{"id":324135,"date":"2020-06-03T06:03:38","date_gmt":"2020-06-02T20:03:38","guid":{"rendered":"https:\/\/www.saipantribune.com\/?p=324135"},"modified":"2020-06-03T06:03:38","modified_gmt":"2020-06-02T20:03:38","slug":"supreme-court-sidesteps-insular-cases-hints-at-future-action","status":"publish","type":"post","link":"https:\/\/www.saipantribune.com\/index.php\/supreme-court-sidesteps-insular-cases-hints-at-future-action\/","title":{"rendered":"Supreme Court sidesteps \u2018Insular Cases,\u2019 hints at future action"},"content":{"rendered":"
\"\"
Front row, left to right: Associate Justice Stephen G. Breyer, Associate Justice Clarence Thomas, Chief Justice John G. Roberts, Jr., Associate Justice Ruth Bader Ginsburg, Associate Justice Samuel A. Alito. Back row: Associate Justice Neil M. Gorsuch, Associate Justice Sonia Sotomayor, Associate Justice Elena Kagan, Associate Justice Brett M. Kavanaugh. (FRED SCHILLING\/COLLECTION OF THE SUPREME COURT OF THE UNITED STATES)<\/figcaption><\/figure>\n

The U.S. Supreme Court\u00a0upheld Monday\u00a0the constitutionality of presidential appointments to Puerto Rico\u2019s PROMESA oversight board, but failed to use the opportunity to overrule the Insular Cases.<\/p>\n

Justice Stephen Breyer wrote for the seven-justice majority, which reversed a unanimous decision by the 1st Circuit Court of Appeals and held that the President is not required to obtain the advice and consent of the Senate when appointing members to the board because they are not \u201cofficers of the United States\u201d for the purposes of Article II of the U.S. Constitution.<\/p>\n

However, despite taking nearly eight months to issue a decision, the high court did not entertain requests from both sides to \u201coverrule the much-criticized \u2018Insular Cases\u2019 and their progeny.\u201d The\u00a0Insular Cases, widely criticized as a doctrine of \u201cseparate and unequal\u201d and \u201ccentral documents in the history of American Racism,\u201d remain a controversial foundation for disparate treatment and discrimination in U.S. territories under the Constitution. The lower appellate court decision that the Supreme Court reversed on Monday had suggested that the specter of the\u00a0Insular Cases\u00a0\u201chovers like a dark cloud\u201d over the dispute.<\/p>\n

\"\"
Neil Weare<\/figcaption><\/figure>\n

\u201cToday\u2019s decision is a disappointing missed opportunity by the Supreme Court to account for some of its most troubled and appallingly racist precedents,\u201d said Neil Weare, president and founder of Equally American, a nonprofit that advocates for equality and civil rights for the nearly 4 million U.S. citizens living in the territories. \u201cAt the same time though, the [high] court laid important groundwork for future challenges where the Insular Cases may be more squarely presented.\u201d<\/p>\n

At the Supreme Court oral argument, Puerto Rican attorney Jessica Mendez Colberg\u2014representing Uni\u00f3n de Trabajadores de la Industria El\u00e9ctrica y Riego\u2014made history by expressly calling on the Supreme Court to overrule the\u00a0Insular Cases. Her advocacy accompanied a sustained effort by Equally American and others to lay a foundation for these vestiges of American overseas imperialism to be permanently cast out of U.S. constitutional law, as Equally American argued in an\u00a0amicus brief\u00a0filed in the case.<\/p>\n

Justice Sonia Sotomayor wrote extensively in a concurring opinion about the consequences of the ruling, noting that many of the key issues surrounding the constitutionality and powers of the board were outside the bounds of the narrower Appointments Clause issue that was before the high court.\u00a0 Noting that the majority \u201cdoes not meaningfully address Puerto Rico\u2019s history or status,\u201d Sotomayor expressed a more fundamental concern that the oversight board represents an attempt by Congress to abrogate the compacts and guarantees of self-government Congress has promised to the Puerto Rican people, replacing elected governors and legislatures with an undemocratically-selected oversight board. Though concurring in the result of the case, Sotomayor called the oversight board \u201ca twilight zone of accountability, neither selected by Puerto Rico itself nor subject to the strictures of the Appointments Clause,\u201d admonishing that \u201cterritorial status should not be wielded as a talismanic opt out of prior congressional commitments or constitutional constraints.\u201d<\/p>\n

Although the Supreme Court failed to take on the\u00a0Insular Cases\u00a0on Monday, other cases challenging this precedent is in the pipeline. A new wave of cases stands to raise these issues once again, and in less narrow legal contexts than\u00a0Aurelius. Equally American is playing an active role in a number of these cases, including\u00a0Fitisemanu v. United States, a case in which a U.S. district judge in Utah recently struck down the federal statute that labels people born in American Samoa\u2014a U.S. territory since 1900\u2014as \u201cnationals, but not citizens, of the United States.\u201d The\u00a0Fitisemanu\u00a0decision has been fully briefed on appeal before the U.S. Court of Appeals for the 10th Circuit, with an oral argument expected in the coming months.<\/p>\n

\u201cThe Supreme Court\u2019s decision on Monday demonstrates that the Insular Cases are not going to go down without a fight,\u201d said Gretchen Sierra Zorita, principal at Polivox787, who serves on the board of Equally American. \u201cThe constitutional rights of the nearly 4 million U.S. citizens living in the territories\u201498% of whom are racial or ethnic minorities\u2014should concern every American who cares about civil rights and racial justice.\u201d(PR)<\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"

The U.S. Supreme Court\u00a0upheld Monday\u00a0the constitutionality of presidential appointments to Puerto Rico\u2019s PROMESA oversight board,…<\/p>\n","protected":false},"author":28,"featured_media":324137,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[4],"tags":[9485,139],"class_list":["post-324135","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-local-news","tag-insular-cases","tag-supreme-court"],"_links":{"self":[{"href":"https:\/\/www.saipantribune.com\/index.php\/wp-json\/wp\/v2\/posts\/324135","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.saipantribune.com\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.saipantribune.com\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.saipantribune.com\/index.php\/wp-json\/wp\/v2\/users\/28"}],"replies":[{"embeddable":true,"href":"https:\/\/www.saipantribune.com\/index.php\/wp-json\/wp\/v2\/comments?post=324135"}],"version-history":[{"count":0,"href":"https:\/\/www.saipantribune.com\/index.php\/wp-json\/wp\/v2\/posts\/324135\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.saipantribune.com\/index.php\/wp-json\/wp\/v2\/media\/324137"}],"wp:attachment":[{"href":"https:\/\/www.saipantribune.com\/index.php\/wp-json\/wp\/v2\/media?parent=324135"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.saipantribune.com\/index.php\/wp-json\/wp\/v2\/categories?post=324135"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.saipantribune.com\/index.php\/wp-json\/wp\/v2\/tags?post=324135"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}