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Leaked! SCOTUS draft overruling the Insular Cases (April 1, 2023*)

Tall Tales By Robert Klitzkie


In the flagship of the Insular Cases, Downes v. Bidwell, we held:

“We are therefore of opinion that the island of Porto Rico is a territory appurtenant and belonging to the United States, but not a part of the United States within the revenue clauses of the Constitution; that the Foraker act is constitutional, so far as it imposes duties upon imports from such island, and that the plaintiff cannot recover back the duties exacted in this case.”

By extrapolation it has been held that the inapplicability of the revenue clauses results in the legal precept that our constitution does not apply ex proprio vigore to the islands acquired from Spain and by cession from the chiefs of Samoa. Rather, except for poorly defined “fundamental rights,” only those parts of the Constitution the Congress, per Const. Art IV § 3, identified, were applicable in the islands.

While Congress, subsequent to our ruling in Downes, has extended the protection of the Bill of Rights to the islands, challenges to the Downes-Balzac doctrine of incorporation have come before us sounding in birthright citizenship and equality of availability of social welfare programs.

Further examination of Downes revealed by our decisions in Reid v. Covert, Boumediene v. Bush, et al. causes our determination that Downes v. Bidwell and all our cases dependent upon it, popularly known as the Insular Cases, must be overruled.

We thereby overrule Downes and hold that the revenue clauses are fully applicable in the territories, the Constitution applies to the territories, ex proprio vigore, that the territories are not merely appurtenant and belonging to the United States but are a part thereof and incorporated therein just as were Hawaii and Alaska before statehood.

After Downes, Congress could have incorporated the territories but didn’t. Instead, Congress tailormade statutory regimes for each of the islands. By overruling the Insular Cases we now impose a one-size-fits-all regime that will have disastrous effects on the islands, e.g., destroying faa Samoa, canceling land tenure provisions and preferred land tenure modes and representational preferences in the Northern Marianas, financial chaos in Guam and the Virgin Islands when federal income tax descends upon them, and any consideration of independence for Guam and Puerto Rico. In short, our overruling the Insular Cases will provide all the disadvantages of statehood and but few of the advantages.

Our doctrine of stare decisis cautions us that overruling longstanding precedent must be grounded on something more substantial than mere disagreement with an earlier decision. Here, we are persuaded by the stature of the amici and the words of dissent of our brother Harlan:

“The Constitution is not to be obeyed or disobeyed as the circumstances of a particular crisis in our history may suggest the one or the other course to be pursued. The People have decreed that it shall be the supreme law of the land at all times. When the acquisition of territory becomes complete, by cession, the Constitution necessarily becomes the supreme law of such new territory, and no power exists in any department of the government to make 'concessions' that are inconsistent with its provisions.”

Several officials of the various jurisdictions including former Gov. Carl Gutierrez, former Lt. Gov. Kaleo Moylan, former Supreme Court of Guam Chief Justice Benjamin Cruz, Guam Del. Mike San Nicolas, Vice Speaker Tina Muña Barnes have, as amicus curiae, entreated with us to bring about the result we reach today. Counsel being involved, we assume that the ramifications of the result they seek are known to them. They therefore must shoulder the heavy burden of persuading their fellow islanders of the wisdom of their advocacy.

Fiat justicia ruat Caelum.

[*] An early April Fools offering! It’s my offering to breathe life into the abstraction that the Insular Cases should be overruled without taking into consideration the real-world consequences.

Bob Klitzkie is a former senator and Superior Court of Guam judge pro tem. He hosts a talk show, called “Tall Tales,” on KUSG-FM (93.3 FM) weekday afternoons from 4 to 6 p.m.

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