New York – An entry this month in the U.S. Department of Justice’s Handbook regarding the Supreme Court’s Insular Cases doctrine impacting territories such as Puerto Rico notes that agency litigants must provide at least two weeks’ notice to the Office of the Assistant Attorney General (OASG) of any matter addressing the applicability of constitutional provisions in these jurisdictions.
Under the heading “Coordination of Issues Addressing the Applicability of Constitutional Provisions in U.S. Territories,” the Department encourages litigants to provide notice of any filings of legal documents on matters related to Insular Cases.
“Litigants must provide notice to OASG of any filing of legal documents that are anticipated to address the Insular Cases at least two weeks in advance, and they must share a draft with OASG at least one week before the filing. If a court sets an expedited briefing schedule that does not allow litigants to provide a draft at least one week in advance, or if there are other factors that make it impractical to provide notice within two weeks, litigants must notify OASG of the filing as soon as possible,” reads the entry on the Justice website dated July 2024.
The Insular Cases are a series of Supreme Court decisions dating from the early 20th century in which the high court considered the applicability of the United States Constitution and other federal laws to territories acquired by the United States after 1898.
The doctrine basically distinguished between “incorporated territory” and “unincorporated territory.” The idea was that these jurisdictions would not become states.
Multiple sectors as well as expert lawyers on the subject have called for the doctrine to be revoked, believing that it places residents of unincorporated territories in a position of inferiority and disadvantage compared to those of states.
Critics also argue that the Supreme Court’s jurisprudence justifies the anti-democratic colonial regime that affects territories such as Puerto Rico. As a result of the doctrine, the federal Constitution does not apply equally to unincorporated territories.
The Justice Department has previously acknowledged that the Insular Cases contain reasoning and rhetoric that is “obviously anathema,” as well as “indefensible” and “discreditable” that invokes “racist stereotypes” that are “repugnant.”
Justice recognized racist language and logic of Insular Cases
“Consistent with these statements, it is the Department’s view that the racist language and logic of Insular Cases have no place in our law. Department litigators can and should include similar statements, where appropriate, in documents addressing Insular Cases,” reads another part of the post shared this month.
In a letter to congressional leaders released last June, Carlos Felipe Uriarte, deputy attorney general for legislative affairs at the Justice Department, reiterated that the language and logic of the case law do not deserve a place in the U.S. legal system.
“Indeed, the Department affirmatively emphasizes in a recent filing that the ‘racial stereotypes’ invoked by the Insular Cases are ‘indefensible and repugnant. ’ The Department unequivocally condemns the rhetoric and reasoning of the Insular Cases, and unambiguously shares its view that such reasoning and rhetoric are irreconcilable with America’s founding principles of fairness, justice, and democracy,” the Department reaffirmed.
The Justice Department’s response came in response to a letter sent by 43 federal legislators from both the House of Representatives and the Senate last April in which they asked the agency to condemn the racist language of the Insular Cases and its impact on territories such as Puerto Rico.
“The Insular Cases arose from the anti-colonial values of our nation’s founding to hold that ‘half-civilized,’ ‘savages,’ and ‘alien races’ living in Puerto Rico, Guam, and other U.S. territories were not entitled to the same constitutional rights and democratic participation afforded to people in the continental United States because they were ‘unfit’ and could not understand ‘Anglo-Saxon principles.’ As Justice (Sonia) Sotomayor recently emphasized, the Insular Cases were ‘premised on beliefs both odious and erroneous,’ with Justice (Neil) Gorsuch declaring that they ‘deserve no place in our law,’” the document states.
The congressmen added that the inhabitants of these territories have been denied essential constitutional protections and human rights for the past 125 years.
United States Commission on Civil Rights and the Impact of Insular Cases in Puerto Rico
Since last year, the issue of the Insular Cases and their possible revocation has gained greater attention, after the United States Commission on Civil Rights (USCCR) published in February a preliminary memorandum entitled “The Insular Cases and the Unincorporated Territory Doctrine and their effects on the civil rights of residents of Puerto Rico.”
As part of its efforts, the Puerto Rico Advisory Committee of the entity held a hearing on the island to gather the opinions of various sectors and individuals on the impact of the doctrine.
Broadly speaking, the text recognizes the unequal treatment of citizens in Puerto Rico in political and racial terms that directly affects their civil rights.
“The Insular Cases have established a constitutional justification for the consolidation of distinct and unequal norms that have determined the undefined relationship between the territories and the United States. These cases also established a political and racial framework that treats their inhabitants unequally and without voting representation, subject to the plenary powers of Congress under Article IV, Section 3 of the Constitution,” reads part of the report.
Keep reading:
Right to Democracy is working on a legal challenge to try to overturn Insular Cases that discriminate against territories like Puerto Rico
U.S. Supreme Court’s reversal of Insular Cases would bring Puerto Rico closer to statehood, says scholar
U.S. Supreme Court’s “Insular Cases” Doctrine Discriminates Against Puerto Rican Citizens on the Island, Civil Rights Commission Report Says