Associate justice says Insular Cases are 'flawed,' 'ugly' and 'shameful' but no one challenged them

Updated: Apr 25


Photo courtesy of Equally American

By Mar-Vic Cagurangan


The Insular Cases "rest on a rotten foundation" and are filled with fundamental flaws that "are shameful," Associate Justice Neil Gorsuch said, expressing his discomfort with the courts' persistent reliance on the infamous doctrine.

Neil Gorsuch

"I hope the day comes soon when the court squarely overrules them," Gorsuch wrote in a separate opinion concurring with the U.S. Supreme Court's landmark decision, which upheld Puerto Rico's exclusion from the Social Security Income program.


Gorsuch said the parties in the U.S. v. Madero case could have sought the doctrine's reversal but they let the chance slip by.


"Because no party asks us to overrule the Insular Cases to resolve today’s dispute, I join the court’s opinion," Gorsuch wrote in a strongly worded opinion. "But the time has come to recognize that Insular Cases rest on a rotten foundation."


The Insular Cases are a series of opinions by the U.S. Supreme Court in 1901, which established the doctrine of territorial incorporation. They held that the Constitution applied only partially in the U.S. territories including Guam, Puerto Rico, American Samoa and the U.S. Virgin Islands.


"The Insular Cases can claim support in academic work of the period, ugly racial stereotypes, and the theories of social Darwinists. But they have no home in our Constitution or its original understanding," Gorsuch said.


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In an 8-1 decision penned by Justice Brett Kavanaugh, the court held that the Constitution affords Congress substantial discretion over how to structure federal tax and benefits programs for residents of the U.S. territories.


"But the limited question before this court is whether, under the Constitution, Congress must extend Supplemental Security Income to residents of Puerto Rico to the same extent as to residents of the states. The answer is 'no,'" the decision reads.


The Madero case ruling foreshadows a similar case on Guam, where Chief Federal Judge Frances Tydingco-Gatewood ruled in 2020 that the territory's exclusion from the SSI program was unconstitutional.


Noting that the SSI program extends to the CNMI, Tydingco-Gatewood said there was no rationale for treating Guam differently. The U.S. government's appeal is pending in the Ninth Circuit Court, which is expected to abide by the Supreme Court's ruling.


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“The flaws in the Insular Cases are as fundamental as they are shameful,” Gorsuch wrote. ”Nothing in it authorizes judges to engage in the sordid business of segregating territories and the people who live in them on the basis of race, ethnicity, or religion.”

Gorsuch said the Constitution does not contain any references to "incorporated" and "unincorporated" territories. '


"On what basis could any judge profess the right to draw distinctions between incorporated and unincorporated territories, terms nowhere mentioned in the Constitution and which in the past have turned on bigotry? There are no good answers to these bad questions," the associate justice wrote.


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Over the years, Gorsuch said, the judges have come to admit their discomfort with the Insular Cases. "But instead of confronting their errors directly, this court has devised a workaround. Employing the specious logic of the Insular Cases, the court has proceeded to declare 'fundamental'—and thus applicable even to 'unincorporated' territories—more and more of the Constitution’s guarantees," Gorsuch said.


"That solution is no solution. It leaves the Insular Cases on the books. Lower courts continue to feel constrained to apply their terms. And the fictions of the Insular Cases on which this workaround depends are just that. What provision of the Constitution could any judge rightly declare less than fundamental?"


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Rep. Raúl M. Grijalva, chairman of the House Committee on Natural Resources, expressed disappointment in the court's ruling.

“Denying SSI benefits for the hundreds of thousands of Americans living in Puerto Rico and other U.S. territories is unjust to its core,” Grijalva said.


SSI benefits are granted to persons with financial needs who are elderly, blind, or have a disability.

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“Today’s decision upholds more than a century of discriminatory policies that treat our fellow Americans living in the U.S. territories like second-class citizens," Grijalva said.


"I’m equally disappointed in the Biden administration’s decision to defend this discrimination in court. House Democrats have taken a stand against these inequities and passed legislation to extend SSI benefits and expand other federal programs to the territories," he added.



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