The Yale Law Journal


After Aurelius: What Future for the Insular Cases?

02 Nov 2020

abstract. The Supreme Court recently missed its best opportunity in decades, Financial Oversight & Management Board for Puerto Rico v. Aurelius Investment, LLC, to overrule the Insular Cases. There is good reason to overrule the Insular Casesa series of early 1900s rulings that drew constitutional distinctions between so-called “incorporated” and “unincorporated” U.S. territories. These cases are analytically flawed and driven by offensive racial assumptions about the territories’ inhabitants. Yet in Aurelius, the Supreme Court continued its decades-long trend of narrowing the reach of the Insular Cases while still coming up short of overruling them altogether. Continuing to leave the Insular Cases on the books leaves lower courts to wrestle with an unworkable and indefensible doctrine. Three cases involving the denial of citizenship, warrantless searches, and unequal benefits in U.S. territories demonstrate the Insular Cases’ continuing harm while offering hope for their possible reconsideration by the Supreme Court.


Standing at the Supreme Court lectern for the first time, Puerto Rican attorney Jessica Méndez-Colberg explained to the Justices that because of “the court-made doctrine of territorial incorporation” established by the Insular Cases, “when my client, and even myself, return to Puerto Rico, we will have a lesser set of constitutional rights than [] we have standing here today.”1 In invoking the controversial Insular Cases, Ms. Méndez-Colberg alluded to a series of decisions from the early 1900s in which it is commonly said the Court held that the Constitution only applies “in part” in unincorporated U.S. territories like Puerto Rico.2 Her client, an electrical workers’ union in Puerto Rico,3 had challenged the Financial Oversight and Management Board for Puerto Rico (FOMB)—a democratically unaccountable body with near total control over Puerto Rico’s financial affairs—as unconstitutional under the Appointments Clause because Congress did not require its members to be confirmed by the Senate. Some parties defending the FOMB argued that the Appointments Clause did not even apply to Puerto Rico because of the Insular Cases.4

Ms. Méndez-Colberg drew attention to the words inscribed on the Court’s entrance: “Equal [J]ustice [U]nder [L]aw,” she argued, meant “reject[ing] classifications grounded in ideas of alien races and savage people” that the Insular Cases made law after the United States acquired Puerto Rico, Guam, and other islands following the Spanish-American War. Invoking the First Circuit’s observation that the Insular Cases “hover[] like a dark cloud over this case,”5 she expressly urged the Court to overrule the Insular Cases—to the authors’ knowledge, a historical first at a Supreme Court oral argument.6

Justice Breyer agreed in part—the Insular Cases are “a dark cloud,” he said—but then demurred, stating “whether you have the Insular Cases or not . . . it doesn’t matter here because the [Appointments Clause] does apply” to Puerto Rico.7 Chief Justice Roberts also assumed that the Appointments Clause applies and that the only question before the Court was whether it also required Senate confirmation of FOMB members. He stated: “I just don’t see the pertinence . . . of the Insular Cases.”8 Based on his view9 that “none of the other parties rely on the Insular Cases in any way,” Chief Justice Roberts pressed Ms. Méndez-Colberg: “[I]t would be very unusual for us to address them in this case, wouldn’t it?”10 Ms. Méndez-Colberg noted11 that the Chief Justice took that very approach in Trump v. Hawaii, the Muslim travel ban case, when it overruled the infamous decision in Korematsu v. United States, the Japanese internment case, even though the Chief Justice acknowledged “Korematsu ha[d] nothing to do” with the issues presented.12

When the Court handed down a decision in Financial Oversight and Management Board v. Aurelius Investment, LLC seven months later, the Insular Cases did not get the same treatment as Korematsu. But they did not go altogether ignored either. The Court declined to extend the Insular Cases and seemed to question “their continued validity,” but it still dismissed the request to “overrule the much-criticized” decisions “and their progeny.”13 And Justice Sonia Sotomayor, whose invocation of Korematsu in her Trump v. Hawaii dissent had prompted the Chief Justice’s pointed response, observed only that “territorial status should not be wielded as a talismanic opt out of prior . . . constitutional constraints,” with no mention of the Insular Cases.14 Not pressed to engage with the Insular Cases, the majority in Aurelius declined to go any further than it did. Thus, the invitation of multiple parties and amici on both sides15 to place the Insular Cases alongside Korematsu in the dustbin of history went unanswered.

