The Yale Law Journal

June 2022

Aurelius’s Article III Revisionism: Reimagining Judicial Engagement with the Insular Cases and “The Law of the Territories”

U.S. Territories

abstract. The Supreme Court’s unanimous decision upholding the appointments structure of Puerto Rico’s controversial Financial Oversight and Management Board in FOMB v. Aurelius has, to date, yielded commentary fixated on what the Justices did not say. The bulk of that commentary criticizes the Court for declining to square up to and overturn the Insular Cases, the series of early twentieth-century decisions holding that the Constitution does not fully apply to Puerto Rico and other “unincorporated” possessions populated by “savages” and persons of “uncivilized race.” However, Aurelius teaches that the core constitutional problems of territorial exceptionalism and status manipulation run far deeper than the doctrinal framework of the Insular Cases—such that those cases’ ceremonious judicial overthrow is unlikely to spell an end to the harms of the legal order they represent.

Observing the Aurelius Court’s inclination to erase overseas expansion from its account of Article III doctrine, this Article questions the wisdom of urging judicial overthrow of the Insular Cases without a coherent rubric for the many doctrinal universes that might emerge from such an intervention. Together, the framing problems on display in Aurelius and the lessons from the recently overturned Japanese-internment case Korematsu v. United States suggest that although the Insular Cases are plainly indefensible, ill-considered judicial intervention will pose a grave threat to procedurally legitimate self-determination and to path-dependent interests with roots in that troubled framework. This Article reorients a conversation inclined to view judicial overthrow of the Insular Cases as an end in itself toward more informed and productive judicial engagement that secures legal recognition of territories’ agency in charting their own future. Formally condemning or overruling the Insular Cases will mean little if judges fail to account for the threshold ambiguities enabling territorial status manipulation across constitutional domains, which Aurelius shows can be effected with or without express reliance on the Insular Cases or the Incorporation Doctrine. Ultimately, this Article proposes a conversation with Federal Indian law as a starting point for theorizing judicial engagement with the Insular Cases and the so-called “law of the territories.”

author. Yale Law School, J.D. 2020; Yale College, B.A. 2013. Alex Munson, Armando Ghinaglia Socorro, Aziz Rana, Ela Leshem, Evan Walker-Wells, Jade Ford, Julian Aguon, Kathy Campbell, Maggie Blackhawk, Phil Kaplan, Rosa Hayes, Soren Schmidt, and Valeria Pelet del Toro: si yu’os ma’åse for your humbling intellectual generosity. I am indebted to many others, especially Joe Linfield and the editors of the Yale Law Journal, for helping me through the writing process. I dedicate this Article to my mom.


Heading into the 2020 Supreme Court Term, Financial Oversight & Management Board v. Aurelius Investment, LLC had the makings of a blockbuster. The case presented the first major constitutional hurdle for Congress’s newly christened Financial Oversight and Management Board for Puerto Rico (FOMB), a novel, quasi-governmental entity chartered to wrest control over Puerto Rico’s financial affairs from the island’s elected government.1 Less than a month after the Court granted certiorari, a series of massive protests erupted in Puerto Rico demanding the governor’s resignation and dissolution of “la junta,” a now-popularized nickname for the FOMB within the territory.2 In an immediate sense, the constitutional challenges to the FOMB threatened to upend the very foundation of the island’s $129 billion public-debt restructuring,3 and, with it, many trillions of dollars’ worth of claims.4 More significantly, the uncertain constitutionality of the FOMB’s powers and composition pointed toward some of Puerto Rico’s most difficult and enduring legal ambiguities: the limits of congressional power to interfere with the island’s self-government and the future of Puerto Rico’s relationship to the United States after what will soon mark 124 years in a supposedly “temporary” constitutional limbo.5

Aurelius presented the most inviting opportunity in decades to reconsider the Insular Cases,6 the long-controversial series of Supreme Court precedents that gave birth to that constitutional limbo. The Insular Cases, while not easily summarized,7 are today invoked principally for the proposition that at least some parts of the Constitution do not “follow the flag”8—in other words, that the federal government is not bound by certain otherwise-applicable constitutional rights and guarantees when it acts upon overseas possessions. To accomplish this purpose, the early twentieth-century decisions invented a doctrinal distinction between “incorporated” territories—those the Court viewed as firmly destined for statehood (e.g., the Northwest Territory)—and “unincorporated” ones—possessions of uncertain relationship, to which only “fundamental” constitutional provisions would be guaranteed (e.g., the Philippines, Guam, and Puerto Rico).9 This “territorial incorporation doctrine,” as that distinction is now known, was fashioned not from any recognized legal principle, but from the Justices’ varied concerns about the racial and ethnic makeup of islands newly acquired after the Spanish-American War.10 Confronted with the specter of adding some ten million people of “alien”11 and “uncivilized race”12 to the American body politic, the Court licensed the political branches to maintain and develop these newly ambiguous “unincorporated” territories without citizenship and without constitutional impediment—at least “for a time.”13

