In March 2015, an episode of HBO’s “Last Week Tonight with John Oliver” perfectly captured the comedic essence of the Insular Cases doctrine. Americans in the five U.S. territories are “off-brand citizens,” the British satirist quipped. We laughed with him because it’s true.
One can’t miss the caricaturish humor in the arrogant tone of the 20th-century U.S. Supreme Court rulings that described the territorial residents as “alien races that may not be able to understand Anglo-Saxon principles that guide American law.”
Such attitude toward the territorial residents lingered as gleaned from a secret memo written on Nov. 21, 1945 by Vice Adm. G.D. Murray, then commander of the Marianas Navy Force, who described the island natives as “simple people, requiring few of our modern luxuries for their welfare and happiness.”
“The characteristics and nature of the majority of inhabitants on these islands are such that the artificial or forced raising of their standard of living to one approaching that of the United States would be detrimental to their best interest and would contribute little to the safety and welfare of the United States,” Murray wrote.
“The economic development and administration of relatively few native inhabitants should be subordinate to the real purpose for which those islands are held. Military control of these islands is essential as their military value far outweighs their economic value.”
More than a century later, the U.S. government’s attitude toward the islands’ “simple people” hasn’t evolved. The Insular Cases doctrine continues to be its default reference for policies related to U.S. territories.
The Insular Cases refer to a series of landmark decisions —rendered between 1901 and 1905 – which hold that protections under the U.S. Constitution do not fully apply to territories.
The condemnation of the “alien races” doctrine has been resurrected in the U.S. House of Representatives and the 36th Guam Legislature through separate resolutions that mirror each other.
Discussions, however, centered on the federal programs that are not available to U.S. territories. Left in the periphery is our inability to vote in national elections and our delegates’ lack of voting power in Congress.
The condescension of the justices who wrote the Insular Cases may be quite amusing, but its consequences are a matter of life and death for U.S. territories, where poverty levels are high.
The late Judge Juan Torruella of the First Circuit Court of Appeals called for the abolition of the Insular Cases, which he said “represent the thinking of a morally bankrupt era in our history that goes against the most basic precept for which this nation stands: the equality before the law of all of its citizenship.”
“Insular Cases represent classic Plessy v. Ferguson legal doctrine that should be totally eradicated from present-day constitutional reasoning,” Torruella during his speech at a conference hosted on Guam by Harvard Law School on Feb. 19, 2014.
The notorious Insular Cases doctrine remains the bible for legal experts.
In 2013, a New York federal court dismissed a lawsuit filed by Guam’s former public defender, Dustin O'Brien who sued the U.S. and Guam governments to challenge the validity of the Organic Act and the local governor’s authority to collect taxes from U.S. citizens living on Guam.
Principal Deputy Assistant Attorney General Stuart F. Delery, who argued for the U.S. government, said: “Under the Territories Clause of the Constitution, Congress may treat Guam differently from states, so long as there is a rational basis for its actions.”
And “rational basis” is predetermined, Delery argued, citing a constitutional provision, which states that “Congress shall have the power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States."
Delery emphasized that Congress “has the power to legislate directly for Guam or to establish a government for Guam subject to congressional control, and except as Congress may determine, Guam has no inherent right to govern itself.”
“It is the Constitution itself – and more specifically, the Territories Clause – that creates the distinctions complained of by [O’Brien],” Delery said. "The Territories Clause of Article IV and binding Supreme Court precedent establish that the Constitution has limited application in unincorporated territories, such as Guam.”
The government of Guam backed the U.S. government’s motion for the lawsuit’s dismissal, which was, of course, ironic given that Delery’s argument was based on a doctrine that institutionalized Guam’s status as an unprivileged jurisdiction.
O’Brien’s lawsuit was convoluted, erratic and incoherent, but it had raised a number of legitimate constitutional issues that GovGuam could have used as a platform to challenge the territory’s status.
But what do I know? I belong to the “alien races that may not be able to understand Anglo-Saxon principles that guide American law.”