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Civil Rights Orgs Challenge Racist “Insular Cases” Used to Legally Discriminate Against Puerto Rico

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Civil rights groups are challenging a series of racist U.S. Supreme Court rulings that have been used for over a century to legally justify discrimination against people in Puerto Rico and other U.S.-occupied territories. The rulings are known as the Insular Cases and have allowed the federal government to deny Puerto Ricans living on the island voting rights, access to public social programs like Medicaid and food stamps, and other equal protections guaranteed to those residing on the mainland. The renewed effort to overturn the Insular Cases comes after the Supreme Court sided with the Biden administration to continue denying Supplemental Security Income benefits to seniors and people with disabilities living in Puerto Rico. We speak with Lía Fiol-Matta, senior counsel for LatinoJustice PRLDEF, which is helping to lead the new campaign, and with Democracy Now! co-host Juan González, who has long reported on this issue. “The Insular Cases established a doctrine that has no constitutional basis,” says Fiol-Matta.

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StoryApr 27, 2022Juan González: In Surprise Move, Gorsuch Challenges U.S. Colonialism in SCOTUS Ruling on Puerto Rico
This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: This is Democracy Now!, democracynow.org, The War and Peace Report. I’m Amy Goodman, with Juan González.

We continue to look now at a new campaign by civil rights groups urging the federal government to overturn a series of U.S. Supreme Court rulings that have for over a century been used as the legal justification to racially discriminate against people living in Puerto Rico and other U.S. territories. The rulings are known as the Insular Cases, which opponents have long denounced as some of the most racist U.S. Supreme Court rulings, firmly rooted in white supremacy to protect U.S. colonialism. The Insular Cases have allowed the U.S. federal government to deny Puerto Ricans living on the island voting rights, access to public social programs, like Medicaid and food stamps, and other equal protections as those residing on the mainland U.S.

The renewed efforts to overturn the Insular Cases come about a month after the Supreme Court sided with the Biden administration to continue denying SSI — that’s Supplemental Security Income — benefits to seniors and people with disabilities living in Puerto Rico. The lone dissenter was Justice Sonia Sotomayor, whose parents were born on the island. She referred to the 8-to-1 ruling as “irrational” and “antithetical.” But what came as a surprise in this case was a 10-page concurring opinion written by the conservative Justice Neil Gorsuch calling on completely overthrowing the Insular Cases.

In part, Gorsuch wrote, quote, “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,” the ultraconservative Justice Neil Gorsuch wrote.

Well, for more, we’re joined in New York City by Lía Fiol-Matta, senior counsel for LatinoJustice PRLDEF, where her work focuses on economic justice and issues related to Puerto Rico. LatinoJustice alongside the American Civil Liberties Union and other civil rights groups have joined forces in this renewed effort to overrule the Insular Cases. Also with us is Juan, Juan González, the co-host of Democracy Now!

Juan, when you first responded to the Supreme Court decision and pointed out what Neil Gorsuch had said, in addition to Sonia Sotomayor, this was one of the most popular commentaries on our website. And so, we want to ask Lía, for starters: What is this campaign all about? How are you organizing? And why are you doing it?

LÍA FIOL-MATTA: Good morning. It’s such a pleasure to be here.

This campaign is pretty much coordinated between LatinoJustice, Hispanic Federation, the ACLU and Equally American, as well as other allies, but these are the main organizations. And we have embarked on a strong campaign, which started before the Vaello Madero decision was even issued, against the Insular Cases through public education, presentations, media contacts like this one, as well. And also we are embarked on a campaign to pressure — continue pressuring the Biden administration to denounce the Insular Cases and for federal courts to stop relying on them, as well. Our main concern, obviously, at this moment is to have the Supreme Court finally overrule the Insular Cases in a case that has been filed for cert, for consideration of the Supreme Court, which is Fitisemanu v. the United States. But also we want to pressure Congress to pass legislation to also support federal benefits programs, to treat residents of the territories equally.

JUAN GONZÁLEZ: And, Lía, I wanted to ask you about the Fitisemanu v. United States case. This is a case of U.S. citizens from American Samoa. Can you talk about that case and how it’s similar to the issues raised in Puerto Rico and in other U.S. territories?

LÍA FIOL-MATTA: Well, first of all, the American Samoans are not Americans citizens, and that is at the crux of this case. They are considered United States nationals. So the case is to request or to demand U.S. citizenship, but also directly for the Supreme Court to overrule the Insular Cases. The organization that I represent, LatinoJustice, and others have joined in an amicus brief, a friend-of-the-court brief, asking the Supreme Court to take on the case, particularly because it is a frontal attack on the Insular Cases. And that is because the 10th Circuit Court of Appeals relied on the Insular Cases, even though they denounced them also and criticized them, but they said that the Insular Cases gives Congress the authority to make decisions about the territories, and therefore, relying on the Insular Cases, the 10th Circuit reversed a district court of Utah that had agreed with the plaintiffs that American Samoans should enjoy all citizenship rights as other territories of the United States.

