Civil Rights Blog Essay

Why the Insular Cases Must Become the Next Plessy

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Americans who call U.S. territories home face unprecedented challenges. Six months after Hurricanes Maria and Irma wreaked havoc on Puerto Rico and the U.S. Virgin Islands, many still lack electricity. Guam continues to sit in the nuclear cross-hairs of North Korea. And the Northern Mariana Islands and American Samoa are experiencing severe economic upheaval following new federal mandates. Like any American community facing such existential problems, residents of the territories look to the federal government for help.

But unlike every other American community, the nearly 4 million U.S. citizens living in the territories – a population greater than that of 21 states – cannot vote for President and lack any voting representation in Congress. As a result, these Americans have limited tools when, as too often is the case, the federal government turns a deaf ear to their concerns.

Underlying the current crises facing U.S. territories and the underwhelming federal response is a legal and political relationship that contradicts America’s most fundamental democratic and constitutional principles. The source of this un-American relationship is the Insular Cases, a series of controversial and deeply divided early 1900s Supreme Court decisions that validated the full extension of U.S. sovereignty to overseas territories without requiring the full extension of constitutional rights. As First Circuit Judge Juan Torruella recently explained in the Harvard Law Review Forum, these decisions allowed Americans in the territories “to be treated unequally from those in the rest of the nation solely by reason of their geographical residence.” Judge Torruella has become the most prominent critic of the Insular Cases, arguing forcefully thatthe Insular Cases represent classic Plessy v. Ferguson legal doctrine and thought that should be totally eradicated from present-day constitutional reasoning.” Judge Torruella’s powerful words must serve as an inspiration to action.

Applying the Lessons of Plessy to the Insular Cases

Judge Torruella’s comparison between the Insular Cases and Plessy has force at a number of levels.  As a legal matter, Plessy invented a legal doctrine of “separate but equal” which provided constitutional cover for America’s system of racial segregation. The Insular Cases, fueled by the same racial impulses as Plessy, devised a new category of “unincorporated” territories, providing a constitutional justification for ruling the populations of overseas territories without regard to traditional constitutional limitations or democratic principles.

Outside the courtroom, Thurgood Marshall and other civil rights leaders realized that in order to advance civil rights for African Americans through the political process, it would be necessary to overturn Plessy. One cannot imagine the 1965 Voting Rights Act and the other landmark civil rights legislation of the 1960s in the absence of Brown v. Board of Education overturning Plessy and recognizing that “[s]eparate … [is] inherently unequal.”

A history of failed attempts to address the underlying inequality in U.S. territories shows the same is true for the Americans living in territories today, 98% of whom are racial or ethnic minorities. Until the Insular Cases are overturned, disenfranchised and marginalized Americans in the territories will continue to look in vain for solutions from the political branches. Just as it took Brown to create a political environment where civil rights for African Americans could be imagined, it will take a rejection of the Insular Cases to open a political space where fundamental changes to the undemocratic status quo in the territories finally become possible.

The road from Plessy to Brown presents another important lesson – it takes hard work and concerted effort inside and outside the courtroom to advance change through civil rights litigation. This is what led me in 2013 to found Equally American, a nonprofit organization that seeks to turn the page on the Insular Cases and advance equality and civil rights in U.S. territories.

Taking on the Insular Cases

In 2008, the Supreme Court invited reconsideration of the Insular Cases when it expressed 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 emphasized 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.” We have taken up this invitation, teeing up several opportunities to finally overturn the Insular Cases.

This week, Equally American filed Fitisemanu v. United States, a federal lawsuit brought on behalf of passport-holding, tax-paying Americans living in Utah who are being denied the right to vote and job opportunities based on a discriminatory federal law that labels them “nationals, but not citizens, of the United States” because they were born in American Samoa, a U.S. territory since 1900.

Fitisemanu comes on the heels of a widely criticized 2015 decision by the D.C. Circuit in an earlier case that improperly relied on the Insular Cases to hold that questions of citizenship in so-called “unincorporated” territories are left entirely to Congress. An 8-Justice Supreme Court declined to review the decision despite a compelling petition filed by our co-counsel, former Solicitor General Theodore B. Olson, and seven amicus briefs filed by leading scholars, territorial officials, civil rights groups, former judges, and others urging the Court to take the case. This left the question of constitutional birthright citizenship in current U.S. territories unresolved in the remaining federal circuits, leading us to file Fitisemanu.

