No. 15-981

In the Supreme Court of the United StatesLENEUOTI FIAFIA TUAUA, VA’ALEAMA TOVIA FOSI,FANUATANU F. L. MAMEA, ON BEHALF OF HIMSELF

AND HIS THREE MINOR CHILDREN, TAFFY-LEI T. MAENE,EMY FIATALA AFALAVA, AND SAMOAN FEDERATION OF

AMERICA, INC.,Petitioners,

v.UNITED STATES OF AMERICA, ET AL.,

Respondents.

On Petition for a Writ of Certiorari tothe United States Court of Appealsfor the District of Columbia Circuit

BRIEF OF THE PUERTO RICAN BARASSOCIATION, INC., AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

BETTY LUGO

CARMEN A. PACHECO

Puerto Rican BarAssociation, Inc.

340 Atlantic AvenueBrooklyn, NY 11201blugo@pachecolugo.com

BRIAN D. NETTER

Counsel of RecordMATTHEW A. WARING

Mayer Brown LLP1999 K Street NWWashington, DC 20006(202) 263-3000bnetter@mayerbrown.com

Counsel for Amicus Curiae

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES....................................... ii

INTRODUCTION AND INTEREST OF THEAMICUS CURIAE.......................................................1

SUMMARY OF ARGUMENT.....................................3

ARGUMENT ...............................................................5

A. The Insular Cases Are Based OnPolitical And Social Beliefs That HaveLong Since Been Rejected. ...............................5

1. The Roots Of The Insular CasesWere In Misguided Racial AndImperialist Ideas .........................................5

2. The Insular Cases Made These Now-Discredited Beliefs The Basis For ARule Of Constitutional Law......................10

B. As A Result Of The Insular Cases,Territorial Residents Still Lack FullConstitutional Rights. ....................................17

C. This Court Should Grant Review HereAnd Overrule The Insular Cases. ..................19

CONCLUSION ..........................................................22

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TABLE OF AUTHORITIES

Page(s)

CASES

Armstrong v. United States,182 U.S. 243 (1901)..............................................10

Balzac v. Porto Rico,258 U.S. 298 (1922)...................................... passim

Boumediene v. Bush,553 U.S. 723 (2008)..............................................21

Burnet v. Coronado Oil & Gas Co.,285 U.S. 393 (1932) .............................................22

Calero-Toledo v. Pearson Yacht LeasingCo.,416 U.S. 663 (1974)..............................................17

Califano v. Torres,435 U.S. 1 (1978)............................................18, 19

De Lima v. Bidwell,182 U.S. 1 (1901)......................................10, 11, 20

Dooley v. United States,182 U.S. 222 (1901)..............................................10

Dorr v. United States,195 U.S. 138 (1904)..................................14, 15, 19

Downes v. Bidwell,182 U.S. 244 (1901)...................................... passim

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TABLE OF AUTHORITIES—continued

Page(s)

Examining Bd. of Eng’rs, Architects &Surveyors v. Flores de Otero,426 U.S. 572 (1976)..............................................17

Goetze v. United States,182 U.S. 221 (1901)..............................................10

Harris v. Rosario,446 U.S. 651 (1980)..............................................19

Huus v. New York & Porto Rico S.S.Co.,182 U.S. 392 (1901)..............................................10

Lewis v. United States,518 U.S. 322 (1996)..............................................18

Payne v. Tennessee,501 U.S. 808 (1991)..............................................22

Rassmussen v. United States,197 U.S. 516 (1905)..............................................15

Rayphand v. Sablan,95 F. Supp. 2d 1133 (D.N.M.I. 1999).....................4

Reid v. Covert,354 U.S. 1 (1957)..................................................17

Torres v. Puerto Rico,442 U.S. 465 (1979)..............................................17

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TABLE OF AUTHORITIES—continued

Page(s)

CONSTITUTIONAL PROVISIONS AND STATUTES

U.S. Const. art. I, § 8, cl. 1 ........................................12

P.R. Const. art. II, § 11 .............................................18

42 U.S.C. § 1382c(e) ..................................................18

48 U.S.C. § 1421b(u)..................................................21

48 U.S.C. § 1616 ........................................................21

Pub. L. No. 56-191, §§ 2-4, 31 Stat. 77(1900)....................................................................10

Pub. L. No. 63-368, ch. 145, § 2, 39 Stat.951 (1917) .............................................................15

Pub. L. No. 294, ch. 3542, 34 Stat. 466(1906)....................................................................21

Am. Samoa Code § 3.0232.........................................21

7 N. Mar. I. Code § 3101 ...........................................21

P.R. Law No. 53 (1948)................................................1

OTHER AUTHORITIES

Abbott Lawrence Lowell, The Status ofOur New Possessions—A Third View,13 Harv. L. Rev. 155 (1899)...........................7, 8, 9

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TABLE OF AUTHORITIES—continued

Page(s)

C.C. Langdell, The Status of Our NewTerritories, 12 Harv. L. Rev. 365(1899)..............................................................6, 7, 8

