The Supreme Court on Tuesday will squarely face the question of where the Insular Cases stand as they consider whether the Financial Oversight and Management Board for Puerto Rico violates the Appointments Clause of the Constitution.
This follows concerns two justices raised about the Insular Cases last week that hint to the possibility that after more than a century there may finally be interest on the court to reconsider the Insular Cases.
“The Insular Cases and the doctrine of territorial incorporation have rightly been criticized for creating a second-class status for residents of so-called ‘unincorporated’ territories like Puerto Rico, Guam, and the U.S. Virgin Islands based on the racist view that Caribbean and Pacific islands acquired by the United States after the Spanish American War were populated by ‘alien races’ and ‘savage people.’” said Neil Weare, president of Equally American, a nonprofit that seeks to advance equality and civil rights for the nearly 4 million American citizens living in U.S. territories.
Equally American filed an amicus brief in Tuesday’s case calling on the Supreme Court to overrule the Insular Cases. “The Supreme Court should overrule its shameful rulings in the Insular Cases this term, just as it overruled its shameful ruling in the Japanese internment case, Korematsu v. United States, last Term.”
During oral argument last week in Ramos v. Louisiana, a case involving whether the Constitution guarantees a right to a unanimous jury verdict, Justice Stephen Breyer raised concerns that the Supreme Court “might have to revise” the Insular Cases.
In the same argument, Justice Samuel Alito raised whether the Court “should brush aside” what he characterized as “the old Insular Cases that reflect attitudes of the day.”
Both Justices may have been thinking ahead to this Tuesday’s consolidated argument in Financial Oversight and Management Board v. Aurelius Investment, LLC, where the First Circuit acknowledged earlier this year that the territorial incorporation doctrine created by the Insular Cases “hovers like a dark cloud.”
Significantly, parties on both sides of the dispute now argue that the court should overrule the Insular Cases. On one side, the government of Puerto Rico has expressly argued for overruling the Insular Cases, even as it supports the constitutionality of the Board. On the other side, Unión de Trabajadores de la Industria Eléctrica y Riego (UTIER), believes the Board is unconstitutional, but also strongly argues the Insular Cases should be overruled. UTIER’s Counsel, Jessica Mendez Colberg, a young Puerto Rican attorney making her first argument before the Supreme Court, will have 10 minutes on Tuesday to make her case to the Court.
Notably, the United States now also expressly disavows any reliance on the Insular Cases to support the constitutionality of the Board, even as it relied upon them extensively before the district court. Other parties continue to rely on the Insular Cases to argue in favor of the Board’s constitutionality.
In addition to Equally American, a number of other amicus parties have also filed briefs before the Supreme Court calling on it to use this opportunity to overrule the Insular Cases, including:
American Civil Liberties Union and ACLU of Puerto Rico
Scholars of Constitutional Law and Legal History
Former Federal and Local Judges, including former Chief Justice of the Guam Supreme Court B.J. Cruz, former Chief Judge for the Federal District Court in Puerto Rico José A. Fusté, and former U.S. Virgin Island Judges Henry Feuerzeig and Soraya Diase Coffelt.
U.S. Virgin Islands Bar Association
Equally American, and these other amicus parties, take no position on the merits of the dispute.
Tuesday’s argument will take place at 10 a.m. but a decision is not expected until later this year or early next year.