Campaign emerges to overrule Insular Cases

On Tuesday, Equally American, in collaboration with the Hispanic Federation, ACLU, and LatinoJustice PRLDEF, held a virtual discussion on the impact of the United States v Vaello Madero decision and the emerging campaign to overrule the Insular Cases once and for all. The groups agreed that following last month’s decision in United States v. Vaello Madero, it is more evident than ever that the United States has a colonies problem. 

In Vaello Madero, the US Supreme Court delivered a damaging blow to equity in US territories, reversing two lower court decisions and ruling over a powerful dissent from Justice Sotomayor to state that Congress can constitutionally discriminate against US citizens living in the territories to deny them access to Supplemental Security Income (SSI) and other federal benefits. This highlights the need for the Supreme Court to overrule the Insular Cases, a series of racist Plessy-era decisions that solidified a colonial, unequal framework for governing US territories, including Puerto Rico, Guam, American Samoa, the US Virgin Islands, and the Northern Mariana Islands.

“The Insular Cases are a stain on our country and cannot be squared with our most basic democratic and constitutional values. It’s long past time that the Supreme Court, President Biden, and Congress all condemn the racist Insular Cases and the colonial framework they established,” said Neil Weare, president and founder of Equally American.

“The United States v Vaello Madero decision underscored that in order to end discrimination against US citizens that reside in the territories, the court must address the backbone of such discriminatory practices by overturning the Insular Cases. While the Supreme Court has limited the Insular Cases’ reach and stressed that they should not be expanded, courts continue to consider and cite them in cases for the overstated proposition that only “fundamental” rights apply in the territories. These century-old, racist decisions belong in our history books, not relied upon by the federal government to prevent US citizens in the territories from equitable access to federal safety-net programs like SSI, Medicaid, and food stamps. The rationale in the Insular Cases, and the racist assumptions they rely upon, have no place in our law,” said Laura M. Esquivel, Vice President of Federal Policy and Advocacy of the Hispanic Federation.

“The Territory Clause of the Constitution is rooted in imperialism and racism. Court decisions like those for the Insular Cases have supported this reading and must be rejected once and for all. Other than the original thirteen colonies, every state came into the union first as a ‘territory.’ Their residents, mostly white, were afforded the full protections of the Constitution. But when the US acquired overseas territories at the turn of the 20th Century, those inhabitants were nonwhite and were deemed ‘alien races’ and ‘savage tribes.’ Then the Constitution did not ‘follow the flag,’ and those residents of territories remain second-class citizens to this day. It’s time to put an end to this distinction, so the principle of equal rights can finally come closer to reality for all,” said Lía Fiol-Matta, Senior Counsel of LatinoJustice PRLDEF.

Alejandro Ortiz, senior staff attorney with the ACLU Racial Justice Program, stated that “the Insular Cases are unabashedly racist and still prevent millions of people — overwhelmingly, people of color — from knowing whether constitutional rights enjoyed by residents of the states apply to them. The Biden administration should publicly condemn the Insular Cases and stop relying on these antiquated and harmful cases in future court filings. The Supreme Court, for its part, should overrule them as soon as it has the opportunity.”

“Since 2017, Hispanic Federation has been working on the ground in Puerto Rico to support the recovery after Hurricane Maria. Through that time we have definitely identified the systemic federal discrimination established by the insular cases as one of the main barriers for the protection of basic needs, human rights, and dignity of the people that live in the archipelago. Regardless of the territorial relationship with the federal government, the federal government must respect our basic dignity and overrule the insular cases” stated Maritere Padilla Rodríguez, Director of Policy and Advocacy of the Hispanic Federation in Puerto Rico.  

The next few months will determine whether Congress will finally act to extend SSI and other life-saving federal benefits to residents of US territories, whether the Supreme Court will take up a case calling on it to overrule the Insular Cases, and whether President Biden will follow through on his commitments to Puerto Rico and prioritize ending this discriminatory treatment once and for all.