Nonetheless, the Court’s clear mistrust of the Insular Cases, even as it declined to overrule them, continues a trend wherein the Court says one thing but then permits lower courts to do another. Since at least the 1950s,16 the Court has expressed skepticism of its territorial-incorporation doctrine and has said courts should not extend it further. And yet, because they remain on the books, lower courts continue to rely on the Insular Cases to deprive residents of U.S. territories of rights and constitutional safeguards they almost surely enjoy.17 Further, beyond their doctrinal impact, the Insular Cases also continue to implicitly serve as a basis for Congress to maintain discriminatory laws that treat residents of the territories as second-class citizens, much as Plessy did for laws that discriminated against African Americans.18

Ultimately, the Court’s discussion of the Insular Cases in Aurelius raises significant questions about those decisions’ future, both at the Supreme Court level and in the lower courts. This Essay considers the lessons that can be drawn from Aurelius and how the Court’s reasoning might inform ongoing litigation. It begins by providing an overview of the legal doctrine and racial context of the Insular Cases and explaining how the Supreme Court has since consistently acted to narrow the scope of their application in U.S. territories. Next, it examines the Supreme Court’s missed opportunity to overrule the Insular Cases in Aurelius and what lessons lower courts should take from its statements on the Insular Cases. Finally, it discusses three cases involving the Citizenship Clause, the Fourth Amendment, and Equal Protection that could allow the Court to address longstanding injustices that have impacted residents of U.S. territories as a result of the Insular Cases. The ongoing specter of the Insular Cases demonstrates why it is so critical that the Supreme Court take decisive action to finally overrule them.19

I. the insular cases

A. Overview and Racial Context

In a series of controversial and initially fractured cases between 1901 and 1922,20 the Supreme Court devised a novel distinction between “incorporated” territories “surely destined for statehood” and so-called “unincorporated” ones, where there was no such promise of eventual political equality.21 As commonly understood, the Constitution applies “in full” in incorporated territories,22 but only “in part” in unincorporated territories like Puerto Rico. However, what that means as a practical matter is far from clear.23 Confusion over the Insular Cases framework has led many lower courts and litigants to misapply dicta from those decisions to say only “fundamental” protections apply in unincorporated U.S. territories unless Congress says otherwise.24 Notably, none of the Insular Cases support the broad assertion that “only” certain “fundamental” rights apply to residents of the territories; indeed, such a view turns the actual language from these cases on its head.25

Now “much-criticized,” as Aurelius noted,26 this “territorial incorporation” doctrine ostensibly afforded Congress greater flexibility to govern these newly acquired overseas territories than it had to administer its prior territories.27 By purportedly freeing Congress from certain constitutional limitations, jurists have understood the Insular Cases to allow the Court and Congress to avoid “inherent practical difficulties”28 in governing islands lacking “experience in . . . Anglo-American legal tradition[s].”29 In this way, as Justice Harlan explained in one of his powerful dissents, the Insular Cases introduced the circularly flawed “theory that Congress . . . [could] exclude the Constitution from a domestic territory of the United States, acquired . . . in virtue of the Constitution.”30

Even if that were all they stood for, the Insular Cases would be overdue for a reckoning. Supreme Court Justices, lower court judges, and scholars have long warned that allowing Congress to decide for itself when constitutional limits constrain its actions would all but quash the idea of constitutional constraints.31 “The Constitution,” after all, “grants Congress . . . the power to acquire, dispose of, and govern territory, not the power to decide when and where [the Constitution’s] terms apply.”32

But the core defect of the Insular Cases—their original sin—provides an even greater justification for overruling them: namely, any flexibility they granted Congress to administer newly acquired overseas territories outside constitutional restraints sprang from the desire to keep the mostly nonwhite people who lived there outside the national polity. In Downes v. Bidwell, for example, Justice Brown—Plessy’s author—warned that Congress should have added flexibility to govern distant “possessions [] inhabited by alien races.”33 Justice White spoke of the “evils” of admitting “millions of inhabitants” of “unknown islands, peopled with an uncivilized race,” who he believed would be “absolutely unfit” for citizenship.34 Put simply, the Insular Cases and the doctrine of territorial incorporation not only ratified but constitutionalized the era’s racism and racial hierarchies.

