Members of Congress press DOJ to reject ‘Insular Cases’

Rep. Raúl Grijalva (D-Arizona), who chairs the Natural Resources Committee of the U.S. House of Representatives in the U.S. Congress, and six of his House colleagues wrote Attorney General Merrick Garland and acting solicitor general Brian Fletcher yesterday, calling on the Department of Justice to expressly condemn the Insular Cases, a series of racist Supreme Court decisions the Justice Department has continued to rely upon when defending federal statutes that discriminate against residents of U.S. territories.

The letter, available online at https://bit.ly/3jWJ6Tj, comes as the DOJ prepares to argue two key federal cases that will define the legal rights of residents of U.S. territories for years to come.

The Insular Cases are a series of Plessy-era Supreme Court rulings that, in part, created the “territorial incorporation doctrine,” which establishes that the Constitution does not fully apply to the U.S. territories. These cases used racist and offensive language such as “half-civilized” and “alien races” to describe residents of the territories and justify the denial of the constitutional rights and protections they should be entitled to as U.S. citizens and U.S. nationals.

Neil Weare, president and founder of Equally American, a nonpartisan public interest organization that works to advance equality and civil rights in U.S. territories, said, “I applaud Chairman Grijalva and the Members of Congress who are calling on the Biden-Harris Justice Department to advance their commitment to the Constitution and racial equality by forcefully rejecting any continued reliance on the Insular Cases.”

Their letter to the Justice Department includes the following excerpts:

• “The time is now for the Justice Department to reject the Insular Cases and the racism they and the territorial incorporation doctrine represent.”

• “The Justice Department should ask itself whether it wants to remain complicit in the racism inherent in the Insular Cases by continuing to perpetuate the ‘separate and unequal’ status facing residents of U.S. territories. Our nation deserves better, and the people of the territories deserve better.”

The letter highlights how, in the coming weeks, the DOJ will have to express its view on the Insular Cases in two high-profile filings before the U.S. Supreme Court and U.S. Court of Appeals for the Tenth Circuit.

The first case, U.S. v. Vaello Madero, involves the denial of Supplemental Security Income for residents of territories. The second case, Fitisemanu v. United States, addresses whether people born in territories have a right to citizenship.

“As Chair Grijalva’s letter emphasizes, the Biden-Harris Justice Department has a clear choice in these cases: either expressly condemn the Insular Cases or remain complicit in perpetuating the ugly racial inequality they established,” Weare said. “It’s long past time for the Justice Department to get on the right side of history here.”

In March, Grijalva helped introduce a bipartisan resolution that similarly called on the courts, DOJ, and other litigants to reject any continued reliance on the Insular Cases in present and future cases. The Natural Resources Committee hosted a legislative hearing in May to discuss this resolution, which included testimony from elected officials from the territories and academic scholars.

The committee also held an oversight hearing in July to discuss the extension of key federal benefits programs like SSI, SNAP and Medicaid to the U.S. territories within the president’s fiscal year 2022 budget.
The Supreme Court also announced yesterday that Vaello Madero will be argued in-person, in front of the Justices at the Supreme Court on Nov.9, 2021. (Saipan Tribune)