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July|August 2003
Second-Class Citizens By Chris Mooney
Ideology Matters By Katherine Marsh
For the Record By Nicholas Thompson
Is Everything Sacred? By Jori Finkel

Second-Class Citizens

The separate and unequal treatment of our far-flung territories.

By Chris Mooney

IN LATE 1999, AT THE MAIN POSTAL FACILITY in the U.S. territory of Guam, a drug-sniffing dog named "Hooch" singled out a suspicious package mailed from California, which turned out to contain 443.8 grams of methamphetamine. Customs officers removed the contraband, replacing the drugs with rock salt, and set their trap. Under surveillance, a Guam resident named Tuyet Mai Thi Phan signed for the package, drove to a hospital (where she disposed of some of the wrapping), and then proceeded to the apartment of her relative Khanh Phuong Nguyen. There, Nguyen opened the parcel, getting the "clue spray" residue used by drug enforcement agents on her hands in the process. The two were eventually arrested, and in a matter of months, Nguyen and Phan had been indicted and convicted on drug conspiracy charges.

Had Nguyen and Phan not been residents of Guam, they'd likely have exhausted their appeals by now. But when their convictions reached the U.S. Court of Appeals for the Ninth Circuit, which includes nine Western states as well as Guam and the Northern Mariana Islands, a complex procedural mishap catapulted Nguyen and Phan's cases up to the U.S. Supreme Court. The court took an interest not because the cases raised important questions about drug laws, evidence, or criminal procedure but because the Ninth Circuit made the obscure mistake of treating a territory too much like a state.

During a 2002 goodwill visit to U.S. territories in the Pacific, Chief Judge Mary M. Schroeder and Judge Alfred T. Goodwin of the Ninth Circuit allowed Federal District Judge Alex R. Munson of the Northern Marianas to sit on the three-judge panel that considered Nguyen and Phan's cases. It's not uncommon for appellate courts to ask district judges to sit "by designation," as the practice is called, at least when these judges come from one of the 50 states or the District of Columbia. But Munson, the only federal judge in the Northern Marianas, is a different kind of district judge. Typically, district judges are appointed under Article III of the U.S. Constitution, the section that grants Congress the power to establish a federal judiciary. Munson, however, is an Article IV judge, appointed under the section of the Constitution that grants Congress the power to govern the U.S. territories. To safeguard their independence, Article III judges are appointed for a lifetime term with a salary that cannot be reduced. Munson, on the other hand, is serving his second limited term of 10 years and receives an unprotected salary that could be lowered by Congress.

The case currently before the Supreme Court revolves around the question of whether the Ninth Circuit's unanimous decision to affirm the convictions of Nguyen and Phan is "invalid" because the "panel that issued it included a non-Article III judge"—or, as Justice Anthony Kennedy put it during oral arguments, whether a federal court of appeals can be "an Article III court one day, [and] an Article IV court the next."

Phan and Nguyen are the latest cases to expose the troublesome nature of territorial status. They won't be the last. The University of Texas constitutional law professor Sanford Levinson calls the current dispute over Article III judges a "wormhole" into larger questions about how the U.S. governs its far-flung possessions, including Guam, the Northern Mariana Islands, the Virgin Islands, Puerto Rico, and American Samoa, which have a combined population of 4.4 million. How did the first three end up with judges who have less status and independence than federal judges in the states? Why does Puerto Rico, the most populous of the territories, have Article III judges even though it too is an "unincorporated" territory? The inconsistent treatment of the territories, and their ongoing political disenfranchisement and powerlessness before Congress, arguably violates international law. The Supreme Court may avoid dealing with the mess of territorial law in the current cases, but it will be hard for it to keep doing so—especially since this is a mess of the court's own making.