Chief among the “practical difficulties”35 that the Court helped Congress avoid were questions over the rights and duties that the nation owed the new territories’ inhabitants. A century after the founding, it was “self-evident”36 that the United States could both hold territories37 and that constitutional protections applied in those lands.38 And it was generally understood that organized territories were not only states-in-waiting,39 but also that Congress could not keep them in territorial limbo forever.40 When the country began to acquire overseas territories almost exclusively inhabited by non-English speaking people of color, however, “Congress . . . discontinue[d] its previous practice of extending constitutional rights to [U.S.] territories by statute”41 and abandoned its custom of formally outlining a path for territories to “mature” into statehood.42 The prospect of absorbing millions of people of color into the body politic divided the political branches “over how, and to what extent, the Constitution applied” to new territories.43 Leading voices on both sides deployed explicitly racist arguments to make their points.44

The Insular Cases and territorial incorporation were a judicial response to this debate,45 and they gave constitutional cover to proponents of expansionism and the theories of race and social Darwinism that that fueled such expansion.46 The decisions raised questions over whether overseas territories—and the people who inhabited them—would ever be “incorporated” into the national fabric. Language in the Court’s leading Insular Cases opinions left no doubt of the Justices’ racialized reasons for devising the new territorial-incorporation doctrine the way they did.47 Rather than force Congress to answer “grave questions” based on “differences of race,”48 the Court gave it a way out.

Scholarly consensus49 and the ever-growing number of lower courts wrestling with the Insular Cases’ uglier implications50 increasingly show that the cases cannot be separated from their racialized justifications. Sanford Levinson was correct: the cases should rightly be viewed as “central documents in the history of American racism.”51

B. Supreme Court’s Skepticism over Its Own Doctrine

Even as the Insular Cases have remained “good law,” the Supreme Court has proven increasingly reticent about applying the territorial-incorporation doctrine to deny constitutional rights or protections in U.S. territories. The last time the Court found a constitutional provision not “applicable” to unincorporated territories was in 1922, when it the held in Balzac v. Porto Rico that the Sixth Amendment right to a jury trial was inapplicable to defendants tried in Puerto Rico’s local courts.52 Since then, each time a new constitutional question has arisen, the Court has consistently held that specific rights and constitutional provisions operate by their own force in the territories.53 The Court has been openly skeptical and even hostile to the Insular Cases, warning that they should not be extended. Yet they persist.

That skepticism has been clear since a 1957 plurality opinion in Reid v. Covert and culminates, for now, with the unanimous Court’s judgment in Aurelius. In Reid, six Justices held that criminal-defendant civilian spouses of servicemen stationed abroad had a right be tried by a jury.54 Addressing the Insular Cases‘ relevance, Justice Hugo Black voiced four Justices’ “judgment that neither the [Insular Cases] nor their reasoning should be given any further expansion.”55 Thirty-five years after Balzac, it was clear to a plurality of the Court that switching off the “Bill of Rights and other constitutional protections . . . when they become inconvenient” would “destroy the benefit of a written Constitution.”56 Had Justice Black found a fifth vote for his opinion, the territorial incorporation doctrine would have ended with Reid.

Justice Black’s plurality in Reid played a large role in Justice William J. Brennan’s four-Justice 1979 concurrence in Torres v. Puerto Rico, which cast added doubt on the territorial incorporation as a defensible doctrine.57 In Torres, the Court unanimously held that Fourth Amendment protections applied in Puerto Rico, in part because Congress already assumed they did.58 But, relying on the Reid plurality, Justice Brennan and three other Justices dismissed outright the possibility that the Insular Cases any longer raised “question[s] [about] the application of the Fourth Amendment—or any other provision of the Bill of Rights” to Puerto Rico.59 “Whatever the validity” those cases had in their “particular historical context,” they no longer held such power.60 But, yet again, there was no fifth vote for this view.