Carlos Ivan Gorrin Peralta, Puerto Ricoand the United States at theCrossroads, in Reconsidering theInsular Cases: The Past and Futureof the American Empire 183 (GeraldL. Neuman & Tomiko Brown-Nagineds., 2015).............................................................16

Carman F. Randolph, ConstitutionalAspects of Annexation, 12 Harv. L.Rev. 291 (1898)...................................................6, 9

Efren Rivera Ramos, The Insular Cases:What Is There to Reconsider?, inReconsidering the Insular Cases:The Past and Future of theAmerican Empire 29 (Gerald L.Neuman & Tomiko Brown-Nagineds., 2015)...............................................................5

James Bradley Thayer, Our NewPossessions, 12 Harv. L. Rev. 464(1899)............................................................7, 8, 20

Juan R. Torruella, Ruling America’sColonies: The Insular Cases, 32 YaleL. & Pol’y Rev. 57 (2013) .......................................5

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TABLE OF AUTHORITIES—continued

Page(s)

Simeon E. Baldwin, The ConstitutionalQuestions Incident to the Acquisitionand Government by the UnitedStates of Island Territory, 12 Harv.L. Rev. 393 (1899) ..............................................6, 8

BRIEF OF THE PUERTO RICAN BARASSOCIATION, INC., AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

INTRODUCTION ANDINTEREST OF THE AMICUS CURIAE1

The Constitution is the supreme law of the Na-tion. But for millions of people who live in U.S. terri-tories, only segments of our foundational documentapply.

Pursuant to the Insular Cases—a series of deci-sions by this Court dating from 1901—the territoriesare undeserving of the full panoply of constitutionalrights and privileges because they are “inhabited byalien races, differing from us” (Downes v. Bidwell,182 U.S. 244, 287 (1901)). That holding reflects viewsfrom a bygone era. But while the views have longsince disappeared from mainstream Americanthought, this Court’s racially and ethnically motivat-ed precedents remain in force, abridging the rights ofmillions of U.S. citizens living in the territories.

The Puerto Rican Bar Association, Inc. (“PRBA”)was founded at a time of rapid political and socialchange for Puerto Ricans living in Puerto Rico andelsewhere. Puerto Rican nationalism was suppressedby the Gag Law of 1948, P.R. Law No. 53 (1948),which criminalized expressive acts such as the pos-

1 Pursuant to Rule 37.6, amicus affirms that no counsel for aparty authored this brief in whole or in part and that no personother than amicus and its counsel made a monetary contribu-tion to its preparation or submission. Amicus timely informedthe parties of its intent to file this brief. Petitioners’ blanketconsent to the filing of amicus curiae briefs is on file with theClerk’s office. A letter from respondents consenting to the filingof this brief has been lodged with the Clerk.

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session of Puerto Rican flags. Efforts to invalidatethe Gag Law under the First Amendment were un-successful, and the law remained in effect until itwas repealed in 1957. That same year, a group ofPuerto Rican and Latino attorneys in New York be-gan gathering socially to offer each other personaland professional support in an era when it was diffi-cult for Puerto Rican and Latino attorneys to be ac-cepted as members in established bar associations.Today, the PRBA2 is one of the largest and oldestethnic bar associations in New York State, represent-ing attorneys, judges, law professors and studentswho share a common interest in fostering profession-al development and addressing issues that are im-portant to the Puerto Rican and other Latino com-munities.

This case is of particular importance to the ami-cus because it implicates the civil rights of personswho live in the territories of the United States. Ami-cus submits this brief to familiarize the Court withthe sordid history of the Insular Cases and their last-ing impact on the territories. This Court should take

2 The Puerto Rican Bar Association’s 2016 officers include:President: Betty Lugo, Esq.; President-Elect: Carmen A.Pacheco, Esq.; Vice President: Marissa Soto, Esq.; Treasurer:Jim Montes, Esq.; Corresponding Secretary: Angelina Adam,Esq.; and Recording Secretary: Mryna Socorro, Esq. The mem-bers of the board of directors include: Hon. Luis A. Gonzalez(Ret. Presiding Justice, Appellate Division 1st Department);Luis R. Burgos, Jr., Esq.; Elena Goldberg Velazquez, Esq.;Thomas Oliva, Esq.; Carlos Perez-Hall, Esq.; Wanda Sanchez-Day, Esq.; Carmen Villa-Lugo, Esq.; George Santana, Esq.;Raquel Miranda, Esq.; Jessica Acosta, Esq. More informationon PRBA is available at http://prbany.com.

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this opportunity to reconsider and overrule the Insu-lar Cases and affirm that the residents of the territo-ries stand in parity to those of the States.

SUMMARY OF ARGUMENT

Over a century ago, in the wake of the Spanish-American War, this Court issued a series of deci-sions, now known collectively as the Insular Cases.Those cases addressed the question whether and towhat extent the Constitution applied, of its ownforce, in the territories that the United States hadacquired in the conflict. The Court held that theseterritories, though part of the United States, had notbeen “incorporated” into the United States for cer-tain constitutional purposes, suggesting that otherprovisions of the Constitution thus did not apply totheir residents.

