NOTES A MOST INSULAR MINORITY: RECONSIDERING JUDICIAL DEFERENCE TO UNEQUAL TREATMENT IN LIGHT OF PUERTO RICO S POLITICAL PROCESS FAILURE

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1 NOTES A MOST INSULAR MINORITY: RECONSIDERING JUDICIAL DEFERENCE TO UNEQUAL TREATMENT IN LIGHT OF PUERTO RICO S POLITICAL PROCESS FAILURE Adriel I. Cepeda Derieux The constitutional contours of Puerto Rico s current relationship with the United States are largely defined by the territorial incorporation doctrine, developed in the Supreme Court s Insular Cases at the turn of the twentieth century. As commonly interpreted, the territorial incorporation doctrine provides that, as an unincorporated territory, Puerto Rico is part of the United States for some purposes but not for others. Consequently, U.S. citizens residing in Puerto Rico are only entitled to fundamental constitutional protections. This Note focuses on the intersection between the territorial incorporation doctrine and modern equal protection doctrine and judicial review. Speaking on the matter, the Supreme Court has explained that Congress, acting under its plenary power over the territories pursuant to the Constitution s Territory Clause, may treat Puerto Rico differently from states so long as there is a rational basis for its actions. This Note argues that following the logic of the territorial incorporation doctrine to address Congress s differential treatment of Puerto Rico is misguided, whether the doctrine is used to reify Puerto Rico s status as an unincorporated territory, or to conclude that Puerto Rico has, in fact, been incorporated into the United States. It then posits that in challenges to legislation that facially discriminates against U.S. citizens residing in Puerto Rico, courts instead should focus on Puerto Rico s disenfranchised status to subject legislation to heightened scrutiny. INTRODUCTION In 1917, federal legislation granted U.S. citizenship to residents of the island territory of Puerto Rico. 1 Eighty-one years later, a congressional report described this peculiar brand of American citizenship: [T]he statutory citizenship status of the inhabitants of Puerto Rico... is not equal, full, permanent, irrevocable citizenship protected by the 14th Amendment of the U.S. Constitution, [Puerto Ricans] lack voting representation in Congress... [and] lack... voting rights in elections for President and Vice President, rights of equal protection and due process... have a 1. See Jones Act, ch. 145, 5, 39 Stat. 951, 953 (1917) (codified as amended at 8 U.S.C (2006)) (making all persons born in Puerto Rico after January 13, 1941, who are subject to the jurisdiction of the United States... citizens of the United States at birth ). 797

2 798 COLUMBIA LAW REVIEW [Vol. 110:797 different application and effect in the territory than in the rest of the Nation Puerto Rico s continuing status as an unincorporated territory, subject to Congress s plenary power, makes these limitations possible. 3 As commonly interpreted, the Court s territorial incorporation doctrine provides that, unlike the territories the United States annexed, incorporated, and later admitted into the Union as states, the island is part of the United States for some purposes but not for others. 4 Consequently, residents of Puerto Rico are only entitled to fundamental constitutional protections. 5 In practice, this has led to an ad hoc, case-by-case determination by the Court of which constitutional provisions are applicable in Puerto Rico and other unincorporated territories. 6 The Supreme Court first laid down the constitutional contours of this arrangement regarding Puerto Rico and other island possessions in 2. H.R. Rep. No , pt. 1, at 19 (1997). 3. For the Supreme Court s clearest articulation of Congress s plenary power, see Am. Ins. Co. v. 356 Bales of Cotton, 26 U.S. (1 Pet.) 511, 546 (1828) ( In legislating for [the territories], Congress exercises the combined powers of the general, and of a state government. ). The plenary power doctrine developed over the course of the nineteenth century in parallel jurisprudential lines, affecting not only the territories [that would later be admitted as states], but also Native Americans, aliens, and even foreign affairs. Christina Duffy Burnett, Untied States: American Expansion and Territorial Deannexation, 72 U. Chi. L. Rev. 797, (2005) [hereinafter Burnett, Untied States]. For a detailed history of the origins of the plenary power doctrine, see Sarah H. Cleveland, Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth Century Origins of Plenary Power Over Foreign Affairs, 81 Tex. L. Rev. 1, 8 15 (2002). 4. See infra Part I (providing background on federal courts treatment of Puerto Rico). 5. See infra note 7 (explaining Insular Cases holdings); see also U.S. Gen. Accounting Office, No. GAO/OGC-98-5, Report to the Chairman, Comm. on Res., U.S. Insular Areas: Application of the U.S. Constitution (1997) (explaining applicability of constitutional provisions in Puerto Rico and other territories). 6. The Supreme Court has admitted that its decisions respecting the rights of the inhabitants of Puerto Rico have been neither unambiguous nor exactly uniform. Examining Bd. of Eng rs, Architects & Surveyors v. Flores de Otero, 426 U.S. 572, 599 (1976). As one commentator notes, the Insular Cases definition of a fundamental right is best illustrated by the actual decisions of various cases. Robert A. Katz, Comment, The Jurisprudence of Legitimacy: Applying the Constitution to U.S. Territories, 59 U. Chi. L. Rev. 779, 783 (1992). As employed by the Court, this approach only denied unincorporated territories the right to trial by jury, the right to presentment by grand jury, and the right to confront witnesses. According to the Court, these rights were not fundamental in their nature, but merely artificial rights of criminal procedure peculiar to Anglo-Saxon legal systems. In contrast, dicta in the Insular Cases suggests that the Court viewed most of the personal rights and privileges guaranteed by the Constitution as fundamental in the territorial context, including the guarantees of due process, and the prohibitions of ex post facto laws and bills of attainder. Id. (citations omitted).

3 2010] A MOST INSULAR MINORITY 799 the turn-of-the-century Insular Cases; 7 later pronouncements by the 7. This Note refers to individual cases relevant to the relationship between Puerto Rico and the United States. As commonly understood, however, the term Insular Cases refers to a series of cases decided between 1901 and Generally speaking, these cases include: Balzac v. Porto Rico, 258 U.S. 298, 309 (1922) (holding Sixth Amendment right to jury trial inapplicable in Puerto Rico); Ocampo v. United States, 234 U.S. 91, 98 (1914) (holding Fifth Amendment grand jury provision inapplicable in the Philippines); Ochoa v. Hernandez y Morales, 230 U.S. 139, (1913) (invalidating order by military governor of Puerto Rico retroactively shortening period for acquisition of property by prescription); Dowdell v. United States, 221 U.S. 325, (1911) (noting wellrecognized exceptions to Sixth Amendment s application in Philippines); New York ex rel. Kopel v. Bingham, 211 U.S. 468, 476 (1909) (finding Puerto Rico a completely organized Territory of United States for certain statutory purposes); Kent v. Porto Rico, 207 U.S. 113, 119 (1907) (limiting Supreme Court s ability to review judgments of Puerto Rico Supreme Court); Grafton v. United States, 206 U.S. 333, 345 (1907) (applying double jeopardy prohibition to criminal prosecutions in Philippines); Trono v. United States, 199 U.S. 521, 534 (1905) (holding appeal resulting in reversal of judgment waived double jeopardy protections in Philippines); Rassmussen v. United States, 197 U.S. 516, (1905) (holding Alaska territory incorporated into nation and finding constitutional requirement of trial by jury applicable therein); Mendezona y Mendezona v. United States, 195 U.S. 158, 158 (1904) (affirming judgment in Kepner); Kepner v. United States, 195 U.S. 100, (1904) (finding prohibition against double jeopardy applicable in Philippines); Dorr v. United States, 195 U.S. 138, 149 (1904) (finding constitutional right to trial by jury did not extend to Philippines unless provided by Congress); Gonzales v. Williams, 192 U.S. 1, 12 (1904) (holding Puerto Ricans were not aliens for immigration purposes of entry into United States); Hawaii v. Mankichi, 190 U.S. 197, 226 (1903) (holding grand jury and unanimous verdicts inapplicable in Hawaii); Pepke v. United States, 183 U.S. 176, 178 (1901) (finding Philippines under U.S. dominion and not a foreign country ); Dooley v. United States, 183 U.S. 151, (1901) (holding constitutional bar on taxation of exports from any state did not apply to Puerto Rico); Huus v. N.Y. & P.R. Steamship Co., 182 U.S. 392, (1901) (holding vessels involved in trade between Puerto Rico and U.S. ports engaged in domestic trade under certain federal laws); Downes v. Bidwell, 182 U.S. 244, 347 (1901) (holding imposition of special duties on Puerto Rican goods did not violate constitutional requirement of uniformity among states); Armstrong v. United States, 182 U.S. 243, 244 (1901) (affirming Dooley); Dooley v. United States, 182 U.S. 222, 236 (1901) (holding duties collected on goods imported from United States to Puerto Rico by military authorities were legally exacted under executive s war powers); Goetze v. United States, 182 U.S. 221, 222 (1901) (affirming De Lima); Crossman v. United States, 182 U.S. 221, 222 (1901) (affirming De Lima); and De Lima v. Bidwell, 182 U.S. 1, 200 (1901) (holding Puerto Rico became a territory of the United States upon ratification of treaty with Spain and its goods were no longer subject to U.S. import tariffs). Scholars and courts have traditionally interpreted these cases as sanctioning turn of the twentieth century U.S. imperialism through the demarcation of a space where the Constitution applied in full (i.e., states) as opposed to one where only fundamental protections apply (i.e., unincorporated territories). See, e.g., Cleveland, supra note 3, at 238 ( The Court s conclusions... that only fundamental constitutional protections applied along with its failure to identify any protections deemed fundamental, left the governance of U.S. overseas territories largely in an extraconstitutional zone whose boundaries were governed by inherent sovereign powers. ); Carlos R. Soltero, The Supreme Court Should Overrule the Territorial Incorporation Doctrine and End One Hundred Years of Judicially Condoned Colonialism, 22 Chicano-Latino L. Rev. 1, 18 (2001) [hereinafter Soltero, One Hundred Years] ( Congressional power over the unincorporated territories is plenary, limited only by fundamental rights which have been