As a result, nearly four million residents of Puerto Rico, Guam, the U.S. Virgin Islands, American Samoa, and the Commonwealth of the Northern Mariana Islands (CNMI)14 are unrepresented across all branches of our national government, even in the four territories where U.S. citizenship is guaranteed by birth.15 They have no electoral-college votes for President, no senators, and no voting representation on the floor of the House.16 Only Puerto Rico has Article III protections for its district-court judges.17 Meanwhile, Americans in the territories are singled out for widespread discrimination in federal programs and public assistance despite having some of the nation’s lowest per-capita income metrics and highest cost of living.18 This remains true even as the people of the territories have fought and died in significant numbers during every American conflict of the past century.19 Even today, the per-capita rate of military enlistment in some territories exceeds those of all fifty states.20

Largely for their overtly racist reasoning, the Insular Cases have emerged as some of the most controversial precedents still cited approvingly in modern courts.21 The late First Circuit Judge Juan R. Torruella summarized these cases as the lynchpin of “a de jure and de facto condition of political apartheid for the U.S. citizens that reside in Puerto Rico and the other territories,” noting that the decisions “contravened established doctrine . . . to meet the political and racial agendas of the times.”22As scholars increasingly explore the cases’ historical and doctrinal links to Plessy v. Ferguson,23 the Insular Cases have come to be viewed as “central documents in the history of American racism”24 and a pillar of constitutional law’s “anticanon.25

Importantly, Aurelius landed on the Court’s docket just one term after a 5-4 majority formally overruled another long-reviled precedent: Korematsu v. United States. In Trump v. Hawaii, that majority reached well beyond the question presented to ceremoniously overturn the Court’s infamous 1944 decision upholding the wartime relocation and internment of Japanese Americans—as “gravely wrong the day it was decided.”26 Widely credited as a “long overdue . . . repudiation of a shameful precedent,” the Court’s unanticipated repudiation of Korematsu led many to believe that the Insular Cases and their progeny were not long for this world.27

And yet, Aurelius was anything but a blockbuster.The merits of the case centered on the application of Article II’s Appointments Clause to the FOMB, asking (1) whether the Appointments Clause applies to activities in Puerto Rico and (2) if so, whether Congress ran afoul of it by authorizing the President to appoint FOMB board members without Senate confirmation.28 Throughout lower court proceedings, the United States, FOMB, and others insisted that Article II and other structural separation-of-powers constraints do not apply to federal activities in Puerto Rico, relying both directly and indirectly on the Insular Cases.29 A unanimous First Circuit panel rejected those arguments and declared the appointments unconstitutional.30 The Circuit held that FOMB appointees, whose positions had been created by Congress and endowed with significant authority under federal law, fell within Article II’s definition of “Officers of the United States.”31 By the time the case reached the Supreme Court, however, lawyers defending the FOMB’s constitutionality had abandoned their reliance on the Insular Cases. Instead, they offered a more general argument that because the FOMB had technically been created as a part of Puerto Rico’s territorial government, Article IV’s Territory Clause permitted Congress to evade separation-of-powers principles that otherwise constrain the federal government.32

FOMB’s challengers did not follow suit. At oral argument, counsel for Puerto Rico’s electrical union, Unión de Trabajadores de la Industria Eléctrica y Riego (UTIER), committed her entire allotted time to persuading the Justices to overrule the Insular Cases. In doing so, she highlighted other parties’ strategic abandonment of those precedents at the Supreme Court33 after having relied on them throughout lower court proceedings, where judges lacked the authority to overrule them.34 Even so, the Justices displayed little interest in her arguments.35

Rather than confront the Insular Cases or the broader legacy of constitutional liminality that denies key rights and political participation to millions, the majority narrowed its focus to the appointment power. It held that (1) Article II’s Appointments Clause does apply to federal activities in Puerto Rico, but that (2) presidential appointments to the congressionally created FOMB do not trigger that Clause because of a new functional test that asks whether officers’ responsibilities are “primarily local versus primarily federal.”36 While the Court’s approach offers little clarity as to the future classification of federal and territorial officers under the Constitution’s separation-of-powers framework, it successfully minimized disruption to Puerto Rico’s politically contentious debt restructuring while evading all of the deeper and thornier questions about Puerto Rico’s political status and the limits of federal power over territorial governments.