In this case, the court of appeals relied in part onthe Insular Cases in holding that the CitizenshipClause of the Fourteenth Amendment does not enti-tle American Samoans to birthright citizenship. Butthis Court need not and should not do so. The InsularCases reflect badly outdated theories of imperialismand racial inferiority and have outlived their useful-ness. This Court should overrule those decisions.

A.

The Insular Cases were decided during a heatednational debate over how to govern the territoriesacquired by the United States in the Spanish-American War. Some Americans argued that theConstitution would apply in full to the new territo-ries and lamented the consequences that would re-sult. Others contended that the territories could andshould be treated as colonies whose residents wouldnot enjoy constitutional rights. The Insular Cases ul-

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timately split the difference between these two posi-tions, holding that the newly acquired lands wereunincorporated territories where the Constitutionwould not fully apply without further congressionalaction. This doctrine rests on assumptions that thisNation has long since rejected: namely, that personsborn in the territories are inferior to citizens born inthe States and unready for free government, andthat the United States therefore has the power todeny them equal rights and protection.

B.

The effects of the Insular Cases and their doc-trine of “unincorporated” territories are felt today.Those cases steadfastly provide legal justification forpermitting “otherwise unconstitutional practices tocontinue in the United States territories.” Rayphandv. Sablan, 95 F. Supp. 2d 1133, 1140 (D.N.M.I. 1999),aff’d, Torres v. Sablan, 528 U.S. 1110 (2000). Thoughcertain constitutional rights have been held to ex-tend to territorial residents, many others have not.For example, residents of the territories do not enjoythe same right to a jury trial in criminal cases thatthe Sixth Amendment guarantees to other U.S. citi-zens. The Insular Cases have also helped give rise toa highly deferential form of equal protection juris-prudence, under which Congress is generally free todisadvantage the territories in allocating economicbenefits. In these and other ways, the Insular Casescontinue to deny territorial residents full constitu-tional rights and perpetuate the colonial status of theterritories.

C.

This case presents this Court with an opportuni-ty to reconsider the Insular Cases, and this Court

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should grant review and overrule them. The InsularCases’ imperialist reasoning is no longer tenable; un-der the Constitution, residents of the territories areentitled to the same civil rights as residents of theStates.

ARGUMENT

A. The Insular Cases Are Based On Politi-cal And Social Beliefs That Have LongSince Been Rejected.

1. The Roots Of The Insular Cases Were InMisguided Racial And Imperialist Ideas

a. In the 1898 Treaty of Paris, which ended theSpanish-American War, the United States acquiredPuerto Rico, the Philippines, and Guam from Spain.This territorial expansion brought with it thorny le-gal and political questions. How were the new terri-tories to be governed? Were they to be put on a pathto statehood, or simply maintained in a state of per-petual dependency? And what legal rights wouldtheir inhabitants enjoy?

The “guns were barely silenced when a nationaldebate ensued” over these very questions. Juan R.Torruella, Ruling America’s Colonies: The InsularCases, 32 Yale L. & Pol’y Rev. 57, 65 (2013). Thatdebate was especially lively in the legal community.In a series of articles published in the Harvard LawReview in 1898 and 1899, some of the leading schol-ars of the day put forth differing theories regardingwhether and how the Constitution applied in thenewly acquired territories. Their ideas had “para-mount influence” on the way in which this Courtsubsequently resolved the issue. Ibid.; see also EfrenRivera Ramos, The Insular Cases: What Is There toReconsider?, in Reconsidering the Insular Cases: The

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Past and Future of the American Empire 29, 29(Gerald L. Neuman & Tomiko Brown-Nagin eds.,2015).

b. One view, advocated by professors CarmanRandolph of Columbia and Simeon Baldwin of Yale,posited that the Constitution applied, of its own forceand in its entirety, in every place subject to the sov-ereignty of the United States, including the newlyacquired territories.

“The Constitution,” Randolph argued, “is a self-extending law, and so far as it covers our presentpossessions must cover future ones.” Carman F.Randolph, Constitutional Aspects of Annexation, 12Harv. L. Rev. 291, 306 (1898). He concluded that as aresult, U.S. citizens outside the states “possess thesame personal and property rights that the people ofthe States enjoy.” Id. at 302. Baldwin agreed withthis view, stating that “the Constitution is the su-preme law wherever the flag of the Union floats overits soil.” Simeon E. Baldwin, The ConstitutionalQuestions Incident to the Acquisition and Govern-ment by the United States of Island Territory, 12Harv. L. Rev. 393, 405 (1899).

c. A second view, espoused by Dean ChristopherColumbus Langdell and Prof. James Bradley Thayerof Harvard Law School, surmised that the Constitu-tion applied only to the States, and not to outlyingterritories.

