Lía Fiol-Matta, Sr. Counsel at LatinoJustice provides an illuminating introduction to the Columbia Human Rights Law review “Future of the Insular Cases” Special Issue, explaining the historical context & modern-day implications of the Insular Cases.
Good afternoon. I want to thank the Columbia Human Rights Law Review for the invitation to open this important and timely symposium on a topic that should concern every person, and certainly every attorney, who supports racial justice as well as civil and human rights. On behalf of LatinoJustice, the Puerto Rican Legal Defense and Education Fund, we are proud to join our voice to this distinguished panel and all those who advocate for the Biden administration to denounce the Insular Cases, and for the Supreme Court of the United States to finally overrule them.
Throughout our 50-year history, LatinoJustice has challenged injustices faced by Puerto Ricans living on the island and in the mainland United States. We address the systemic discrimination, neglect and abuse of Puerto Ricans by both private sector actors as well as the federal and island governments. All of our work on behalf of Puerto Ricans is geared towards eradicating the economic, social, and political barriers that keep Puerto Ricans, particularly those who live on the island, in a subjugated position in relation to the United States.
Today we will hear from an illustrious panel, moderated by renowned Columbia Law School Professor Christina Ponsa-Kraus who has published and presented extensively on the topic of the Insular Cases. I am, as I hope you are, looking forward to an engaging discussion on the widespread ramifications of these Cases as well as on where we go from here in our quest to sweep the Insular Cases to the dust bin of history and have residents of United States territories, or colonies, treated with the dignity and respect accorded to American citizens in the 50 states of this nation.
Before introducing the insightful topics our panelists will discuss, let’s start with a general understanding of the Insular Cases and their historical context. I don’t assume that everyone here or participating virtually has the same level of knowledge and understanding of this line of jurisprudence. I, myself, knew nothing about the Insular Cases until fairly recently. I did not learn about them in my college or graduate studies in Puerto Rico nor as I studied law here in New York. I’ve been surrounded by lawyers all my life, both personally and professionally, and nobody ever talked about the Insular Cases. Now, that is changing. To quote our panel’s moderator, “[t]he Insular Cases have been enjoying an improbable—and unfortunate—renaissance.”
At the beginning of the twentieth century, in the aftermath of the Spanish American War of 1898 and the United States’ acquisition of geographically distant territories, the Supreme Court grappled with the scope and applicability of the Constitution to the newly-acquired territories of Puerto Rico, the Philippines and Guam, as well as American Samoa, which became a U.S. territory in 1900 via a deed of cession. In subsequent years, the United States purchased the Virgin Islands that previously belonged to Denmark and the Philippines became independent. The most recent territorial acquisition by the U.S. was the Northern Mariana Islands in 1975.
In a series of decisions known as the Insular Cases, spanning from 1901 to 1922, the Supreme Court basically invented what is known as the territorial incorporation doctrine. This doctrine, which has no constitutional foundation, divided United States territories into two categories, incorporated and unincorporated. The incorporated territories, as explained by the Court in a 1976 decision, were “those Territories destined for statehood from the time of acquisition, and the Constitution was applied to them with full force.” The unincorporated category included “those Territories not possessing that anticipation of statehood.” As to them, the Constitution did not fully apply—“only ‘fundamental’ constitutional rights were guaranteed to the inhabitants.” Presumably, Congress determined which category applied to which territories, using some unspecified and undefined criteria. The five inhabited U.S. colonies I previously mentioned are considered unincorporated territories. As to which fundamental rights apply to them, it was much debated in the early twentieth century and the debate continues to this day.
What principles, doctrines or precedents served as the basis for this division of territories and constitutional consequences? Simply put, none. The Insular Cases declared residents of unincorporated territories unworthy of the same constitutional rights and benefits as citizens of the states and the District of Columbia because they were considered “alien races” and “savage tribes.” The Insular Cases held that the newly acquired territories belonged to, but were not a part of, the United States. The Cases stand for the unsupported and contradictory conclusion that unincorporated territories are “foreign in a domestic sense.”