4 800 COLUMBIA LAW REVIEW [Vol. 110:797 Supreme Court and federal circuit courts have further refined the doctrine of territorial incorporation. 8 These later cases have generally arisen from constitutional challenges in two arenas: prohibitions on voting in presidential elections, 9 or unequal treatment of Puerto Rican U.S. citizens under federal entitlement and welfare programs. 10 Speaking to the latter, the Supreme Court has explained that Congress, acting under its plenary power over the territories pursuant to the Constitution s Territory Clause, 11 may treat Puerto Rico differently from States so long as there is a rational basis for its actions. 12 Accordingly, federal courts have rejected challenges to the constitutionality of Congress s disparate treatment of residents of Puerto Rico. 13 recognized on an ad hoc basis rather than from [an]... ex propio vigore perspective. ). But see Burnett, Untied States, supra note 3, at 804 (arguing the most significant consequence of the distinction between incorporated and unincorporated territories was... the creation of a category of domestic territory not bound in permanent union to the rest of the United States ). 8. See infra Part II.A (summarizing Supreme Court s application of Equal Protection principles to Puerto Rico). 9. See, e.g., Igartua de la Rosa v. United States, 331 F. Supp. 2d 76, 77 (D.P.R. 2004), aff d, 386 F.3d 313 (1st Cir. 2004) (dismissing action brought by U.S. citizens residing in Puerto Rico challenging restriction on right to vote in presidential elections); Igartua de la Rosa v. United States, 113 F. Supp. 2d 228, 229 (D.P.R. 2000) (finding that the United States Citizens residing in Puerto Rico have the right to vote in Presidential elections and that its electoral votes must be counted in Congress ), vacated, 229 F.3d 80 (1st Cir. 2000); Igartua de la Rosa v. United States, 107 F. Supp. 2d 140 (D.P.R. 2000); Igartua de la Rosa v. United States, 842 F. Supp. 607 (D.P.R. 1994), aff d, 32 F.3d 8 (1st Cir. 1994) (same); Sanchez v. United States, 376 F. Supp. 239 (D.P.R. 1974) (same). This Note does not address these cases at length. For a summary of these cases and their import, see generally Eduardo Guzmán, Comment, Igartúa de la Rosa v. United States: The Right of the United States Citizens of Puerto Rico to Vote for the President and the Need to Re-Evaluate America s Territorial Policy, 4 U. Pa. J. Const. L. 141 (2001). 10. See infra Part II (discussing Supreme Court treatment of Puerto Ricans under Congressional Supplemental Security Income and Aid to Families with Dependent Children Programs). 11. U.S. Const. art. IV, 3, cl. 2 ( The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.... ). 12. Harris v. Rosario, 446 U.S. 651, (1980); see also Califano v. Torres, 435 U.S. 1, 5 (1978) ( So long as its judgments are rational, and not invidious, the legislature s efforts to tackle the problems of the poor and the needy are not subject to a constitutional straitjacket. (quoting Jefferson v. Hackney, 406 U.S. 535, 546 (1972))); T. Alexander Aleinikoff, Puerto Rico and the Constitution: Conundrums and Prospects, 11 Const. Comment. 15, 22 (1994) ( The Supreme Court has given short shrift to claims that the disadvantageous treatment of Puerto Rico violates the Fifth Amendment s equal protection guarantee. ). 13. For example, see infra notes and accompanying text (noting Supplemental Security Program does not apply to Puerto Rico). Federal food stamp programs provide another example. Though introduced at levels on par with the mainland, in 1982 Congress replaced food stamp benefit programs with a nutrition block grant payable to the Commonwealth. Gary Burtless & Orlando Sotomayor, Labor Supply and Public Transfers, in Susan M. Collins et al., The Economy of Puerto Rico: Restoring Growth 82, 99 (2006).

5 2010] A MOST INSULAR MINORITY 801 This Note argues that federal courts have followed a misguided approach regarding challenges to unequal congressional treatment of Puerto Rican residents. Placing a particular focus on individual welfare and entitlement programs, this Note posits that courts have problematically relied on Puerto Rico s uncertain status to deny plaintiffs equal protection claims, failing to notice that this status may enable the very political process failure that much of contemporary equal protection jurisprudence seeks to remedy. In view of the fact that residents of Puerto Rico lack representation at all levels of the federal government, and remain locked out from the political process responsible for statutory schemes treating them differently than U.S. citizens residing in the fifty states, this Note proposes a different judicial approach to challenges to legislation discriminating against Puerto Rico application of heightened judicial review under equal protection doctrine. 14 This approach does not purport to offer a judicially mandated solution to Puerto Rico s status problem. Rather, it departs from the premise that the Insular Cases and the doctrine of territorial incorporation may not constitute so rigid a barrier to constitutional claims brought by U.S. citizens residing in Puerto Rico as is commonly claimed. Importantly, recent Supreme Court statements acknowledging that the United States s territories may each develop individually in constitutionally significant ways further buttress this approach. 15 This Note proceeds in three parts. Part I provides the background on federal courts treatment of Puerto Rico. It looks at the Insular Cases and explains the island s current political arrangement and continuing relationship with the United States. Part II outlines the manner in which later decisions have emphasized the Insular Cases as good law 16 to support two divergent propositions: The first undermines the cases validity by highlighting the imperialist and arguably racist context within which The purpose of this move was to control the cost of nutrition assistance in Puerto Rico. The initial level of the block grant was about 10 percent less than federal government spending on food stamps in the immediately preceding year. Moreover, the federal government capped the block grant at a fixed nominal level. Id. Funding for Medicaid is also capped. See 42 U.S.C (2006) (setting cap on amount of Medicaid funds unincorporated territories receive in fiscal year). Puerto Rico is considered a state for Medicaid purposes. Id. 1301(a)(1). 14. See infra Part III (arguing modern equal protection doctrine justifies heightened judicial scrutiny of differential treatment toward U.S. citizens residing in Puerto Rico). 15. See Boumediene v. Bush, 128 S. Ct. 2229, 2255 (2008) ( It may well be that over time the ties between the United States and any of its unincorporated Territories strengthen in ways that are of constitutional significance. ). 16. The Supreme Court has endorsed the Insular Cases central holding that constitutional protections do not necessarily apply in full within unincorporated territories as recently as See id. at (citing Balzac v. Porto Rico, 258 U.S. 298 (1922), Dorr v. United States, 195 U.S. 138 (1904), and Downes v. Bidwell, 182 U.S. 244 (1901), among others, to note certain constitutional protections inapplicable in unincorporated territory).

