By Mar-Vic Cagurangan
In Insular Cases, equality is a myth but the ball is in Congress' court
Updated: Jun 6, 2021
The U.S. territories— Guam, Northern Marianas, Puerto Rico, American Samoa and U.S. Virgin Islands— are home to 4 million U.S. citizens and U.S. nationals who are victims of the most blatant denials of equal treatment under the law in modern American history. Thanks to the infamous Insular Cases, which institutionalized a doctrine that says territorial residents do not enjoy the same rights guaranteed by the Constitution as those who live in the 50 states.
The Insular Cases refer to a series of U.S. Supreme Court decisions, rendered between 1901 and 1905, involving the application of the Constitution and Bill of Rights to American territories. About 14 decisions established the doctrine on the limited application of the Constitution on insular areas. They rely on a Plessy-era doctrine of “separate and unequal” to establish the relationship between the United States and its territories, inhabited by “alien races” and “people with an uncivilized race.”
Due to this now thoroughly disgraced legacy, most territories are denied Social Security Income (SSI), Medicaid and the Supplemental Nutrition Assistance Program and other federal welfare initiatives aimed at mitigating poverty across the United States.
Some critics, however, argued that the U.S. Congress is using the much-demonized Insular Cases doctrine as a cover for its own discriminatory legislation.
“It is Congress, purported due to racially motivated logic, not the Supreme Court, which has throughout the years has continued to use this authority to continually discriminate against the U.S. territories and the District of Columbia,” the Guam Republican Party said in a statement.
The Insular Cases doctrine has been repeatedly challenged, narrowly succeeding in some recent cases. In 2018, the district court of Guam ruled in favor of Guam resident Katrina Schaller, who was denied her SSI benefits. The SSI program applies to Guam, according to Chief Federal Judge Frances Tydingco Gatewood, who struck down as "unconstitutional" a federal statute that discriminates against the territory.
Currently, the SSI program applies to the CNMI, which had managed to negotiate it accordingly through the Covenant. Tydingco-Gatewood said Guam’s exclusion’s from the program was “illogical and irrational.”
The ruling has been appealed by the federal government, but the Ninth Circuit has held off hearing the case pending the U.S. Supreme Court’s decision on the Vaello-Madero lawsuit, a similar case in Puerto Rico.
Ahead of an expected landmark Supreme Court ruling this fall, U.S. Rep. Raul Grijalva, chair of the Natural Resources Committee, along with several colleagues representing U.S. territories, introduced a resolution in late March urging the federal government to stop relying on the Insular Cases as legal precedent.
But Vice Speaker Tina Muna Barnes of the 36th Guam Legislature said Congress itself has the power to remedy the injustices inflicted on U.S. territories without waiting for a judicial ruling.
“I am requesting that Congress, under its plenary powers, pass legislation that would create equity among states and territories as it relates to the application of federal programs, including but not limited to Medicaid and Supplemental Security Income,” Muna Barnes stated in written testimony on U.S. House Resolution 279.
Muna Barnes noted that in regards to Medicaid, the current financing structure in the territories differs from state programs in two key respects. Territories are limited to an annual ceiling on federal financial participation, while states receive federal matching funds for each dollar spent, without a cap, territories receive a set amount of federal funding each year regardless of increases in enrollment and use of services. Another one is the federal medical assistance percentage, which is statutorily set at 55 percent for territories whereas the state formula is based on income per capita.
“These two policies have led to chronic underfunding of Medicaid in the territories and places great strain on Guam and other territorial governments,” Muna-Barnes said. “The solution to addressing this inequity is simple—apply the same benefits to the nearly 4 million American citizens living in the territories that their fellow Americans in each state have access to.”
The vice speaker has introduced a similar resolution in the 36th Guam Legislature. Co-sponsored by Sens. Clynt E. Ridgell, Jose “Pedo” Terlaje, James C. Moylan, Frank Blas Jr. and Mary Torres, Resolution 56-36 rejects the early 20th century Insular Cases as “racist and “contrary to the U.S. Constitution.”
“The racism at the core of these sort of cases is contrary to the text and the history of the Constitution,” Grijalva said in video testimony on Resolution 56-36.
Grijalva said the resolution he introduced in the U.S. Congress “also calls on the court, the U.S. Department of Justice, and other litigants to make an effort at rejecting reliance on the Insular Cases in the present and any other future cases.”
As lawmakers, Grijalva said, “we have an obligation to make sure its legacy does not extend into the future.”
Prior to the adoption of Resolution 56-36, however, the Republican Party of Guam suggested an amendment to lay the responsibility on Congress.
Resolution 56-36 seeks to “reject the Insular Cases and their application to all present and future cases and controversies involving the application of the Constitution in United States territories.”
The Republican Party of Guam said the resolution barks up the wrong tree. “Under our present constitutional system, it is Congress which drafts the laws that we all live under. This includes all federal funding bills. The U.S. Supreme Court only determines if a federal law as passed by Congress and signed into law by the President goes against our Constitution,” the Republican Party of Guam said in a press statement.
The Republican Party said the establishment of funding caps on most federal funding programs, the lowering of the financial benefits received by territorial residents under multiple programs, and in certain cases, the actual elimination of the territories from full benefit sections of federal funding bills are just a few examples of congressional use of the Insular Cases doctrine.
The Republican Party suggested that the resolution be amended “to demand that Congress clearly reject the authority granted to them by the Insular Cases doctrine and stop any further discrimination against the U.S. territories and the U.S. citizens.”
“To support a congressional resolution that allows for this and all future Congresses to continue to rely on the Insular Case doctrine to discriminate against the U.S. territories and the District of Columbia, for as long as the Supreme Court does not overturn the Insular Case doctrine is wrong and will not count with the support of the Republican Party of Guam,” the statement reads.