Justice Gorsuch Calls for Overruling the Insular Cases

Justice Neil Gorsuch.


Earlier today, in United States v. Vaello-Madero, A Supreme Court ruling of 8-1 ruled that Congress could exclude Puerto Rico residents from SSI benefits. This applies to all fifty US states. This ruling follows precedent that, among others, exempts Puerto Rican residents from all federal income, estate and excise taxes. Justice Neil Gorsuch used the occasion to issue a concurring view urging the Supreme Court reverse the Insular Cases. Longstanding precedents have meant that residents of Puerto Rico, and other unincorporated territories, are not protected from constitutional rights similar to those of residents in the US and federally-administrated territories (including Washington DC).

Gorsuch points to the fact that the double standard does not have any basis in text and in its original meaning. It is instead rooted in racism and ethnic bigotry which were widespread during the late 19th century and early 20th.

This Court stated that a century ago, in the Insular Courts. The federal government might rule Puerto Rico or other areas It is not uncommon for Territories to disregard the Constitution. It is
Past time, to recognize the severity of this error. We know this to be true: Insular cases have no foun
Restraint on the Constitution’s dation and reliance instead upon racial stereotypeotypes. They deserve no place in our law…

John Hay described the Insular Cases as a “splendid little battle.” … 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….

However, these acquisitions were made just a few months after the annexation in Hawaii. This drew out fierce criticism. Some claimed that America’s republican traditions prohibited it from subserviently governing foreign possessions without considering 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….

In a tax dispute, the first time that American colonialism was discussed in Court came to light. Downes v. Bidwell, 182 U. S. 244 (1901). In accordance with the Puerto Rico, a tax was imposed on all goods that were exported to, or import from, this Territory. Act of April. 12, 1900, ch. 191, §§ 2–3, 31 Stat. 77–78. A $659.35 tax bill was incurred by an importer who challenged the Act for being inconsistent with the Constitution’s Tax Uniformity Clause. It states that “all Duties and Imposts shall be uniform across 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 described the situation in starkest terms. The Constitution was applicable in the “contiguous territory territor”.[ies]Only people of the same ethnicity or scattered native Indians can live there. Id., at 282. It would be impossible to accommodate islands that are “inhabited by alien race[s], differing from our religion, customs laws methods of taxation and modes of thinking.” Id., at 287. Justice Brown stated, at 287, that it was possible to administer justice and government according Anglo-Saxon principles for some time. Ibid.His view is that Puerto Rico should receive the Constitution only if Congress has directed it.

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.” Downes182 U.S. at 293 (concurring view). Sometimes Congress may express the intention to “incorporate” Territory in the United States at some future date. In such cases the Constitution must be fully applied 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. Both sides agreed on the “right” of the nation to obtain and exploit an unknown island that was populated with an uncivilized people. . . 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)….

Insular Cases’ flaws are just as shameful as they are fundamental. There is no mention in the Constitution of both “incorporated” Territories or “unincorporated”. The Constitution does not grant the former only certain constitutional guarantees that are supposedly fundamental. It does not allow judges to segregate Territories or people living there on the basis their race, religion, or ethnicity. They have no place in the Constitution, or even its original meaning.

Gorsuch rightly points out that the Insular Cases were eventually rooted in the racist bigotry of the day. Justice Henry Brown, the author of some of the most extremist opinions in history, is not an accident. Downes v. Bidwell, Also wrote in the Court’s opinion Plessy v. FergusonIt was a couple of years ago.

Many of the arguments Gorsuch raises are old.  His long-standing criticisms about the Insular Cases are repeated by Gorsuch, who points out that some of them go back, as he says, to the forceful opinions of Chief Justice Melville Fuller and Justice John Marshall Harlan in those cases. These points were made by an important conservative Supreme Court justice. So far Justice Sotomayor has been the only dissenter to today’s ruling and has supported Gorsuch. Perhaps he will win more justices.

Residents of unincorporated territories have had some protection over the years, whether Congress has passed legislation to do so or the Supreme Court, following Justice White’s reasoning, declared these rights to be fundamental. However, they don’t extend to Puerto Rico and similar territories. Gorsuch points out the instance of the jury trial, something most Americans believe is fundamental but which has not been extended to Puerto Rico by current Supreme Court precedent.

However, the Insular Courts decision would not eliminate all legal distinctions between citizens of different states and federal territory residents. Congress may still be able to make exceptions regarding federal benefits and any other government policy that does not impact on the constitutional rights of federal citizens or on structural restrictions on federal power. The ruling could exempt Puerto Rico residents from federal taxes and welfare program. Unless there’s evidence that Congress denies Puerto Ricans SSI benefits due to their constitutionally questionable race or ethnicity, Gorsuch’s approach would see today’s ruling as the same. Congress wouldn’t be allowed to deprive them of their constitutional rights and/or circumvent any other limitations on federal power.

Justice Gorsuch should expand his condemnation of the Insular Cases and include the “plenary power”, cases that were filed in the same time period. These exempt any restrictions on immigration from all constitutional constraints. They allow for exclusion of potential immigrants based on suspicious classifications like race, religion, or political speech. They are similar to the Insular Cases and have no foundation in the Constitution and its original meaning. Plessy v. FergusonInsular cases.

Gorsuch has, unfortunately by voting in the majority of votes, helped to perpetuate the plenary power doctrine. Trump v. Hawaii (2018), the “travel ban” case, in which the  double standard exempting immigration restrictions from ordinary constitutional scrutiny was particularly egregious. The overwhelming evidence that the policy was motivated by bigots would have been enough to cause the Supreme Court, including Gorsuch, to declare it invalid. Gorsuch’s own harsh criticism of the Insular Cases will make me hope he reconsiders this position.