6 802 COLUMBIA LAW REVIEW [Vol. 110:797 the cases were decided, while the second stresses the island s continuing unincorporated status as grounds used to reject these challenges as permissible exercises of Congress s plenary power over Puerto Rico. Part II also explains why these approaches have been misguided on both fronts, since they fail to focus on the root of the problem: the lack of a workable political mechanism by which to remedy Puerto Rico s unequal treatment. This Part stresses that, in light of Puerto Rico s lack of representation at the federal level, decisions criticizing or even altering Puerto Rico s status as an unincorporated territory do not solve the problem. Finally, Part III argues that a better judicial approach would specifically focus on the absence of a legitimate political process, whereby U.S. citizens residing in Puerto Rico may seek redress for unequal federal treatment. Consequently, Part III argues that unequal treatment demands or should prompt heightened judicial review in this context and courts should employ an equal protection analysis that focuses on political process concerns. 17 Ultimately, this Note does not suggest that the answer to Puerto Rico s political problem lies in the judiciary s hands; arguments of this sort, after all, run headfirst into a clear consensus in favor of democratic resolution. 18 Rather, this Note posits that equal protection jurisprudence has curiously overlooked the interests of a class of citizens with no recourse via political channels at the federal level, and that courts should find inapposite arguments for deferential review of legislative actions when citizens residing in Puerto Rico challenge differential treatment under federal statutes. I. THE DOCTRINE OF TERRITORIAL INCORPORATION AND PUERTO RICO At the beginning of the twentieth century, the Supreme Court s Insular Cases defined the constitutional stature of Puerto Rico and other island territories the United States acquired after Spain s defeat in the Spanish-American War. This Note begins by examining the Insular Cases and their progeny. Part I.A highlights early judicial pronouncements and legislative actions relevant to Puerto Rico s current relationship with the United States. This subsection proceeds to briefly survey the continued criticism of the Insular Cases from both courts and commentators. Part I.B then focuses on subsequent changes to Puerto Rico s internal political structure and debates surrounding the effects of those changes on Puerto Rico s political and constitutional status. This subsection explains how Puerto Rico gained increasing amounts of control over its internal affairs throughout the twentieth century, yet remained under the Insular Cases shadow. 17. See generally John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (1980) (discussing proper role and function of courts in mediating political process). 18. See infra notes and accompanying text (explaining consensus around democratic resolution for Puerto Rico s status question).

7 2010] A MOST INSULAR MINORITY 803 A. The Insular Cases 1. Downes v. Bidwell and Territorial Incorporation. By most accounts, Puerto Rico took a backseat to Cuba and the Philippines in the popular discourse and military planning leading up to the Spanish- American War. 19 Once acquired by the United States, however, the island figured prominently in debates between imperialist and anti-imperialist factions over whether the United States could accommodate overseas colonial possessions within its constitutional traditions. 20 In 1901, these debates reached the United States Supreme Court by way of the Insular Cases. Though not the first case concerning the newly acquired territories, Downes v. Bidwell 21 stood out as the centerpiece of the Court s 1901 territorial cases. 22 Downes centered on a dispute over the payment of a duty imposed on products imported into the United States from Puerto Rico. 23 S.B. Downes & Company paid the duty under protest but claimed Puerto Rico had become a U.S. territory following the ratification of the 1898 Treaty of Paris with Spain. 24 Thus, the petitioner argued, the duty 19. See Raymond Carr, Puerto Rico: A Colonial Experiment 22 (1984) ( The paradox of the Spanish-American War was that the United States acquired not Cuba long the object of expansionist dreams and where American investment was significant but Puerto Rico, an island the existence of which few Americans were aware. ); Juan R. Torruella, Global Intrigues: The Era of the Spanish-American War and the Rise of the United States to World Power 107 (2007) ( Although the invasion of Puerto Rico had been considered in the early planning stages of the War, these plans did not come off the shelf again until... Santiago [Cuba] had been secured. (footnotes omitted)). But see Jorge Rodríguez Beruff, Strategy as Politics: Puerto Rico on the Eve of the Second World War 4 28 (2007) (tracing history of strategic interest in Puerto Rico by U.S. officials from midnineteenth century through years leading up to Spanish-American War). 20. See, e.g., Pedro A. Cabán, Constructing a Colonial People: Puerto Rico and the United States, , at (1999) (describing debates over Puerto Rico s annexation following Spanish-American War); Julie Greene, The Canal Builders: Making America s Empire at the Panama Canal 270 (2009) ( The new possessions... generated ideological and legal tensions between the rights guaranteed by the U.S. Constitution and the need to rule effectively over foreign populations. ). For a discussion placing debates over the acquisition and annexation of the island territories within broader, nineteenthcentury expansionist discourse, see Lars Schoultz, Beneath the United States: A History of U.S. Policy Toward Latin America (1998) U.S. 244 (1901). 22. See Bartholomew H. Sparrow, The Insular Cases and the Emergence of American Empire 80 (2006) ( Although more than one case on the docket involved the territories, [Downes v. Bidwell] stood out as the seminal case of the Insular Cases.... Downes brought the constitutional question of congressional authority into sharp relief.... ). The Supreme Court has recognized Downes s importance among the Insular Cases in later decisions. See Examining Bd. of Eng rs, Architects & Surveyors v. Flores de Otero, 426 U.S. 572, 599 n.30 (1976) (referring to Downes as the most significant of the Insular Cases ). 23. Downes, 182 U.S. at Id. at ( [U]pon the ratification of the treaty of peace with Spain, Porto Rico ceased to be a foreign country, and became a territory of the United States.... We are now asked to hold that it became a part of the United States.... ).

8 804 COLUMBIA LAW REVIEW [Vol. 110:797 imposed was invalid under the Constitution s Uniformity Clause, which provides that all Duties, Imposts and Excises shall be uniform throughout the United States. 25 To resolve the dispute, the Supreme Court had to decide whether Puerto Rico formed part of the United States for Uniformity Clause purposes. 26 Writing for a deeply divided Court, 27 Justice Henry Billings Brown rejected the petitioners view that the territories were part of the United States, and thus the Constitution and, consequently, its Uniformity Clause applied by its own force. Rather, setting forth what became known as the extension theory, 28 Justice Brown reasoned that [t]he Constitution was created by the people of the United States, as a union of states, to be governed solely by representatives of the states. 29 As such, its terms were not applicable to the territories until Congress, acting under its legislative powers, chose to extend them an action Congress had yet to carry out in the case of Puerto Rico. Justice Brown was careful to note, however, that Congress s failure to extend the Constitution did not necessarily mean that none of the articles of the Constitution appl[ied] to the island of Porto Rico. 30 Instead, he noted: There is a clear distinction between such prohibitions as go to the very root of the power of Congress to act at all, irrespective of time or place, and [those that] are operative only throughout the United States or among the several states. 31 Among prohibitions go[ing] to the very root of congressional power, Justice Brown identified limitations on bills of attainder, ex post 25. U.S. Const. art. 1, 8, cl Sparrow, supra note 22, at Justice Brown was alone in his reasoning. Four Justices White, Shiras, McKenna, and Gray concurred in Justice Brown s judgment. Downes, 182 U.S. at 287, 345 (White, J., concurring). The remaining four Justices dissented, arguing instead that the Constitution applied in full in Puerto Rico and other territories. Id. at 347 (Fuller, C.J., dissenting). 28. See Christina Duffy Burnett & Burke Marshall, Between the Foreign and the Domestic: The Doctrine of Territorial Incorporation, Invented and Reinvented, in Foreign in a Domestic Sense: Puerto Rico, American Expansion, and the Constitution 1, 8 (Christina Duffy Burnett & Burke Marshall eds., 2001) [hereinafter Foreign in a Domestic Sense] ( According to this theory, Congress has sole discretion over whether to extend the Constitution to the territories, because they are not part of the United States. ); see also Efrén Rivera Ramos, The Legal Construction of American Colonialism: The Insular Cases ( ), 65 Rev. Jur. U.P.R. 225, 269 (1996) (arguing Justice Brown s extension doctrine was a straight negative answer to the question of whether the Constitution follows the flag ). 29. Downes, 182 U.S. at Id. at The U.S. government misspelled Puerto Rico as Porto Rico in most official contexts until See James L. Dietz, Economic History of Puerto Rico: Institutional Change and Capitalist Development 85 (1986) (noting first military governor of Puerto Rico ordered that the name of the island be changed to Porto Rico, an Americanized corruption of Spanish that remained the official spelling until 1932 ). Congress later officially changed the name, by statute, to its correct spelling. See 48 U.S.C. 731a (2006) ( From and after May 17, 1932, the island designated Porto Rico... shall be known and designated as Puerto Rico. ). 31. Downes, 182 U.S. at 277.

