#insular cases

This blog works to put a historical and legal perspective on the question "how does the Puerto Rican Identity come in conflict with the American Identity?" and more specifically here "What is the legacy of the Puerto Rico-American relationship, and how is that complicated for Puerto-Rican Americans?"

The history of the relationship between Puerto Rico and the United States is both painful and complicated. Puerto Rico was colonized by the Spanish in 1493, and remained under Spanish rule until the United States acquisition of Puerto Rico due to the Treaty of Paris, which ended the Spanish-American War in 1898. This long history of Spanish rule obviously has a lasting significant impact on the culture of Puerto Rico. Soon after, due to the Foraker Act, signed into law in 1900 by President McKinley, a civilian government was formed by the people of Puerto Rico.

From there, the relationship between Puerto Rico and the United States only became more complicated. As of the Jones Act of 1917 (signed into law by President Wilson), Puerto Rico is and was a territory of the United States, Puerto Ricans were also American citizens. Despite this fact, Puerto Ricans were not, are still are not, delineated the same constitutional rights as mainland Americans. At the time, this was seen as a natural step towards statehood.

During the years after the Spanish-American War, in 1901-1922 the Supreme Court decided on what are known as the Insular Cases. These decisions ultimately led to some, but not all, of the constitutional rights granted to Puerto Ricans living in Puerto Rico. This complicated the US-Puerto Rican relationship, as all constitutional rights are guaranteed to mainland American citizens. Many historians view the Insular Cases as judicial justification for the perpetuation of colonialism.

In 1947, Puerto Rico started pushing for more self-governance and a new constitutional structure. These efforts led to Puerto Ricans gaining the ability to elect their own governor, and, in 1950–52, draft a new constitution. This constitution officially deemed Puerto Rico a commonwealth. This new political structure is reminisce of the American political structure, carrying with it the same benefits and vices as mainland American politics.

Even with these political changes, the Puerto Rican political relationship with the United States is still controversial. In Igartua de la Rosa v. United States I and II, the United States courts decided that, unlike mainland Americans, Puerto Ricans could not vote in federal elections until 1) Puerto Rico becomes a states, or 2) it is granted the right through a constitutional amendment. This ruling is in contrast with the Yick Wo principle, where restrictions on the right to vote should be "meticulously scrutinized," and Reynolds v. Sims, which further established the right to representation for all qualified citizens.

Additionally, it is interesting that the United States has an established 'right to travel' under Shapiro v. Thompson, where, in this case, welfare benefits cannot be determined be the amount of time a resident of a state has been a resident.

These legal presidents and the history of US-Puerto Rico relationships shows an important, imbalanced relationship between Puerto Rico and America. To shake the chains of neocolonialism Puerto Rico appears to have three choices - perhaps the most straightforward option to attaining full rights would be to become an American state. This would require legislation passed through congress, which has its own challenges. The second would be Puerto Rican independence, which would also require a bill through congress. The third option, the least likely, would be a special constitutional Amendment for Puerto Rico.

Thank you!

Well that’s disappointing. Even Gorsuch wants to overturn the Insular Cases. He wrote in United States v. Vaello Madero,

A century ago in the Insular Cases, this Court held that the federal government could rule Puerto Rico and other Territories largely without regard to the Constitution. It is past time to acknowledge the gravity of this error and admit what we know to be true: The Insular Cases have no foundation in the Constitution and rest instead on racial stereotypes. They deserve no place in our law.

Adding,

The flaws in the Insular Cases are as fundamental as they are shameful. Nothing in the Constitution speaks of “incorporated” and “unincorporated” Territories. Nothing in it extends to the latter only certain supposedly “fundamental” constitutional guarantees. 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.

Paul Blumenthal at HuffPost: 

In an 8-1 vote, the Supreme Court rejected an appeal by a resident of Puerto Rico who was seeking to receive the same Supplemental Security Income payments he received when living on the U.S. mainland.

Puerto Ricans and the residents of the four other overseas American territories of American Samoa, Guam, Northern Marianas Islands and the U.S. Virgin Islands are American citizens (or American nationals in the case of American Samoa), but do not receive the same access to U.S. government benefits accorded to other citizens if they live in their home territory.

