Bloomberg Law
Aug. 3, 2022, 8:00 AM

The Insular Cases Must Be Overturned

Sherry Levin Wallach
Sherry Levin Wallach
New York State Bar Association

Every day, upwards of 3.5 million Americans are living as second-class citizens. Their representatives can’t vote in Congress. They themselves are unable to vote in presidential general elections, even though many are veterans or active US military members. Some don’t even have the right to a trial by a jury of their peers.

These individuals are guilty of nothing other than living in one of five US territoriesPuerto Rico, Guam, American Samoa, the US Virgin Islands, and the Northern Mariana Islands—which are considered less than equal under the U.S. Constitution. Unlike residents of the other five territories, in fact, residents of American Samoa aren’t even U.S. citizens, but rather American nationals.

Adding insult to injury, all those who live in the territories are afforded full protection of the Constitution and every benefit and right of citizenship if they choose to live on the mainland and not in their respective homelands. This outdated and outright prejudicial policy dates back to the 1900s, when a series of US Supreme Court opinions known as the Insular Cases were first decided.

Court’s Flawed Decisions Rooted in Racism and Ethnocentrism

These cases initially addressed the status of those living in countries acquired by the US after the Spanish-American War, determining that they were not worthy of equal treatment because they were members of so-called “savage tribes” and “alien races.” Though they have been widely criticized and are clearly racist, the Insular Cases still stand and have served as the basis for court decisions that continue to inexplicably mistreat residents of the territories and deny them rights.

At a time when we are deeply engaged in a national debate over how to best address long-standing racial inequities, the Insular Cases are a glaring example of how a significant portion of the population is being discriminated against based on race and ethnicity, needlessly overlooked and disenfranchised. They stand in stark contrast to President Joe Biden’s January 2021 pledge to “pursue a comprehensive approach to advancing equity for all, including people of color and others who have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality.”

A century after the Insular Cases were decided the Biden administration has the opportunity to correct this wrong by supporting a petition to overturn them instead of arguing to affirm them. But time is running out. The Justice Department has until August 29 to respond to Fitisemanu v. United States, a case brought by John Fitisemanu, who was born in American Samoa, but holds a US passport.

Fitisemanu’s case asks whether individuals who were born in the territories are entitled to birthright citizenship under the Citizenship Clause of the 14th Amendment. The Supreme Court is expected to decide in October whether to take up this case.

Numerous other legal challenges in multiple venues have provided egregious examples of the harm caused by the Insular Cases. Last spring, the US Supreme Court declined to reinstate the Social Security benefits that Jose Luis Vaello-Madero, a Puerto Rican New Yorker, received when he lived on the mainland after he lost eligibility upon returning to the island.

SSI benefits highlight the patchwork nature of rights afforded to residents of the US territories, as they are available to American citizens living in all 50 states, Washington, D.C., and the Northern Mariana Islands, but not Puerto Rico, the Virgin Islands, or Guam.

In his concurring opinion, Justice Neil Gorsuch made clear his belief that the Insular Cases are based in flawed, outdated, and outright racist legal reasoning that no longer represents the thinking or approach of a modern nation, writing that the “flaws in the Insular Cases are as fundamental as they are shameful. Nothing in the Constitution speaks of ‘incorporated’ and ‘unincorporated’ Territories. Nothing in it extends to the latter only certain supposedly ‘fundamental’ constitutional guarantees. Nothing in it authorizes judges to engage in the sordid business of segregating Territories and the people who live in them on the basis of race, ethnicity, or religion. The Insular Cases can claim support in academic work of the period, ugly racial stereotypes, and the theories of social Darwinists. But they have no home in our Constitution or its original understanding.”

Afford Residents of the Five Territories Equal Treatment

The Executive Committee of the New York State Bar Association, the nation’s largest voluntary bar association, agrees and recently approved a resolution declaring that all US citizens—including residents of the five territories—be treated equally and afforded the same rights. NYSBA has also joined the Virgin Islands Bar Association in asking that the American Bar Association pass a similar resolution at its meeting Aug. 8 to 9th in Chicago and formally support the call for the Insular Cases to be overturned.

On the first day of my year-long term as NYSBA president, I launched a task force of experts to review the laws and court decisions that have perpetuated the unequal treatment of Americans living in the U.S. territories and make recommendations to right this longstanding wrong.

Task force members believe that Justice Gorsuch’s concurring opinion in Vaello-Madero sheds hope that the Supreme Court may finally be poised to overturn the Insular Cases and bring equity and rights to millions of underserved and unfairly maligned Americans. I hope the Biden administration takes this opportunity to be on the right side of history.

This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Sherry Levin Wallach is the 125th president of the New York State Bar Association, the nation’s largest voluntary state bar association. She is the deputy executive director of the Legal Aid Society of Westchester County in White Plains, N.Y.

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