By Howard Hills
A press release dated October 16 from Stacey Plaskett, non-voting delegate in Congress from the U.S. territory of the Virgin Islands, illustrates the paradoxical political predicament of her island homeland. It is a historical dilemma USVI faces as one of the last four American off shore possessions where Congress currently still grants U.S. citizenship under federal territorial statutes. Complex legal and political questions arise because these islands are not yet fully incorporated into the union with citizenship rights conferred directly under the U.S. Constitution.
That means USVI still has the right to independent nationhood to attain full democracy, but at the same time U.S. citizens in the territory won’t attain fully equal and democratic U.S. citizenship rights unless USVI either becomes a state of the union or merges with an existing state. Puerto Rico, Northern Mariana Islands and Guam share the same political status conundrum with USVI.
Each of the four remaining U.S. citizen populated territories seeks different solutions under varying status models, trying to balance unreconciled aspirations for both local empowerment and equality that territories lack in the national political process. That dilemma is not resolved simply because Americans in Puerto Rico can attain full citizenship by surrendering their freedom to live where they have family and community, and instead relocate to a state to secure equal rights.
Meanwhile, a fifth territory – American Samoa – has embraced U.S. nationality but so far declined to seek federal statutory U.S. citizenship in the territory. The American Samoans seem to place a higher value on local autonomy than equal citizenship in the national political process. That trade-off is mitigated because Samoan nationals are eligible to apply for full and equal citizenship upon relocating and living in a state.
All these contradictions and trade-offs are controversial for Plaskett’s constituents. Not surprisingly, the confused ambiguity of territorial status law is conspicuous for all to see in Plaskett’s press release:
- Plaskett argues USVI’s status is “eerily similar to…original 13 colonies…[federal] funding formulas…keep the Virgin Islands from becoming all that we can…much as it kept colonial America from realizing its full potential…depriving fellow Americans of the same rights…Founding Fathers fought so hard to achieve…Just as the colonists, we are subjected to…un-representational government.”
- Yet, in “other news” Plaskett’s press release also announces $4 million in federal grants from Congress for hurricane recovery and coastal resources protection. This is in addition to over $200 million in annual federal grants and subsidies as well as diversion of federal revenues to the local government.
- We don’t remember King George generously subsidizing the colonies, exempting colonies from taxation, or treating the colonies equally and reciprocally. Wasn’t it just the opposite, hence the revolution? Calls for “federal findings formulas” more equal to states are not matched by calls for taxation more equal to the states. Instead of “taxation without representation,” the USVI delegate’s protest against “un-representational” government arguably suggests “equal representation without equal taxation,” which some in Congress no doubt will characterize as reverse colonialism!
- Congresswoman Plaskett praises oral arguments before the U.S. Supreme Court in the case of FOMB Puerto Rico v. Aurelius. In doing so, Plaskett associates herself with legal positions taken by the lawyer representing electrical and irrigation worker’s union in Puerto Rico, demanding judicial repudiation of the “Insular Cases” as racist territorial law.
- Of course, the Insular Cases have been affirmed by U.S. Supreme Court consistently in major decisions from 1957 to 2016. Yet, in the recent Aurelius case the union lawyer asserted “when there is a constitutional injury, justice requires a remedy.” On that basis the court was admonished not to rely on the “racist” Insular Cases to decide if the U.S. Constitution applied in the territory of Puerto Rico in that case.
- In furtherance of that legal argument in the Aurelius case, Plaskett announced in her press release that “As the Supreme Court prepares to consider this case, I joined a resolution Chairman Raúl M. Grijalva will introduce this week that rejects the use of the Insular Cases in present and future cases and controversies. I hope my colleagues will also support this resolution.”
- Yet, in oral argument before the Supreme Court in hearing that case two liberal and two conservative Justices pointed out that the case did not present the court with a question of whether the constitutional provision at issue applied by operation of Insular Cases territorial law. Rather, all parties agreed the constitutional provision in question applied.
- Thus, the court admonished the Puerto Rico public utility union lawyer she should address the merits of whether Congress had exercised its power over territories to create an entity that was more local than federal, and thus not restricted by the otherwise applicable constitutional language, not simply whether the case arose in a territory or a state. When the lawyer Plaskett praised so profusely persisted in the same assertions Plaskett endorses, the Chief Justice stated, “I fail to see the pertinence” of the lawyer’s argument on the Insular Cases.