Langdell hypothesized that the Constitution had“no application to territory which is subject to noState sovereignty, and in which the United Statescan exercise all the power which can be exercisedwithin a State either by the State or by the UnitedStates.” C.C. Langdell, The Status of Our New Terri-

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tories, 12 Harv. L. Rev. 365, 388 (1899). In Langdell’sview, the “one known mode of incorporating newlyacquired territory into the United States” and there-by entitling its citizens to the protections of the Con-stitution was “by admitting it as a State.” Ibid.Thayer agreed that “when a new region is acquired itdoes not at once and necessarily become a part ofwhat we call the ‘territory’ of the United States.”James Bradley Thayer, Our New Possessions, 12Harv. L. Rev. 464, 471 (1899). Rather, he main-tained, the United States had the “legal, constitu-tional power, to govern [newly acquired lands] as col-onies, substantially as England might govern them.”Id. at 467. Only if these territories were admitted tostatehood would their inhabitants become entitled toplenary constitutional rights.

d. Finally, in an article that followed the othersjust discussed, Prof. Abbott Lawrence Lowell of Har-vard proposed what he called a “Third View.”

Lowell believed that neither Randolph andBaldwin’s argument nor Langdell and Thayer’s waswholly acceptable. He argued that Randolph andBaldwin’s position—that the Constitution appliedfully in the territories—was “irrational, because itextends the restrictions of the Constitution to condi-tions where they cannot be applied without render-ing the government of our new dependencies well-nigh impossible.” Abbott Lawrence Lowell, The Sta-tus of Our New Possessions—A Third View, 13 Harv.L. Rev. 155, 157 (1899). On the other hand, he ex-plained, Langdell and Thayer’s view—that the Con-stitution had no application in the territories—produced anomalous and troubling consequences:Congress could take property from persons in theDistrict of Columbia or the territories without just

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compensation, or pass bills of attainder there. Id. at156-57.

Lowell articulated an intermediate position: that“possessions acquired by conquest or cession do notbecome a part of the United States,” and could be“incorporat[ed]” into the Union only by legislative ac-tion. Lowell, supra, at 176. In unincorporated terri-tories, Lowell explained, certain constitutional provi-sions would apply, but others, “such as those requir-ing uniformity of taxation and trial by jury,” wouldnot. Ibid.

e. Despite their differing legal conclusions, all ofthese scholars shared the belief that the inhabitantsof the newly acquired territories were so differentfrom and inferior to the U.S. citizens who resided inthe States that applying the Constitution in theseterritories would be cause for concern.

Those who held that the Constitution applied on-ly in the States were certainly of this view. Langdellsuggested that the Bill of Rights was “so peculiarlyand so exclusively English that an immediate andcompulsory application of [it] to ancient and thicklysettled Spanish colonies would furnish as striking aproof of our unfitness to govern dependencies, or todeal with alien races, as our bitterest enemies coulddesire.” Langdell, supra, at 386. And Thayer opinedthat admitting any “extra-continental” state into theUnion was an “intolerable suggestion.” Thayer, su-pra, at 484.

But even those who held that the Constitutionfollowed the flag everywhere in the world were ruefulof the fact. Baldwin commented that giving “the half-civilized Moros of the Philippines, or the ignorantand lawless brigands that infest Puerto Rico” consti-

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tutional rights would be a “serious obstacle to themaintenance there of an efficient government.”Baldwin, supra, at 415. Randolph, for his part, de-clared that the “Philippine islanders are, and arelikely to remain, unfit for statehood,” and he sug-gested various ways in which the United States couldavoid annexing the Philippines and triggering appli-cation of the Constitution. Randolph, supra, at 305.

Lowell, the proponent of the “Third View,” like-wise believed that the inhabitants of the new territo-ries differed from other U.S. citizens in significantways. Indeed, he relied on that proposition in orderto distinguish between the constitutional rights thathe thought should apply in the territories and thosethat should not. He explained that “restrictions uponthe power of Congress” have a “universal bearing”and thus applied everywhere, including unincorpo-rated territories. Lowell, supra, at 176. By contrast,he argued, “the rights guaranteed to the citizens,”such as those found in the Bill of Rights, were “inap-plicable except among a people whose social and po-litical evolution has been consonant with our own”—which, in his view, the inhabitants of the new terri-tories were not. Ibid.

Thus, at the time that the Insular Cases were de-cided, there was widespread agreement that apply-ing the full panoply of constitutional provisions inthe new territories was unwise because the popula-tions of those territories were not ready for suchrights and enforcing them would tie the hands of ter-ritorial governments. The real debate was overwhether the law nonetheless required that the Con-stitution be enforced there. It was this question thatwas presented for review in the Insular Cases.

