In May, the United States Department of Justice took historic action in a letter to Congress in which it committed to “not rely on or seek to extend the doctrine of territorial incorporation established by the Insular Cases.” Now, the Department has issued formal guidance related to the Insular Cases in its Justice Manual, which publicly sets forth internal DOJ policies and procedures and provides guidance to Department litigators and other staff. These actions by the Justice Department follow a campaign Right to Democracy helped lead that culminated in a Capitol Hill press conference with congressional allies and other civil rights partners calling on the Justice Department to reject the Insular Cases.
DOJ’s Justice Manual now provides that “it is the Department’s view that the racist language and logic of the Insular Cases deserve no place in our law. Department litigators can and should include similar statements, as appropriate, in filings addressing the Insular Cases.” Further, “[t]o ensure consistency in the Department’s approach to the Insular Cases, Department litigators should notify the Office of the Associate Attorney General (OASG) of any matter addressing the applicability of constitutional provisions to US territories as early in the litigation as possible.”
“The Justice Manual is what US Attorney’s offices in the territories and throughout the United States must follow whenever they make a court filing—so this is a significant development,” said Neil Weare, co-director of Right to Democracy. “We look forward to testing DOJ’s new policy guidance on the Insular Cases through a series of new cases we will file in the coming months to challenge the continued denial of democracy and self-determination in US territories.”
“DOJ’s new policy guidance on the Insular Cases will help to further denormalize the undemocratic colonial framework those racist decisions established,” said Adi Martínez-Román, co-director of Right to Democracy, a nonprofit that works to advance democracy, equity, and self-determination in the US territories. “Our hope is that this kind of unequivocal policy statement by the Justice Department can contribute to a broader recognition by the United States that colonialism cannot co-exist within a truly democratic society.”
“The US Department of Justice and Justice Neil Gorsuch are right—the Insular Cases deserve no place in our law. Formally recognizing that in the Justice Manual is an important step towards the federal government turning the page on the racist doctrine established by the Insular Cases. This is an example of the Department working towards securing a more perfect union where every person has a right to equal justice under law,” said Neal Katyal, who as former Acting Solicitor General issued a “Confession of Error” recognizing mistakes the Justice Department made in defending Japanese internment in the Korematsu v. United States and Hirabayashi v. United States cases. Katyal also filed a brief on behalf of the descendants of Dred Scott and Isabel Gonzalez in a case calling on the Supreme Court to overrule the Insular Cases.
The DOJ policy on the Insular Cases is provided in Title 1 of the Justice Manual, which relates to the “Organizations and Functions” of the Department. The new section, 1-21.000, is labeled “Applicability of Constitutional Provisions to US Territories.”
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