Judge Gorsuch calls for quashing island cases

Judge Neil Gorsuch.

Earlier today in United States vs. Vaello-Madero, an 8-1 Supreme Court ruled that Congress can exclude residents of Puerto Rico and other federal territories from SSI benefits extended to residents of the fifty states. The decision is consistent with precedent under which, among other things, Congress also exempts residents of Puerto Rico from most federal income, estate, and excise taxes. But Judge Neil Gorsuch took the opportunity to write a concurring opinion urging the Supreme Court to overturn the island cases – long-standing precedents under which residents of Puerto Rico and other “unincorporated” territories are excluded from the protection of many constitutional rights that apply to residents of states and federally administered treaty territories (including Washington DC).

As Gorsuch points out, this double standard has no basis in the original text and meaning of the Constitution, but is rooted in widespread racial and ethnic bigotry in the late 19th and early 20th centuries:

A century ago, in island cases, this Court held that the federal government could govern Puerto Rico and other Territories largely without regard to the Constitution. He is
spent the time to recognize the seriousness of this error and to admit what we know to be true: the island cases have no basis
tion in the Constitution and are rather based on racial criteriaotypes. They deserve no place in our law…

Island affairs were the product of what John Hay called a “‘splendid little war'”… Seemingly waged to liberate Cuba and avenge the sinking of the Maine, the Spanish-American War proved a boon to colonial ambitions emerging from the country…. The aging Spanish Empire was unable to defend its island possessions, and several fell to American forces in quick succession….

But these acquisitions, in the wake of the annexation of Hawaii, quickly sparked fierce debate. Some have argued that our republican traditions prevent the United States from governing distant possessions like subject colonies without regard to the Constitution. Others sought to devise new theories by which Congress could permanently govern the country’s new acquisitions as a European power would, unrestrained by national legislation….

The debate over American colonialism first appeared before this Court in the form of a tax dispute in Downes vs. Bidwell, 182 U.S. 244 (1901). Pursuant to Puerto Rico and imposed a tax on goods exported to or imported from the new territory. See law of April 12, 1900, ch. 191, §§ 2–3, 31 Stat. 77–78. After incurring a tax bill of $659.35, an importer challenged the law as inconsistent with the Constitution’s Fiscal Uniformity Clause, which provides that “all duties, imposts, and excises shall be uniform throughout the United States”. Art. I, § 8, cl. 1….

To answer the question of whether the law was consistent with the Constitution, the Court decided that it must first decide whether the Constitution applied to Puerto Rico….

Judge Brown saw things in the starkest terms. The application of the Constitution made sense in the “contiguous territories[ies] inhabited only by people of the same race, or by scattered bodies of native Indians.” Identifier.at 282. But that would not suit the islands “inhabited by foreign races, differing from us in religion, customs, laws, methods of taxation, and modes of thought”. Identifier.at 287. There, Judge Brown asserted that “the administration of government and justice, according to Anglo-Saxon principles, may be impossible for some time”. Same. According to him, the Constitution should only come to Puerto Rico if and when Congress orders it.

Justice White proposed a different theory… For Justice White, the application of the Constitution depended on “the situation of the territory and its relations with the United States”. Downes, 182 US, to 293 (concurring opinion). In some cases, Congress might express an intention to “incorporate” a territory into the United States at a later date; in a Territory like that, the Constitution must apply fully and immediately. Id., at 339. But in other cases, Justice White argued that only “fundamental” (if unspecified) aspects of the Constitution should have the force of law… In his judgment, Puerto Rico fell within this second category and remained “stranger in the United States”. because, unlike the U.S. Western Territories, Congress had not done enough to indicate its intention to “incorporate” the island… Still, it would be a mistake to exaggerate the discrepancy between the theories put forward by Justice White and Justice Brown. Basically, both rested on a conception of the “right” of the Nation to acquire and exploit “an unknown island, peopled by an uncivilized race…for commercial and strategic reasons” – a right which “could practically not be exercised if the result would be to grant ‘full constitutional protections’ to those absolutely unfit to receive [them].” Id., at 306 (White, J., okay)….

The flaws in island business are as fundamental as they are shameful. Nothing in the Constitution speaks of “incorporated” and “unincorporated” territories. Nothing extends to the latter, only certain supposedly “fundamental” constitutional guarantees. Nothing in this document authorizes judges to engage in the sordid business of segregating territories and the people who live there on the basis of race, ethnicity or religion. the theories of social Darwinists. But they have no place in our Constitution or its original understanding.

Gorsuch is correct that island affairs were ultimately rooted in the racial bigotry of the time. It is no coincidence that Judge Henry Brown – author of the most extreme opinion in Downes versus Bidwell, also drafted the opinion of the Court in Plessy v. Fergusona few years earlier.

Most of the points raised by Gorsuch are not new. He echoes long-standing criticisms of the Island cases, some of which – as he notes – go back to strong dissenting opinions in the cases themselves, by Justice John Marshall Harlan and Chief Justice Melville Fuller. But it is nonetheless significant that these points are made by a prominent conservative Supreme Court justice. So far, only Judge Sotomayor, the lone dissenter in today’s ruling, has expressed support for Gorsuch’s position. But maybe he can win over more judges in the future.

Over time, residents of “unincorporated” territories have enjoyed the protection of certain constitutional rights, either because Congress legislated to that effect or because the Supreme Court – following Justice White’s reasoning – declared them “fundamental”. But some still don’t apply to Puerto Rico and other similar territories. Gorsuch notes the example of the right to trial by jury, which most Americans would consider fundamental, but which is still not extended to Puerto Rico under current Supreme Court precedent.

Annulment of Insular Affairs would not end all legal distinctions between state residents and residents of federal territories. Congress could still make distinctions regarding federal benefits and other government policies that do not affect constitutional rights or structural constraints on federal power. For example, it could still exempt residents of Puerto Rico from certain federal taxes and welfare programs. So, under Gorsuch’s approach, today’s ruling would likely be made the same way (unless there was evidence that Congress denied Puerto Ricans SSI benefits for some constitutional reason). suspect, such as their race or ethnicity). But Congress would no longer be able to deny them constitutional rights or circumvent other constitutional limits on federal power.

Justice Gorsuch would do well to extend his criticism of the island cases to the “plenary power” cases of the same era, which exempt immigration restrictions from most constitutional restraints, thus allowing, for example, the exclusion of potential migrants based on suspect classifications such as race, ethnicity, religion and political discourse. Just like the island cases, they have no basis in the original text and meaning of the Constitutionand were the product of sectarianism of the same era – and most of the same Supreme Court Justices – who gave us Plessy v. Ferguson and island cases.

Unfortunately, Gorsuch himself helped perpetuate and extend the doctrine of plenary power by voting with the majority in Trump vs. Hawaii (2018)the “travel ban” case, in which the double standard exempting immigration restrictions from ordinary constitutional review was particularly blatant. In virtually any other context, the overwhelming evidence of the sectarian motivation behind the policy in question would have led the Supreme Court (including Gorsuch himself) to strike it down. I hope Gorsuch will rethink this position in light of his own compelling critique of the island cases.

Edward K. Thompson