9 2010] A MOST INSULAR MINORITY 805 facto laws, and titles of nobility. 32 Since, in his view, protections inherent in the Uniformity Clause did not fall within this category, the duty at issue did not offend the Constitution. 33 None of the other justices joined Justice Brown s opinion for the Court. 34 In his concurring opinion joined by Justices Shiras and McKenna, Justice White disagreed with Brown s position that all sovereign U.S. territories did not, by their nature, form part of the United States. Rather, setting forth the position a majority of the Court would embrace three years later in Dorr v. United States, 35 Justice White argued for a distinction between incorporated and unincorporated territories, noting the determination of what particular provision of the Constitution is applicable... involves an inquiry into the situation of the territory and its relations to the United States. 36 Whether Congress had incorporated a particular territory or not, Justice White reasoned, depended on Congress s actions and intent regarding the territory, pursuant to its plenary power under the Constitution s Territorial Clause. 37 Regarding the case at hand, Justice White s analysis turned to the terms of the 1898 treaty between the United States and Spain in which Spain ceded sovereignty over Puerto Rico. Article IX of the Treaty provided that [t]he civil rights and political status of the native inhabitants of the territories hereby ceded to the United States shall be determined 32. Id. 33. Id. at , See supra note 27 and accompanying text (outlining vote breakdown) U.S. 138, (1904) ( That the United States may have territory which is not incorporated into the United States as a body politic, we think was recognized by the [Framers]... in enacting the [Territory Clause], giving power over the territories, and is sanctioned by the opinions of the justices concurring in the judgment in [Downes]. ); see also Balzac v. Porto Rico, 258 U.S. 298, 305 (1922) ( [T]he opinion of Mr. Justice White of the majority, in Downes v. Bidwell, [had, by 1922,] become the settled law of the court. ). 36. Downes, 182 U.S. at Id. at This view was not novel to Justice White s concurrence. As early as 1899, Harvard University Professor Abbott Lawrence Lowell had similarly argued for a demarcation between incorporated and unincorporated territories, with the distinction determined by congressional action. See Abbot Lawrence Lowell, The Status of Our New Possessions A Third View, 13 Harv. L. Rev. 155, 176 (1899) ( It follows that the incorporation of territory in the Union, like the acquisition of territory at all, is a matter solely for the legislative or the treaty-making authorities, although it may... happen, where the language of a treaty or statute is ambiguous, that the court is obliged to interpret its meaning. ). Lowell s contribution formed part of a larger discussion on the future of the new territories that appeared in the pages of the Harvard Law Review between 1898 and This discussion centered on the question of whether the term United States could be constitutionally construed as including the newly acquired territories. See generally Simeon E. Baldwin, The Constitutional Questions Incident to the Acquisition and Government by the United States of Island Territory, 12 Harv. L. Rev. 393 (1899); C.C. Langdell, The Status of Our New Territories, 12 Harv. L. Rev. 365 (1899); Carman F. Randolph, Constitutional Aspects of Annexation, 12 Harv. L. Rev. 291 (1898); James Bradley Thayer, Our New Possessions, 12 Harv. L. Rev. 464 (1899); see also supra note 20 and accompanying text (noting contemporary debates on American imperialism).

10 806 COLUMBIA LAW REVIEW [Vol. 110:797 by the Congress. 38 Since Congress had not actively provided for Puerto Rico s incorporation into the United States, Justice White concluded that Puerto Rico remained an unincorporated territory and that the constitutional requirement of uniformity was inapplicable Balzac and Puerto Rico as an Unincorporated Territory. Justice White s concurrence in Downes is notable and perhaps infamous for its sparse treatment of the nature of congressional action necessary to incorporate a territory. 40 Among the newly-articulated doctrine s immediate critics were, of course, the Court s dissenting justices. 41 Justice Harlan, for example, skeptically latched onto the uncertain status seemingly created by Justice White s opinion, noting: What is meant by such incorporation we are not fully informed, nor are we instructed as to the precise mode in which it is to be accomplished. 42 He added: I am constrained to say that this idea of incorporation has some occult meaning which my mind does not apprehend. It is enveloped in some mystery which I am unable to unravel. 43 Yet the doctrine s significance and its usefulness lay precisely in its uncertainty. 44 Although collectively the Insular Cases are generally read as subjecting the newly acquired territories to congressional plenary power, Congress arguably held this power over all former territories at one point or another before they achieved statehood. 45 Significantly, the 38. Treaty of Peace, U.S.-Spain, Dec. 10, 1898, reprinted in 2 William M. Malloy, Treaties, Conventions, International Acts, Protocols and Agreements Between the United States of America and Other Powers: , at 1690, 1693 (1910). 39. Downes, 182 U.S. at Burnett & Marshall, Between the Foreign and the Domestic, supra note 28, at 9 ( [D]espite the central role of the idea of incorporation in White s opinion, the consequences of incorporation remained unclear. ); see also Cleveland, supra note 3, at 222 ( Brown s analysis was not a model of clarity.... ). 41. See supra note 27 and accompanying text (outlining vote breakdown in Downes). 42. Downes, 182 U.S. at 389 (Harlan, J., dissenting). 43. Id. at One commentator has argued that any uncertainty found in Justice White s metaphor of incorporation reflected a strategic choice to create a more appealing middle ground between the imperialist tenor of Justice Brown s opinion and the dissenters view that the Constitution precluded the United States from acquiring colonial possessions. See Brook Thomas, A Constitution Led by the Flag: The Insular Cases and the Metaphor of Incorporation, in Foreign in a Domestic Sense, supra note 28, at 82, 87 ( White s doctrine of incorporation allowed him to carve out what seemed to be a middle position between Brown s extension theory and the dissenters insistence on fundamental republican principles embodied in the Constitution. ). 45. For instance, the Supreme Court spoke about Congress s plenary power over territories in expansive terms over the course of the United States s nineteenth century westward expansion. See The Late Corp. of the Church of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1, 42 (1890) ( The territory of Louisiana, when acquired from France... became the absolute property and domain of the United States, subject to such conditions as the government, in its diplomatic relations, had seen fit to accept relating to the rights of the people then inhabiting those territories. ); Nat l Bank v. County of Yankton, 101 U.S. 129, 133 (1879) ( All territory within the jurisdiction of the United States not included in any State must necessarily be governed by or under the authority of

