Aurelius' Article III Revisionism: Reimagining Judicial Engagement with the Insular Cases and 'The Law of the Territories'.

AuthorCampbell, James T.

ARTICLE CONTENTS INTRODUCTION 2546 I. AU RE LI US AND THE APPOINTMENTS CLAUSE: A "ROUGH "ARTICLE III ANALOGY 2561 II. UNEARTHING AURELIUS'S ARTICLE III PROBLEM 2566 A. Article Ill's "Exceptions": Prevailing Understandings 2569 B. Aurelias's Erasure of Territorial Courts 2571 1. Territorial Courts from the Insular Cases Through Palmore 2572 2. Territorial Courts Post-Palmore 2578 III. TERRITORIAL EXCEPTIONALISM AS STATUS MANIPULATION: MISREADING THE CONSTITUTION OF EMPIRE 2583 A. Status Manipulation: Preserving, Transforming, and Constructing Liminality 2585 B. Erasing Empire from Article III Doctrine 2588 IV. AURELIUS AS A NTI EXCEPTIONALISM'S FUTURE: THE TROUBLE WITH UNDERTHEORIZED JUDICIAL INTERVENTIONS CIRCLING THE INSULAR CASES 2597 A. The Insular Cases and Aurelius: Avoiding the Korematsu Trap 2598 B. Antiexceptionalism and Erasure: American Samoa in the Judicial Crosshairs 2604 C. The Legal Academy vs. The Unsophisticated Native Opposition: Fitisemanu v. United States 2611 D. Developing the Undertheorized Insular Cascs-Plessy Parallel 2621 1. Drawing from Plessy, but not from Brown? 2621 2. The Insular Gises-Plessy Parallel's Inherent Limits 2624 V. IMPROVING JUDICIAL ENGAGEMENT WITH "THE LAW OF THE TERRITORIES"--WITH OR WITHOUT THE INSULAR CASES 2631 A. The Territories and Promise-Keeping: Holding Conversation with Federal Indian Law 2632 B. Doing the "Hard Work" 2639 C. Sketching the So-Called "Law of the Territories" 2642 CONCLUSION 2651 INTRODUCTION

Heading into the 2020 Supreme Court Term, Financial Oversight & Management Board v. Aurelius Investment, LLC had the makings of a blockbuster. The case presented the first major constitutional hurdle for Congress's newly christened Financial Oversight and Management Board for Puerto Rico (FOMB), a novel, quasi-governmental entity chartered to wrest control over Puerto Rico's financial affairs from the island's elected government. (1) Less than a month after the Court granted certiorari, a series of massive protests erupted in Puerto Rico demanding the governor's resignation and dissolution of "la junta," a now-popularized nickname for the FOMB within the territory. (2) In an immediate sense, the constitutional challenges to the FOMB threatened to upend the very foundation of the island's $129 billion public-debt restructuring, (1) and, with it, many trillions of dollars' worth of claims. (4) More significantly, the uncertain constitutionality of the FOMB's powers and composition pointed toward some of Puerto Rjco's most difficult and enduring legal ambiguities: the limits of congressional power to interfere with the island's self-government and the future of Puerto Rjco's relationship to the United States after what will soon mark 124 years in a supposedly "temporary" constitutional limbo. (5)

Aurelius presented the most inviting opportunity in decades to reconsider the Insular Cases, (6) the long-controversial series of Supreme Court precedents that gave birth to that constitutional limbo. The Insular Cases, while not easily summarized, (7) are today invoked principally for the proposition that at least some parts of the Constitution do not "follow the flag" (8)--in other words, that the federal government is not bound by certain otherwise-applicable constitutional rights and guarantees when it acts upon overseas possessions. To accomplish this purpose, the early twentieth-century decisions invented a doctrinal distinction between "incorporated" territories--those the Court viewed as firmly destined for statehood (e.g., the Northwest Territory)--and "unincorporated" ones-possessions of uncertain relationship, to which only "fundamental" constitutional provisions would be guaranteed (e.g., the Philippines, Guam, and Puerto Rico). (9) This "territorial incorporation doctrine," as that distinction is now known, was fashioned not from any recognized legal principle, but from the Justices' varied concerns about the racial and ethnic makeup of islands newly acquired after the Spanish-American War. (10) Confronted with the specter of adding some ten million people of "alien" (11) and "uncivilized race" (12) to the American body politic, the Court licensed the political branches to maintain and develop these newly ambiguous "unincorporated" territories without citizenship and without constitutional impediment--at least "for a time." (13)

