territorial judging or governance that exist only as a result of overseas expansion—or, for that matter, as they currently exist today in the territories. While exploring how state and territorial courts’ interpretations can “facilitate a dialogue with the federal courts in interpreting the US constitution,” his analytical approach blinds itself to the example of courts like the Supreme Court of Puerto Rico, which would undoubtedly aid his inquiry. Id. at 102.