Supreme Court justices, legal experts say congressional power over territories is broad
By Jayvee Vallejera and Mar-Vic Cagurangan
A professor at Columbia Law School likens the plenary power doctrine to the monster in one’s closet. “If you think about it in the dark, it keeps getting bigger and scarier. As if you turn on the lights, you can bring down to size,” Christina D. Ponsa-Kraus said.
The plenary power doctrine refers to the broad, unqualified authority Congress has over certain subjects, most notably immigration, Native American tribes and U.S. territories.
While such power may be broad, it is not absolute or unlimited, according to a panel of legal experts who sought to elucidate a recent opinion issued by the Supreme Court justices who slammed the 19th-century doctrine, which upheld the overarching federal power over tribes and territories.
Supreme Court Justices Neil Gorsuch and Clarence Thomas said the decision question was based on “archaic colonial prejudices” held by those who assumed that tribes were “weak and helpless” and composed of “simple, uninformed and inferior people, who find themselves in the care of a superior and civilized nation.”
Gorsuch wrote these remarks in a dissenting opinion—joined by Thomas—which he disagreed with the Supreme Court’s decision to decline a review of a ruling from the “high plenary power era,” which upheld Congress’ plenary power over American native tribes.
Although unincorporated U.S. territories lack official tribal designations, the complexity of their political relations with the U.S. government is comparable to that of Native American tribes. The justices said this issue is at the core of several recent cases, a series of Supreme Court decisions which apply to Guam, the Northern Marianas, American Samoa, Puerto Rico and the U.S. Virgin Islands.
During an online dialogue hosted Nov. 25 by the advocacy group Rights and Democracy, the four-person panel analyzed the plenary power doctrine’s application to U.S. territories.
Examining the doctrine’s history, Ponsa-Kraus said, one has to keep in mind that a lot has been said about it and much of it has been overstated. She said courts have used language of “absolute” and “unlimited” when tackling the scope of Congress’s power over territories.
The plenary power doctrine invokes the Territories Clause of the U.S. Constitution. However, Gorsuch and Thomas rejected Congress’ restrained authority over tribes and territories.
Neil Weare, co-founder of Right to Democracy who moderated the online dialogue, said the justices’ opinions were helpful for U.S. territories. “This is not about any Supreme Court justice being over one before, further than any single judge had gone before,” he said.
Anthony Ciolli, special assistant to the justice of the U.S. Virgin Islands, pointed out that Gorsuch’s opinion signaled an improvement in the right of the territory.
Still, the power is broad, Ponsa-Kraus said, but “to the extent that Justice Gorsuch is challenging the idea that Congress can do anything in the territories, it’s an overstatement.”
Rose Cusion-Villazor, professor at Rutgers Law School, said the plenary power doctrine, as applied in the context of migration, is similar in many ways to the way it applies to U.S. territories. “The biggest difference is that in immigration law, there is no one specific clause in the Constitution that gives Congress that power,” she added.
Instead, Cusion-Villazor said, the Supreme Court has developed a practice that the United States has sovereign power to exclude people from entering the country and to determine who will be deported and who will be allowed in as a citizen.
Neil Weare, co-founder of Right to Democracy, said Gorsuch’s dissent echoed the reality that Congress still retains extensive power over territories and argued that there should be more accountability when Congress makes decisions that affect territorial residents.
Gorsuch noted that the Supreme Court’s subsequent decisions in the wake of the Kagama ruling were largely based on an assumption that the United States had sovereignty over the natives. “In one decision, the Court said that the United States may exercise sovereign authority over the natives,” Gorsuch wrote.
He said that Constitution for guidance on the power of the federal government’s power over tribal affairs,” Gorsuch wrote.
Representatives during those discussions said Congress’ power over the territories was meant to be temporary, Morales said.
Gorsuch deplored that the Supreme Court skipped the opportunity to overturn the 19th-century ruling when it refused to hear the defendant’s appeal in Veneno v. United States.
Quentin Veneno Jr. sought to quash the 1885 decision in United States v. Kagama, which backed the Major Crimes Act of 1885 that sought to curtail the Native Americans’ traditional sovereign tribal powers based on the assumption that the tribe’s “weak and inferior” and needed to be supervised by “superior people.”
The Kagama ruling endorsed the federal takeover of the tribal justice system and forced certain crimes committed by Native Americans on native territory.
Gorsuch noted that the Supreme Court’s subsequent decisions in the wake of the Kagama ruling were largely based on an assumption that the United States had sovereignty over the natives. “There’s pretty much the same thing in the text of the Constitution,” he said.
Still, the power is broad, Ponsa-Kraus said. “It’s ‘needful rules and regulations’ and we can have a discussion about what that is. Definitely ‘not anything’.”
The panel said the Territorial Clause only authorized Congress to dispose of and make “needed rules and regulations” for U.S. territories. “That language says absolutely nothing about Congress’ exercise of plenary power,” he said, arguing the phrase “needful rules and regulations” indicates need-based actions and not statuses vis-à-vis the federal government.
Ponsa-Kraus agreed. “That’s not, hardly. It’s ‘needful rules and regulations’ and we can have a discussion about what that is. Definitely ‘not anything’,” she added.
Gorsuch deplored that the Supreme Court skipped the opportunity to overturn the 19th-century ruling when it refused to hear the defendant’s appeal in Veneno v. United States. He said the decision was rooted in archaic colonial prejudices that still influence current jurisprudence and policy toward territories.
“If the court were to overturn Kagama, it would establish, sir, tribes could exercise their sovereign powers to address major threats among Indians. He argued that the court ‘has no business assuming’ that the natives are ‘too inferior or weak’ to exercise justice without supervision from ‘superior’ people.”
Gorsuch urged that the court declines to take other cases challenging today, Gorsuch wrote. “But whether the day of reckoning for these plenary power theory comes sooner or later, it must come. Nor is that day to be feared.”