As a result, nearly four million residents of Puerto Rico, Guam, the U.S. Virgin Islands, American Samoa, and the Commonwealth of the Northern Mariana Islands (CNMI) (14) are unrepresented across all branches of our national government, even in the four territories where U.S. citizenship is guaranteed by birth.' (3) They have no electoral-college votes for President, no senators, and no voting representation on the floor of the House. (16) Only Puerto Rico has Article III protections for its district-court judges. (17) Meanwhile, Americans in the territories are singled out for widespread discrimination in federal programs and public assistance despite having some of the nation's lowest per-capita income metrics and highest cost of living. (18) This remains true even as the people of the territories have fought and died in significant numbers during every American conflict of the past century. (19) Even today, the per-capita rate of military enlistment in some territories exceeds those of all fifty states. (20)

Largely for their overtly racist reasoning, the Insular Cases have emerged as some of the most controversial precedents still cited approvingly in modern courts. (21) The late First Circuit Judge Juan R. Torruella summarized these cases as the lynchpin of "a de jure and de facto condition of political apartheid for the U.S. citizens that reside in Puerto Rico and the other territories," noting that the decisions "contravened established doctrine... to meet the political and racial agendas of the times." (22) As scholars increasingly explore the cases' historical and doctrinal links to Plessy v. Ferguson, (23) the Insular Cases have come to be viewed as "central documents in the history of American racism" (24) and a pillar of constitutional law's "anticanon." (25)

Importantly, Aurelius landed on the Court's docket just one term after a 5-4 majority formally overruled another long-reviled precedent: Korematsu v. United States. In Trump v. Hawaii, that majority reached well beyond the question presented to ceremoniously overturn the Court's infamous 1944 decision upholding the wartime relocation and internment of Japanese Americans--as "gravely wrong the day it was decided." (26) Widely credited as a "long overdue... repudiation of a shameful precedent," the Court's unanticipated repudiation of Korematsu led many to believe that the Insular Cases and their progeny were not long for this world. (27)

And yet, Aurelius was anything but a blockbuster. The merits of the case centered on the application of Article II's Appointments Clause to the FOMB, asking (1) whether the Appointments Clause applies to activities in Puerto Rico and (2) if so, whether Congress ran afoul of it by authorizing the President to appoint FOMB board members without Senate confirmation. (28) Throughout lower court proceedings, the United States, FOMB, and others insisted that Article II and other structural separation-of-powers constraints do not apply to federal activities in Puerto Rico, relying both directly and indirectly on the Insular Cases. (29) A unanimous First Circuit panel rejected those arguments and declared the appointments unconstitutional. (30) The Circuit held that FOMB appointees, whose positions had been created by Congress and endowed with significant authority under federal law, fell within Article II's definition of "Officers of the United States." (31) By the time the case reached the Supreme Court, however, lawyers defending the FOMB's constitutionality had abandoned their reliance on the Insular Cases. Instead, they offered a more general argument that because the FOMB had technically been created as a part of Puerto Rico's territorial government, Article IV's Territory Clause permitted Congress to evade separation-of-powers principles that otherwise constrain the federal government. (32)

FOMB's challengers did not follow suit. At oral argument, counsel for Puerto Rico's electrical union, Union de Trabajadores de la Industria Electrica y Riego (UTIER), committed her entire allotted time to persuading the Justices to overrule the Insular Cases. In doing so, she highlighted other parties' strategic abandonment of those precedents at the Supreme Court (33) after having relied on them throughout lower court proceedings, where judges lacked the authority to overrule them. (34) Even so, the Justices displayed little interest in her arguments. (35)

Rather than confront the Insular Cases or the broader legacy of constitutional liminality that denies key rights and political participation to millions, the majority narrowed its focus to the appointment power. It held that (1) Article I[GAMMA]s Appointments Clause does apply to federal activities in Puerto Rico, but that (2) presidential appointments to the congressionally created FOMB do not trigger that Clause because of a new functional test that asks whether officers' responsibilities are "primarily local versus primarily federal." (36) While the Court's approach offers little clarity as to the future classification of federal and territorial officers under the Constitution's separation-of-powers framework, it successfully minimized disruption to Puerto Rico's politically contentious debt restructuring while evading all of the deeper and thornier questions about Puerto Rico's political status and the limits of federal power over territorial governments.

The most the Court could muster on the Insular Cases was a passing acknowledgment that they are "much-criticized." (37) The majority nodded to uncertainty surrounding "their continued validity," but held only that it...

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