Despite their flawed reasoning and blatant racial bias, federal courts continue to lean on and misapply the Insular Cases to deny residents of U.S. territories constitutional rights and protections such as citizenship and equal benefits. It is appalling that the Biden administration continues to rely on judicial precedent set by the same court that justified racial segregation in Plessy v. Ferguson, thus giving rise to the “separate but equal” doctrine that was struck down almost 60 years later in Brown v. Board of Education. Inexplicably, the Biden administration has refused to repudiate the Insular Cases and continues to rely on them to deny Puerto Ricans and other residents of territories benefits and rights necessary for their survival, such as Supplemental Security Income (SSI), at stake in the case of United States v. Vaello-Madero, currently before the Supreme Court, which I will discuss later in my remarks.
Our panelists today bring a wealth of knowledge and deep understanding of the meaning and implications of the Insular Cases. Adriel Cepeda Derieux and Rafael Cox Alomar will likely answer questions I, and perhaps many of you, have on why the Insular Cases are still considered “good law”. What needs to happen for the Supreme Court to overrule them? How can the territorial incorporation doctrine be successfully challenged? Cepeda Derieux and Cox Alomar present a clear and revealing analysis of the doctrine of stare decisis that leads courts to adhere to precedent when making their decisions. As the Supreme Court stated in Ramos v. Louisiana, “stare decisis isn't supposed to be the art of methodically ignoring what everyone knows to be true. Of course, the precedents of this Court warrant our deep respect as embodying the considered views of those who have come before. But stare decisis has never been treated as ‘an inexorable command.’”
Cox Alomar and Cepeda Derieux delve into the history of the territorial incorporation doctrine and demonstrate that courts have been hostile to the Insular Cases even when they have stopped short of repealing them. They explain how the Cases and the incorporation doctrine underlying them meet every factor the Supreme Court considers relevant in deciding to overturn its own precedent. We look forward to knowing what those factors are and how we can successfully argue them in litigation challenging the Insular Cases.
A reasonable question that arises when analyzing stare decisis and the prospect of the Supreme Court overruling the Insular Cases is whether abolishing the doctrine of territorial incorporation will have a significant positive impact on U.S. territories. According to César López-Morales, another of our panelists, the answer is no, with some exceptions. He proposes that renouncing the Insular Cases “will not change the separate and unequal status of the territories as compared to the states under the Constitution.” That is because, in his view, in order to achieve complete equality, a land must cease to be a territory and that can only be accomplished through statehood or independence.
López-Morales presents a comprehensive analysis of federalism, the separation of powers and the Territorial Clause of the Constitution, arguing that the incorporation doctrine has no textual or historical basis. Also, in his view, it was not intended for Congress to govern the territories as permanent possessions of the United States, under “indefinite colonial rule”. I’m very interested in hearing his analysis, as most U.S. colonies have been subject to Congress’ authority for over 120 years, which hardly seems impermanent.
Sam Erman adds an interesting dimension to the discussion of U.S. colonialism under the concept of “status manipulation”, which shields the U.S. government from pressing anti-colonial reform. He examines controversies around status in the smallest and largest populated U.S. colonies, American Samoa and Puerto Rico. Should American Samoans be U.S. citizens? Is it right to offer statehood to Puerto Rico? How do residents of these territories grapple with what Erman calls “a choice of evils” between forfeiting participation in the sovereign that governs them or abandoning cultural survival and self-determination?
Erman details the history of Puerto Rico’s inclusion in the United Nation’s list of Non-Self-Governing Territories and the United States’ efforts to secure its removal from the list by “cloaking the island in self-determination” while remaining a territory subject to congressional control. Three of the five inhabited U.S. colonies, Guam, American Samoa and the U.S. Virgin Islands, remain on the list of Non-Self-Governing Territories to this day. I am most intrigued by the concept of “spectral sovereignty” as applied to Puerto Rico, which Erman defines as a “novel, beneficial status that never quite arrives.”
And then, llegaron los federales. Anyone interested in criminal justice or more aptly stated, injustice, and the reality of mass incarceration will certainly appreciate Emmanuel Hiram Arnaud’s incisive examination of the role that federal criminal law plays in demonstrating the continued plenary power Congress has over U.S. Territories. Arnaud explains how federal prosecution of local criminal activity in Puerto Rico, “is an explicit manifestation of the federal government’s continued colonial grasp over the Island.” It is appalling, as Arnaud expounds, that Puerto Ricans are subject to federal criminal statutes imposed upon them in a way that federal prosecutors have no power to do in any of the 50 states of the union.
