To Lift a Dark Cloud: The Insular Cases' Stubborn Vitality, Their Place in Civil Rights Law, and the Need to Overrule Them.

• Date: 22 March 2023
• Author: Derieux, Adriel I. Cepeda

I. INTRODUCTION

In February 2022, thirteen national civil and human rights groups wrote a letter to the Department of Justice (DOJ) asking it to formally condemn the Supreme Court's Insular Cases--a group of early twentieth century decisions that largely define the constitutional relationship between the United States and its overseas territories. (1) The group included the ACLU and other leading organizations like the NAACP, Legal Defense Fund, Hispanic Federation, and LatinoJustice PRLDEF among others. The letter was noteworthy, in part, because national groups often direct their advocacy at the DOJ, but rarely urge government lawyers to purposefully avoid specific cases or arguments. In this letter, however, national groups urged government lawyers to responsibly advocate and not rely on cases that fall so far outside what should be accepted as law.

An example of those cases is Korematsu v. United States, (2) which sanctioned the mass incarceration of Japanese Americans during World War II. (3) Even as it stayed on the books--so to speak--Korematsu became increasingly (and rightly) infamous. Eventually, the Supreme Court acknowledged that the case had been "overruled in the court of history." (4) The Insular Cases are like Korematsu and other rebuked cases such as Plessy v. Ferguson. (5) They are all glaringly racist and rooted in white supremacy.

The groups asked Generals Garland and Prelogar to disavow the Insular Cases, just like then-Solicitor General Neil Katyal did in 2011 when he publicly apologized for the DOJ's role in Korematsu. (6) This marked the first time a coalition of national civil rights groups addressed the Insular Cases like this. It was an exciting piece of advocacy to be a part of, to watch come together, and to continue to push forward. As the letter explained, it was particularly timely for these groups (and the DOJ) to rebuke the Insular Cases because 2022 marked the 100th anniversary of Balzac v. Porto Rico, (7) a decision commonly understood to be the last of the cases catalogued under the "Insular Cases" label.

With that anniversary looming--and this letter as a starting point--I would like to speak tonight about the Insular Cases, and, in particular, the way they have come up in recent cases before the Supreme Court. I will also address the way those decisions have become reviled, yet somehow have shifted into something that has become more difficult to pin down or overrule. Ultimately, I will highlight the ways the cases remain deeply problematic, especially their continued impact on the 3.5 million people who live in U.S. territories--98% of whom are people of color. (8)

II. HISTORY

The Insular Cases are a series of Supreme Court decisions from the early 1900s that addressed legal questions arising from the United States' annexation of several islands from Spain at the end of the Spanish-American War. (9) Scholars and courts differ on which cases are "Insular Cases," but it is generally understood that the most important of them came down in 1901 and the last one in 1922. (10)

In 1898, the United States went to war, ostensibly to "liberate" Cuba, which had been fighting a war for independence against Spain for several decades. (11) But the United States quickly ended that war. (12) In just a few months, the United States not only defeated Spain in Cuba, but also annexed the last bits of the empire that Spain had built in the Caribbean and Pacific--specifically, Guam, the Philippines, and Puerto Rico. (13)

It is hardly controversial today to acknowledge that the United States had imperialist motivations to fight the Spanish-American War. In fact, denying this would be more controversial. The result of the war was that once Spain left those islands, the United States annexed them. (14) It did so, practically, because the war ended with U.S. troops on foreign soil. (15) It did so, formally, by signing a treaty with Spain in 1898. (16)

That annexation triggered major legal and policy questions at all levels of public discourse and, eventually, in the courts. It makes sense to take a step back and consider: What were those questions and why were they even asked? The short answer is that the United States' sudden addition of islands populated by millions of nonwhite, non-English-speaking peoples brought with it some thorny issues. Indeed, bringing millions of non-English-speaking people of color into what was understood to be the United States created complications. The fact that the country absorbed, almost overnight, extensive lands where up to 10% of the country's population at the time already lived, sparked a deep nationwide moment of reflection and controversy. The questions were obvious: Could the Nation expand this way by overseas conquests, and if so, what was the status of the new islands vis-a-vis the United States? Did the new islands have to become states or could the United States--a republic and democracy--keep them as colonies instead?