LOCATED IN THE NORTH PACIFIC TO THE SOUTH OF JAPAN, Guam is the southernmost island of the Marianas archipelago. At roughly three times the size of Washington, D.C., it's also the biggest and the most populous. Most of Guam's 160,000 residents belong to the Chamorro ethnic group, as do most other Mariana Islanders. Along with Puerto Rico, Guam was acquired in 1898 as part of the spoils from the Spanish-American War, and it remains home to a U.S. military base of continuing strategic importance. (In March, as the standoff with North Korea grew more tense, the Pentagon dispatched two dozen B-1 and B-52 bombers to Guam, putting them in range of North Korea's nuclear complex.) A significant part of Guam's economy is driven by the U.S. military presence on the island, particularly at a time when tourism from Japan has fallen off due to the Japanese economic downturn and regional security concerns.

The rest of the Marianas were Japanese possessions until the United States took them by force in the waning days of World War II. (The Enola Gay was launched on its Hiroshima mission from the Northern Marianas island of Tinian.) After the war, the Marianas were folded into the American-administered Trust Territory of the Pacific Islands, along with other Micronesian islands, such as Palau and Yap.

In the 1950s, the Marianas sought reunification with Guam, and when that failed, they aspired to the same territorial status as their southern relative, despite the fact that Guamanians themselves ardently denounce that status as "colonialism." In 1978, as the other members of the Trust Territory moved to loosen their ties with the United States, the Northern Marianas voluntarily placed themselves under U.S. territorial control by becoming a commonwealth. The covenant with the U.S. allowed the Marianas to regulate immigration and set their own minimum wage. Like Puerto Rico, the Commonwealth of the Marianas has its own internal government, but it is ultimately ruled by Washington, which can pass laws to govern the islands—and other U.S. territories—despite their lack of representation in Congress. Recently, Congress considered unilaterally revoking the Marianas' ability to control immigration and labor standards because of a stream of reported abuses in the territory's garment industry, which has imported many foreign workers to toil under sweatshop conditions.

The subordinate status of these possessions traces back to a series of early-twentieth-century Supreme Court decisions collectively known as the Insular Cases. The cases arose in the wake of America's annexation of Guam, Puerto Rico, and the Philippines and concerned the legality of U.S. imperialism, a subject that was hotly debated during the 1900 presidential election between William McKinley, an expansionist, and William Jennings Bryan, an anti-imperialist.

The expansionists took a narrow view of the Constitution's jurisdiction over newly acquired possessions, arguing that the document applied only to states and that the United States could do as it pleased in the territories, essentially emulating European practice. The anti-imperialists, for their part, argued that it would be absurd for the United States to grant all of the rights enjoyed by its citizens to the residents of the territories.

Neither side wanted the new territories to become states; both were convinced that, racially and culturally, their inhabitants weren't fit to participate in the American form of government. The difference was that the anti-imperialists thought such participation would be inevitable if the United States were allowed to possess territories at all, which is what they really opposed. But their side did not win out. Though divided, the Supreme Court—the same court responsible for the now infamous Plessy v. Ferguson decision—came down in favor of colonial rule in the newly acquired territories. As one Insular case put it, when the United States takes control of "territory peopled by savages . . . Congress has unquestionably full power to govern it, and the people."

The Insular Cases created a new legal category for the new possessions, as Christina Duffy Burnett and Burke Marshall explain in Foreign in a Domestic Sense: Puerto Rico, American Expansion, and the Constitution. Unlike previous territories that had become states, these would be "unincorporated territories," not quite part of the United States for constitutional purposes but also not exactly foreign. In practice, unincorporated territories could be kept under Congress's thumb indefinitely—as Guam and Puerto Rico have been for over a century—and never put on the track to either statehood or independence.

Individually, the more than 20 Insular Cases concerned the applicability to territories of particular constitutional provisions, such as the Fifth and Sixth Amendment rights to indictment by grand jury and trial by petit jury or the Uniformity Clause, which requires that "all duties, imposts, and excises shall be uniform throughout the United States." Each such provision, the court found, did not automatically apply to territories, though it could be made to apply by statute.

Territorial residents also lacked any of the rights or privileges accorded to the inhabitants of states under the federal system, such as the ability to participate in elections or have Congressional representation. Instead, the Insular Cases asserted that residents of the territories enjoy only certain "fundamental" rights, such as free speech and equal protection.

