Puerto Rico Is an Unincorporated Territory That Is American in Name Only

This article is a student op-ed piece from Professor Kim Wehle’s spring 2020 course “Advanced Constitutional Law: Democracy at Risk.” The Legislation and Policy Brief allowed the students to  publish their writing on the blog if they wished. The blog pieces were edited by the Legislation and Policy Brief for grammatical and technical errors only, and they appear as they were written by the authors in April of 2020. 

Student Author: Julio A. Sanchez

 

Territories of the United States have always held a strange place in the laws of the nation. Despite being a U.S. citizen and holding a U.S. passport, had I remained on the island of Puerto Rico, I could not vote for a president that could draft me to war. In many ways, territories act like States and are treated like States but are otherwise distinct. Unlike those gained through westward expansion, the territories of Guam, Puerto Rico, Philippines, and the U.S. Virgin Islands were not put on the same track for statehood. Instead, they have been treated as “other” and left in the periphery of the United States.

The strange place held by the territories was not mandated by Congress, but rather it was created by the Supreme Court after the Spanish American war. In what’s known as the “Insular Cases,” the U.S. Supreme Court in a series of cases laid out how the territories were to be treated. The cases created the new designation of unincorporated territories and gave Congress plenary powers over them. Additionally, it gave Congress the power to determine which parts of the Constitution applied in the unincorporated territories.  Much of the Courts reasoning can be summed up in Downes v. Bidwell, in which the Court stated that “if those possessions are inhabited by alien races, differing from us in religion, customs, laws, methods of taxation and modes of thought, the administration of government and justice according to Anglo-Saxon principles may for a time be impossible.” In this case, the Court made a distinction between people of Anglo-Saxon descent and those of Spanish and Filipino descent, determining that the newly conquered people were incapable of applying or even understanding the Anglo-Saxon principles of the U.S.

For the most part, it is now understood that the Constitution applies in the unincorporated territories through legislation passed by Congress. However, the Insular cases have never been overruled. This leaves a tremendous amount of power in the hands of Congress to dramatically shape the laws and status of the U.S. citizens living in the territories.

The most recent exercise of this power was the passing of PROMESA by Congress which established a financial control board in Puerto Rico. The board has the power to overrule the democratically-elected government by restricting their budgets. While I do agree that Puerto Rico’s financial situation is in disarray, that is no excuse for Congress to overrule the government of Puerto Rico. The course of action taken by Congress feels very similar to the paternalistic reasoning present in many of the Insular Cases.

Pending in the Supreme Court now is the case Aurelius Investments, LLC v. Commonwealth of Puerto Rico. A group of investors, who were afraid that the financial control board restructuring the island debt would result in losses for them, sued on a theory that PROMESA violated the Appointments Clause of the Constitution. The case was also consolidated with a challenge to the financial control board by the Union of Electric Workers (UTIER) and the Puerto Rican Electric Power Authority.

While on appeal in the First Circuit, the case danced around the question raised by the Insular cases. Yet the First Circuit seemed determined to avoid this aspect of the case, instead stating that the issue relating to the PROMESA board members could simply be answered by focusing on the Appointments Clause and sidestepping UTIER’s argument involving the Insular Cases. This view was also adopted by Chief Justice Roberts during oral arguments.

While the Appointments Clause question does have merit as it relates to PROMESA, it should not be a convenient excuse to once again evade the frankly flawed rational of the Insular Cases which allows for programs like PROMESA to exist. Ignoring this aspect of the case completely bypasses the fundamental problem of PROMESA. Like the representative of UTIER stated, the judicially made doctrine of territorial incorporation made it such that the plaintiff would have fewer rights upon her return to Puerto Rico than had she stayed in the U.S.

The only reason to retain the Insular Cases is to avoid the difficult question of what it would actually entail to properly incorporate the outlying territories. This would mean that the U.S. could no longer ignore attempts in the territories to seek a different relationship with the mainland. Additionally, it provides a convenient backdoor for treating the unincorporated territories as something different than the mainland U.S. This prejudice is already reflected in the amount of money the territories receive for social programs and in laws limiting how territories conduct their commerce through the Jones Act which drives up the prices of goods on the island by requiring shipping to be conducted exclusively on American ships.

The Insular Cases are at the heart of Aurelius and should not be ignored. That Congress can just pass legislation providing for a board that can overrule of a democratically elected people is a serious issue that deserves serious attention. The Supreme Court should take the opportunity to overrule the Insular Cases which, through their very logic, treat U.S. citizens differently if they reside in a territory.

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