11 2010] A MOST INSULAR MINORITY 807 doctrine of territorial incorporation and the indefinite character of the shape of congressional incorporation created a new intermediate step i.e., status as an unincorporated territory on the path to statehood. 46 In doing so, the Supreme Court destroyed the erstwhile assumption that territorial status naturally and inevitably culminated in statehood and indissolubly linked annexed territories to the United States. 47 While the Supreme Court applied the doctrine of territorial incorporation in later years with regards to other territories, 48 its most dramatic reaffirmation came in Balzac v. Porto Rico, decided in Between 1901 and 1917, federal legislators filed over twenty bills proposing to grant United States citizenship to residents of Puerto Rico. 50 The legislative and executive branches offered varying degrees of support for these measures. 51 Ultimately, the Jones Act was passed in The Act, signed into law by President Wilson, granted statutory citizenship to all Congress. ); see also Burnett, Untied States, supra note 3, at , 875 ( [T]he Insular Cases offered Congress no more latitude in governing territories than it already enjoyed: Congress had always exercised plenary power over territories. ). 46. See Sparrow, supra note 22, at (arguing doctrine is example of creative pragmatism by Court). 47. See José A. Cabranes, Citizenship and the American Empire: Notes on the Legislative History of the United States Citizenship of Puerto Ricans 50 (1979) ( [T]he Court made it possible, in time, for the nation to accept the principle of self-determination free of the suggestion that statehood was the inevitable destiny of the new colonial territories. ); Burnett & Marshall, Between the Foreign and the Domestic, supra note 28, at 12 ( The Insular Cases... transformed [the] long-held assumption into a congressional power to make an affirmative commitment to grant statehood at some future date a commitment effected by means of the incorporation of a territory. ); see also Arnold Leibowitz, The Commonwealth of Puerto Rico: Trying to Gain Dignity and Maintain Culture, 11 Ga. J. Int l & Comp. L. 211, 220 (1981) ( [W]hat was at issue [in pre-insular Cases legal debates] was whether the usual pattern of territorial evolution leading toward Statehood... would be changed. ). 48. See, e.g., Rassmussen v. United States, 197 U.S. 516, 528 (1905) (holding Alaska territory incorporated into U.S. and Sixth Amendment requirement of trial by jury applicable to territory); Dorr v. United States, 195 U.S. 138, 149 (1904) (finding constitutional right to trial by jury inapplicable in Philippines unless provided by Congress); Hawaii v. Mankichi, 190 U.S. 197, (1903) (holding grand jury and unanimous verdicts requirements inapplicable in Hawaii) U.S. 298 (1922). 50. E.g., H.R. 9533, 64th Cong. (1916); H.R , 62d Cong. (1912); H.R , 61st Cong. (1910); H.R. 96, 61st Cong. (1909); H.R , 59th Cong. (1906); S. 2620, 59th Cong. (1906); S. 2345, 58th Cong. (1903). 51. See Ediberto Román, The Alien-Citizen Paradox and Other Consequences of U.S. Colonialism, 26 Fla. St. U. L. Rev. 1, (1998) [hereinafter Román, Alien-Citizen Paradox] (highlighting congressional opposition to citizenship grant due to racial concerns and fears of mongrelization ); Juan R. Torruella, The Insular Cases: The Establishment of a Regime of Political Apartheid, 29 U. Pa. J. Int l L. 283, 318 (2007) (noting supportive stance from Roosevelt administration but lukewarm endorsement from Taft administration). 52. Jones Act, ch. 145, 5, 39 Stat. 951 (1917) (codified as amended at 8 U.S.C (2006)).

12 808 COLUMBIA LAW REVIEW [Vol. 110:797 residents of Puerto Rico and established a bicameral legislature elected by popular vote. 53 Given Justice White s earlier reliance on the United States s Treaty with Spain and his reading congressional silence regarding the civil and political status of the native inhabitants of the territory as evincing intent not to incorporate Puerto Rico into the Union, the measures contained in 1917 s Jones Act could have arguably been seen as effecting a change in Puerto Rico s status as an unincorporated territory. Indeed, the Court had arguably endorsed this view twelve years earlier in Rassmussen v. United States 54 by holding Alaska was incorporated into the United States by virtue of the Treaty with Russia and subsequent congressional legislation. 55 Calling attention to the Treaty with Russia s express intent to admit inhabitants of the ceded territory... to the enjoyment of all the rights, advantages, and immunities of citizens of the United States, 56 the Court went on to state: This declaration, although somewhat changed in phraseology, is the equivalent, as pointed out in Downes v. Bidwell, of the formula employed from the beginning to express the purpose to incorporate acquired territory into the United States. 57 Five years later, Balzac foreclosed a similar result for Puerto Rico by way of the Jones Act. 58 Writing for the Court in Balzac, Chief Justice Taft rejected the argument that Congress had, in effect, incorporated Puerto Rico into the Union by either legislating for the territory for over two decades or, perhaps more plausibly, via the comprehensive measures set forth in the Jones Act just five years earlier. 59 Chief Justice Taft explained that nothing short of express congressional incorporation or unquestionable congressional action could alter the status of an unincorporated 53. Id. 25, 39 Stat. at 958. The Act also provided for a bill of rights, established a federal district court under Article I of the Constitution, and decreed that all statutory laws of the United States not locally inapplicable... [would] have the same force and effect in Porto Rico as in the United States. Id. 9, 39 Stat. at U.S. 516, (1905). 55. Treaty Concerning the Cession of the Russian Possessions in North America by His Majesty the Emperor of all the Russias to the United States of America, U.S.-Russ., Mar. 30, 1867, 15 Stat Id. art. III, 15 Stat. at Rassmussen, 197 U.S. at Considered the last of the Insular Cases, Balzac involved an appeal by Jesus M. Balzac, a newspaper editor convicted of a criminal libel charge under the laws of Puerto Rico. Balzac was tried and convicted without a jury trial, pursuant to Puerto Rico law, then appealed his conviction on the grounds that, following the passage of the Jones Act of 1917, this procedure violated the Sixth Amendment to the U.S. Constitution. Balzac took his case to the Supreme Court after Puerto Rico s high court denied his request. Balzac v. Porto Rico, 258 U.S. 298, 300 (1922). For a detailed summary of the case s factual background and procedural history see Carlos R. Soltero, Latinos and American Law: Landmark Supreme Court Cases (2006) U.S. at 306 (noting Jones Act did not contain any clause... declar[ing] congressional purpose to incorporate Puerto Rico to United States).

13 2010] A MOST INSULAR MINORITY 809 territory. 60 While Chief Justice Taft did not offer insight as to the nature or form of congressional action necessary for incorporation, he distinguished the example afforded by the Court s treatment of Alaska s citizenship grant in Rassmussen albeit rather thinly. 61 Most importantly, Chief Justice Taft bluntly clarified that citizenship would not determine the Constitution s application within Puerto Rico or within the states, for that matter stating: It is locality that is determinative of the application of the Constitution... and not the status of the people who live in it. 62 In answering the question, what... rights did the [Jones Act] give [Puerto Ricans], Chief Justice Taft interpreted the Act narrowly, responding: It enabled them to move into the continental United States and becoming residents of any State there to enjoy every right of any other citizen of the United States, civil, social and political. 63 This reasoning reaffirmed the view, as presented in Downes and Dorr, 64 that certain undefined constitutional provisions remained inapplicable in Puerto Rico until the territory s formal incorporation. [I]t is reasonable to assume, Taft concluded, that when such a step is taken it will be begun and taken by Congress deliberately and with a clear declaration of purpose, and not left a matter of mere inference or construction Criticism of the Insular Cases. Although still good law, 66 the Insular Cases discussed above have been subject to criticism from commentators since their pronouncement. 67 In light of the federal 60. Id. ( [I]ncorporation is not to be assumed without express declaration, or an implication so strong as to exclude any other view. ). 61. Id. at 309 ( [Alaska] was an enormous territory, very sparsely settled and offering opportunity for immigration and settlement by American citizens.... It involved none of the difficulties which incorporation of the Philippines and Porto Rico presents, and one of them is in the very matter of trial by jury. ). For one commentator s critique of Chief Justice Taft s reasoning, see Juan R. Torruella, The Supreme Court and Puerto Rico: The Doctrine of Separate and Unequal 99 (1988) [hereinafter Torruella, Separate and Unequal] (arguing Chief Justice Taft s reliance on distance from United States, ease of travel and propensity to settlement... added new elements of vagueness to an already uncertain subject matter ). 62. Balzac, 258 U.S. at Id. at See supra notes and accompanying text (explaining extension theory as presented in Downes). 65. Balzac, 258 U.S. at See supra note 16 (noting Supreme Court s recent use of Insular Cases as supporting precedent). 67. See, e.g., Charles E. Littlefield, The Insular Cases, 15 Harv. L. Rev. 169, 170 (1901) ( The Insular Cases, in the manner in which the results were reached, the incongruity of the results, and the variety of inconsistent views expressed by the different members of the court, are, I believe, without a parallel in our judicial history. ); see also Christina Duffy Burnett, A Convenient Constitution?: Extraterritoriality After Boumediene, 109 Colum. L. Rev. 973, 982 (2009) [hereinafter Burnett, After Boumediene] (noting Insular Cases have long been reviled for their commonly-accepted holding that the Constitution does not follow the flag outside the United States ); Luis Fuentes-Rohwer, The Land That

