Nat’l civil rights groups push for condemnation of Insular Cases

Twelve national civil rights organizations and Ayuda Legal Puerto Rico are calling on the Department of Justice to “reject the Insular Cases and the racist assumptions they represent.”

In a letter sent on Feb. 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…Justice Department should be ashamed to continue relying on the racist Insular Cases to defend the perpetuation of a colonial framework in U.S. territories,” said Neil Weare, president and founder of Equally American, which advocates for equality and civil rights for the 3.5 million residents of U.S. 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.”

Weare

The full list of organizations joining the letter include the American Civil Liberties Union, Asian American Legal Defense and Education Fund, Ayuda Legal Puerto Rico, Brennan Center for Justice, Dēmos, Hispanic Federation, Human Rights Campaign, Lambda Legal, LatinoJustice PRLDEF, Lawyers’ Committee for Civil Rights Under Law, 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 Justice Department recently relied on the Insular Cases to argue against a right to citizenship in U.S. territories in Fitisemanu v. United States, a case brought by Equally American that is heading to the U.S. Supreme Court in the coming months. In Fitisemanu, a federal district court ruled that people born on U.S. soil in overseas territories have the same constitutional right to citizenship as people born on U.S. soil in the 50 states. The U.S. Court of Appeals for the 10th Circuit reversed in a deeply divided 2-1 decision that included three separate opinions. The Justice Department relied on the Insular Cases to argue against review by the full 10th Circuit. In a scholarly 27-page opinion, two 10th 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 to seek review by the Supreme Court. The Justice Department 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 Ric—the last of the Insular Cases—approaches on April 10. 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 said. (PR)