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Civil rights groups urge DOJ: Reject Insular Cases

Updated: Feb 12, 2022

By Mar-Vic Cagurangan

A loose coalition of American civil rights groups today asked the U.S. Department of Justice to abandon the Insular Cases and “the racist assumptions they represent,” noting they are inconsistent with the Biden administration’s “racial equity” policy.

“We call on the Justice Department to help dismantle this egregious example of systemic racism by publicly condemning the Insular Cases and bringing an end to any reliance on them in future court filings,” states the coalition led by the American Civil Liberties Union.

The Insular Cases are a series of U.S. Supreme Court opinions in 1901, which ruled that the U.S. Constitution only partially applies to U.S. territories.

“The Insular Cases, as you know, are a line of Supreme Court cases that held that the ‘alien races’ and ‘savage tribes’ in Guam, Puerto Rico and other U.S. territories … were not entitled to the same constitutional rights and protections afforded to residents of the states, nor were they on a path to full political participation,” the civil rights groups wrote in a letter to Attorney General Merrick Garland and Solicitor General Elizabeth Prelogar.

They said DOJ’s continued reliance on the Insular Cases cannot be reconciled with President Biden's January 2021 executive order for “advancing racial equity.’

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“This nation and its government need to change their whole approach to the issue of racial equity,” Biden said during the signing of the presidential directive.


In November last year, the U.S. Supreme Court heard oral arguments on the Vaello-Madero case, which challenged the federal government’s exclusion of Puerto Rico from the Supplemental Security Income program. A similar case involving a Guam resident is currently pending in the Ninth Circuit Court.

In both cases, the DOJ defended the denial of SSI benefits to Puerto Rico and other U.S. territories, arguing that they don't pay federal taxes.

“The DOJ’s filings and statements related to the Insular Cases in at least two pending lawsuits are indefensible and contravene the values expressed by senior leaders in this administration,” the civil rights groups said.

During the Supreme Court hearing on the Puerto Rico case, justices scrutinized the doctrine, with Chief Justice John Roberts asking whether the Insular Cases had anything to do with the Vaello-Madero case.

Prelogar gave ambiguous statements. She acknowledged that “we do not yet have equal justice” because “communities of color and other minorities still face discrimination.”


But Prelogar told the court it didn’t need to address the Insular Cases “because the conclusion that parts of the Constitution wouldn’t apply to Puerto Rico doesn’t decide anything that is relevant to this case."

“We don’t think that they affect the analysis that the court needs to apply here because we acknowledge that the equal protection component of the Fifth Amendment is applicable," Prelogar said. "Therefore, we don’t think that the Court needs to address the Insular Cases here anymore than it did last year in Aurelius, where it noted that the court has repeatedly declined to extend the Insular Cases.

Justice Neil Gorsuch asked: “Why shouldn’t we just admit the Insular Cases were incorrectly decided?”


The letter was submitted by the following groups:

American Civil Liberties Union

Asian American Legal Defense and Education Fund

Ayuda Legal Puerto Rico

Brennan Center for Justice


Hispanic Federation Human Rights Campaign

Lambda Legal

Latino Justice PRLDEF

Lawyers’ Committee for Civil Rights Under Law

NAACP Legal Defense and Education Fund, Inc.

OCA – Asian Pacific American Advocates

Washington Lawyers’ Committee for Civil Rights and Urban Affairs

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