14 810 COLUMBIA LAW REVIEW [Vol. 110:797 Constitution s partial applicability in unincorporated territories, critics have often decried the decisions imperialist or colonial character, 68 as well as the form of second-class United States citizenship the Insular Cases arguably sanction. 69 Several commentators also disapprovingly note the role played by turn of the century racist ideas in the Court s reasoning. 70 Statements such as Justice Brown s warning in Downes, quoted below, lend validity to these concerns: [I]n the annexation of outlying and distant possessions grave questions will arise from differences of race, habits, laws and customs of the people... which may require action on the part of Congress that would be quite unnecessary in the annexation of contiguous territory inhabited only by people of the same race From a historical perspective, much has also been made of the fact that the early Insular Cases stand in uneasy temporal proximity with other discredited Fuller Court decisions, such as Plessy v. Ferguson. 72 Democratic Theory Forgot, 83 Ind. L.J. 1525, 1536 (2008) [hereinafter Fuentes-Rohwer, Land] (stating Insular Cases have nary a friend in the world ). 68. See, e.g., Ediberto Román, Empire Forgotten: The United States s Colonization of Puerto Rico, 42 Vill. L. Rev. 1119, 1148 (1997) [hereinafter Román, Empire Forgotten] (arguing creation of unincorporated territory label allowed the United States... to deceptively change traditional colonial doctrinal parlance ); see also supra note 44 (noting contention that Justice White s use of incorporation nomenclature in Downes served purpose of diluting decision s imperialist tenor). 69. See Román, Alien-Citizen Paradox, supra note 51, at 3 4 (arguing alien-citizen paradox arises from the differential treatment of Puerto Rican citizens as inferior to firstclass U.S. citizens ); Lisa Maria Perez, Note, Citizenship Denied: The Insular Cases and the Fourteenth Amendment, 94 Va. L. Rev. 1029, 1029 (2008) ( By retroactively narrowing the scope of the term United States[ ] [in the Insular Cases], the Supreme Court took advantage of the unique geographical circumstances of the insular territories and prevented their inhabitants from obtaining equal citizenship. ). But cf. Jonathan C. Drimmer, The Nephews of Uncle Sam: The History, Evolution, and Application of Birthright Citizenship in the United States, 9 Geo. Immigr. L.J. 667, (1995) (arguing courts have confined [the Insular Cases] to their immediate holdings and not considered [them] authoritative regarding citizenship determinations or a part of American constitutionalism ). 70. See, e.g., Juan F. Perea, Fulfilling Manifest Destiny: Conquest, Race, and the Insular Cases, in Foreign in a Domestic Sense, supra note 28, at 140, 159 ( The [Downes] Court resolve[d] the tension produced by the conquest and possession of lands populated by racially alien, undesirable people by placing largely unfettered discretion in Congress to determine if and when... conquered territories should become states. ); Soltero, One Hundred Years, supra note 7, at 35 ( The issue of race relations goes to the very essence of the [doctrine of territorial incorporation] since the colonial inhabitants were, and remain, overwhelmingly not Anglos. ). 71. Downes v. Bidwell, 182 U.S. 244, 282 (1901) U.S. 537, 542 (1896) (holding racially-segregated separate but equal public accommodations did not violate U.S. Constitution s Thirteenth Amendment); see José Trías Monge, Puerto Rico: The Trials of the Oldest Colony in the World (1997) [hereinafter Trías Monge, Oldest Colony] (surveying Fuller Court membership and

15 2010] A MOST INSULAR MINORITY 811 B. Puerto Rico under the Commonwealth Arrangement 1. The Creation of the Commonwealth. The federal government controlled most of Puerto Rico s internal affairs throughout the first half of the twentieth century. 73 Despite the Jones Act s creation of an insular bicameral legislature, 74 Congress retained the power to annul its laws at any time. 75 The Insular Cases central holding that Congress retained plenary power over the island even after the Jones Act extended U.S. citizenship to the island s residents buttressed this dynamic. 76 Starting mid-century, however, the Puerto Rican legislature requested, 77 and Congress increasingly granted, greater internal control over insular affairs. 78 Most importantly, in 1950 Congress passed Public Law Titled an Act to provide for the organization of a constitutional government by the people of Puerto Rico, 80 Public Law 600 provided for an insular referendum, held in June 1951, approving the creation of a constitutional convention. 81 Both in Congress and in Puerto Rico, debates over Public Law 600 s terms were fraught with ambiguity regarding what if any would be the law s effect on the island s relationship with the United States. 82 Public Law 600 s first section, describing the legislative measure as being in the nature of a compact, 83 lay at the heart of the confusion. Puerto Rican position taken by each of justices in Plessy and Insular Cases); Torruella, Separate and Unequal, supra note 61, at 3 5 (comparing Plessy and Insular Cases). 73. See generally Trías Monge, Oldest Colony, supra note 72, at (1997) (tracing history of United States involvement in insular affairs through mid-century); see also Rodríguez Beruff, supra note 19, at (tracing role played by U.S. military strategy in Puerto Rico s governance from acquisition through World War II). 74. See supra note 53 and accompanying text (outlining Jones Act provisions). 75. Trías Monge, Oldest Colony, supra note 72, at See supra Part I.A.2 (explaining Balzac Court s reaffirmation of congressional plenary power over Puerto Rico following Jones Act s grant of statutory citizenship). 77. See Autonomy is Asked in Puerto Rico Vote, N.Y. Times, Feb. 11, 1943, at 6 (reporting Puerto Rican Legislature s resolution petitioning Congress to end Puerto Rico s colonial regime and define a permanent political status through a popular vote ). 78. After forty-six years of federally appointed, U.S.-born governors, for instance, President Truman appointed Jesús T. Piñero as the first Puerto Rican to serve as island governor in The following year, Congress passed legislation allowing the island s residents to elect their own governor. See Elective Governor Act of 1947, 7, 48 U.S.C. 737 (2006) (extending rights, privileges, and immunities of citizens of the United States to Puerto Rico). 79. Act of July 3, 1950, Pub. L. No. 600, 64 Stat. 319 (codified at 48 U.S.C. 731b to 731e (2006)). 80. Id. 81. Id. The measure passed with overwhelming support from Puerto Rican voters. See Ronald Fernández, The Disenchanted Island: Puerto Rico and the United States in the Twentieth Century 183 (2d ed. 1996) (noting creation of constitutional convention passed with seventy-six percent voter support). 82. See Trías Monge, Oldest Colony, supra note 72, at (discussing congressional hearings and referendum debates) Stat. at 319.

