A dozen advocacy organizations have sent a letter to President Joe Biden, asking him to publicly condemn a series of Supreme Court decisions known as the Insular Cases that inhibit residents of the Virgin Islands, Puerto Rico and other U.S. territories from accessing certain constitutional rights and protections.
“The letter further urges Biden to condemn the colonial regime the Insular Cases continue to foster. The petition, which comes 125 years after the U.S. invasion of Puerto Rico, is an essential step in furthering Biden’s stated commitment to racial justice,” said Neil Weare in a statement announcing the letter. He is co-director of Right to Democracy, a nonprofit that focuses on advancing equality and civil rights for the 3.5 million citizens living in U.S. territories, 98 percent of whom are racial or ethnic minorities.
The Insular Cases — a series of Supreme Court decisions made in the early 1900s after the U.S. began acquiring lands outside the continental U.S. — have been criticized for blatant language within them that reflects racist attitudes of the times and for treating residents in the newly established territories with fewer rights than stateside residents. For example, territory residents may not vote for president, have no Senate representation, only a non-voting delegate to Congress, and are denied equality in federal social safety net programs such as Supplemental Security Income.
“In 1898, Puerto Rico and Guam were acquired by the United States as a result of the Spanish-American War, with American Samoa, the U.S. Virgin Islands, and the Northern Mariana Islands to follow,” the letter to Biden states. “As we assess the relationship between the United States and its territories 125 years later, one conclusion is inescapable: they were colonies then and effectively remain colonies today. The people in the U.S. territories should have the same right to self-determination as people anywhere in the world. At present, they do not. We call upon you to put an end to this gross inequity,” it says.
Tuesday’s letter to Biden follows numerous previous requests by civil rights groups that the Justice Department stop its reliance on the Insular Cases in defending cases in court, including letters to Attorney General Merrick Garland from 14 civil rights and civil liberties organizations in February 2022, and an online petition last summer concerning the birthright citizenship case of John Fitisemanu and two other American Samoan nationals living in Utah who sought the right to full citizenship. The court ultimately declined to hear the case.
Residents in American Samoa are considered “nationals.” Those in Guam, Puerto Rico, the Northern Marianas and the U.S. Virgin Islands are U.S. citizens, but that status is by virtue of an act of Congress, not as a constitutional right.
Supreme Court justices on both sides of the aisle have denounced the Insular Cases, with liberal Justice Sonia Sotomayor calling them “both odious and wrong” and conservative Justice Neil Gorsuch stating that they “rest on a rotten foundation.” Both declared last year that it was time to finally overrule the Insular Cases.
However, the Biden-Harris Justice Department relied on the Insular Cases to argue before the U.S. Court of Appeals for the Tenth Circuit in the Fitisemanu case that Congress has the power to deny citizenship to people born in any U.S. territory.
As another example, in 2017 the Justice Department defended the constitutionality of the Financial Oversight and Management Board for Puerto Rico by quoting Downes v. Bidwell — the most prominent of the Insular Cases — for the troubling proposition that the Constitution is “suggestive of no limitations upon the power of Congress in dealing with [the Territories]” and gives no indication “that the power of Congress in dealing with [the Territories] was intended to be restricted by any of the [Constitution’s] other provisions,” the letter notes.
“The Justice Department has also consistently opposed any attempts to reconsider the Insular Cases. As last year’s letter explained in more detail, during oral argument before the Supreme Court in 2021, the Deputy Solicitor General repeatedly dissuaded the Justices from reconsidering the Insular Cases, refusing to even take a position on whether they should be overruled. And last year the Department expressly opposed calls to overrule the Insular Cases when the Court was provided a vehicle for doing so,” it says.
Such actions are in direct contrast to his stated policy positions towards U.S. territories and the people who call them home, the letter writers told Biden.
“This year, you made history by including ‘persons who live in U.S. territories’ within your Administration’s definition of ‘equity,’ helping ensure greater visibility for the territories in federal agencies. This follows a Statement of Administration Policy in December 2022 recognizing that ‘[f]or far too long, the residents of Puerto Rico — over 3 million U.S. citizens — have been deprived of the opportunity to determine their own political future and have not received the full rights and benefits of their citizenship because they reside in a U.S. territory,’” the letter states.
“You also declared in a June 2021 statement responding to discrimination against residents of U.S. territories in federal benefits programs that ‘there can be no second-class citizens in the United States of America.’ You made great strides towards that goal by helping to close Medicaid funding disparities in U.S. territories, extending the Child Tax Credit, expanding the Earned Income Tax Credit, promoting better federal disaster response, and addressing many economic and infrastructure needs in the territories. Publicly condemning the Insular Cases would help realize both your stated commitment to the peoples of U.S. territories and your broader commitments to racial justice,” the letter states.
Along with Right to Democracy the letter is signed by the American Civil Liberties Union, the ACLU of Puerto Rico, the Asian American Legal Defense and Education Fund, the Brennan Center for Justice, the Center for Popular Democracy, Demos, the Human Rights Campaign, the Lambda Legal Defense and Education Fund Inc., LatinoJustice PRLDEF, the NAACP Legal Defense and Education Fund Inc., and the Washington Lawyers’ Committee for Civil Rights and Urban Affairs.
“Ultimately, the racist legacy of the Insular Cases cannot be squared with the stated values of your Administration to support racial justice, equity, democracy, indigenous rights, and self-determination,” they wrote to Biden.
“The 3.6 million people living in the territories of American Samoa, Guam, Northern Mariana Islands, Puerto Rico, U.S. Virgin Islands — overwhelmingly people of color — deserve better. This is also an issue for the territorial diasporas throughout the United States, which now exceed 6 million, with more than 2.5 million living in states such as Florida, Pennsylvania, and Georgia,” the letter states.
Alejandro A. Ortiz, senior staff attorney with ACLU’s Racial Justice Program, stated the case more bluntly.
“The Insular Cases are firmly rooted in white supremacy, and still haunt the day-to-day lives of millions of people. The presumed inferiority of territorial residents is archaic, offensive, and racist. This is why, 125 years after the U.S. invasion of Puerto Rico, we are asking President Biden to condemn these cases. If dismantling systemic racism is truly among the president’s priorities, he must match rhetoric with action,” said Ortiz.