The most the Court could muster on the Insular Cases was a passing acknowledgment that they are “much-criticized.”37 The majority nodded to uncertainty surrounding “their continued validity,” but held only that it “[would] not extend them” in Aurelius.38 Even Justice Sotomayor, whose apprehensive concurrence expressed significant doubts about the FOMB’s intrusions on Puerto Rican self-government, did not mention the Insular Cases.39

Unsurprisingly, Aurelius has attracted a range of criticism, almost all of which remains fixated on what the Justices failed to say.40 On a surface level, it is right to observe that Aurelius was a missed opportunity to reconsider the Insular Cases and a sign of the Court’s uneasiness about those precedents’ continued validity or expansion. But Aurelius has much more to say about the Court’s broader difficulty with the foundational constitutional dilemmas that flow from the nation’s overseas expansion. This Article contends that the Aurelius Court’s interpretive approach to the Appointments Clause is just as important to thinking about the constitutional future of U.S. territories as anything the case said (or did not say) about the Insular Cases themselves.

Aurelius offers an important—and often unobserved—window into the modern dynamics of colonialism and constitutionalism. While all nine Justices appeared to oppose the idea of constitutional “exceptions” in abstract, the Court’s approach to the Appointments Clause only deepened the underlying ambiguity that attends U.S. territories’ relationship to the Constitution. The case warns of threshold analytical obstacles to meaningful judicial engagement with the constitutional future of the territories. Aurelius at once demonstrates (1) that the underlying problem of territorial exceptionalism is not coterminous with the Insular Cases, and (2) that new dangers inhere in the Court’s inclination to sweep the history of American overseas expansion into a purely domestic account of constitutional development.41

In Aurelius,the Court interpreted the Appointments Clause by analogizing to Article III.42 But in doing so, it overlooked the fact that Article III is itself shot through with problems of territorial exceptionalism. For example, the majority’s account of non-Article III territorial courts relied exclusively on the examples of the District of Columbia (D.C.) and territorial courts on the early North American frontier, ignoring important transformations in territorial-courts jurisprudence that occurred only as a result of overseas imperialism.

Its historically selective Article III analogy jettisons a complicated history of judicial federalism in overseas territories. Even as the Court insisted that its new test is “illuminated by historical practice,” it entirely omitted the effect of overseas imperial expansion on the fabric of our federal judicial system.43 In surveying the constitutional history of D.C.’s courts to reach the conclusion that “[i]ndeed, the Appointments Clause has no Article IV exception,”44 the Aurelius Court hid from the strain that today’s territorial courts in Guam, the CNMI, and the U.S. Virgin Islands have added to the long-running debate over Article III’s own “exceptions.”45

Aurelius’s Article III revisionism elides how the Court’s vague antiexceptionalist pronouncements end up reinforcing the very harms for which the Insular Cases are shorthand. Although the Court rejects the idea that the Appointments Clause “does not apply” to Puerto Rico, it manipulates the Article III analogy to fashion a novel and expansive reading of the constitutional text.46 Aurelius ostensibly brings Puerto Rico within the protection of the Constitution’s separation-of-powers framework with respect to appointments. But this new “textual” approach conveniently accommodates the legal regime that the Court had previously advertised as relying on the Insular Cases. In other words, Aurelius reinforces territorial exceptionalism while ostensibly saying the opposite. At an even higher level of generality, Aurelius clarifies that the territories’ self-government, rights, and autonomy are menaced not only by the continued survival of extratextual inherent-to-sovereignty or plenary-power understandings of constitutional doctrine (i.e., the Insular Cases’ proposition that parts of the Constitution “do not apply” to Puerto Rico),47 but also by judicial moves that ostensibly “enumerate” or retether federal power over the territories to the text.

But Aurelius’s troubles do not end there. More than import existing exceptionalism into text, it overwrote constitutional doctrine in a way that made it nearly impossible to reckon with the depth of its entanglement with American overseas imperialism. This approach paves the way for wholesale deletion—rather than considered management—of promises and legal interests lodged in the territories’ path-dependent
idiosyncrasies.48 Aurelius teaches that ill-considered judicial intervention threatens more than an empty repackaging of the status quo; it poses an imminent threat to Indigenous-rights and self-determination interests that have yet to be disentangled from the Insular Cases framework.

