Fair Play for Nationals and Citizens


By Dr. William B. Cleary

Congress, not courts, must define the political status of U.S. territories 

Political questions have been raised in some recent federal court cases:

  • Tuaua v. U.S., No. 13-5272 (D.C. Cir. 2015)
  • Segovia v. U.S., 880 F. 3d 384-2018
  • Fitisemanu v. U.S., Case No. 1:18-CV-36 (D. Utah Dec. 12, 2019)
  • U.S. v. Vaello-Madero, No. 19-1390 (1st Cir. 2020)

Congress should consider whether or not to intervene and resolve these questions.

In each of these cases individual Americans have asked federal courts to solve anomalies, inconsistencies and irrational discrimination toward residents of unincorporated territories.

Federal territorial law largely represents a Congressional tradition respecting the self-determination and local self-government rights of the people living in unincorporated U.S. possessions.  However, for over a century the U.S. Congress has failed to provide mechanisms to resolve the permanent political status of the last five unincorporated territories.

So far, the federal courts have accepted Supreme Court rulings following the law of the 1901 case of Downes v. Bidwell.  Known as the Insular Cases, the Downes ruling and related cases invented and rationalized “unincorporated territory” status.  These cases decided that the U.S. Constitution applies in unincorporated territories only when it comes to “fundamental rights” — and those rights are not defined.

Under the Insular Cases, civil and political rights are in effect suspended.  But the Downes case also signaled to Congress the need to decide which territories would have permanent sovereignty, nationality and citizenship.

Congress has not exercised – and some would say has abdicated – its authority and responsibility to determine the status of the unincorporated territories.  The glaring political inequities of the status quo have led to predictable lawsuits.

The court cases

Courts are entertaining these lawsuits with a mixture of confusion and concern about whether “fundamental rights” are being respected.  They may also show judicial frustration that Congress has allowed litigation involving what really are political questions to come visiting the courts dressed up as legal claims.

Still, the decisions in Tuaua and Segovia upheld the Insular Cases.  The courts in both cases refused to give American Samoa the same birthright citizenship status and rights as U.S. citizens born in a state of the union.

In each case, the plaintiffs were really asking for an answer to a political question, not a legal one.

However, in both cases the court felt obliged to consider complicated issues of federal territorial status law and policy defining unincorporated territory status.  These political questions came up when the plaintiffs asked the courts to impose a change of legal status and civil rights. The courts properly concluded that Congress must act politically to resolve the legal imperfections of the Insular Cases and “unincorporated territory” status.

In contrast, the ruling in U.S. v. Vaello-Madero has had a very different outcome than the American Samoa citizenship cases.  Those responsible for stewardship of the status quo are finally paying attention.

For the first time since Downes was handed down, the federal courts in Vaello-Madero declared an act of Congress exercising its Article IV territorial powers – as interpreted by the Insular Cases – to be an unconstitutional denial of fundamental rights.

Social Security in Puerto Rico

In the Vaello-Madero case a U.S. citizen from Puerto Rico eligible for Social Security benefits for disabled seniors was denied benefits when he returned to Puerto Rico.  The courts ruled there was no rational basis for that discriminatory policy. This was especially true since the same benefits are available in the Northern Mariana Islands, another unincorporated territory with a status indistinguishable from Puerto Rico.

This demonstrates the need for Congress to exercise its powers under the Territorial Clause of the Constitution to develop coherent federal and local territorial policy for the unincorporated territories.  Consistent policy will prevent the legal and political issues at stake in these recent cases from being decided by judges instead of elected representatives.

Download an in-depth discussion of the implications of these cases. 

Good decisions in the wake of the pandemic

This examination of failed federal territorial law and policy is fitting in the wake of the pandemic afflicting our nation.  In ways no one anticipated, we all face the ordeal, challenges and opportunities of recovering, re-opening our society, and getting back to work.

Maybe good will come from it, including a re-ordering of priorities.  Personally, I hope we’ll see a realization of the need to get our national house in order by settling the permanent political status for the last five organized territories.  After an ordeal like this, fixing what’s broken historically has been part of the recovery experience.

Shattering the myths and imbalances created to sustain dysfunctional policies in territories is a first step toward reform in the period of recovery ahead.  That includes the effort now underway to debunk, deconstruct, de-institutionalize and de-legitimize the false promises of two hoaxes:

  • the idea that autonomy is a permanent substitute for equal citizenship
  • the idea that citizenship gives equality without statehood

A real understanding of the meaning of these court cases is an important first step in this direction.

Download an in-depth discussion of the implications of these cases. 

Dr. William B. Cleary is a Professor of Law, Hiroshima Shudo University.  Dr. Cleary is also a former Assistant Attorney General for the Territory of Guam.  

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