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2. The Insular Cases Made These Now-Discredited Beliefs The Basis For A RuleOf Constitutional Law

a. There is disagreement among commentatorsas to which cases are encompassed by the term “In-sular Cases,” but at a minimum, the term refers tosix cases decided by this Court on May 27, 1901.3

These cases addressed legal issues that had arisen inthe wake of the Foraker Act, which Congress enactedin 1900 to provide for a territorial government inPuerto Rico. The Act imposed duties on trade be-tween Puerto Rico and the mainland United Statesin order to fund the new government. Pub. L. No. 56-191, §§ 2-4, 31 Stat. 77, 77-78 (1900).

b. In the first of the Insular Cases, De Lima v.Bidwell, 182 U.S. 1 (1901), a firm that had paid tar-iffs on goods imported to New York from Puerto Ricobefore the enactment of the Foraker Act sued to re-cover the tariffs, arguing that Puerto Rico was not aforeign country and that the imports thus should nothave been taxed. The Court agreed, holding that a

3 De Lima v. Bidwell, 182 U.S. 1, 200 (1901) (holding that Puer-to Rico is not a “foreign country” for purposes of tariff laws);Goetze v. United States, 182 U.S. 221, 221-22 (1901) (same, withrespect to Puerto Rico and Hawaii); Dooley v. United States, 182U.S. 222, 236 (1901) (holding that the President’s Article II au-thority to impose tariffs on goods imported to Puerto Rico fromthe United States expired after the island was ceded to theUnited States); Armstrong v. United States, 182 U.S. 243, 244(1901) (same); Downes v. Bidwell, 182 U.S. 244, 287 (1901)(holding that Puerto Rico is not part of the United States forpurposes of the Uniformity Clause); Huus v. New York & PortoRico S.S. Co., 182 U.S. 392, 397 (1901) (holding that a shiptraveling between New York and Puerto Rico was engaged inthe “coasting trade,” rather than in foreign commerce).

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territory could not “be at the same time both foreignand domestic” and that Puerto Rico was thus part ofthe United States, for purposes of the tariff laws,from the moment it was acquired in the Treaty ofParis. Id. at 199-200.

In dissent, Justice McKenna borrowed from Low-ell’s incorporation theory to argue that the tariffshad been properly collected. The majority opinion, hecontended, presumed that Puerto Rico had been in-corporated into the United States by the Treaty ofParis, when in fact it had not. De Lima, 182 U.S. at217 (McKenna, J., dissenting). The treaty, in JusticeMcKenna’s view, had left the question of incorpora-tion to Congress. Id. at 214.

Justice McKenna warned against the dangers heperceived would follow from concluding that “ourConstitution and laws, immediately apply on cessionof territory.” De Lima, 182 U.S. at 219. He explainedthat if that were the case, the government “couldmake no accommodation to exigency [and] wouldstand bound in a helpless fatality.” Ibid. Construingthe treaty and the Constitution not to incorporatePuerto Rico into the United States would allow theterritories to be governed with a freer hand andavoid “the danger of the nationalization of savagetribes.” Ibid.

c. De Lima’s conclusion that Puerto Rico waspart of the United States led inexorably to the nextand most significant of the Insular Cases, Downes v.Bidwell, 182 U.S. 244 (1901), where the incorpora-tion theory featured prominently again.

Downes presented the question whether the Fo-raker Act’s duties on goods transported betweenPuerto Rico and the mainland violated the Uniformi-

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ty Clause of the Constitution, which requires that“all Duties, Imposts and Excises shall be uniformthroughout the United States.” U.S. Const. art. I, § 8,cl. 1. The Court held by a five-to-four vote that theAct was constitutional because the UniformityClause did not apply to Puerto Rico, but the Justicesin the majority produced several different opinionsexplaining why this was so.

Justice Brown, who announced the judgment ofthe Court but wrote only for himself, worried openlyabout the potential consequences of holding that theConstitution fully applied, of its own force, in everyplace subject to the control of the United States. “Itis obvious,” he explained, “that in the annexation ofoutlying and distant possessions grave questions willarise from differences of race, habits, laws, and cus-toms of the people * * * which may require action onthe part of Congress that would be quite unnecessaryin the annexation of contiguous territory inhabitedonly by people of the same race, or by scattered bod-ies of native Indians.” Downes, 182 U.S. at 282.

Justice Brown observed that because the “alienraces” that inhabited the new territories that theUnited States had acquired differed from otherAmericans in “religion, customs, laws, methods oftaxation, and modes of thought, the administrationof government and justice, according to Anglo-Saxonprinciples, may for a time be impossible.” Downes,182 U.S. at 287 (emphasis added). Thus, he argued,it was appropriate that “large concessions . . . bemade for a time, that ultimately our own theoriesmay be carried out, and the blessings of a free gov-ernment under the Constitution extended to them.”Ibid. He concluded “that the island of Porto Rico is aterritory appurtenant and belonging to the United

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States, but not a part of the United States within therevenue clauses of the Constitution.” Ibid.

Justice Edward White, writing for himself andtwo other Justices, concurred in the judgment on thebasis of Lowell’s incorporation theory. He arguedthat “where a treaty contains no conditions for incor-poration * * * that incorporation does not arise untilin the wisdom of Congress it is deemed that the ac-quired territory has reached that state where it isproper that it should enter into and form a part ofthe American family.” Downes, 182 U.S. at 339(White, J., concurring). Because no such incorpora-tion had occurred, he explained, “while in an interna-tional sense Porto Rico was not a foreign country,since it was subject to the sovereignty of and wasowned by the United States, it was foreign to theUnited States in a domestic sense.” Id. at 341.