Here, a point of clarification seems proper. The United States had always been an expansionist nation. It always had territories, and importantly, the national government always had vast powers to govern or administer its territories.

Article IV of the Constitution states that Congress has the power to "dispose of and make all needful Rules" for "[t]erritory ... belonging to the United States," and this clause had been read very broadly to afford Congress "plenary" power over federal territories. (17) But this most recent expansion brought questions related to the political future of those new territories. The understanding had always been that as the United States added territories, that land--and the people who lived there--would politically join the Nation by becoming states, as every territory that the United States added to the Nation before 1898 eventually did. That was the way the country avoided the undemocratic conundrum of otherwise having these territories peopled with inhabitants that had no say in the national government.

Connected to the questions about those territories' political future were questions about the obligations that the United States owed people who lived in the new territories: Would they automatically become citizens? Just fifty years earlier, the country had fought a Civil War largely premised on answering questions over whether certain people could be somehow within the country but never fully part of it. (18) The infamous Dred Scott v. Sandford (19) case said one thing: Slaves and their descendants would never be part of the Nation. (20) The Reconstruction Amendments then said another: Anyone born in the United States--whether in a state or territory--was a citizen. (21)

If residents of the territories could somehow still be something less than citizens, how long could Congress keep them in that state? If the answers to this question bound the United States, geographically, to add the new territories as states, or politically, to make the people who lived there U.S. citizens, then did it even make sense for the country to expand overseas?

At the time, those questions were crucial because debates between so-called imperialists--those who thought the United States should keep these territories- -and anti-imperialists--or those who thought the country must let them go--did enrapt the Nation. The New York World, Joseph Pulitzer's newspaper at the time, wrote of one of the Insular Cases that "no case ever attracted wider attention." (22) That is noteworthy, considering the Court had already decided constitutional blockbusters like Plessy and Dred Scott.

Frankly, it is easy to see why these questions took over the national conversation. This was a pivotal point for the Nation. For the first time, it had brashly projected its power outward and won territory by entering the world stage as a new overseas power. With that process came a turning point. Could the United States--a constitutional republic--hold overseas possessions like European powers did at the time, or did it have to fold them and their people into the national fabric?

Professor Daniel Immerwahr has characterized this hinge point as a trilemma. (23) The United States could have two of three things--republicanism, white supremacy, or overseas expansion. (24) It could not have all three. "In the past," he wrote, "republicanism and white supremacy had been jointly maintained by carefully shaping the country's borders. But absorbing populous nonwhite colonies would wreck all that." (25) This heated debate seems so difficult to imagine 120 years later, largely because of the Supreme Court's answers to many of these questions in the Insular Cases. This is the second reason the contemporary accounts are fascinating to me. It is somewhat shocking-looking back from our perch where advocates and scholars have had to pull the Insular Cases back into the limelight-to imagine a time when these questions dominated the national discourse.

A. The Insular Cases Explained

In 1901 the Supreme Court took up many of these questions. The leading case, Downes v. Bidwell, (26) involved tariffs on a crate of oranges sent to New York from Puerto Rico. (27) The Court had to determine whether Puerto Rico was part of the United States for purposes of the Constitution's Uniformity Clause. (28) The plaintiff paid duties on Puerto Rican oranges as if they came from a foreign country. (29) But was Puerto Rico part of the United States or not? It is easy to see how the implications went further than just a crate of oranges. And speaking to the constitutional issue, the Supreme Court concluded-in a very fractured ruling-that Puerto Rico was part of the United States for some purposes, but not others. (30) After Downes, Puerto Rico was not "in" the United States for Uniformity Clause purposes. The reason: a completely new doctrine that had never been part of the law.

Specifically, in a concurrence that eventually received the full Court's approval, Justice Edward Douglass White...