Lawmakers push DOJ to end disenfranchisement of US territories

The 125 year-old series of Supreme Court rulings known as the Insular Cases have made residents of U.S. territories into second-class citizens, Congress told the Justice Department.

What this is Really All About >>> American Samoa Citizenship Question Not So Simple

by Benjamin S. Weiss, Court House News, April 17, 2024

WASHINGTON (CN) — A group of lawmakers on Wednesday renewed calls on the Justice Department to disavow a series of century-old Supreme Court rulings that they say have long made residents of U.S. territories into second-class citizens by stripping them of certain constitutional rights.

“There are 3.6 million people that reside in one of the five U.S. territories … who are denied their full constitutional rights and have been structurally disenfranchised for over 125 years,” said Representative Stacey Plaskett, congressional delegate from the U.S. Virgin Islands, during a press conference on the Capitol steps.

Plaskett has joined dozens of her colleagues from both the House and Senate in urging the Department of Justice to walk back judicial precedent set in a series of Supreme Court decisions known as the Insular Cases. Decided between 1901 and 1922, the Insular Cases determined the legal status of the five U.S. territories: American Samoa, Guam, the Northern Marianas Islands, Puerto Rico and the U.S. Virgin Islands.

Under that longstanding precedent, the high court has held that the territories are not considered incorporated into the greater United States, meaning that their residents do not share the same constitutional rights as people living in the 50 U.S. states or Washington, D.C.

Thanks to the Insular Cases, residents of U.S. territories do not have access to certain federal benefits such as the Supplemental Nutrition Assistance Program and do not have voting representation in Congress — but they do pay taxes and are eligible for the draft.

The rulings also put Congress in charge of overseeing the territories.

In a letter sent to Attorney General Merrick Garland Monday, Plaskett and dozens of lawmakers including Arizona Representative Raúl Grijalva, New Mexico Senator Martin Heinrich and Senate Majority Whip Dick Durbin pointed out that the Insular Cases are deeply steeped in colonial and racist ideologies.

“The colonial system established by the Insular Cases was based on the court’s judgment that the people residing in the territories were racially and culturally inferior to Anglo-Saxon white Americans,” the lawmakers wrote, “and, therefore, unfit for the protections of the Constitution, self-government or self-determination.”

Many of the same high court justices that decided the Insular Cases, they added, handed down the 1896 ruling in Plessy v. Ferguson, which established the “separate but equal” doctrine for racial segregation.

The cases themselves are rife with racist language — the Supreme Court’s 1901 ruling in the case Downes v. Bidwell refers to people living in the territories as “alien races,” and a similar decision that same year labeled them “savage tribes.”

At Wednesday’s press conference, Plaskett argued that it is long past time to do away with the Insular Cases and their effects on the U.S. territories.

“In 2024, no one should use the racist language of the Insular Cases to deny citizenship rights to people born in U.S. territories,” she said. “The Insular Cases have served as a justification for the denial of civil and political rights to people deemed by the racist, segregationist Supreme Court of the early 20th century unfit to enjoy the full rights of American citizenship.”

Grijalva, who was scheduled to speak at the presser but was not able to attend, said in prepared remarks that the Insular Cases conflict with President Joe Biden’s declaration that there are no second-class citizens in America.

“As long as the federal agency responsible for enforcing our laws and administering justice continues to rely on the Insular Cases, this cannot be realized,” he said.

Adi Martínez Román, co-director of territorial advocacy group Right to Democracy, pointed out that the implications of the longstanding judicial precedent go deeper than the letter of the law.

“Its insidiousness seeps through the attitudes of politicians and public officials,” she said, “and it even seeps through the people on the ground — feelings of inferiority, feelings of dependency.”

Román acknowledged that walking back the Insular Cases may not be a catch-all solution for the legacy of U.S. colonialism, but she said it would increase the obligation on public officials and politicians to address the government’s unilateral relationship with the territories.

“It will crumble down this wall that has been justifying inaction for years and years,” she said.

Ultimately, the decision to overrule the Insular Cases would fall to the Supreme Court, but getting the Justice Department to disavow them could set the stage for something like that to happen, said Neil Weare, Román’s fellow director at Right to Democracy. He pointed to the high court’s 2011 ruling walking back its decision in Korematsu v. United States, which upheld the practice of Japanese internment during World War II.

“You have an example of a trajectory where DOJ action and recognition of a problem have encouraged the Supreme Court to take action,” Weare said. “That’s why we’re hopeful that this letter, and action by the Department of Justice, will lead to this.”

The Supreme Court in 2022 declined to take up a challenge to the Insular Cases, although justices have previously been critical of the precedent. Justice Sonia Sotomayor wrote in a 2021 opinion that the Insular Cases are “premised on beliefs both odious and wrong.” Justice Neil Gorsuch similarly wrote that it was past time to acknowledge that the Insular Cases “have no foundation in the Constitution and rest instead on racial stereotypes.”

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BACKGROUND:

2018: American Samoa Citizenship Question Not So Simple

2022: Fa'a Samoa Survives: Supreme Court Lets Citizenship Decision Stand