The final member of the majority, Justice Gray,agreed “in substance” with Justice White’s opinion,but he wrote separately to explain that the basis forhis views was his belief that “[c]ivil government can-not take effect at once” in “territory acquired bywar”; rather, he argued, “[t]here must, of necessity,be a transition period.” Downes, 182 U.S. at 345(Gray, J., concurring) (emphasis added). “If Congressis not ready to construct a complete government forthe conquered territory,” he concluded, “it may estab-lish a temporary government, which is not subject toall the restrictions of the Constitution.” Id. at 346(emphasis added).

In dissent, Justice Harlan denounced the majori-ty’s reasoning. He vehemently denied the notion that“Congress can deal with new territories just as othernations have done or may do with their new territo-ries.” Downes, 182 U.S. at 380 (Harlan, J., dissent-

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ing). “This nation,” he explained, “is under the con-trol of a written constitution * * *. Monarchical anddespotic governments, unrestrained by written con-stitutions, may do with newly acquired territorieswhat this government may not do consistently withour fundamental law. To say otherwise is to concedethat Congress may, by action taken outside of theConstitution, engraft upon our republican institu-tions a colonial system such as exists under monar-chical governments. Surely such a result was nevercontemplated by the fathers of the Constitution. Ifthat instrument had contained a word suggesting thepossibility of a result of that character it would neverhave been adopted by the people of the UnitedStates.” Ibid.

d. Although the incorporation theory failed tocommand a majority of the Court in Downes, it soonbecame enshrined as a feature of U.S. constitutionallaw. Just three years later, the Court decided Dorr v.United States, 195 U.S. 138 (1904), where five Jus-tices agreed for the first time that there was a consti-tutional distinction between incorporated and unin-corporated territories.

In Dorr, two petitioners convicted of criminal li-bel in the Philippines without a jury challenged theirconvictions under the Sixth Amendment. Relyingheavily on Downes, the majority concluded that Con-gress was not required to “enact for ceded territorynot made a part of the United States by Congres-sional action, a system of laws which shall includethe right of trial by jury, and that the Constitutiondoes not, without legislation, and of its own force,carry such right to territory so situated.” Dorr, 195U.S. at 149. The Court accordingly sustained the pe-titioners’ convictions.

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e. In 1917, the legal status of the inhabitants ofPuerto Rico underwent a dramatic change with thepassage of the Jones-Shafroth Act. The Jones-Shafroth Act recognized all Puerto Ricans to be U.S.citizens, and it set out a “Bill of Rights” granting cer-tain legal rights—though not all the rights containedin the Constitution’s Bill of Rights—to Puerto Ri-cans. Pub. L. No. 63-368, ch. 145, §§ 2, 5, 39 Stat.951, 951-53 (1917).

Five years later, in Balzac v. Porto Rico, 258 U.S.298 (1922), the Court was confronted with the ques-tion whether the grant of U.S. citizenship to PuertoRicans had changed the unincorporated status of theterritory. Balzac, like Dorr, involved a petitionerconvicted of criminal libel without a jury, this time inPuerto Rico. The petitioner in Balzac argued that hisconviction violated the Sixth Amendment.

The Court now held unanimously that Puerto Ri-co had not been incorporated and that the SixthAmendment thus did not apply there. Writing for theCourt, Chief Justice Taft rejected the petitioner’s ar-gument that the Jones-Shafroth Act, by conferringU.S. citizenship on Puerto Ricans, had made PuertoRico an incorporated territory. The Chief Justiceacknowledged that an act of Congress “declaring anintention to confer political and civil rights on theinhabitants of * * * new lands as American citizens”could cause a territory to be incorporated. Balzac,258 U.S. at 309. Indeed, the Court had relied on suchan act when it held in Rassmussen v. United States,197 U.S. 516 (1905), that Alaska was an incorporatedterritory. See id. at 522 (holding that treaty languageproviding that “inhabitants of [Alaska] * * * shall beadmitted to the enjoyment of all the rights, ad-vantages, and immunities of citizens of the United

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States” incorporated Alaska into the United States)(internal quotation marks omitted).

The Chief Justice explained, however, that Puer-to Rico presented a much different case from Alaska:“Congress has thought that a people like the Filipi-nos, or the Porto Ricans, trained to a complete judi-cial system which knows no juries, living in compactand ancient communities, with definitely formed cus-toms and political conceptions, should be permittedthemselves to determine how far they wish to adoptthis institution of Anglo-Saxon origin, and when.”Balzac, 258 U.S. at 310. Accordingly, the Courtshould not “lightly” infer “an intention to incorporatein the Union these distant ocean communities of adifferent origin and language from those of our con-tinental people.” Id. at 311.

