National civil rights organizations press Biden-Harris DOJ to condemn Insular Cases
Twelve national civil rights organizations and Ayuda Legal Puerto Rico are calling on the Biden-Harris Department of Justice to “reject the Insular Cases and the racist assumptions they represent.” In a letter sent on February 10, 2022, they urged Attorney General Merrick Garland and Solicitor General Elizabeth Prelogar “to immediately cease relying on the Insular Cases in any present or future cases, and to publicly condemn the Insular Cases and the territorial incorporation doctrine.”
“The Biden-Harris Justice Department should be ashamed to continue relying on the racist Insular Cases to defend the perpetuation of a colonial framework in US territories,” said Neil Weare, president and founder of Equally American, which advocates for equality and civil rights for the 3.5 million residents of the US territories – 95% of whom are people of color. “I applaud these organizations for taking a stand in support of the idea that the federal government should no longer sanction the kind of racism and discrimination represented by the Insular Cases.”
The full list of organizations joining the letter includes the American Civil Liberties Union, the Asian American Legal Defense and Education Fund, Ayuda Legal Puerto Rico, the Brennan Center for Justice, Dēmos, the Hispanic Federation, the Human Rights Campaign, Lambda Legal, LatinoJustice PRLDEF, the Lawyers’ Committee for Civil Rights Under Law, the NAACP Legal Defense and Education Fund, Inc., OCA – Asian Pacific American Advocates, and the Washington Lawyers’ Committee for Civil Rights and Urban Affairs.
The letter highlights how the Deputy Solicitor General refused to say the Insular Cases were incorrectly decided when repeatedly pressed by Justice Neil Gorsuch during oral argument in United States v Vaello Madero.
As the letter further explains, the Biden-Harris Justice Department recently relied on the Insular Cases to argue against a right to citizenship in US territories in Fitisemanu v United States, a case brought by Equally American that is heading to the US Supreme Court in the coming months. In Fitisemanu, a federal district court ruled that people born on US soil in overseas territories have the same constitutional right to citizenship as people born on US soil in the 50 states. The US Court of Appeals for the Tenth Circuit reversed in a deeply divided 2-1 decision that included three separate opinions. The Biden-Harris Justice Department relied on the Insular Cases to argue against review by the full Tenth Circuit. In a scholarly 27-page opinion, two Tenth Circuit judges rejected the arguments set forth by the Justice Department, including its reliance on the Insular Cases.
The Fitisemanu plaintiffs have until March 27, 2022 to seek review by the Supreme Court. The Department of Justice will have the opportunity to reassess its position when it responds to the petition for certiorari filed by the Fitisemanu plaintiffs.
“This letter is especially timely as the 100th Anniversary of Balzac v. Porto Rico—the last of the Insular Cases—approaches on April 10th. That would be an appropriate time for the Biden-Harris Justice Department to reject the Insular Cases as DOJ has other racist Supreme Court decisions,” Weare added.