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Judges Call for End to Racial Doctrine in Puerto Rico SCOTUS Case

Aug. 29, 2019, 11:36 PM

The Supreme Court should use a legal battle over Puerto Rico’s economic oversight to toss a racist legal doctrine, a group of retired judges from U.S. territories argued.

The judge’s Aug. 29 friend-of-the-court brief urges the high court to overturn a line of decisions known as the “Insular Cases.” These decisions suggest that only limited “fundamental” rights in the Constitution apply to unincorporated territories, like Puerto Rico, the judges said.

The Insular Case doctrine is “rooted in offensive racial stereotypes,” the judges from Guam, Puerto Rico and the U.S. Virgin Islands said.

"[T]he time has come for this Court to overrule the Insular Cases, to ensure that they cannot be used to selectively apply the Constitution in the territories, and to ensure that no judge serving in the territories will ever again be forced to apply a precedent that assumes that he or she belongs to a sub-class deserving of fewer constitutional protections,” they said.

The judges filed the brief in consolidated cases calling on the Supreme Court to decide whether a U.S. federal board overseeing Puerto Rico’s bankruptcy-like restructuring is constitutionally valid. The high court is also deciding whether the board’s actions over the past three years must be invalidated.

Some of the island’s creditors have argued that the Financial Oversight and Management Board for Puerto Rico is invalid because its seven members weren’t properly nominated by the president and approved by the Senate, as required by the Appointments Clause of the Constitution.

Citing the Insular Case doctrine, the creditors committee in Puerto Rico’s case has argued that the Appointments Clause is not a “fundamental” right applicable to U.S. territories.

‘Second-Class Rights’

The U.S. Court of Appeals for the First Circuit earlier this year ruled that the oversight board members are U.S. officers who need to be appointed as required by the Appointments Clause.

The appellate court said the Insular Case doctrine—which provides that only rights “so basic as to be integral to free and fair society” must apply to the territories—doesn’t prevent applying the Appointments Clause in a territory.

The retired judges agree but want the Supreme Court to go further and overrule the Insular Case doctrine, a “judge-made regime of second-class rights in the territories.”

The retired judges aren’t taking a position on whether the First Circuit correctly decided the board members are U.S. officers. They want to ensure that if the Supreme Court agrees that they’re officers, then all Constitutional provisions, including the Appointments Clause, should apply.

The judges said that the Insular Case doctrine is rooted in an assumption that the different races occupying the territories aren’t “capable of properly applying the Anglo-American legal tradition.”

The retired judges are represented by Holwell Shuster & Goldberg LLP. Proskauer Rose LLP represents the oversight board.

The case is Fin. Oversight and Mgt. Bd. for Puerto Rico v. Aurelius Investment, LLC, U.S., 18-1334, Brief of Former Federal and Local Judges 8/29/19.

To contact the reporter on this story: Daniel Gill in Washington at dgill@bloomberglaw.com

To contact the editor responsible for this story: Roger Yu at ryu@bloomberglaw.com