Tuesday’s oral arguments in a Supreme Court case challenging the constitutionality of Puerto Rico’s financial oversight board could impact the treatment of future cases involving U.S. territories.
In the case of Financial Oversight Board v. Aurelius Investment, stakeholders are reviving calls for the Supreme Court to overturn, or at least no longer rely on, the controversial Insular Cases long seen as a hurdle to equal citizenship rights for residents of U.S. territories.
“The Insular Cases and the doctrine of territorial incorporation have rightly been criticized for creating a second-class status for residents of so-called ‘unincorporated’ territories like Puerto Rico, Guam, and the U.S. Virgin Islands based on the racist view that Caribbean and Pacific islands acquired by the United States after the Spanish American War were populated by ‘alien races’ and ‘savage people,’” said Neil Weare, president of Equally American, a nonprofit pushing for equality and civil rights for American citizens living in U.S. territories.
The dispute in the Aurelius case is over whether appointments made to the Financial Oversight Management Board, which manages Puerto Rico’s finances, are constitutional. In 2015, Puerto Rico’s crushing debt reached $70 billion, resulting in a scramble among its creditors as it became clear the territory would be unable to pay. Congress, through the 2016 PROMESA Act, created the seven member board to make fiscal and legal decisions for the debt-ridden commonwealth.
Congress appointed six of the seven board members from a Congress-compiled list, with the president appointing the final board member. At the time, the appointments were not required to go through a Senate confirmation process. Under the Constitution’s appointments clause, however, the Senate must confirm principal “Officers of the United States” appointed by the president.
This omission provided the springboard for a constitutional challenge by creditors and labor unions, including Aurelius Investment and Unión de Trabajadores de la Industria Eléctrica y Riego, or UTIER, a local labor union. The U.S. Court of Appeals for the First Circuit agreed that board members should have been nominated by the president and confirmed by the Senate, but it did not reverse all prior actions by the board, cautioning against problems that might result.
The United States, supporting the board’s constitutionality, argues that the appointments clause of the Constitution does not apply to U.S. territories, which means board members did not have to go through the confirmation process. The U.S., according to UTIER counsel Jessica Mendez Colberg, is relying on the Insular Cases “without admitting it.” Aurelius and UTIER appealed to the Supreme Court, which granted certiorari in June.
The case is raising hopes among equal citizenship rights activists, partly because both sides of the dispute are calling for the Supreme Court to avoid relying on the Insular Cases in its analysis of the financial board’s constitutionality. In that century-old string of cases involving territories acquired after the Spanish American War, the Supreme Court held that constitutional protections do not fully extend to all U.S. possessions, including the territories.
For many Virgin Islanders, this translates to inequalities like the inability to vote in the presidential elections while a V.I. resident, and getting the short end of the stick when it comes to federal funding.
Ahead of Tuesday’s arguments, the petitioners’ brief condemned reliance on the now-infamous Insular Cases.
“This over-extension of such infamous doctrine is another insult to the human rights and the dignity of the people of Puerto Rico that this Court should not allow,” according to the brief.
“The history of the colonial domination of Puerto Rico through the Territories Clause as interpreted by the racist Insular Cases is untenable because it is contrary to the modern vision of individual and political rights that are protected by the United States Constitution and international covenants that are the supreme law of the land,” it continued.
On the other side, the United States, as it argued for the constitutionality of the financial oversight board, cautioned against using the Insular Cases for a slightly different reason. In its brief to the Supreme Court, the government wrote that the Insular Cases are not relevant, saying they mainly tackle whether the Bill of Rights and other individual rights guarantees apply to the territories.
“They answer that question by considering whether Congress has ‘incorporated’ the territory into the United States,” according to the brief. “Those cases have nothing to do with the separation-of-powers guarantees [which the Supreme Court held] inapplicable in the territories long before the Insular Cases.”
The American Civil Liberties Union and ACLU Puerto Rico, which filed an amicus brief on the Aurelius case, wrote “the Insular Cases, which impose a second-class constitutional status on all who live in so-called ‘unincorporated’ territories, explicitly rest on outdated racist assumptions about the inferiority of ‘alien races’ and depart in unprincipled ways from the fundamental constitutional tenet of limited government.”
The Virgin Islands Bar Association, in its amicus brief, wrote that the Supreme Court, in the Insular Cases, promised residents of U.S. territories that they would enjoy at least those constitutional rights considered “fundamental.”
“But it broke that promise,” the brief stated. “Instead, federal courts have routinely relied on the Insular Cases to justify the refusal to extend to the territories constitutional rights considered ‘fundamental’ in every other context.”
A group of legal scholars from some of the country’s top law schools, including Columbia Law, Boston University School of Law and University of Southern California Gould School of Law, focused on keeping the Insular Cases within their limited scope. In their amicus brief, the constitutional scholars wrote that they are interested “in ensuring that the limited scope of the Insular Cases be accurately understood and that the ‘territorial incorporation’ doctrine commonly attributed to these decisions not be further extended.”
We are meanwhile advocating for fully overturning the “shameful rulings” in the Insular Cases, “just as [the Supreme Court] overruled its shameful ruling in the Japanese internment case, Korematsu v. United States, last term.”
Delegate to Congress Stacey Plaskett also released a statement Wednesday, condemning the continued use of the Insular Cases in court decisions.
“Since the early 1900s, the Insular Cases have plagued the United States territories, by establishing for America full sovereignty without full constitutional rights and protections for the territories … the millions of Americans living within territories, including those in my district, are no less American than those living within the fifty states,” Plaskett stated. “The Insular Cases, decided on racist theories, still cast a dark shadow over our country and its promise of equality under the law even today.”
According to Plaskett, she is joining a resolution that will be introduced this week by Rep. Raúl M. Grijalva (D-AZ), who represents the third congressional district of Arizona. Plaskett said she hopes her colleagues would support the resolution, which rejects the use of the Insular Cases in present and future cases and controversies.
Two justices’ sentiments in an unrelated case argued last week, Ramos v. Louisiana, also gives hope to equal citizenship rights advocates. Justice Stephen Breyer hinted that the Supreme Court “might have to revise” the Insular Cases, while Justice Samuel Alito’s characterization (“the old Insular Cases that reflect attitudes of the day”) suggests shifting judicial attitudes. A decision on the Aurelius case is not expected until next year.