16 812 COLUMBIA LAW REVIEW [Vol. 110:797 officials endorsed the view that Public Law 600 effectively dissolved the island s status as a territory, creating a bilateral compact that could not be amended without Puerto Rico s consent. 84 By contrast, Senate and House Reports both stated that [Public Law 600] would not change Puerto Rico s fundamental political, social, and economic relationship to the United States. 85 Ambiguity surrounding the new arrangement continued throughout the constitutional drafting process. On March 12, 1952, members of the Puerto Rican constitutional convention forwarded a finalized constitution to President Truman, requesting that he transmit the document for congressional approval. 86 Members of Congress met some of the proposed constitutional provisions with skepticism and explicitly requested others be removed or inserted. 87 These requests distressed their Puerto Rican counterparts who chafed at the implication that Public Law 600 effected no change in Puerto Rico s dependent status. Throughout these discussions, Puerto Rican officials emphasized the fact that island voters had, by democratic referendum, authorized the creation of a constitutional convention. 88 Surely, they argued, Congress would not waste its time enact- 84. This position is known as the compact theory. See Arnold H. Leibowitz, The Applicability of Federal Law to the Commonwealth of Puerto Rico, 56 Geo. L.J. 219, 222 (1967) ( Commonwealth is not a territory covered by the territorial clause of the Constitution... Commonwealth is sui generis and its judicial bounds are determined by a compact which cannot be changed without the consent of both Puerto Rico and the United States. ); Luis Muñoz Marín, Breakthrough from Nationalism: A Small Island Looks at Big Trouble, in Cavilando el fin del mundo 143, 152 (Reina Perez ed., 2005) ( The idea of compact determines a basic change in the relationship. It takes away from the very basis of the relationship the nature and onus of colonialism. It cannot be revoked or changed unilaterally. ). 85. S. Rep. No , at 3 (1950); H.R. Rep. No , at 3 (1950). 86. President s Message to Congress, H.R. Doc. No. 435, 82nd Cong., 2nd Sess. (1952) (transmitting draft constitution to Congress); Trías Monge, Oldest Colony, supra note 72, at 115 (discussing contents of draft constitution). 87. See, e.g., 98 Cong. Rec. H5120 (1952) (statement of Rep. Halleck) (voicing disapproval of proposed constitutional right... to obtain work ); 98 Cong. Rec. H (1952) (defeating Rep. Meader s amendment to Puerto Rican constitution stating nothing herein contained shall be construed as an irrevocable delegation... of the power of the Congress granted by [the Territorial Clause] ); see also Trías Monge, Oldest Colony, supra note 72, at (describing debates in both Puerto Rico and Congress over ratification); Johnny Smith, Commonwealth Status: A Good Deal for Puerto Rico?, 10 Harv. Latino L. Rev. 263, 270 (2007) (describing back and forth ratification process after Congress amended the draft constitution ). 88. See Approving Puerto Rican Constitution: Hearing on S.J. Res. Before the S. Comm. on Interior & Insular Affairs, 82d Cong (1952) (statement of Luis Muñoz Marín, Governor, Puerto Rico) (arguing that following enactment of Public Law 600 Puerto Rico engaged in self government ); supra note 81 and accompanying text (noting overwhelming support for referendum process that gave way to constitutional convention). For a more recent defense of this view, see Alfredo Montalvo-Barbot, Political Conflict and Constitutional Change in Puerto Rico , at 143 (1997) (contending [i]n general, the presentation of the Puerto Rican people as passive agents in the constitutional transformation of the island, an argument advanced by gradualist and traditional colonialist studies, is analytically and empirically simplistic and questionable ).

17 2010] A MOST INSULAR MINORITY 813 ing a purposeless law. Likewise, Puerto Rican officials scoffed, voters would not have shown overwhelming support for a measure that in no way disturbed Congress s plenary power over the island. 89 These concerns went unresolved. Despite anxieties over the proposed constitution, members of Congress expressed concerns about the image that Puerto Rico s continued dependency fostered internationally. 90 Additionally, increased scrutiny from the recently created United Nations, which, since 1948, included Puerto Rico in its list of non-selfgoverning territories, 91 cast a shadow over debates regarding Puerto Rico s constitution. 92 After eliminating two sections and imposing two amendments, Congress approved the proposed constitution on July 3, On July 25, 1952, the Commonwealth of Puerto Rico came into being under the new Constitution Continued Democratic Deficit and Ambiguous Constitutional Status. Under the newly created Commonwealth government, Puerto Rico acquired greater discretion to guide its internal affairs. 95 While the internal effects of the Commonwealth s creation were largely settled from the beginning, Puerto Rico s constitutional posture vis-à-vis the United States 89. See Hearing on S.J. Res., supra note 88, at (statement of Luis Muñoz Marín, Governor, Puerto Rico) ( It is unthinkable that a free people... worthy of American citizenship, should deliberately go to the polls and vote for a status that they conceive as one of inequality. ). 90. See, e.g., Fernández, supra note 81, at 184 ( As Senator Tydings had put it in 1943, [Puerto Rico] was a blot on the American system. ). 91. U.N. Charter art. 73, para e (requiring U.N. members administering territories to transmit regularly to the Secretary General... statistical and other information... relating to economic, social, and educational conditions in the territories for which they are respectively responsible.... ) 92. See Trías Monge, Oldest Colony, supra note 72, at (tracing discussions of Puerto Rico s decolonization in United Nations from 1960 onwards). 93. See Examining Bd. of Eng rs, Architects & Surveyors v. Flores de Otero, 426 U.S. 572, 593 (1976) ( Congress approved the proposed constitution after adding, among other things, a condition that any amendment or revision of the document be consistent with the applicable provisions of the Constitution of the United States. (quotations omitted)). 94. Id. at See Sanchez v. United States, 376 F. Supp. 239, 241 (D.P.R. 1974) ( Public Law 600 did not abridge what sovereign powers Puerto Rico had been granted under [previous organic acts] but rather continued them and... amplified them. ). Control over the island s public education system, for instance, was transferred over to the territory s government. See Carr, supra note 19, at 322 ( [C]ontrol of education... had been transferred to the Puerto Rican government.... ). In 1961, President Kennedy issued a memorandum stating that the relationship between Puerto Rico and the United States was in the nature of a compact and providing for self-government in respect of international affairs and administration, subject only to the applicable provisions of the Federal Constitution... and the acts of Congress authorizing and approving the [Puerto Rican] constitution. Concerning the Commonwealth of Puerto Rico, 26 Fed. Reg (July 25, 1961).

