In April, several members of Congress led a letter to the Department of Justice to express their “deep concerns with the Department of Justice’s continued reliance on and defense of the Insular Cases.” The letter was led by Rep. Raul Grijalva (D-AZ) and signed by Reps. Stacey Plaskett (D-USVI), and Gregorio Kilili Camacho Sablan (D-MP), and Senator Martin Heinrich (D-NM).
The letter explained that “[t]he Insular Cases were decided between 1901 and 1922 by many of the same Justices that blessed ‘separate but equal’ racial segregation in Plessy v. Ferguson. In the Insular Cases, the Court held that the Constitution does not apply in full to so-called ‘unincorporated’ U.S. territories, whose inhabitants, it declared, could permanently be denied any democratic rights or self-determination. Reasoning that the new territories were ‘inhabited by alien races,’ the Court broke from longstanding precedent to justify colonial rule over the millions of people living in these island territories. The colonial system established by the Insular Cases was based on the Court’s judgment that the people residing in the territories were racially and culturally inferior to Anglo-Saxon white Americans and, therefore, unfit for the protections of the Constitution, self- government, or self-determination.”
The letter picked up on broad opposition to the Insular Cases among current members of the Supreme Court. “As Justice Sotomayor recently emphasized,” the letter continued, “the Insular Cases ‘were premised on beliefs both odious and wrong,’ with Justice Gorsuch declaring that ‘[t]hey deserve no place in our law.'” The Justice Department should similarly recognize the racist logic that the Insular Cases’ doctrine of territorial incorporation represents and expressly reject this case law.”
Read the full letter: Congressional Request to DOJ to Condemn the Insular Cases_4.15.24
DOJ response
The Department of Justice recently (DOJ) responded to the letter from Congress with its own letter, making a clear and unequivocal statement that the DOJ “emphatically agrees” that the “racist language and logic of the Insular cases deserves no place in our law.” DOJ said further that it had taken “active steps to coordinate across components and offices—and will continue to do so—to ensure that Department litigators consistently apply the same approach to analogous questions and will not rely on the racist rhetoric and reasoning of the Insular Cases.”
Read the full letter: DoJ on Insular Cases
“We are pleased with the Justice Department’s action to unequivocally reject the racist doctrine of the Insular Cases,” Grijalva responded in a June 3 press release.“This is an important step towards the Supreme Court finally overruling these discriminatory decisions, which have served to justify the denial of equal rights and self-determination to communities of color in U.S. territories for nearly 125 years.”
Plaskett said, “I am pleased that the Department of Justice has used this crucial opportunity to denounce the Insular Cases and share their emphatic agreement that the racist language and logic behind those cases deserve no place in the law of the United States. This is an important step in advancing equity for the U.S. territories. I am proud to see our efforts come to fruition – and have the Department of Justice clarify their position and denounce this racist, colonial framework. I will continue to advocate for the reversal of the Insular Cases to ensure the fair treatment of the residents of all the U.S. territories.”
Other commentary
In commentary published on June 10 in El Nuevo Dia, Carlos Gorrin offered a more expansive take on the letter exchange, saying, “[t]he complaint of the congressmen and the response of the assistant Attorney General are limited to the despicable racist rhetoric of the insular cases, but they leave intact the true doctrine of those cases, which seeks to constitutionally justify that the United States still maintains a colonial regime in our country, and that they violate our right to self-determination, so that we can get out of our colonial situation, determine our future political system and move in freedom towards our own economic, social and cultural development.”
