Have Congress and Courts Rehabilitated Insular Cases?

By Howard Hills

U.S. Constitution purposefully limits citizenship rights in territories

It’s a common misunderstanding that citizen rights in territories are not equal to citizenship in the states due to the legacy of historical institutionalized racism in the United States.  The logical implication is that legal and political limits on the rights of citizens in the territories are the moral equivalent of racism under the color of law.

Institutionalized racism in the states also extended to U.S. territories prior to the civil rights movement of the 1960’s.  Today federal laws ending impermissible racial discrimination in the states also apply fully in all U.S. territories.

Social, economic and cultural discrimination between races persists in America, as it does in all nations.  To the extent racial discrimination in America is less than other nations, it is more prominent here because our nation’s defining purpose is to further the cause of human liberty and equality.

Legally, discrimination based on race and other impermissible classifications is constitutionally prohibited.  However effective or imperfect racial justice may be, in America or other nations dedicated to the same principles of freedom, U.S. law provides remedies and penalties for prohibited discrimination.

The difference for territories

However, limits on some citizenship rights in the territories are not based on historic institutional racism that is now unlawful.  Rather, territorial rights that fall short of rights that come only with statehood are deemed by Congress and the courts to discriminate lawfully between the political status of territories and states within the U.S. Constitutional framework.

Rather than a matter first or foremost of race discrimination, denial of citizenship rights in the territories equal to full citizenship in the states is inherent in the American system of constitutional federalism.  In particular, the limited rights of citizens in the territories with respect to participation in the U.S. political process at the national level is due to the political status of non-incorporation.

Non-incorporation is a form of political and governmental limbo for territories the future status of which has not been clearly and finally decided by either Congress and/or the territorial body politic.  In other words, “unincorporated” status is a condition of suspended animation for territories not yet in transition to either statehood or separate sovereign nationhood.

Since 1901 federal court legal doctrines have defined unincorporated territory status to mean the U.S. Constitution does not apply in unincorporated territories the same way it does in states of the Union. Moreover, Congress and the U.S. Supreme Court have upheld the legal doctrine of unincorporated territory status in the modern era without any indication or evidence of racial prejudice.

State-like equality is not equality with states

Some advocates of territorial rights claim the Courts or Congress could adopt federal law conferring virtual state-like equality for the territories.  The implicit false promise is that ending inequality to the fullest extent that is within the powers of Congress and the courts would mean we don’t have to deal with the future status of the territories.

But even the greatest degree of equality and state-like status possible under federal law would not secure full and equal rights of U.S. citizenship.  Full equality cannot be attained except through political status resolution addressing the complex choice between statehood or nationhood.

That’s true for any territory that seeks to retain U.S. citizenship, because the fundamental right of equal consent of the governed through full representation in the U.S. Congress and Electoral College is allocated by Article I and Article II of the U.S. Constitution only to the citizens of states.

Even citizens of permanently incorporated territories in transition to statehood do not have an equal right to vote in federal elections for full representation in the federal political process.  In reality, full democratic voting rights can be exercised only as a combined right of both national and state citizenship.

Similarly, any territory with the aspiration of ending territorial status based on separate sovereignty, nationality and citizenship recognized by the U.S. must establish a republican form of government under a constitution that will replace the U.S. Constitution and the supreme law of the land.

Simply stated, attainment equal citizenship is possible only by ending territorial status, and establishment of full self-government over a defined territory and population with full equality under a constitutionally defined political status.

It’s the United States, not United States and Non-sovereign Political Subdivisions

The fact that full citizen equality is secured by the U.S. Constitution only through statehood is not an accident, it is fundamental to the original design of our Constitution. The U.S. is a federation of constitutionally sovereign states, not a confederation of states and non-sovereign political subdivisions.

Apportionment of voting rights to states under a model combining both equal state-by-state and population based representation binds together an ever-changing alignment of large and small states in pursuit of evolving national and state purposes.

If the U.S. were governed instead by national popular vote, statehood would become an obsolete status without meaningful sovereignty.  Indeed, the American system of constitutional federalism as we now know it would end.

Amendment of the U.S. Constitution to give citizens in territories the same rights as states would lead to equality only if each territory had the same representation as states.  Statehood or separate nationhood would be more normative status solutions to attain equality.