The Insular Cases allowed the territories to be treated differently from the states. U.S. citizens living in Puerto Rico, for example, cannot vote in presidential elections unless they establish residency in, say, New York; location alone determines whether U.S. citizens enjoy full rights or the limited rights granted to territorial residents. The Insular Cases also allow different unincorporated territories to be treated differently. Residents of American Samoa are not U.S. citizens; residents of the Marianas are U.S. citizens, but unlike those in the other territories, they lack even a nonvoting representative in Congress. Alone among the territories, Puerto Rico has Article III federal district judges, a privilege granted by Congress in 1966 to ensure these judges' independence from the then newly created commonwealth government. "There's no rational basis for having Article III courts in Puerto Rico and then not having Article III courts in the other territories," observed Howard Hills, an attorney who served as a territorial law and policy adviser in the Reagan Administration.

But whenever legal challenges to various territorial arrangements arise, the Department of Justice is quick to defend the status quo. It cites the Insular Cases to prove that the rights of territorial residents are limited and that, in the territories, Congress can more or less legislate as it pleases. The posture may seem puzzling given the racist language used in the Insular Cases, but the explanation is more mundane than nefarious: Because these cases have been cited for so long, not citing them would require coming up with a new way of explaining the status of the territories.

The Justice Department's position isn't entirely the result of a century of legal inertia, however. The logic of the Insular Cases could be extended to justify various forms of federal action outside the territories—for example, at military bases overseas—and the executive branch naturally wants no limitations placed on its activities in those locales. "If you really start believing that the Constitution follows the flag, then Guantanamo, and for that matter our bases in Afghanistan, really come into play," Levinson explained.

The solicitor general's brief in Nguyen and Phan conforms to the tried-and-true practice of citing the Insular Cases, in this case to assert that Nguyen and Phan, as territorial residents, were essentially lucky that their case made it to the Ninth Circuit in the first place. Territorial law expert Howard P. Willens, who represented what would become the Northern Marianas in their bilateral negotiations with the United States and co-wrote a history of the process, points out that the courts have traditionally accepted these arguments. "The courts of appeal have all continued to use the Insular Cases," Willens said. "Anyone who thinks seriously about it would like to see some other rationale used for Congressional power in the territories."

IN THE ORAL ARGUMENTS IN NGUYEN AND PHAN, Justice Ruth Bader Ginsburg skirted the unequal treatment of the territories. She asked attorney Jeffrey Green, who was representing the petitioners, what the problem was with having their case heard by an Article IV judge when they were territorial residents. "Your client has no entitlement to an Article III tribunal either at trial or on appeal," she pointed out, which is true even though Guam residents are U.S. citizens. Attorney Patricia Millett of the Solicitor General's Office echoed Justice Ginsburg's point, repeatedly reminding the court of "the very limited constitutional rights to a particular form of tribunal accorded to people in the territories."

The court in Nguyen and Phan seemed little inclined to get much beyond the simple question of whether the Ninth Circuit was "improperly constituted" when it allowed a territorial judge to participate in its decision making. At oral arguments the court paid little heed to an amicus brief submitted by another territorial judge, Thomas K. Moore of the Virgin Islands. Moore hoped to bring the focus back to the Insular Cases, complaining that their precedent had "allowed Congress to anoint territorial judges with the judicial power of the United States without also cloaking them with the full independence Article III requires." When Green observed that Moore believes his Article IV status compromises his position as a judge, since those in political power control his appointment, Justice Antonin Scalia shot back, "He should resign if he feels that way." Green countered that Moore "prefers that you convert him to an Article III judge." Scalia replied, "I'm sure he does."

