Insights
‘ A rotten foundation ’ Will Justice Gorsuch give the territories a Brown moment ?
In 1954 , the nine justices of the U . S . Supreme Court unanimously agreed in Brown v . Board of Education of Topeka that states cannot segregate schools on race because doing so violates the equal protection clause of the 14th Amendment – that people in a similar situation will receive the same constitutional rights – overturning the 60-year-old idea of “ separate but equal ” from the Court ’ s decision in Plessy v . Ferguson .
Brown still reverberates in a way that few court decisions do , becoming shorthand for numerous legal , policy , and historical doctrines : de-segregation , equal protection under the law , civil rights .
Brown also highlights a feature of judicial decision-making : while it will follow established cases , or precedent , a court can also change precedent . In other words , Brown stands for a court admitting a judicial error and acknowledging the ebb and flow of history .
I ’ ll call this kind of opinion a “ Brown moment .”
So what does it have to do with the U . S . territories ?
Plessy ’ s chief author and architect of “ separate but equal ” was Justice Henry Billings Brown , who , five years later , as the U . S . continued its expansion across North America and the 1898 Spanish-American War added several offshore territories to the American territorial portfolio , would pen the majority opinion in Downes v . Bidwell , the first of the Insular Cases in which the Supreme Court determined that Congress has the authority under Article IV of the U . S . Constitution to admit new states and distinguished “ incorporated ” and “ unincorporated ” territories .
Incorporated territories were bound
The full implications of what I ’ ll call a Brown moment , overturning the Insular Cases , are not clear . The territories themselves are conflicted about such things as statehood , and to receive a benefit you have to pay for it in the form of taxes .
for statehood while the unincorporated territories were not , and as every social justice warrior in Congress will scream , the reasoning was based on racist ideas and fear of alien races unable to live under the Anglo-American tradition .
The U . S . Constitution , therefore , does not fully protect citizens of these unincorporated territories , including such rights as the right to a trial by jury , or , as Fitisemanu v . U . S . is considering , U . S . citizenship for American Samoans .
Which brings us to a recent opinion from the black-robed Supremes sitting across from the U . S . Capitol . In U . S . v . Vaello Madero , a U . S . citizen and resident of New York , after receiving Supplemental Security Income ( SSI ), a social security payment for the disabled , moved to Puerto Rico , where he continued to receive the payments . Under the law creating SSI , only residents of the 50 states were eligible to receive payments . When the Social Security Administration realized that Vaello Madero was no longer living in a state , the U . S .
By Gabriel McCoard
government sued him for the payments made while he was in Puerto Rico , a sum totaling $ 28,000 .
Vaello Madero argued that not being eligible for SSI in a territory violated the 5th Amendment ’ s guaranty of equal protection for actions from the federal government . The Supreme Court disagreed , finding that Congress has a rational basis for treating Puerto Rico differently from the states , as it is exempted from certain taxes , among other reasons ; many of these reasons stem from the Insular Cases .
Here ’ s where it gets interesting .
Associate Justice Neil Gorsuch called into question this inconsistent treatment of states and territories , stating that , “ The Insular Cases have no foundation in the Constitution and rest instead on racial stereotypes . They deserve no place in our law .”
Put simply , per Gorsuch , certain fundamental rights cannot be violated , and a determination of “ fundamental ” turns on the Constitution itself , not the Insular
Cases , and the words in the Constitution do not support the idea of incorporated and unincorporated territories .
Justice Gorsuch summed up his opinion by saying , “ The time has come to recognize that the Insular Cases rest on a rotten foundation . And I hope the day comes soon when the Court squarely overrules them .”
He , however , concurred with the majority , more or less joining the opinion , citing that none of the parties to the case specifically asked that the Insular Cases be overturned .
Separate treatment for territories stands . For now .
Which leads us back to Fitisemanu , in which an American Samoan living in the states sued the U . S ., arguing that he should be a U . S . citizen . The U . S . government opposes this interpretation , as does the government of American Samoa . The parties have asked the Supreme Court to consider the case . That request , a writ of certiorari , is now with the court .
The full implications of what I ’ ll call a Brown moment , overturning the Insular Cases , are not clear . The territories themselves are conflicted about such things as statehood , and to receive a benefit you have to pay for it in the form of taxes .
The U . S . government has until July 29 to file a response to the writ of certiorari . We ’ ll have to wait and see if the territories will have a Brown moment , or if they even want one .
Gabriel McCoard is an attorney who previously worked in Palau and Chuuk State . He is currently weathering the pandemic stateside . Send feedback to gabrieljmccoard @ hotmail . com .
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