Resolving unequal citizen rights for people living in U.S. territories requires that one of two possible scenarios reaches culmination through establishment of a permanent political status:

• Congress exercises its Article IV power to govern territory outside states and admit new states to enable each territory to attain equal rights of citizenship that come only with statehood or by becoming part of an existing state; or,
• People of unincorporated territories petition Congress to exercise its Article I powers to recognize separate national sovereignty and national citizenship through independence, with or without a fully terminable treaty of free association.

Territorial rights advocates conflate and confuse imperialism, racism and non-incorporation

Over the past several years, territorial rights advocates and organizations have pursued litigation projects in various federal courts.  Igartua de la Rosa v. U.S. (2005) was the first of three failed lawsuits in which U.S. citizens from Puerto Rico alleged that denial of federal voting rights and voting representation in Congress violates equal protection and other fundamental constitutional rights.

In the territory of Guam, a litigation project originally named “We the People” lost territorial rights lawsuits, changed its name to “Equally American,” and renewed a series of territorial rights lawsuits.  “Equally American” argues federal law and policy governing the last five locally self-governing unincorporated territories is unconstitutionally racist.

This juridical thesis is based on U.S. Supreme Court cases in 1901, in which court members made comments expressing race-based social attitudes prevalent in that era, but arguably not material to the law emerging from the court’s territorial rulings.

“Equally American” now seeks a judicial mandate reversing U.S. Supreme Court territorial law precedents known as the Insular Cases.  Those precedents held that the U.S. Constitution gives Congress the power to limit the rights of persons with U.S. nationality and citizenship residing in the unincorporated territories.

Like other unsuccessful territorial rights advocates from all five territories over the decades, “Equally American” has asked multiple federal courts to declare the U.S. Constitution gives Americans in the unincorporated territories the same status and rights as citizens in the states.

While the intention to improve lives of U.S. citizens in the territories is good, seeking judicial nullification of unincorporated territory status as defined in the Insular Cases is anti-historical and anti-democratic.

“Equally American” misguidedly asks courts to impose a new and unknown legal framework on Americans in the territories without their consent through democratic self-determination.  That also denies any say in the matter by the U.S. Congress, as required by Article IV of the Constitution.

The Insular Cases are imperfect and arguably flawed, but have been upheld consistently for 120 years, including in 2016 rulings by the U.S. Supreme Court.  In the modern era since WWII, the high court repeatedly has affirmed unincorporated territory status as a permissible exercise of the Article IV authority and responsibility of Congress to determine disposition territorial status.

Utah federal court ruling

Last December, however, a federal judge in Utah issued a ruling in the case of Fitisemanu v. United States, tentatively agreeing with “Equally American” that the national citizenship clause in the 14th Amendment applies in American Samoa.  If upheld, the trial court ruling would end the statutory U.S. nationality of the residents enacted by Congress under its Article IV and Article I powers.

Instead, the ruling by a lower federal court in Utah would replace current elective, discretionary statutory citizenship with automatic constitutional U.S. citizenship, under the national and state citizenship clause of the 14th Amendment as it applies in the states.  This would in effect permanently incorporate the territory into the union, at least for purposes of the 14th Amendment.

While “Equally American” touted this court ruling as a breakthrough, the judge entered a stay blocking his own order pending appeal.  It seems the judge realized his ruling raised more questions than it answered, or that the judge was prepared or able to address in that case.

Specifically, if the Utah court order is upheld, it is not clear if or how the state citizenship clause that is combined with the national citizenship clause in the 14th Amendment, as well as other provisions of the U.S. Constitution applicable in states, would apply in the unincorporated territory of American Samoa.

Interestingly, the Fitisemanu ruling, handed down by a federal court in the predominately Mormon state of Utah, purports to give automatic full U.S. citizenship under the 14th Amendment to three U.S. nationals in Utah who were born in the predominately Mormon territory of American Samoa.

Under current territorial law, persons born in Americans Samoa are “U.S. nationals” but not “citizens.” As “nationals” people from American Samoa who relocate to a state can apply for change of status to “citizens” as provided for under federal law.

