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Juan González: In Surprise Move, Gorsuch Challenges U.S. Colonialism in SCOTUS Ruling on Puerto Rico

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Puerto Rican elected officials from both the island and the United States are on Capitol Hill today to support the Puerto Rico Self-Determination Act, which would establish a process for determining the status of the U.S. territory. This comes after the Supreme Court recently supported the Biden administration’s claim that Puerto Ricans are not entitled to claim full Supplemental Security Income benefits unless they move to the mainland. Democracy Now! host Juan González analyzes the developments and highlights conservative Justice Neil Gorsuch’s surprising concurring opinion in the latest Supreme Court decision, which he calls “one of the clearest and most eloquent statements exposing U.S. colonialism that’s ever been issued by a Supreme Court justice, at least in my lifetime.”

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: Well, Juan, we begin our show with news you’ve been closely following. Today is a big day on Capitol Hill for the Puerto Rico Self-Determination Act, with Puerto Rican elected officials from both the island and the United States mainland gathering in Washington, D.C., to press for its passage. The bill is co-sponsored by Democratic New York Congressmembers Nydia Velázquez, the first Puerto Rican woman to serve in the U.S. House, and Alexandria Ocasio-Cortez, whose mother was born in Puerto Rico.

This comes after the Supreme Court ruled on Thursday the federal government can continue to deny benefits to seniors and people with disabilities who live in Puerto Rico. In an 8-to-1 ruling, the justices sided with the Biden administration, which says Puerto Ricans are not entitled to claim full Supplemental Security Income benefits, or SSI, unless they move to the mainland.

AOC tweeted in response to the ruling, quote, “2022 Imperialist Neo-colony Vibes: when my cousins can be drafted into war by a government they don’t even have a right to vote for and denies them benefits, yet that same government can exploit their land into a tax haven for crypto billionaires and tax evaders. Puerto Rico is not for sale,” she texted — tweeted.

The lone dissenter in the court’s 8-to-1 ruling was Justice Sonia Sotomayor, whose parents were born in Puerto Rico. In her dissenting opinion, she wrote, quote, “There is no rational basis for Congress to treat needy citizens living anywhere in the United States so differently from others.”

So, Juan González, this is a story that you have extensively followed. What is important to understand here in this Supreme Court decision?

JUAN GONZÁLEZ: Well, Amy, once again, Judge Sotomayor’s [parents were born in Puerto Rico] but, people forget, she did research in college, both at Princeton and at Yale, in the relationship between Puerto Rico and the United States, so this is a topic she has studied for many years — once again, she finds herself as a dissenting voice in the Supreme Court.

But, to me, I think the far more significant development in this case, and one that most of the media coverage in the last few days has overlooked, was that there was a separate concurring opinion issued by one of the court’s most conservative justices, Neil Gorsuch. His 10-page opinion — and I urge people to read it — is one of the clearest and most eloquent statements exposing U.S. colonialism that’s ever been issued by a Supreme Court justice, at least in my lifetime. And it could be the signal of the beginning of a long overdue change in the court on this issue. But to understand the importance of what Gorsuch says in his opinion — and I want to quote some of it in a minute or so — we need to understand the bigger picture.

We now have had four Supreme Court decisions in less than six years, all of them having to do with Puerto Rico’s relationship to the United States. Back in 2016, we had the Sanchez Valle case, which was an issue of whether Puerto Rico had separate sovereignty to be able to try people. The court said no. Then we had, a few weeks later, the Franklin Tax-Free Trust case on whether Puerto Rico could declare its own bankruptcy, because it had no bankruptcy protection under U.S. law. The court said no. Then, in 2020, we had the Aurelius case, which was a challenge to the legitimacy of the appointments to the oversight board that Congress had established over Puerto Rico. Puerto Rico was arguing this was a federal imposition — I mean, some of the case — the litigants were arguing this was a federally imposed, illegal appointments board. The United States was arguing, no, this was Puerto Rico officers that were appointed by the United States. The court, once again, sided against Puerto Rico. And now we have the Vaello Madero case, where a man who had been receiving SSI benefits for years in this country, and paying taxes in this country, moves to Puerto Rico, and then, years later, the government finds out that he still was collecting SSI then, and says he’s not eligible for those benefits and that he had to pay back $28,000. That was the basis of this latest case.

All of these cases take for granted the power of Congress to do whatever it wants when it comes to Puerto Rico, and governed by the Territorial Clause of the Constitution as the court interpreted more than a hundred years ago in a series of cases known as the Insular Cases. And this is the heart of the question here, the Insular Cases. There were cases like Downes v. Bidwell, DeLima v. Bidwell, Dorr v. United States, Gonzales v. Williams, Balzac v. Porto Rico, all in the early decades of the 20th century. Let’s be clear: The Insular Cases have been for a century the legal underpinnings of American colonialism. They provide legal justification for the United States to hold other nationalities and territory under its control.

