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‘A rotten foundation’

Will Justice Gorsuch give the territories a Brown moment?

Pacific Reflections By Gabriel McCoard

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 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. 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 guarantee 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, “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

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1 Comment

Jul 11, 2022

The author and Justice Gorsuch are both attracted by the shiny object: Insular Cases =Racism therefore must be overruled. The author says, "The full implications of what I’ll call a Brown moment, overturning the Insular Cases, are not clear." See the "leaked" decision that appears in this edition for clarity.


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