Finally, in Boumediene v. Bush, which addressed the reach of the constitutional right of habeas corpus to detainees housed in the U.S. naval base in Guantánamo Bay, Cuba, a majority of the Court cited approvingly to the Reid plurality and Justice Brennan’s Torres concurrence in its discussion of what the Insular Cases mean for U.S. territories today.61 Boumediene emphasized that a territory’s ties to the United States could strengthen over time in constitutionally significant ways.62 Far from carving out an extra-constitutional zone in the territories where only “fundamental” protections applied, Boumediene said, the Insular Cases merely spoke to whether specific provisions limited executive and legislative power given “conditions and requirements” unknown to the country in the early 1900s.63 After Boumediene, a leading scholar fittingly said, the Insular Cases looked like “sheep in lion’s clothing.”64

But the Insular Cases are still dangerous. Because the Supreme Court has not overruled them, lower courts reflexively rely on and often misapply the Insular Cases,65 regardless of the Court’s recent narrowing language. Absent clear guidance from the Court, lower courts have created their own, often expansive applications of the Insular Cases. Too frequently, their decisions invoke the “fundamental rights” limitation on the Constitution’s operation in unincorporated territories that is not only contrary to the language of the Insular Cases themselves,66 but also now to Reid, Torres, Boumediene, and Aurelius. Too often, this misplaced reliance on the Insular Cases by lower courts deprives territorial residents of rights and protections to which they are almost surely entitled.67

II. missed opportunity

Lower courts misapply the Insular Cases so frequently that it is a welcome result when a court analyzes them in their appropriate scope and context. In Aurelius, the First Circuit faithfully adhered to Supreme Court precedent to read the Insular Cases narrowly and expressly declined to “expand the reach of the ‘Insular Cases.’”68 Quoting Reid, it called the Insular Cases a “‘relic from a different era”69 and “historically and juridically, an episode of the dead past.”70 The First Circuit did not speak unprompted—various parties invoked the Insular Cases before the lower courts to say that the Appointments Clause lacks force in Puerto Rico.71

At the Supreme Court, however, most parties shifted their strategies, focusing less on the Insular Cases. The unstated reason seems obvious: as a strategic matter, advocates seldom rely on indefensible case law before the one Court that can overrule it. But Chief Justice Roberts still overstated things by saying “none of the parties” relied on the decisions; at least one continued to argue that “only” certain “fundamental” rights applied in Puerto Rico and that the Appointments Clause, as a result, did not.72 Meanwhile, parties on both sides of the merits73 and various amici urged the Court to finally overrule the Insular Cases.74

Although the Supreme Court stopped well short of overruling the Insular Cases in Aurelius, its refusal to do so75 was not exactly a punt either. Rather, the Supreme Court did three things that lower courts and litigants should pay close attention to when considering constitutional questions concerning U.S. territories.

First, the Court relied on Reid v. Covert for the proposition that the Insular Cases “should not be further extended.”76 The specific passage in Reid the Aurelius majority cited cabined the Insular Cases to narrow questions on the applicability of just four constitutional provisions concerning tariffs, taxes, and jury-trial rights.77 By heeding Reid’s admonition that extending the Insular Cases further “would destroy the benefit of a written Constitution and undermine the basis of our Government,”78 Aurelius suggests that the Insular Cases are irrelevant outside the exceedingly narrow subset of litigation that involves those clauses. Second, the Court underscored the significance of its reliance on Reid by remarking that since the Insular Cases “did not reach th[e] issue” of the Appointments Clause’s applicability to the appointment of U.S. officers in Puerto Rico, the Court would “not extend them in [Aurelius].”79 And finally, the Court spoke in undeniably questioning terms on the Insular Cases’ perdurance, noting that “whatever their continued validity” it would not expand on their framework.80 That is hardly the stuff that worthwhile doctrine is made of.81

Still, the Supreme Court’s unwillingness to set aside the territorial-incorporation doctrine in Aurelius was surely a missed opportunity to turn the page on this regrettable period of American jurisprudence. If the Insular Cases’ continuing validity is so questionable—and their import, at this point, so limited—the Court would have done well to accept the invitation of multiple parties and amici to overrule them once and for all.