The Court thus held that the Jones-Shafroth Acthad not incorporated Puerto Rico into the UnitedStates. Although Balzac acknowledged that “[t]heguaranties of certain fundamental personal rightsdeclared in the Constitution, as, for instance, that noperson could be deprived of life, liberty, or propertywithout due process of law, had from the beginningfull application in the Philippines and Porto Rico,”other rights would not apply in Puerto Rico unlessand until it became incorporated. Balzac, 258 U.S. at312-13. This holding completed the “constitutional[]rationaliz[ation]” of the colonial status of the territo-ries that began in Downes. See Carlos Ivan GorrinPeralta, Puerto Rico and the United States at theCrossroads, in Reconsidering the Insular Cases: ThePast and Future of the American Empire 183, 183(Gerald L. Neuman & Tomiko Brown-Nagin eds.,2015).

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B. As A Result Of The Insular Cases, Terri-torial Residents Still Lack Full Consti-tutional Rights.

1. Under Balzac, this Court has held that anumber of specific constitutional rights are suffi-ciently “fundamental” to apply in unincorporatedterritories.4 But the Court has never reexamined thevalidity of the Insular Cases’ incorporation doctrine,although a number of Justices have criticized the de-cisions. See Torres v. Puerto Rico, 442 U.S. 465, 475-76 (Brennan, J., concurring) (“Whatever the validityof the [Insular Cases] * * * in the particular histori-cal context in which they were decided, those casesare clearly not authority for questioning the applica-tion of the Fourth Amendment—or any other provi-sion of the Bill of Rights—to the Commonwealth ofPuerto Rico in the 1970’s.”); Reid v. Covert, 354 U.S.1, 14 (1957) (plurality opinion) (“[N]either the [Insu-lar Cases] nor their reasoning should be given anyfurther expansion.”). As a result, territorial residentsstill do not enjoy all of the civil rights granted to res-idents of the States.

2. Perhaps the most glaring disparity imposed bythe Insular Cases is that territorial residents, unlikeresidents of the States, have only limited rights to ajury trial in criminal cases.

4 See Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663,668 n.5 (1974) (Due Process Clause of either the Fifth or Four-teenth Amendment); Examining Bd. of Eng’rs, Architects &Surveyors v. Flores de Otero, 426 U.S. 572, 601 (1976) (equalprotection right under either the Fifth or Fourteenth Amend-ment); Torres v. Puerto Rico, 442 U.S. 465, 471 (1979) (FourthAmendment, either “directly or by operation of the FourteenthAmendment”).

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For example, because the Sixth Amendment doesnot apply in Puerto Rico, defendants in local PuertoRican courts enjoy only those rights provided by theConstitution of Puerto Rico. Under the Puerto Ricanconstitution, jury trials are required only for felonycases. P.R. Const. art. II, § 11. By contrast, the SixthAmendment guarantees to defendants a right to jurytrial in all state and federal criminal cases where thepotential punishment exceeds six months. See Lewisv. United States, 518 U.S. 322, 326 (1996). Thus, un-der the Insular Cases, many Puerto Ricans are triedwithout juries in situations where citizens of theStates would enjoy that vital constitutional protec-tion.

3. Another troubling consequence of the InsularCases is that they have contributed to the develop-ment of a weakened form of equal protection doctrinethat allows Congress to enact laws that overtly dis-favor the territories, evidencing the territories’ con-tinued colonial status.

The first decision in this vein was Califano v.Torres, 435 U.S. 1 (1978) (per curiam), where theCourt considered a constitutional challenge to SocialSecurity’s Supplemental Security Income (SSI) pro-gram. The SSI program, which provides aid to elder-ly, blind, and disabled persons, makes benefits avail-able only in the “50 States and the District of Co-lumbia.” 42 U.S.C. § 1382c(e). Several petitioners,who received SSI benefits while residing in variousStates and then lost them upon moving to Puerto Ri-co, alleged that this denial of benefits was unconsti-tutional. A three-judge district court agreed with thepetitioners.

On appeal, this Court summarily reversed. Thebasis for the lower court’s decision had been the con-

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stitutional right to travel, which the Court held didnot require a State to “continue to pay * * * benefitsindefinitely to any persons who had once residedthere.” Torres, 435 U.S. at 4. But the Court also ad-dressed and rejected the claim in the petitioner’scomplaint that excluding Puerto Rico from the SSIprogram violated equal protection. The Court agreedwith the lower court that “Congress has the power totreat Puerto Rico differently, and that every federalprogram does not have to be extended to it.” Id. at 3n.4. As support for that proposition, the Court citedBalzac, Dorr, and Downes.

Similarly, in Harris v. Rosario, 446 U.S. 651(1980) (per curiam), the Court rejected an equal pro-tection challenge to the Aid to Families with De-pendent Children (AFDC) program, under which“Puerto Rico receives less assistance than do theStates.” Id. at 651. The Court held that Congress“may treat Puerto Rico differently from States solong as there is a rational basis for its actions.” Id. at651-52 (citing Torres, 435 U.S. at 1). The Court foundthere to be three such rational bases: “Puerto Ricanresidents do not contribute to the federal treasury;the cost of treating Puerto Rico as a State under thestatute would be high; and greater benefits coulddisrupt the Puerto Rican economy.” Id. at 652.