The court could have provided the three Utah plaintiffs remedial citizenship status rights equal to other Americans who move from any territory to a state.  Instead, the federal court in Utah changed the legal status of all 55,000 persons born and residing in American Samoa from that of nationals to citizens.

Instead of addressing the deficiencies of “citizenship” in other territories, “Equally American” and other territorial rights advocacy organizations representing territories with “citizen” status chose American Samoa as an experimental test case.

Are “nationals” from American Samoa inferior to “citizens” from other territories?

In doing so, lawyers for “Equally American” misled the court and public that “national” status in American Samoa is legally inferior to “citizen” status in the other territories.

That is not viewed as a mainstream opinion by people in American Samoa, the majority of who reportedly are proud of being “nationals but not citizens.”  It appears to be “Equally American” lawyers from Guam who most vociferously object to “national” status for American Samoa.

That “national and proud of it” sentiment in American Samoa can be traced back more than century.  The American Samoan political and cultural “brand,” if you will, combines fierce allegiance and American patriotism with a strong tradition asking Washington to help as needed without meddling in local affairs.

From 1904 forward the “national” status that still exists in American Samoa today applied in the territories of Guam, Virgin Islands and Puerto Rico.  It was in response to petitions by elected representatives of the “nationals” in those other four unincorporated territories that Congress adopted federal territorial laws classifying the nationals in every territory other than American Samoa as “citizens.”

American Samoa chose to preserve its “national” status instead.  One reason was that like “national” status the statutory “citizenship” conferred in the other four territories is less than equal compared to full citizenship rights that exist only in states of the union.  Both “nationals” from America Samoa and “citizens” from the other four territories must relocate to a state to secure equal rights in the federal political process.

If upheld, the federal district court decision incorporating American Samoa under the 14th Amendment in the Fitisemanu case could have unintended consequences well beyond American Samoa.

Thus, court ordered status change for American Samoa could also change the status of other territories by permanently applying the 14th Amendment.

Doing so without giving each territory a say through democratic self-determination only repeats the mistakes of the Insular Cases by imposing a new political status without consent of the governed.

It also could eliminate separate sovereignty and make incorporation leading to statehood, or permanent incorporation without statehood, the only status options available to Puerto Rico.

Did court impose a pan-territorial agenda at expense of American Samoa autonomy?

Complicating the issues raised by the Fitisemanu ruling further is the fact that the local elected government in American Samoa and their Delegate to the U.S. Congress do not seek a change in status by judicial edict. They take this position because of concerns that Fitisemanu would limit American Samoa residents from continuing to live under their traditional customs and laws.

Instead, American Samoa officials believe that any decision to seek the same “citizenship” conferred by Congress in the other four territories should be consented to and voted on by the residents of American Samoa as an act of self-determination.

Unfortunately, in a legal narrative side-stepping that reality, the “Equally American” lawyers argue the 1901 ruling in the case of Downes v. Bidwell, and all federal territorial law and policy based on that ruling, is tainted fruit of the poisonous tree of judicial racism.

The bedrock of the “Equally American” argument that Americans in all territories have the same citizenship rights as citizens of the states is that when the U.S. Supreme Court decided Downes in 1901, it already had proven itself racist in the 1896 ruling in Plessy v. Ferguson. 

The Plessy ruling upheld the “separate but equal” doctrine of racial segregation.  The flawed logic of that argument is best demonstrated by applying the same race baiting reasoning to modern era rulings on equal rights in the states and territories.

For example, the Supreme Court overturned Plessy in the 1954 case of Brown v. Board of Education. Yet, in the unrelated 1957 criminal law case of Reid v. Covert, the high court’s jurisdictional holding also cited and affirmed the territorial law doctrines of the Insular Cases like Downes v. Bidwell.

If the court’s racial bias in the 1896 segregation ruling by the Plessy court also taints its 1901 territorial status ruling, then by the same logic the 1957 ruling upholding the Insular Cases is presumptively not tainted by racism, because three years earlier in 1954 the court had overturned “Plessy” in the same period the court had just ended racial segregation.

Indeed, the 1957 ruling in the Reid case has been followed by a long line of even more sweeping U.S. Supreme rulings in the modern era.  These rulings upholding the Insular Cases sustain federal territorial law jurisprudence distinguishing between the status and rights of Americans in the “unincorporated” and “incorporated” territories, as well as the states.

