Ranking Member Grijalva, 14 Members Introduce Resolution Rejecting Insular Cases as Racist and Contrary to the Constitution
Washington, D.C. - Natural Resources Committee Ranking Member Raúl M. Grijalva (D-Ariz.) today introduced a congressional resolution, with 14 other members of Congress, rejecting the early 20th century U.S. Supreme Court decisions referred to as the Insular Cases. The resolution argues that these cases rely on a racist, Plessy-era doctrine of “separate and unequal” to establish the relationship between the United States and its territories, made clear by the inclusion of deeply offensive language such as “alien races” and “people with an uncivilized race” when referring to the people living in U.S. territories.
CLICK HERE for full text of the resolution.
The resolution—first introduced in the 116th Congress—calls on the courts, the U.S. Department of Justice, and other litigants to reject any continued reliance on the Insular Cases in present and future cases because the racially grounded holdings in the Insular Cases are contrary to the text and history of the Constitution and have no modern relevance. The legacy of the Insular Cases—an unequal legal and political relationship between the U.S. and the territories—continues to threaten the rights and interests of Americans living in the territories.
Multiple federal courts have contended with the legacy of inequity established by the Insular Cases in recent years, evidenced by the continued exclusion of U.S. citizens living in the territories from essential federal programs and benefits.
- In United States v. Vaello Madero, the U.S. Court of Appeals for the First Circuit unanimously declared unconstitutional the denial of Supplemental Security Income (SSI) benefits to U.S. citizens in Puerto Rico. However, the U.S. Supreme Court took up the case in April 2022 and upheld the exclusion of U.S. citizens residing in Puerto Rico from SSI. Associate Justices Neil Gorsuch and Sonia Sotomayor acknowledged in their opinions that the Insular Cases “rest on a rotten foundation” and that it “is past time to acknowledge the gravity” of the error of the Insular Cases.
- In Schaller v. U.S. Social Security Administration, a federal district court judge delivered a similar ruling for residents in Guam.
- Peña Martínez v. U.S. Department of Health & Human Service declared the exclusion of Puerto Rico residents from the Supplemental Nutrition Assistance Program and Medicare Part D low-income subsidies, in addition to SSI, unconstitutional.
- In Fitisemanu v. United States, which asked whether persons born in the U.S. territories are entitled to birthright citizenship under the 14th Amendment and directly called on the Supreme Court to overrule the Insular Cases, the Supreme Court responded by denying certiorari and not taking up the case.
“As long as the Insular Cases remain standing, this country will always come up short in realizing the ideals of equality and justice it so adamantly espouses,” said Ranking Member Grijalva. “These cases have forced second-class status on Americans living in U.S. territories for more than a century. It’s past time for Congress to pass this resolution and call out the Insular Cases for the racist, demeaning, colonialist decisions they are.”
Under the leadership of then-Chair Grijalva, the Natural Resources Committee held a legislative hearing in May 2021 to discuss the resolution, which included testimony from elected officials from the U.S. territories and academic scholars.
Statements of Support
“Today, more than 3.5 million Americans—98% of whom are racial or ethnic minorities—reside in the territories of the U.S. Virgin Islands, Guam, the Northern Mariana Islands, American Samoa, and Puerto Rico,” said Deborah Enix-Ross, president of the American Bar Association. “They are treated differently from the approximately 330 million people that live in the 50 states and the District of Columbia. While those who live in the mainland United States know they enjoy the full protections of the Bill of Rights of the United States Constitution, the extension of those rights to the people of these five territories is not a guarantee, but a matter of legislative and judicial discretion.” See the American Bar Association’s full statement here.
“The Insular Cases Resolution seeks to address this structural failure of American democracy by calling on Congress to repudiate the Insular Cases and affirm that all Americans, regardless of where they live, are entitled to the full protections of the Constitution,” said Neil Weare, President and Founder of Equally American. “Colonialism is not an American value, and we believe that this resolution is a crucial step towards rooting out its evils from our constitutional framework.” See Equally American’s full statement here.
"The holdings in the insular cases were shameful before the ink dried, yet to this day there's been no wholesale repudiation of their pronouncements by the Supreme Court. Two justices may call the cases ‘rotten’ and ‘odious’ (and the Biden administration may call them ‘indefensible and discredited’), but until they're completely wiped from the books, I'm grateful that Rep. Grijalva and his colleagues keep pushing to rescind this sordid segment of America's jurisprudence,” said Gabe Roth, executive director of Fix the Court.
“Given the Supreme Court’s inaction, it is critical that Congress act to right this historical wrong,” said Sherry Levin Wallach, president of the New York State Bar Association. “Passage of this resolution would send a clear message that racial views of an earlier era have no place in our nation today and set the stage for future Congressional action.” See the New York State Bar Association’s full statement here.
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