Arnaud’s thorough historical account of the transition of Puerto Rico as a Spanish colony to Puerto Rico as a U.S. colony, as well as his account of the creation of the island’s local government, sheds light on the centuries-long meddling of the federal government in local criminal affairs in Puerto Rico. He contends that common conversations on Puerto Rico amongst scholars, political leaders and activists ignore the role that federal criminal law plays in maintaining colonialism. After hearing from him we will certainly be more cognizant of the significance of this analysis when discussing U.S. colonialism and its underlying doctrinal justification.
We are also fortunate to have with us the Supreme Court Counsel of Record for José Luis Vaello-Madero, Hermann Ferré, who will deliver the closing remarks for this symposium. As I mentioned earlier, United States. v. Vaello-Madero is currently before the Supreme Court and a decision is expected at any moment.
Vaello-Madero involves a challenge against the exclusion of otherwise eligible residents of Puerto Rico and other U.S. territories, with the exception of the Northern Mariana Islands, from Supplemental Security Income (SSI), a national benefit for needy aged, blind and disabled individuals. Mr. Vaello-Madero, a disabled U.S. citizen, received SSI while living in New York and continued getting payments after relocating to Puerto Rico to be with his family. A few years later, the Social Security Administration revoked Vaello-Madero’s benefits retroactively to the date he became a resident of Puerto Rico, because he was supposedly “outside the United States.” The government sued Vaello-Madero seeking to recover $28,000 in alleged overpayments. Vaello-Madero disputed the liability, asserting that denying SSI to eligible citizens only because they live in Puerto Rico violated equal protection under the Fifth Amendment. I look forward to Ferré telling us more about this case and what decision we might expect from the Court.
My organization, LatinoJustice, was proud to submit an amicus curiae brief to the Supreme Court in support of Vaello-Madero, along with several national civil rights organizations and bar associations. Under an equal protection analysis, we urged the Supreme Court to overrule the Insular Cases as they are premised on racist assumptions and rationales and lack any validity. We also argued that the Social Security Administration’s exclusion of residents of Puerto Rico from receiving SSI benefits is grounded on impermissible and invidious race, ethnicity and alienage animus, warranting strict scrutiny review.
I would like to quote Justice Neil Gorsuch, who at Oral Argument in Vaello-Madero last fall pressed the Solicitor General, asking, “If the Insular Cases are wrong[,] . . . . why shouldn’t we just say what everyone knows to be true? Why shouldn’t we just admit the Insular Cases were incorrectly decided?” The questions are right on point and the Court has answered them in other cases, such as Trump v. Hawaii, when it overruled Korematsu v. United States, as being “gravely wrong the day it was decided” and having “no place in law under the Constitution.” We’ll see how the Court answers in Vaello-Madero.
In closing, I cannot explain forcefully enough how deeply the Insular Cases and the United States policy that Erman calls “status manipulation” have harmed Puerto Rico. I speak as the daughter of a U.S. Army colonel, a much decorated veteran of the Korean War, who wanted nothing more than to see Puerto Rico become a state of the Union and a mother who in her youth marched from the University of Puerto Rico campus to the Capitol in support of our independence and yearned all her life to see Puerto Rico become a sovereign nation.
We have spent more than a century debating Puerto Rico’s confusing and demeaning relationship with the United States, legitimized by the Insular Cases. And in recent years we have learned, again in Erman’s terminology, that it has all been an exercise in “spectral sovereignty”. Like a magician drawing a rabbit from a hat, the United States has distracted the Puerto Rican people, and the United Nations, with the idea of a “compact”, a “commonwealth” and a permanent self-government that has not survived PROMESA, the law imposing a Fiscal Board of non-elected officials to restructure Puerto Rico’s financial debt, nor Aurelius Investment, the 2019 Supreme Court ruling that the selection of Fiscal Board members did not violate the Appointments Clause of the Constitution even though it was done without Senate confirmation, or Puerto Rico v. Sánchez-Valle, where the Court held that the U.S. federal government and the Puerto Rican government are the “same sovereign” for the purpose of the Double Jeopardy Clause.
To tell the truth, in this scenario, we are not holding our breath in expectation that the Court will overrule the Insular Cases and we are prepared to continue fighting until they are.
 Puerto Rico is, in fact, an archipelago. I will refer to it here as “island” as is customary. See, http://www.puertoricotravelguide.com/puerto-rico-islands/
 The terms “territories” and “colonies” will be used interchangeably throughout this presentation.