For example, well after the Civil Rights Act of 1964 outlawed institutionalized federal or state racial discrimination as a mandate of federal law, in multiple cases where no racially motivated bias has been detected the U.S. Supreme Court has upheld the “unincorporated territory” doctrine of the Insular Cases.

That territorial status jurisprudence allows Congress to treat statutory U.S. nationality and citizenship in the unincorporated territories differently and less than equally than constitutionally protected nationality and citizenship in the states of the union.  That differentiation of rights applied to “incorporated” territories where some but not all state rights apply.

This modern era line of cases includes Examining Board v. Flores de Otero (1976), Harris v. Rosario (1980), PDP v. Rodriquez (1982), Bush v. Boumediene (2008) and Puerto Rico v. Sanchez Valle (2016).

In these and other cases, the U.S. Supreme Court has upheld the actual law of Downes v. Bidwell and the Insular Cases.  Nevertheless, “Equally American” asserts judicial notice of racial and cultural differentiation between the Philippines, Puerto Rico and the states or incorporated territories in 1901 constitute racist motives for rulings defining unincorporated territory status.

Of course, the “Equally American” argument that the motives of justices in one case can be imputed to the justices in a later case is highly subjective and speculative.   That makes it highly implausible as a matter of plain legal logic to impute racist, imperialist, colonialist motives attributed to the federal courts in 1901 to U.S. Supreme Court rulings in the modern era that uphold the Insular Cases.

Puerto Rico v. Sanchez Valle offers no apologies for Insular Cases

In the 2016 ruling in Sanchez Valle, the opinion of the court by Associate Justice Elena Kagan meticulously outlined the evolution and development of territorial self-government and autonomous regimes with state-like authority over internal affairs in Puerto Rico.

That narrative in the court’s opinion recognized the sovereign-like powers of the “commonwealth” regime of local self-government under the territorial constitution authorized, amended and approved by Congress for Puerto Rico in 1952.

However, Kagan correctly discerned that the distinguishing element of local sovereignty conferred by Congress in the exercise of its Territorial Clause powers relates only to local matters not otherwise governed by federal law.

Moreover, the enablement of local administration of internal civil affairs subject to supremacy of federal law in all matters does not constitute a zone of sovereignty beyond the reach of Congress, or otherwise create a vested and irrevocable right in the current or any other political status arrangement promulgated under federal territorial law.

Thus, one may well agree with Chief Justice Harlan’s dissent in the Downes v. Bidwell case, opposing colonial rule on grounds that seem more meritorious with the passage of time.  Similarly, there are compelling grounds to criticize the 1922 case of Balzac v. Puerto Rico for extending the original Insular Cases, which were applicable only to non-citizens even after Congress conferred statutory U.S. citizenship in the territories.

However, the legacy of long repudiated cross-cultural and inter-racial social attitudes is not transcendental.  The assertion that the post-WWII jurisprudence sustaining the unincorporated territory doctrine represents active institutionalized racism today is unavailing and untenable.  Yet, “Equally American” lobbyists have been active influencing introduction of legislation in Congress declaring the Insular Cases as recognized under federal law in 2020 as active racism.

The status question

Notwithstanding, it remains true the admittedly imperfect but sustainable jurisprudence upholding unincorporated territory status has endured scrutiny under judicial review.  That is true as it applied to “nationals but not citizens” in American Samoa, and to the statutory classification of nationals as “citizens” in the other four unincorporated territories (Guam, Puerto Rico, U.S. Virgin Islands).

The reality is that unless and until Congress exercises its powers to re-define the political status of some or all of these territories, any federal court ruling overturning the Insular Cases will need to impose a new political status, or at least define the alternative status choices that remain constitutional.

Unfortunately, an action by the Courts to impose a new political status, without the consent of voters or Congress, oversteps the constitutional role of the judiciary by addressing an inherently political question. Ultimately, any change in the political status will require democratic self-determination in each territory and a corresponding response by Congress.

Howard Hills is former counsel on territorial status affairs in the Executive Office of the President, National Security Council and U.S. State Department.  He is author of the book Citizens Without A State with foreword by former U.S. Attorney General Richard Thornburgh.