18 814 COLUMBIA LAW REVIEW [Vol. 110:797 remained and continues to be fertile ground for debate. 96 Pursuant to the new arrangement, the Supreme Court has repeatedly found the Commonwealth to be sovereign over matters not ruled by the Constitution of the United States. 97 The Court has further stated, Puerto Rico, like a state, is an autonomous political entity. 98 The Court has also recognized that Puerto Rico occupies a relationship to the United States that has no parallel in [its] history. 99 Since Congress never incorporated the island pursuant to the doctrine of territorial incorporation laid out in the Insular Cases, 100 the Court still continues to anchor congressional power over Puerto Rico on the Constitution s Territorial Clause and has held that Congress... may treat Puerto Rico differently from the States so long as there is a rational basis for its actions. 101 Nevertheless, the extent of Congress s power over Puerto Rico following the establishment of its Commonwealth status and whether that power retains the same expansive plenary form it arguably had following the Insular Cases is unclear. 102 Whether Puerto Rico s new constitution would grant the island representation at the federal level was never in question. Under the Commonwealth structure, Puerto Rico retained partial federal represen- 96. See, e.g., United States v. Lopez Andino, 831 F.2d 1164, 1168 (1st Cir. 1987) (noting the legal relationship between Puerto Rico and the United States is far from clear and fraught with controversy ). 97. Posadas de P.R. Assoc. v. Tourism Co., 478 U.S. 328, 329 (1986) (quoting Calero- Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 673 (1976)); see also Rodriguez v. Popular Democratic Party, 457 U.S. 1, 8 (1982). 98. Rodriguez, 457 U.S. at Examining Bd. of Eng rs, Architects & Surveyors v. Flores de Otero, 426 U.S. 572, 596 (1976) See supra Parts I.A.1 and I.A.2 (tracing territorial incorporation doctrine through Downes and Balzac) Harris v. Rosario, 446 U.S. 651, (1980) (per curiam) See Lisa Napoli, The Legal Recognition of the National Identity of a Colonized People: The Case of Puerto Rico, 18 B.C. Third World L.J. 159, 171 (1998) ( While there is some disagreement as to whether its status has changed since the creation of the [Commonwealth], the weight of the authority appears to be that Puerto Rico remains an unincorporated territory. (footnote omitted)). Compare, e.g., Davila-Perez v. Lockheed Martin Corp., 202 F.3d 464, 468 (1st Cir. 2000) ( Puerto Rico... is still subject to the plenary powers of Congress under the territorial clause.... ), and United States v. Sanchez, 992 F.2d 1143, (11th Cir. 1993) ( Congress may unilaterally repeal the Puerto Rican Constitution... and replace [it] with any rules and regulations of its choice. ), with United States v. Quinones, 758 F.2d 40, 42 (1st Cir. 1985) ( [I]n 1952, Puerto Rico ceased being a territory of the United States subject to the plenary powers of Congress as provided in the Federal Constitution.... Under the compact between the people of Puerto Rico and the United States, Congress cannot amend the Puerto Rico Constitution unilaterally.... ), and Cordova & Simonpietri Ins. Agency Inc. v. Chase Manhattan Bank N.A., 649 F.2d 36, 41 (1st Cir. 1981) ( Puerto Rico s status changed from that of a mere territory to the unique status of Commonwealth.... [T]he federal government s relations with Puerto Rico changed from being bounded merely by the territorial clause... to being bounded by the United States and Puerto Rico Constitutions [and] Public Law 600. ).

19 2010] A MOST INSULAR MINORITY 815 tation granted by 1917 s Jones Act by means of a nonvoting Resident Commissioner in the U.S. House of Representatives. 103 Indeed, despite recent proposals to the contrary, 104 it is questionable that this aspect of the U.S.-Puerto Rico relationship could have been altered at this or any point in time. The Constitution reserves congressional representation and participation in presidential elections as the domain of the states. 105 For all their significance and subsequent criticism, the Insular Cases and the territorial incorporation doctrine have little to say on this matter. It is unlikely, for example, that Puerto Rico s incorporation into the United States would result in greater federal representation for the territory. Consequently, as several commentators have argued, it is doubtful whether Puerto Rico could, constitutionally, secure active representation at the federal level under a structural arrangement that fell short of statehood. 106 II. TAKING HEIGHTENED SCRUTINY OFF THE TABLE Due to Puerto Rico s continued status as an unincorporated territory pursuant to the territorial incorporation doctrine discussed in Part I, the Supreme Court has held that Congress may treat Puerto Rico differently from States so long as there is a rational basis for its actions. 107 These Supreme Court holdings have resulted in Puerto Rico receiving less U.S.C. 891 (2006); see U.S. Gen. Accounting Office, supra note 5, at 27 (discussing creation and evolution of Resident Commissioner position) See, e.g., Gerald L. Neuman, Constitutionalism and Individual Rights in the Territories, in Foreign in a Domestic Sense, supra note 28, at 182, (arguing Constitution does not contain sufficient barriers against colonialism and the fundamental republican defect [is] that the Constitution restricts national representation to the states while giving the national organs governing power over the territories ); Jose R. Coleman Tio, Comment, Six Puerto Rican Congressmen Go to Washington, 116 Yale L.J. 1389, 1390 (2007) (proposing Congress grant legislative representation to Puerto Rico acting under its Territorial Clause powers) U.S. Const. art. I, 2, cl. 1 ( The House of Representatives shall be composed of Members chosen every second Year by the People of the several States. (emphasis added)); U.S. Const. art. II, 1, cl. 2 ( Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.... (emphasis added)); see also Igartua de la Rosa v. United States, 32 F.3d 8, 9 (1st Cir. 1994) ( Pursuant to Article II, therefore, only citizens residing in states can vote for electors and thereby indirectly for the President. ) See, e.g., Christina Duffy Burnett, Two Puerto Rican Senators Stay Home, 116 Yale L.J. Pocket Part 408, 408 (2007), at burnett.html (on file with the Columbia Law Review) ( As a constitutional matter, [Coleman s] proposal is highly questionable. ); John C. Fortier, The Constitution Is Clear: Only States Vote in Congress, 116 Yale L.J. Pocket Part 403, 403 (2007), at yalelawjournal.org/content/view/564/23/ (on file with the Columbia Law Review) (stating Coleman s argument is wrong because the Constitution is clear that only states are represented ); see also Romeu v. Cohen, 121 F. Supp. 2d 264, 285 (S.D.N.Y. 2000) ( [O]nly statehood or a constitutional amendment can provide relief to the people of Puerto Rico. ) Harris v. Rosario, 446 U.S. 651, (1980).

20 816 COLUMBIA LAW REVIEW [Vol. 110:797 favorable treatment than the states under several federal benefits programs, 108 even as the island s population grew increasingly dependent on federal welfare transfers in ensuing decades. 109 This Part discusses the manner in which courts have handled challenges of the unequal fiscal treatment given to Puerto Rico by certain congressional entitlement schemes. This Part also highlights complex issues surrounding Puerto Rico s political status problem that these judicial approaches ignore. 110 Part II.A briefly summarizes the Supreme Court s only opinions thus far to address the applicability of the Fifth Amendment s Equal Protection component to Puerto Rico following the creation of the Commonwealth government in 1952: Califano v. Torres 111 and Harris v. Rosario. 112 Part II.B analyzes these cases against the backdrop of the Court s broader equal protection jurisprudence. Part II.B then discusses Consejo de Salud Playa de Ponce v. Rullan, 113 a recent lower court opinion seeking to tackle unequal disbursement of Medicaid funds 114 by questioning the Insular Cases continuing validity and by declaring Puerto Rico an incorporated territory. Part II.C critiques this judicial treatment and highlights the problems inherent in continuing judicial focus on the debate surrounding territorial incorporation 115 and 108. For example, see infra notes and accompanying text (noting Supplemental Security Income Program does not apply to Puerto Rico). For U.S. citizens residing in Puerto Rico, federal payments under the federal Aid to Families with Dependent Children (AFDC) were made at levels lower than those given to the fifty states and the District of Columbia. Federal funds comprised between fifty and eighty-three percent of states AFDC program. Specific percentages were calculated pursuant to the state s per capita income. Federal funds paid to Puerto Rico under AFDC were fixed at seventy-five percent and subject to a cap on total funding. See S. Rep. No , at 10 (1990). In 1996, Congress drastically reshaped AFDC by passing the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), Pub. L , 110 Stat. 2105, which instituted the Temporary Assistance for Needy Families (TANF) program. As of the 1990 Census, per capita income in Puerto Rico was $4,177. U.S. Dep t of Commerce, 1990 Census of Population and Housing, Summary Social, Economic, and Housing Characteristics: Puerto Rico 191 (1990). The national average was $14,420. U.S. Dep t of Commerce, 1990 Census of Population and Housing, Summary Social, Economic, and Housing Characteristics: United States 228 (1990) See Francisco L. Rivera-Batiz & Carlos E. Santiago, Island Paradox: Puerto Rico in the 1990s 14 (1996) ( Payments made by the U.S. government to persons in Puerto Rico [from ] rose from just over $500 million to over $6 billion annually, and the proportion of personal income accounted for by these... payments nearly doubled, from 15 percent to 29 percent.... ) See infra notes and accompanying text (explaining consensus around democratic resolution for Puerto Rico s status question) U.S. 1 (1978) U.S. 651 (1980) F. Supp. 2d 22 (D.P.R. 2008) See supra note 13 (outlining Medicaid applicability to Puerto Rico) See supra Part I (discussing Supreme Court s creation of unincorporated territory nomenclature); see also infra Part II.A (discussing unincorporated territory

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