Jose Luis Vaello-Madero received SSI benefits when he lived on the U.S. mainland and then continued to receive them after moving back to his home island of Puerto Rico. He was not aware that he could not continue to receive those benefits upon moving to Puerto Rico, and the government sued him to recoup $25,000 he received from the program. He challenged the discrepancy in his ability to receive benefits based on where he lived within the U.S. as a violation of the equal protection clause of the Fifth Amendment.

Writing for the majority, Justice Brett Kavanaugh rejected Vaello-Madero’s claim on the grounds that the Constitution gives Congress the power to set all rules governing U.S. territories. Congress could extend SSI benefits to residents of Puerto Rico if it chose to, something Kavanaugh notes the Biden administration supports, but the Constitution does not require it.

“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,” Kavanaugh wrote. “The answer is no.”

Justice Sonia Sotomayor, the only justice of Puerto Rican descent, wrote the only dissenting opinion.

The ruling in United States v. Vaello-Madero is yet another in a long line of cases related to a series of 100-year-old decisions known as the Insular Cases. Those cases limit the equal access of territorial residents to government benefits and democratic representation based on their race. The court in those decisions deemed them “savage tribes” or “alien” and “uncivilized race[s]” who were “absolutely unfit to receive” the benefits of U.S. citizenship.

[...]

Sotomayor, however, dissented from the majority opinion. She challenged the majority’s argument that Puerto Rican residents should continue to be denied benefits accorded to other U.S. citizens because they do not pay the same taxes as mainland U.S. citizens.

“In view of that core purpose, denying benefits to hundreds of thousands of eligible Puerto Rico residents because they do not pay enough in taxes is utterly irrational. Congress’ decision to deny to the U. S. citizens of Puerto Rico a social safety net that it provides to almost all other U.S. citizens is especially cruel given those citizens’ dire need for aid,” she wrote. “Puerto Rico has a disproportionately large population of seniors and people with disabilities.”

Sotomayor rejected the majority opinion’s claim that Congress should determine the fate of the territorial residents’ equal access to the benefits of citizenship by noting that they have no say in Congress because they also lack equal access to democratic representation.

“Equal treatment of citizens should not be left to the vagaries of the political process,” Sotomayor wrote. “Because residents of Puerto Rico do not have voting representation in Congress, they cannot rely on their elected representatives to remedy the punishing disparities suffered by citizen residents of Puerto Rico under Congress’ unequal treatment.”

A 25 year old fight to get Puerto Rico to have proportional representation in Congress, had a quiet breakthrough recently, with the United States First Circuit Court of Appeals in Boston Massachusetts agreeing to consider whether the case should be heard, reversing the US District Court’s ruling throwing out the case.

A dogged attorney from Puerto Rico who has been fighting for years to get his homeland five seats in the U.S. House of Representatives says he is as close as ever to victory after a decision by a federal appeals court that could allow his arguments to move forward.

“It recognizes the merits of our claim, and they found that what I said was right,” said Gregorio Igartua, the attorney who brought the suit. “This is the closest we have been to having representation. We are American citizens, and we deserve this right.”

A three-judge panel of the Boston-based U.S. Court of Appeals for the First Circuit on Wednesday agreed to have the full court decide whether Igartua’s claim should be decided by a lower court in Puerto Rico. If the full panel of judges sides with Igartua, he will be able to argue that Puerto Ricans have been unconstitutionally deprived of representation.

Circuit Judge Kermit V. Lipez called Igartua’s crusade “laudable” in his 24-page decision, and said that in the past, the court “failed to appreciate the strength” of Igartua’s claim that his case should be heard.

The U.S. Court of Appeals is denying citizenship to the people of American Samoa. They used racist case law, that don’t have a place in today’s society, in order to reach their decision.

“Known as the Insular Cases, the Supreme Court in the early years of the 20th century created a distinction between the rights of newly acquired island territories such as American Samoa and Puerto Rico and territories such as Arizona that they assumed would one day become states—and which were increasingly populated by white people.”