In this way, the most important lesson of Aurelius is that the constitutional problems of territorial exceptionalism run far deeper than the specific doctrinal holdings of the Insular Cases, such that those cases’ precipitous judicial overthrow is unlikely to spell an end to the core harms of the legal order they represent.49 Marketing the Insular Cases as doctrinal relics “long ‘overruled in the court of history,’”50 those who urged the Aurelius Court to overturn the Insular Cases—and who now criticize it for failing to do so—paint them as discrete aberrations that can be shored up in a single knockout blow. But it is Aurelius’s orientation to the doctrine—not the doctrine itself—that reveals the potential for the worst of both worlds: an empty repudiation of historical racism that both recharters second-class status within the text and erases existing promises to protect land, culture, or autonomy, and self-determination.

To date, little has been offered in the way of a workable framework to replace the Insular Cases that would allow the Court to curtail the problems of unreviewable federal power and status manipulation51 while securing recognition of path-dependent promises.52 More development of such a framework is required before the Insular Cases resurface at the Court, as a pending certiorari petition on the question of American Samoa’s birthright citizenship captures.53 While many have traveled the historical and doctrinal connections between the Insular Cases and Plessy v. Ferguson, none have followed this popular comparison to its next logical station: the robust scholarly debate on how Plessy was actually overturned.54 The prevailing call for judicial intervention asks the Court to mimic its approach to Korematsu in Trump v. Hawaii—ignoring the substantial critiques that see Trump v. Hawaii as a largely symbolic, nonsubstantive repudiation that redeploys the logic of Korematsu by swapping “one ‘gravely wrong’ decision with another.”55

There are many untapped lessons in the robust practical and theoretical scholarship on both Brown and Trump v. Hawaii.56 Federal Indian law is similarly replete with unobserved doctrinal lessons for the territories that complicate the Insular Cases-Plessy parallel.57 These include the ramifications of migrating extratextual plenary-power understandings into textual readings of the Constitution, the availability of alternatives to the Reconstruction Amendments’ dominant paradigm of minority-rights protection, conceptualizing colonial path dependencies within the Constitution, and the usefulness of legal interventions outside the judicial sphere.58

This Article makes no attempt to defend, redeem, or repurpose the Insular Cases.59 They are plainly untenable. But that is not an invitation to discard Aurelius’s lessons and charge ahead with theories of judicial intervention that would martyr promise keeping and self-determination to empty repudiations of past racism or an artificial coherence for its own sake.60 Empire’s role in constitutional development and the range of unique interests owing to it are too complex to be respectively unraveled and protected without a positive vision for managing them. Indeed, far beyond “preservation-through-transformation,” ceremoniously overruling the Insular Cases on vague and open-ended terms may invite new, more pernicious harms for Americans in U.S. territories.61

This Article proposes a conversation with Federal Indian law and McGirt v. Oklahoma as a guidepost for theorizing judicial engagement with the colonial condition of U.S. territories,62 with or without the Insular Cases.63 The objects of that judicial engagement need not be framed as a binary choice between territorial exceptionalism and constitutional equality. Federal Indian law teaches that mediating doctrinal tensions in the service of promise keeping is faithful to our constitutional tradition. At the same time, advocates need not ask courts to repurpose the Insular Cases or harden “the law of the territories” into a permanent substantive domain to secure legal recognition of negotiated promises, Native cultures, or territorial self-government. Instead, judicial engagement with the Insular Cases must be reoriented toward empowering local political processes that have been stunted by federal disenfranchisement and unchecked discrimination under the Insular Cases’ untenable status quo—so that the territories may chart their own course out of it. Ultimately, judges who find themselves confronted with these intractable problems must commit themselves to what Philip P. Frickey termed the “hard work”64: navigating doctrinal tension to undo the legacies of colonialism in politically legitimate ways.

Part I describes how the Aurelius Court simultaneously held that the Appointments Clause indeed applies to Puerto Rico, but that FOMB appointees fall outside its text. Part II illuminates how the Court’s approach to Article II flows from a warped Article III analogy that erases the equivalent problems of territorial exceptionalism that have long plagued the latter doctrinal context. Part III uses Aurelius to show that the underlying constitutional problems of territorial exceptionalism are not contained within the Insular Cases or any other discrete doctrinal device. Part IV adapts these unobserved lessons from Aurelius to today’s prevailing calls to overturn the Insular Cases, highlighting various dimensions along which these calls remain undertheorized while exploring the harms that ill-considered judicial interventions are likely to visit upon territorial communities. Finally, Part V reorients the conversation on the Insular Cases’ future towards more informed engagement with the territories’ colonial condition as we encounter it—appreciating the usefulness of a “law of the territories.”