Notably, none of the Insular Cases holdings actually touches the question of citizenship, with the Supreme Court not reaching the issue in the one case in which it was presented. Nonetheless, the D.C. Circuit turned to the Insular Cases framework based on the erroneous conclusion that the text of the Citizenship Clause of the Fourteenth Amendment is “ambiguous” as to whether it guarantees birthright citizenship in U.S. territories.

But the text and history of the Citizenship Clause are clear: “All persons born … in the United States … are citizens of the United States” (emphasis added). At the time the Citizenship Clause was drafted and ratified in 1868, the Supreme Court had long held that “the United States” was “the name given to our great republic, which is composed of States and territories” (emphasis added).  Senator Lyman Trumbull, Chair of the Senate Judiciary Committee during debates over the Fourteenth Amendment, contrasted the use of the phrase “the United States” in the Citizenship Clause with the use of the phrase “the several States” in later sections to confirm that the Citizenship Clause “refers to persons everywhere, whether in the States or in the Territories or in the District of Columbia” (emphasis added). The Supreme Court explained just five years after the Citizenship Clause was ratified that the Fourteenth Amendment “put[] at rest” any notion that “[t]hose … who had been born and resided always in the District of Columbia or in the Territories, though within the United States, were not citizens” (emphasis added).

In a different case, Segovia v. United States, Equally American will be asking the Supreme Court to review a decision by the Seventh Circuit that rejected the equal protection claims of Americans living in Guam, Puerto Rico, and the U.S. Virgin Islands who, under federal and state overseas voter laws, would be able to vote for President if they lived in other territories instead, such as the Northern Mariana Islands, American Samoa, or even a foreign country. Relying on the Insular Cases, the district court had ruled that the right to vote was not a “fundamental right” in unincorporated territories the way it is everywhere else in the United States. The Seventh Circuit did not embrace this logic, but instead stated that Guam, Puerto Rico, and the U.S. Virgin Islands are in fact “incorporated territories.” The widespread confusion by lower courts over how to apply the Insular Cases is yet another reason they require reconsideration by the Supreme Court.

The Legacy of the Insular Cases Continues

The Insular Cases continue to have other ripple effects in U.S. territories today. For example, the 2017 federal tax reforms impose a new tax on income from intellectual property and other intangible assets in Puerto Rico, threatening tens of thousands of manufacturing jobs and billions in local revenue at a time Puerto Rico’s economy is already reeling. The new tax applies because Puerto Rico is considered “foreign” rather than “domestic” for purposes of the tax. It is unclear how this kind of discriminatory tax treatment would be constitutional under the Uniformity Clause absent the Supreme Court’s 5-4 decision in Downes v. Bidwell, the most prominent (and controversial) of the Insular Cases.

The Insular Cases have also appeared in the center of controversies over whether the Supreme Court’s recent decision recognizing marriage equality extends to U.S. territories. In 2016, a district court judge in Puerto Rico relied on the Insular Cases to reject extending the Supreme Court’s marriage equality ruling to Puerto Rico, a decision that was quickly reversed by the First Circuit. But the American Samoa government continues to rely on the Insular Cases and the reasoning of the D.C. Circuit’s citizenship ruling to deny marriage equality, making it the only place in the United States where marriage equality is not recognized today.

The Insular Cases continue (albeit erroneously) to have far-reaching consequences, both inside and outside the courtroom. It is long-past time that the Insular Cases be placed in the dustbin of history alongside other racially motivated decisions like Plessy and Dred Scott. But to get there, we must rally the same kind of energy and resources that led to the Supreme Court’s historic decision in Brown. As history shows, change does not just happen on its own.

Editor’s Note: Neil Weare represents plaintiffs in Fitisemanu v. United States and Segovia v. United States, discussed above; the views expressed in this post are his own and do not necessarily reflect the views of co-counsel.