 Christina Duffy Ponsa-Kraus, The Insular Cases Run Amok: Against Constitutional Exceptionalism in the Territories, Forthcoming, 131 YALE L.J. ___ (2022) (manuscript at 1).
 Under the 1898 Treaty of Paris, the United States acquired sovereignty over Puerto Rico, Guam, and the Philippine Islands. See Treaty of Paris, Arts. II, III. Hawaii was annexed separately that same year. Newlands Resolution, J. Res. 55, 55th Cong., 30 Stat. 750 (1898).
 https://2001-2009.state.gov/r/pa/ho/time/wwi/107293.htm The U.S. purchased the islands of St. Thomas, St. John and St. Croix from Denmark for $25 million.
 The Philippines became independent on July 4, 1946. See, Treaty of General Relations Between the United States of America and the Republic of the Philippines, July 4, 1946, U.S.-Phil., 61 Stat. 1174.
 There is no universally-adopted definition of the Insular Cases. The Supreme Court has previously defined the Insular Cases and their progeny as including De Lima v. Bidwell, 182 U.S. 1 (1901), Dooley v. United States, 182 U.S. 222 (1901), Armstrong v. United States, 182 U.S. 243 (1901), Downes v. Bidwell, 182 U.S. 244 (1901), Hawaii v. Mankichi, 190 U.S. 197 (1903), Dorr v. United States, 195 U.S. 138 (1904), Ocampo v. United States, 234 U.S. 91 (1914), and Balzac v. Porto Rico, 258 U.S. 298 (1922). See Boumediene v. Bush, 553 U.S. 723, 756 (2008); United States v. Verdugo-Urquidez, 494 U.S. 259, 268 (1990).
 Examining Bd. of Eng’rs, Architects & Surveyors v. Flores de Otero, 426 U.S. 572, 599 n.30 (1976) (citations omitted).
 Downes, 182 U.S. at 287.
 De Lima, 182 U.S. at 219.
 Downes, 182 U.S. at 287 (Puerto Rico was “a territory appurtenant and belonging to the United States, but not a part of the United States”.
 Downes, 182 U.S. at 341.
 See, generally, Adriel I. Cepeda Derieux & Neil C. Weare, After Aurelius: What Future for the Insular Cases? 130 YALE L.J.F. 284 (2020-2021).
 163 U.S. 537 (1896).
 347 U.S. 483 (1954).
 S.Ct. 1462 (2021) (No. 20-303).
 https://www.law.cornell.edu/wex/stare_decisis (“to stand by things decided”).
 Adriel I. Cepeda Derieux & Rafael Cox Alomar, Saying What Everyone Knows to be True: Why Stare Decisis is Not an Obstacle to Overruling the Insular Cases, 53 COLUMBIA H.R.L.R. 3 (2022).
 Ramos v. Louisiana, 140 S. Ct. 1390, 1405 (2020) (citations omitted).
 Cesar A. Lopez-Morales, Making The Constitutional Case for Decolonization: Reclaiming the Original Meaning of the Territory Clause, 53 COLUMBIA H.R.L.R. 3 (2022).
 Sam Erman, Status Manipulation And Spectral Sovereigns, 53 COLUMBIA H.R.L.R. 3 (2022).
 See, Non-Self-Governing Territories, https://www.un.org/dppa/decolonization/en/nsgt (defined as “territories whose people have not yet attained a full measure of self-government”.
 Emmanuel Hiram Arnaud, Llegaron los Federales: The Federal Government’s Prosecution of Local Criminal Activity in Puerto Rico, 53 COLUMBIA H.R.L.R. 3 (2022).
 See, n. 17.
 20 C.F.R. §416.215 2022.
 United States v. José Luis Vaello-Madero, Brief amicus curiae of LatinoJustice PRLDEF and Ten Amici Curiae. 7 Sept. 2021. SCOTUSblog, https://www.supremecourt.gov/DocketPDF/20/20-303/191562/20210907152054194_Brief.pdf
 Transcript of Oral Argument at 9, United States v. Vaello-Madero, 141 S. Ct. 1462 (2021) (No. 20–303).
 585 U.S. __ (2018), 138 S.Ct. 2392 (2018).
 323 U.S. 214 (1944).
 Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA) Pub.L. 114–187
 Financial Oversight & Management Board for Puerto Rico v. Aurelius Investment LLC, 590 U.S. __ (2020), 140 S.Ct. 1649 (2020).
 579 U.S. ___ (2016), 136 S.Ct. 1863.