That is significant because, few, if any, doctrines remaining on the books today so squarely spring from such unabashedly racist assumptions.82 The Insular Cases are most often compared to the similarly abhorrent Plessy v. Ferguson,83 decided by essentially the same Supreme Court.84 But of course Plessy has long been overturned while the Insular Cases continue to wait for their own Brown v. Board of Education.85 The better modern comparator for the Insular Cases might be not Plessy, but Korematsu v. United States.86 Like the Insular Cases and Plessy, Korematsu sanctioned “an odious, gravely injurious racial classification.”87 Like the Insular Cases, Korematsu’s justification for discriminatory treatment was “rooted in dangerous stereotypes about, inter alia, a particular group’s supposed inability to assimilate.”88 And, like Korematsu, the Insular Cases have, at least outside the courts, now been long “overruled in the court of history,”89 as Justice Breyer intimated when he agreed they are now a “dark cloud.”90

The Supreme Court’s approach to Korematsu in Trump v. Hawaii, however, differed vastly from its approach to the Insular Cases in Aurelius. In both cases, the majority observed that the earlier, morally repugnant decision was not squarely presented.91 But whereas Chief Justice Roberts’s majority opinion in Trump v. Hawaii recognized the necessity of formally overruling Korematsu’s “morally repugnant order,”92 the Aurelius majority declined to overrule the Insular Cases, even as it recognized the extent of their criticism and questioned their “continued validity.”93

The Court’s failure to overrule this similarly “morally repugnant” series of cases perpetuates “gravely injurious” discriminatory treatment rooted in “dangerous stereotypes.”94 Furthermore, allowing the Insular Cases to remain “good law” presents real risks that lower courts will continue to misapply them. It is hardly an idle concern. Litigants in docketed cases, including the U.S. government, continue to argue that the Insular Cases deprive residents of the territories of all but the Constitution’s “fundamental” protections.95 Like Aurelius, those cases might well soon find their way to the Court. Thus, Aurelius raises the question: if and when another case brings the Insular Cases more squarely before the Court, will it finally reconsider the troubling territorial incorporation doctrine or once again take a pass?

III. future possibilities

While the Supreme Court missed an important opportunity in Aurelius to reconsider the Insular Cases and the legacy of structural inequality they have perpetuated, a string of cases coming from the lower courts give the Court another opportunity. In the very near future the Supreme Court could take cases examining whether people born in U.S. territories have a constitutional right to citizenship under the Fourteenth Amendment; whether Fourth Amendment protections against unreasonable searches apply equally in the U.S. Virgin Islands; and whether the denial of certain federal benefits programs to residents of Puerto Rico violate the Constitution’s guarantee of equal protection. These issues are raised in Fitisemanu v. United States, United States v. Baxter, and United States v. Vaello Madero, respectively.

A. Fitisemanu v. United States

John Fitisemanu was born on U.S. soil in American Samoa—a U.S. territory since 1900.96 Yet the federal government refuses to recognize him as a U.S. citizen, labeling him instead as a “national, but not a citizen, of the United States.”97 Last December, the U.S. District Court for the District of Utah ruled this denial of citizenship unconstitutional and recognized Mr. Fitisemanu as a full U.S. citizen based on the Citizenship Clause of the Fourteenth Amendment, although it stayed its decision pending appeal.98 On appeal to the Tenth Circuit, the United States has relied almost entirely on the Insular Cases to argue that American Samoa and other so-called “unincorporated” territories are not “in the United States” for purposes of the Citizenship Clause.99

Oral argument before the Tenth Circuit was September 23, 2020; a ruling before Election Day is uncertain. All this will likely leave Mr. Fitisemanu—a tax-paying, law-abiding, and U.S. passport-holding100 resident of Utah for more than twenty years—unable to vote this year for President, Governor, or even his local school board, despite the district court’s recognition that he has been a U.S. citizen since the day he was born.