But if Moore is ignored, he may make some legal noise on his own. As of this April, Moore had yet to decide a case called Ballentine v. United States, in which the Virgin Islands resident and U.S. citizen Krim Ballentine is suing the government on the grounds that he has been "denied his constitutional right to a regular voting representative in Congress and his right to vote in presidential elections." Ballentine was born in the continental United States and served in the Army and as a U.S. marshal, and yet he still lost his ability to vote in presidential elections when he moved to the Virgin Islands. Moore has already written an order in Ballentine announcing plans to consider the applicability of international law to the disenfranchisement of Virgin Islands residents. As Moore points out, the Islands, purchased by the United States from Denmark in 1917, are one of a small handful of "non-self-governing territories" currently subject to the ongoing United Nations decolonization campaign. Since 1945, this campaign has helped 80 colonies to change their status, most recently East Timor.

In his order in Ballentine, Moore called the Insular Cases a "thoroughly ossified set of cases marked by the intrinsically racist imperialism of a previous era of United States colonial expansion." As if this weren't enough of a signal of how he plans to rule, Moore also scathingly rebuked the U.S. government's claim that petitioner Krim Ballentine's arguments are "specious" since he resides in an unincorporated territory, and thus has no right to vote for president or have representation in Congress. "I am not willing to override so cavalierly the plaintiff's sensibilities," wrote Moore, "for I share them."

While an opinion stating that the United States was denying voting rights to its 123,000 citizens living in the Virgin Islands would be a bombshell, it would not be as outlandish as it sounds—Moore has a body of international law to rely on. At the judge's request, Yale Law School's Allard K. Lowenstein International Human Rights Law Clinic filed a brief in Ballentine arguing that "the Virgin Islands remain in a state of colonialism" and that the United States has been remiss in honoring its obligations under the U.N. Charter to promote self-government for the territory. The brief also argues that the International Covenant on Civil and Political Rights, which the United States has ratified, applies to the Virgin Islands. Under the ICCPR, any distinction between the rights accorded to U.S. citizens living in territories and those of citizens in the states that is neither "reasonable nor objective" is prohibited. Among other things, the ICCPR requires that all U.S. citizens have equal access to positions within the federal government, a right violated by a resident's inability to become an Article III judge in the Virgin Islands.

JUDGE MOORE'S CREDIBILITY ON THIS ISSUE may be compromised by what at times seems like his obsession with it. In an opinion in a Virgin Islands immigration case recently reviewed by the Third Circuit, Moore again cited the Insular Cases in overturning the Virgin Islands' unusually stringent immigration requirements. In that opinion, he denounced the fact that Puerto Rican judges have been granted Article III status as a form of "double discrimination," writing that "Congress not only treats the Virgin Islands differently from all the States but also treats it differently from our fellow unincorporated territory of Puerto Rico." As this language suggests, allowing the precedent of the Insular Cases to continue to govern the territories can lead to rivalries between them. "Anything you do to improve the Guam commonwealth, Puerto Rico will say, 'our commonwealth should be able to have that too,' " explained Dan MacMeekin, a territorial law expert who in the 1980s directed a president-appointed commission charged with determining the applicability of federal law to the Northern Mariana Islands.

In April, Moore's decision in the immigration case was reversed by the Third Circuit, which reprimanded Moore for conducting "an improper investigation into whether the Virgin Islands should be viewed differently from other places in the U.S. for the purposes of controlling immigration." Moore, however, is not the only federal judge, or the most distinguished, to threaten to use judicial powers to deal with discrimination against territorial residents if Congress does not take the initiative to fix the problem. In the 2000 case Igartua De La Rosa v. United States, the First Circuit ruled unanimously that Puerto Rico, which holds a presidential primary, nevertheless could not vote in a U.S. presidential election because only states can constitutionally participate in the Electoral College. But then-Chief Judge Juan R. Torruella, who is Puerto Rican and works on the island, took the occasion to write a concurring opinion in which he observed that although the decision was "technically and, as the law now stands, legally correct," he felt unable to remain silent because "there are larger issues at stake." "To this day," wrote Torruella, Puerto Ricans "continue to have no real say in the choice of those who, from afar, really govern them." The judge saw fit to "serve notice upon the political branches of government that it is incumbent upon take appropriate steps to correct what amounts to an outrageous disregard for the rights of a substantial segment of its citizenry." "Failure to do so," Torruella concluded, "countenances corrective judicial action."