From an economic perspective, therefore, territo-rial residents are not the equal of residents of theStates. Congress can, and does, treat them different-ly.

C. This Court Should Grant Review HereAnd Overrule The Insular Cases.

a. The outdated reasoning of the Insular Caseshas long since been discarded by the American peo-

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ple. No one today would contend that persons wholive in American Samoa or other territories are an“alien race[]” unprepared for the “blessings of a freegovernment,” Downes, 182 U.S. at 287, or “savagetribes” unworthy of inclusion in American society. DeLima, 182 U.S. at 219 (McKenna, J., dissenting). Noris it plausible any longer to suggest that the UnitedStates has the power to “govern [the territories] ascolonies.” Thayer, supra, at 467. Such imperialist no-tions are now recognized as incompatible with thehigh ideals of freedom, equality, and self-determination for which the United States shouldstand.

To the extent that the Insular Cases rested onthe theory that it would be best to withhold constitu-tional guarantees from territorial residents “for atime” to allow for political transition, Downes, 182U.S. at 287, that justification for the cases has like-wise been eroded. One hundred and seventeen yearshave elapsed since the end of the Spanish-AmericanWar, and today, all of the territories of the UnitedStates have a well-ordered and democratic local gov-ernment. The “temporary” suspension of rights thatthe Insular Cases authorized is simply no longerwarranted. Id. at 346 (Gray, J., concurring). On thecontrary, leaving the Insular Cases in place suggeststhat it is acceptable to maintain the territories in apermanent state of colonialism.

To be sure, cultural differences between the ter-ritories and the rest of the United States remain. Butthose differences are not nearly great enough to jus-tify denying important constitutional rights to terri-torial residents. For example, although the Court inBalzac doubted whether Puerto Ricans were pre-pared for the “responsibilities” of a system of jury

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trials, today, Puerto Ricans serve on juries in felonycases in local courts without difficulty.5 The Code ofAmerican Samoa also provides for jury trials in somecriminal cases, Am. Samoa Code § 3.0232, as do theRevised Organic Act of the Virgin Islands, see 48U.S.C. § 1616, the Organic Act of Guam, id.§ 1421b(u), and the Commonwealth Code of theNorthern Mariana Islands. 7 N. Mar. I. Code § 3101.It no longer makes sense to distinguish between theStates and the territories for purposes of the SixthAmendment and other important rights.

In short, the possibility that this Court recog-nized in Boumediene v. Bush has come to pass:“[T]he ties between the United States and * * * itsunincorporated Territories [have] strengthen[ed] inways that are of constitutional significance.” 553U.S. 723, 758 (2008). Indeed, the distinction betweenincorporated and unincorporated territories has longsince lost whatever justification underlay it. ThisCourt should therefore overrule the Insular Cases.6

b. Although the Insular Cases are long-standingprecedents, stare decisis does not counsel againstthis Court’s overruling them.

As this Court has observed, “[s]tare decisis is notan inexorable command; rather, ‘it is a principle of

5 Puerto Ricans have also served on juries in the U.S. DistrictCourt for the District of Puerto Rico since shortly after its crea-tion in 1900—long before Balzac was decided. See Pub. L. No.294, ch. 3542, 34 Stat. 466 (1906) (defining qualifications of ju-rors in the U.S. District Court for the District of Puerto Rico).

6 Amicus agrees with petitioner’s contention (Pet. 27-33) thatthe decision below should be reversed even if the Insular Casesremain good law. But if this Court believes the Insular Casesgovern the question presented, it should overrule them.

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policy and not a mechanical formula of adherence tothe latest decision.’” Payne v. Tennessee, 501 U.S.808, 828 (1991). In particular, the Court will not ap-ply stare decisis “when governing decisions are un-workable or are badly reasoned.” Id. at 827. The rea-soning of the Insular Cases no longer stands up toscrutiny, and this Court is not obliged to follow it.

Moreover, stare decisis is at its weakest in consti-tutional cases, where “correction through legislativeaction is practically impossible.” Id. at 828 (quotingBurnet v. Coronado Oil & Gas Co., 285 U.S. 393, 407(1932) (Brandeis, J., dissenting)). The Insular Casespresent just that difficulty: although Congress hasthe power to change the status of particular territo-ries if it chooses, it has no power to alter the consti-tutional doctrine of incorporated and unincorporatedterritories. Only this Court can abolish that arbi-trary distinction. It is high time that it did so.

CONCLUSION

The petition for a writ of certiorari should begranted, and the judgment of the court of appealsshould be reversed.

Respectfully submitted.

BETTY LUGO

CARMEN A. PACHECO

Puerto Rican BarAssociation, Inc.

340 Atlantic AvenueBrooklyn, NY 11201blugo@pachecolugo.com

BRIAN D. NETTER

Counsel of RecordMATTHEW A. WARING

Mayer Brown LLP1999 K Street NWWashington, DC 20006(202) 263-3000bnetter@mayerbrown.com

Counsel for Amicus Curiae

MARCH 2016