The Supreme Court’s language in Aurelius limiting the scope of the Insular Cases may prove critical as the Tenth Circuit considers whether to follow the narrow approach to the Insular Cases taken by the district court, or the expansive approach taken by the U.S. Court of Appeals for the District of Columbia in Tuaua v. United States in 2015.101 The district court in Fitisemanu held that “because Downes did not construe the Citizenship Clause, and because the controlling opinion’s statements in Downes related to citizenship are not binding on this court, Downes does not control the outcome of this case.”102 In contrast, the D.C. Circuit held in Tuaua that “[a]nalysis of the Citizenship Clause’s application to American Samoa would be incomplete absent invocation of the sometimes contentious Insular Cases,”103 and applied their framework to conclude people born in American Samoa are not U.S. citizens absent congressional action. It is hard to square the D.C. Circuit’s approach with the Supreme Court’s conclusion in Aurelius, based on Reid, that “the Insular Cases should not be further extended.”104

The district court in Fitisemanu identified other compelling reasons why the Supreme Court’s precedent requires a narrow reading of the Insular Cases. In particular, the district court justified not relying on dicta from Justice White’s controlling opinion in Downes105 because “the Supreme Court has, since Downes, thoroughly rejected the bigoted premise upon which Justice White’s dicta is founded—that some groups are inferior to others based simply on their race.”106 The court reached a similar conclusion when it rejected Justice Brown’s opinion: “Justice Brown’s digression related to citizenship is largely premised on notions of white supremacy that the Supreme Court has long ago rejected.”107 This approach clashes with Tuaua’s embrace108 of Justice Brown’s racially motivated109 “distinction between certain natural rights . . . and what may be termed artificial or remedial rights,”110 the latter of which included “the rights to citizenship” and “suffrage,” and which, according to Justice Brown, were not automatically protected in newly acquired territories.111

Should Fitisemanu end up before the Supreme Court after the Tenth Circuit rules, the Insular Cases will figure prominently, presenting a more attractive opportunity for their reconsideration. The United States has made the Insular Cases a core element of its defense in Fitisemanu and the territorial incorporation doctrine was central to the D.C. Circuit’s holding Tuaua.112 In contrast, in Aurelius the United States only relied on the Insular Cases before the district court and expressly disclaimed them once the case reached the Supreme Court. Still, as the district court’s decision in Fitisemanu properly demonstrates, there are clear alternative grounds to resolving the case that do not require any consideration of the Insular Cases at all. So the Court could be tempted to simply dust off its language from Aurelius and rule that “[t]hose cases did not reach this issue, and whatever their continued validity we will not extend them [here].”113

That kind of judicial minimalism may often be appropriate or even prudent. But there is nothing normal about the Insular Cases. As First Circuit Judge Juan R. Torruella has pointedly argued, the decisions themselves created an impasse “from which there is no escape or solution by its inhabitants . . . [who] lack the political power to influence the political institutions that can make the necessary changes to th[eir] situation.”114 Territorial incorporation represents both judicial sanction of discrimination and a perpetuation of disenfranchisement from the political channels by which to challenge that discrimination.115 And just as “[o]ne cannot imagine the 1965 Voting Rights Act and other landmark civil rights legislation . . . in the absence of Brown v. Board of Education overturning Plessy,” it will surely “take a rejection of the Insular Cases . . . [for] fundamental changes to the undemocratic status quo in the territories [to] finally become possible.”116 The solution for the “constitutional antediluvian anachronism” of the Insular Cases is clear: “The Supreme Court, as it did with Plessy, must step forward to correct the wrong it created by sanctioning the Insular Cases and their progeny.”117

Thus, if Fitisemanu ends up being taken up by the Supreme Court, the Justices should finally cross the path they have laid in Aurelius, Boumediene, Torres, and Reid to rule that the Insular Cases, like Korematsu, were “gravely wrong the day [they were] decided, ha[ve] been overruled in the court of history, and . . . ‘ha[ve] no place in law under the Constitution.’”118

B. United States v. Baxter

In 2017, during a routine inspection of mail coming into the U.S. Virgin Islands, a drug-sniffing dog alerted federal-customs agents to a package arriving from South Carolina.119 In any of the fifty states (and even Puerto Rico), the agents would have been constitutionally required to obtain a warrant before opening the parcel.120 But rather than follow this standard procedure, the agents opened the box without a warrant and found unassembled gun parts and ammunition wrapped in clothing that smelled strongly of marijuana. The recipient, Steven Baxter, was arrested and charged under federal law with two counts of illegal transport of a firearm. At trial, he moved to suppress the evidence on grounds that the “warrantless search of the two packages violated his Fourth Amendment rights.”121