Torruella's dissatisfaction is of a piece with that of other leading Puerto Rican scholars and judges. Judge José Cabranes of the Second Circuit has written of Puerto Rico that "colonialism is a simple and perfectly useful word to describe a relationship between a powerful metropolitan state and a poor overseas dependency that does not participate meaningfully in the formal lawmaking processes that shape the daily lives of its people." Whether because of Moore, Torruella, or another judge, the U.S. Supreme Court will likely have to revisit the Insular Cases and their legacy eventually. Maybe the case they consider, following upon Nguyen and Phan, will question Puerto Rico's Article III district judges. After all, these judges sit and hear cases by designation on the First Circuit, just as Munson did on the Ninth.

It's certainly true that Puerto Rico has more judges, is far more populous, and is much more politically and economically developed than the Northern Mariana Islands; it is essentially a U.S. state in everything but name. But legally speaking it remains an unincorporated territory, just like the Northern Mariana Islands. Is saying "Congress can do whatever it wants" and citing the Insular Cases enough to explain why Puerto Rico gets one kind of judge and the other territories do not?

There is no shortage of legal reasons why the United States should reconsider its treatment of the territories. It may take a political reason, however, to effect any kind of change. Territorial residents have been regularly involved in fighting in the nation's defense, even though they can't vote for their commander-in-chief. "A lot of people here are serving in the U.S. military and serving as U.S. citizens," Samuel McPhetres, a historian at Northern Mariana Islands Community College, pointed out. The Supreme Court may very well decide that drug smugglers Phan and Nguyen weren't entitled to an all-Article III appeal. It's harder to imagine how the court would explain why those willing to die defending a nation at war do not deserve its full political rights during peacetime.

Colonial Ruling
From a concurring opinion of Judge Juan R. Torruella of the First Circuit Court of Appeals, in Igartua De La Rosa v. United States. The court ruled unanimously that residents of Puerto Rico, an unincorporated territory, could not vote in a U.S. presidential election because the U.S. Constitution allows only states to participate in the Electoral College.

THE PRESENT CONUNDRUM CANNOT BE JUSTIFIED OR PERPETUATED FURTHER under the subterfuge of labeling it a "political question." Undoubtedly, this situation is "political" in the sense that it involves the political rights of a substantial number of United States citizens. It is also "political" because it is one that should, in the normal course of things, be resolved by the political process and the political branches of government. But in the final analysis, this problem is no more "political" than that presented to and resolved by the Supreme Court in Brown v. Board of Education, one that required corrective judicial action even in the face of longstanding legal precedent. In Brown, the Court recognized that, as the ultimate interpreter and protector of the Constitution, it must at times fill the vacuum created by the failure or refusal of the political branches to protect the civil rights of a distinct and politically powerless group of United States citizens. . .

The United States citizens residing in Puerto Rico are caught in an untenable Catch-22. The national disenfranchisement of these citizens ensures that they will never be able, through the political processes, to rectify the denial of their civil rights in those very political processes. This uninterrupted condition clearly provides solid basis for judicial intervention at some point, one for which there is resounding precedent. . .

After more than a century of United States possession of Puerto Rico, there continues to be tremendous debate over the status of the island and the nature of its relationship with the United States. Certainly the citizens of Puerto Rico are divided on the issue, a condition which has permitted the federal government to externalize this question. What is established, for the time being at least, is that the federal courts continue to recognize the almost absolute power of Congress to unilaterally dictate the affairs of Puerto Rico and her people. So long as that is the case, the practicality of the matter is that Puerto Rico remains a colony with little prospect of exerting effective political pressure on the elected branches of government to take corrective action. . .

Although this is not the case, nor perhaps the time, for a federal court to take remedial action to correct what is a patently intolerable situation, it is time to serve notice upon the political branches of government that it is incumbent upon them, in the first instance, to take appropriate steps to correct what amounts to an outrageous disregard for the rights of a substantial segment of its citizenry. A failure to do so countenances corrective judicial action.

Chris Mooney is a contributing writer for The American Prospect.

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