JUAN GONZÁLEZ: One of the things that has struck me over the years on the court decisions regarding Puerto Rico is the absence of the so-called liberal justices on the Supreme Court. Ruth Bader Ginsburg, when she was on there, Stephen Breyer, Justice Kagan have not really dared to tackle the precedents set by the Insular Cases in any frontal way. I’m wondering your thoughts on that and how this might conceivably change, especially now that an extreme conservative justice like Gorsuch has taken such a strong stand?

LÍA FIOL-MATTA: Absolutely. You know, in Vaello Madero, civil rights activists, we were not necessarily expecting for Vaello Madero to prevail. We were hoping that that would happen. But due to the conservative court, we were not really very much expecting that outcome. But we were terribly disappointed that the — like you mentioned, that the other liberal justices did not join the dissent, the strong and fantastic dissent of Sonia Sotomayor. So, we are also grappling with that.

And hopefully in this next case that is pending, which is Fitisemanu, hopefully we might have a change, because, as you know, in the Vaello Madero decision, like you mentioned, both Sonia Sotomayor and Justice Gorsuch denounced the Insular Cases. And Justice Gorsuch had already hinted at this — well, not really hinted. He had pretty much, in oral arguments in November, asked the federal government: Why don’t we just overrule the Insular Cases? And the federal government, the solicitor general, kind of said, “Yeah, these are not great cases, but this is not the crux of this matter right now before you,” so they kind of skirted the issue. But Gorsuch had already signaled his opposition. And then, of course, in his concurrence in Vaello Madero, which is very long and extensive and detailed, he provides even the historical context of the court, and he denounces them very, very strenuously. So we’re hoping that both those justices and then hoping that the liberals, as well — now, obviously, we’re going to have a new liberal justice on the court at the time if this case is taken up by the court, so our fingers are crossed that this will be — hopefully, this will be the case that will finally have these cases overruled.

AMY GOODMAN: Juan, you know, when you shared this commentary on the Insular Cases, I was wondering if you could once again talk about why they’re called Insular Cases, this whole century history, and why it is Justice Gorsuch, how it fits into the ultraconservative philosophy of him to talk about these racist laws.

JUAN GONZÁLEZ: Well, I think the key thing to understand is that in the aftermath of the Spanish-American War, when the United States acquired the remaining territories of the Spanish Empire, including the Philippines, temporarily Cuba, as well, and Puerto Rico, that there was a debate as to, well, what’s the relationship between these noncontiguous territories of the United States, these new places where the American flag was planted, and the rest of the country. And so, between — in the early 1900s, in a series of decisions, a lot of them having to deal basically with tariffs and do tariffs apply — you know, it was a lot of commercial issues, but there were also individual issues as to what rights of the Constitution apply in Puerto Rico. So, several cases — Balzac v. Porto Rico, Downes v. Bidwell and a bunch of other cases — the court had to grapple with this, and essentially said that, yes, the Constitution only applies in these territories to the level which Congress decides it can apply and that Congress has complete power to decide how to run these territories. And so, basically, it established the legal basis for the holding of a colonial empire.

And so, that is really — has never really been challenged in a hundred years in any significant way, except in the last few years, with the crises in Puerto Rico especially, and there have been several cases, and now, of course, this American Samoa case. So, now for the first time, really, people are grappling with what it means, because in the meantime there’s been — and I’m sure Lía can talk much more extensively about this, how the Insular Cases have been used to provide second-class benefits to the people of Puerto Rico especially, because in some cases, even the Virgin Islands have been exempted by Congress from some of the more onerous second-class services that the government provides to the territories. Lía, if you could talk about —

LÍA FIOL-MATTA: Absolutely

JUAN GONZÁLEZ: — some of the concrete ways that this affects the people of Puerto Rico?

LÍA FIOL-MATTA: Absolutely. I would also like to say that the Insular Cases established a doctrine that has no constitutional basis, which is the territorial incorporation doctrine. And the five inhabited colonies of the United States are considered unincorporated territories, and only, quote-unquote, “fundamental rights” apply to them, and those are decided by Congress arbitrarily.

So, in terms of Puerto Rico specifically, we know that the Vaello Madero decision denies SSI benefits to the neediest Americans, the poor, disabled, blind and elderly American citizens that reside in Puerto Rico. And there are other federal benefits, as well, that were not considered in that case, but there were other cases — for example, Peña Martínez v. the Department of Health and Human Services. That case involved SSI, as well as SNAP and Medicare, other benefits in which Puerto Ricans, the residents of the island, are treated unequally to the other states of the United States. And unfortunately, that case, which was being appealed at the 1st Circuit, I guess, pretty much is moot at this point, as well as other cases in addition to that one.

So, yes, absolutely, the benefits in the decisions that have been applied to the different territories are very arbitrary. I want to point out that the Northern Mariana Islands, they do have SSI. And that was part of the deed of cession that was decided with the United States —

AMY GOODMAN: Lía, we just have 10 — we just have 10 seconds. What can Biden do specifically now? Ten seconds.

LÍA FIOL-MATTA: President Biden needs to denounce the Insular Cases, needs to instruct federal — well, he cannot instruct them, but needs to exhort federal courts to stop utilizing and relying on that and needs to also —

AMY GOODMAN: Lía Fiol-Matta, we have to leave it there, senior counsel for LatinoJustice PRLDEF. I’m Amy Goodman, with Juan González.

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

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