After Mr. Baxter prevailed at the district court, the Third Circuit reversed, holding that no warrant was required to search his packages in the Virgin Islands. The court reached that result by extending the Fourth Amendment’s “border search exception” to transit from the mainland United States to the U.S. Virgin Islands. But the Virgin Islands are domestic territory. While the Supreme Court has repeatedly upheld customs searches at international boundaries or their functional equivalent,122 there is no more of an international boundary between South Carolina and the Virgin Islands than there is between California and Hawaii. The difference, the Third Circuit emphasized, is that the Virgin Islands is an “unincorporated territory” where Congress has statutorily established an artificial-customs border between it and the rest of the United States.123

The Third Circuit’s decision in Baxter flows almost entirely from its ruling in United States v. Hyde,124 which relied squarely on the Insular Cases and the notion that unincorporated territories are not “integral part[s] of the United States,” but “merely appurtenant thereto as [] possession[s].”125 The Virgin Islands is an “unincorporated” territory, so the Third Circuit assumed Congress could create an artificial-customs border where “warrantless searches without probable cause” are not unreasonable for Fourth Amendment purposes.126 But it could only do so by distinguishing Torres v. Puerto Rico, where the Supreme Court ruled that a warrantless search at a Puerto Rico airport by local law enforcement agents violated the Fourth Amendment.127 Torres rejected “any analogy to customs searches at a functional equivalent of the international border,”128 explaining that the border-search exception was “based on [the United States’s] inherent sovereign authority to protect its territorial integrity,” which Puerto Rico lacked.129 The Third Circuit interpreted this language to imply only that Puerto Rico lacked the power to establish a border where the Fourth Amendment’s border-search exception would apply, not that the United States could not do so.130

Hyde’s reasoning to distinguish Torres is flawed in multiple respects. First, Torres dismissed reliance on the border-search exception not because the law authorizing the search was passed by the Puerto Rican legislature rather than Congress, but because there was no “territorial integrity” to protect between Florida and Puerto Rico.131 Second, Torres directly grappled with the Insular Cases to conclude “that the constitutional requirements of the Fourth Amendment apply” to Puerto Rico,132 making Hyde’s reliance on them to carve out an exception to the Fourth Amendment improper.133 Finally, to the extent Hyde relies on a distinction between criminal enforcement laws passed by Puerto Rico versus those passed by the United States, that reasoning is undermined by the Supreme Court’s recent decision in Puerto Rico v. Sanchez Valle, which held that “the ultimate source of Puerto Rico’s prosecutorial power is the Federal Government.”134 If Puerto Rico’s criminal-law enforcement is just an extension of federal-law enforcement for purposes of Double Jeopardy, as Sanchez Valle held, then it is unclear why a distinction should be drawn between territorial versus federal-law enforcement for purposes of Fourth Amendment protections.

Both Torres and Aurelius reject the kind of expansive application of the Insular Cases relied upon by the Third Circuit in Baxter and Hyde to justify a carve-out to Fourth Amendment rights in the Virgin Islands. With a petition for certiorari filed in Baxter on July 21, 2020,the Supreme Court has the opportunity to further clarify whether, particularly post-Aurelius, the Insular Cases can be read as restricting Fourth Amendment rights in U.S. territories today.135

C. United States v. Vaello Madero

In 2012, José Luis Vaello-Madero began receiving disability benefits under the Supplemental Social Security (SSI) program after he became afflicted with severe health issues.136 The SSI program provides critical financial support of about $800 a month to low-income people who are older than sixty-five, blind, or disabled.137 The next year, Mr. Vaello-Madero moved from New York to Puerto Rico to help care for his wife, who also had significant health concerns. Not realizing his change in address meant he was no longer eligible for SSI—federal law does not extend SSI benefits to residents of Puerto Rico—he had no reason to question anything when his benefits continued. In 2016, the Social Security Administration realized the significance of his change in address and ceased payments. In 2017, the Administration filed a civil suit against Mr. Vaello-Madero to recover the $28,081 in SSI benefits it had paid him while he was a resident of Puerto Rico. Unable to pay, he argued that SSI discrimination against residents of U.S. territories violated the Constitution’s guarantee of Equal Protection. The district court and a unanimous panel of the U.S. Court of Appeals for the First Circuit agreed, concluding that discrimination against residents of Puerto Rico with respect to the SSI program did not pass muster under even rational basis review.138

The Insular Cases figured prominently in the lower court briefing and at oral argument, with Vaello Madero arguing that the Insular Cases were evidence of racial animus towards residents of Puerto Rico and so reliance on them should warrant heightened scrutiny of Congress’s denial of SSI benefits in Puerto Rico.139 The United States disclaimed any reliance or relevance of the Insular Cases, conceding “there is no dispute . . . that equal protection principles apply to Puerto Rico,” therefore “neither the incorporation doctrine nor the Insular Cases are relevant.”140 Ultimately, the Insular Cases were not part of either the First Circuit or District Court’s analysis.