- More importantly, if the surving law of the Insular Cases is unconstitutionally racist the resolution sponsored by Chairman Grijalva, conspicuously derived from the ACLU “friend of court” brief in the Aurelius case, calling for federal courts not to rely on the Insular Cases “in present or future” cases, does not meet the demand that the court provide a remedy for the injustice of the Insular Cases.
- Specifically, if it is true that territorial law under the Insular Cases is “purely racial” and therefore unconstitutional, then the Grijalva resolution Plaskett supports lets that injustice stand with no remedy. If the racist attitudes expressed in court opinions in 1901 are inseparable and indistinguishable from the territorial law of the Insular Cases in 2019, simply being silent about those cases is not a remedy.
- The Downes v. Bidwell ruling imposed as law a policy that Congress can govern a territory without incorporating it into the union under the U.S. Constitution, and decide the rights and status of the people on a case by case basis. If that 1901 ruling and rulings upholding it in 1957, 1976, 2008 and 2016 actually are imbued in the modern era with functionally institutionalized and active racial hate, it is particularly imperative to overturn the Downes v. Bidwell case.
- If we are serious that the Downes ruling must fall, even though it applied from 1901 to 1922 only to non-citizens in the Philippines, Puerto Rico and Guam, then we must be even more serious about overturning Balzac v. Puerto Rico. That 1922 ruling misapplied the Insular Cases to Puerto Rico after Congress granted U.S. citizenship in that territory, deviating from the opposite results for Alaska and Hawaii, an injustice upheld by the U.S. Supreme Court in major constitutional cases from 1957 to 2016.
- In that historical context, Plaskett’s support for the Grijalva resolution is misplaced because it embraces prospective but not retroactive remedial action by the court and Congress. That is like letting segregation continue under the Plessy v. Ferguson ruling of 1896 in public schools established before the Brown v. Board of Education ruling reversed Plessy in 1954, or maintaining race segregation in public facilities established before the Civil Rights Act of 1964.
- Because the 1922 case of Balzac v. Puerto Rico denied incorporation into the union under the U.S. Constitution based on U.S. citizenship, the people of Puerto Rico have struggled for nine decades with the failure of Congress to define the path to a fully democratic status with equal rights of citizenship at the national level.
- Those in Puerto Rico who knew the real choices were statehood or separate sovereign nationhood, with or without a treaty of free association, were denied informed self-determination on real options by federal collusion with a local “autonomy” movement that promised:
- Constitutionally conferred U.S. citizenship in the territory
- Full equality of rights upon relocation to a state
- Exemption from federal taxation on local income in the territory
- Federal tax shelter subsidization for corporate investment from U.S. companies
- “State-like” status under federal programs and services
- Local veto power over federal law as a substitute for equal representation in Congress and Electoral College.
- U.S. customs territory protection and currency, but separate foreign trade and international relations powers.
As many members of the U.S. Senate and House of Representatives have often stated, if that political status model promised by the Puerto Rico “autonomous commonwealth” faction is possible under the American system of constitutional federalism, most if not all states would want it.
That is why a judicial edict or Congressional declaration that the injustice of the Insular Cases never happened or somehow disappeared is not a remedy for the extra-constitutional “autonomy” hoax played by the anti-statehood, anti-independence party in Puerto Rico and its collaborators in Washington.
Congressional abdication of its authority and responsibility to ensure informed self-determination demands restoration of the Northwest Ordinance tradition. That road map for territorial transition to equality through local self-determination was envisioned by the founders of our nation for all U.S. citizen populated territories, and it applies still for the U.S. nationals of America Samoa.
Apparently, the same ACLU lawyers who wrote the “friend of court” brief in the Aurelius case persuaded the union lawyer from Puerto Rico, Grijalva and now Plaskett to accept a new version of the “autonomy” hoax. A resolution mandating informed self-determination and federal recognition of majority rule would be remedy for the injustice of the Insular Cases, as misapplied to U.S. citizens in four territories, and U.S. nationals in a fifth.
Clearly, the paradoxical legal and political realities facing the unincorporated territories make if complicated and challenging to simplify the problems facing USVI and other territories, much less define the solutions. If Chairman Raul Grijalva’s resolution is deliberated in his committee and the Judiciary Committee to which it also was referred, those proceedings will surely need to address the same issues discussed above.
Howard Hills is former counsel on territorial status affairs in the Executive Office of the President, National Security Council and U.S. State Department. He is author of the book “Citizens Without A State” with foreword by former U.S. Attorney General Richard Thornburgh.