So, what does Gorsuch, who is one of the most conservative justices, say about this? And his opinion is astonishing in that it calls to completely overthrow the Insular Cases. Let me quote to you some of what he says. He starts out in his opinion saying, “A century ago in the Insular Cases, this Court held that the federal government could rule Puerto Rico and other territories largely without regard to the Constitution. It is past time to acknowledge the gravity of this error and admit what we know to be true: The Insular Cases have no foundation in the Constitution and rest instead on racial stereotypes. They deserve no place in our law.” Now, justices don’t talk this clearly very often.

He goes on to say that in the Downes case, the two main justices there, Brown and White, their opinions, “At bottom, both rested on a view about the Nation’s 'right' to acquire and exploit 'an unknown island, peopled with an uncivilized race … for commercial and strategic reasons' — a right that 'could not be practically exercised if the result would be to endow' full constitutional protections 'on those absolutely unfit to receive [them].'” And it was Justice White who developed this idea of incorporated and unincorporated territories, that some territories were never meant to be part of the United States, and this included Puerto Rico and the Philippines and some of the other islands that were acquired back in the Spanish-American War.

So, Gorsuch goes on to say in his opinion, “The flaws in the Insular Cases are as fundamental as they are shameful. Nothing in the Constitution speaks of 'incorporated' and 'unincorporated' Territories. Nothing in it extends to the latter only certain supposedly 'fundamental' constitutional guarantees.” And he goes on to say that the Insular Cases are a product of a period of “ugly racial stereotypes, and the theories of social Darwinists. But they have no home in our Constitution or its original understanding.” Now, understand that Gorsuch, as an originalist, looks at the Constitution and says all of this justification for colonialism did not exist in the original Constitution. It was made up afterwards, and it needs to be overthrown.

And he goes on to say, quote, “under this Court’s cases we are asked to believe that the right to a trial by jury remains insufficiently 'fundamental' to apply to some 3 million U.S. citizens in 'unincorporated' Puerto Rico. At the same time, the full panoply of constitutional rights apparently applies on the Palmyra Atoll, an uninhabited patch of land in the Pacific Ocean, because it represents our Nation’s only remaining 'incorporated' Territory. It is an implausible and embarrassing state of affairs.”

And he says that the only reason he voted in the majority in this case was that no one asked him to overthrow the Insular Cases, not even the litigants on the other side. But then he ends his opinion by saying, “But the time has come to recognize that the Insular Cases rest on a rotten foundation. And I hope the day comes soon when the Court squarely overrules them. We should follow Justice Harlan and settle this question right. Our fellow Americans in Puerto Rico deserve no less.”

Now, Justice Sotomayor, in her opinion, her dissent, also backs Gorsuch. So we now have two justices who have clearly said the Insular Cases, the foundation of American colonialism, need to be overthrown. And I think that is a major, major step in the court. And hopefully some of the other originalists — because one of the problems with Puerto Rico is that many of the liberal justices — Justice Breyer; Justice Ginsburg, when she was alive; Justice Kagan — have been terrible on this issue. They have not really dared to challenge the Insular Cases. So, it may necessitate an unholy alliance of originalist conservative justices and more progressive justices to begin to finally end the legal basis for American colonialism. But I think this is definitely a step forward, and Justice Gorsuch’s opinion needs to be studied more carefully.

AMY GOODMAN: And, Juan, how does that relate to what’s happening today on Capitol Hill, the lobbying day —

JUAN GONZÁLEZ: Well, the big issue right — yeah.

AMY GOODMAN: — for the Puerto Rico Self-Determination Act?

JUAN GONZÁLEZ: Well, the big issue is that there are more and more elected officials and Puerto Rican communities in both the island and the United States that are calling for the passage of this Self-Determination Act. There’s going to be a rally at 5 p.m. this evening in Lafayette Square. And there’s intense lobbying going on to try to get the bill introduced by Nydia Velázquez to pass the House and the Senate, because Bob Menendez in the Senate is also co-sponsoring it, to basically allow Puerto Rico to convene a constitutional convention to decide its relationship, what it should be, its relationship to Puerto Rico. And so, that would be definitely a step forward, getting Congress to say, “OK, we’re not going to continue to dictate what our relationship with Puerto Rico is.”

Because, understand, the imposition of the control board in 2016 ended any claim that the United States had given to the world for the last 60 years, 70 years, that Puerto Rico had self-government. Puerto Rico is now ruled by a U.S.-appointed control board, effectively. And so it’s back to the classic colonial stage. So, the issue of how is that going to end, what’s going to happen when the control board is lifted finally, what will be the relationship between Puerto Rico and the United States, still needs to be resolved. And this is — the Puerto Rico Self-Determination Act is definitely a step in that direction.

AMY GOODMAN: Well, thanks so much for drawing attention to all of these developments, Juan González, Democracy Now! co-host, award-winning journalist, investigative reporter and journalism professor at Rutgers University.

When we come back, Juan and I will continue to look at the Supreme Court, its hearing Tuesday of a case that could have an enormous impact on asylum seekers seeking refuge in the United States. Stay with us.


AMY GOODMAN: “I Miss You” by Sherlee Skai and her band. They performed at an immigrant justice rally outside the U.S. Supreme Court Tuesday morning, before justices heard oral arguments in the case involving the Trump-era “Remain in Mexico” policy. Skai said it’s “about the things we have to leave when we have to leave home.”

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