The United States has sought review of the First Circuit’s decision by the Supreme Court.141 Its request for summary reversal142 is audacious, given both the First Circuit panel’s unanimous affirmation of the District Court’s decision and the significant stakes involved. Absent summary reversal, review is probable given that the lower courts struck down a federal statute as unconstitutional. At the Supreme Court, the Insular Cases are likely to continue to figure prominently in the arguments raised by Vaello Madero and amici. But if Aurelius is any indication, the United States’ express nonreliance on the Insular Cases may make the Court unwilling to reconsider the Insular Cases in the context of Vaello Madero, leaving other similar equal protection cases working their way through lower courts143 to also be resolved without reference to the Insular Cases. Whatever the Supreme Court says or does not say about the Insular Cases, its decision in Vaello Madero will either reject or confirm the underlying structural inequality that the Insular Cases have allowed to perpetuate these many years. And the fact that the United States is left to expressly disclaim any relevance or reliance on the Insular Cases in cases like Vaello Madero only serves to highlight the mischief they continue to cause in all manner of constitutional cases.


After Aurelius, at least one thing ought to be clear: neither the Insular Cases nor the territorial incorporation doctrine for which they commonly stand “should [] be further extended.”144 Where those decisions “did not reach [an] issue,” they have nothing to offer lower courts considering the operation of constitutional provisions or safeguards in current U.S. territories. If the Insular Cases were irrelevant in Aurelius because none of them touched upon the Appointments Clause’s application in Puerto Rico, then the Insular Cases should not inform any other questions that they did not squarely address.

Although the Supreme Court may have largely cabined the Insular Cases in Aurelius, that does not mean the Supreme Court should hesitate in a future case to place the Insular Cases in the dustbin of history alongside Plessy and Korematsu, where they belong. As framing documents for the continuing relationship between the United States and territories, the Insular Cases hold a power that goes far beyond the scope of their formal legal doctrine. Their rejection would loudly signal that residents of the territories “are constitutionally no different from, and thus not inferior to, their fellow citizens on the mainland.”145 To paraphrase Justice Black, the Insular Cases’ “interment,” when it comes, cannot be “tactfully accomplished, without ceremony, eulogy, or report of their demise.”146 The Supreme Court played a central role in creating the structural, political, and economic inequalities afflicting residents of America’s territories; it must also assume a leading role in dismantling them.

Adriel I. Cepeda Derieux is a Senior Staff Attorney with the Voting Rights Project of the American Civil Liberties Union (ACLU). Neil Weare is the President and Founder of Equally American Legal Defense and Education Fund and an associate at Loeb & Loeb LLP. The authors served as counsel to amici in Financial Oversight & Management Board for Puerto Rico v. Aurelius Investments, LLC, 140 S. Ct. 1649 (2020), and as counsel to plaintiffs or amici in Fitisemanu v. United States, 426 F.Supp.3d 1155 (D. Utah 2019), appeal docketed, Nos. 20-4017, 20-4019 (10th Cir. Feb. 11, 2020) and Tuaua v. United States, 788 F.3d 300 (D.C. Cir. 2015). They write in their personal capacity, and the views expressed herein should not be attributed to their employers. They are grateful to Sam Erman and Christina Duffy Ponsa-Kraus for valuable feedback and to Rosa Hayes for excellent research assistance. Lastly, the authors dedicate this essay to the memory of their friend and mentor Judge Juan R. Torruella (1933-2020), a tireless advocate for the civil rights of the residents of U.S. territories and a major inspiration to the authors’ work.

This Essay was originally published on October 27, 2020 and reissued on November 2, 2020 as part of the Collection.