By Sebastian Delgado Suarez, Legal Assistant
The United States currently has five territories: Guam, Puerto Rico, American Samoa, the Northern Mariana Islands, and the United States Virgin Islands. Their residents are all American citizens or nationals. But they are citizens without citizenship rights—none of them enjoys voting representation in Congress or the ability to elect the President.
To add to the layer of mysticism, the citizens in these Territories have local governments, but their fates are largely for Congress to determine. That is not all, for Congress can “rule [the Territories] largely without regard to the Constitution.” Now, hearing this, you might think that this is a doctrine of old no longer in tune with the times, but it is as strong as it ever was: The Supreme Court, in an 8-1 opinion on April 21, decided that Congress does not have to treat the Territories equally under the law—in the context of supplementary income from the Social Security Administration, the Territories’ “neediest citizens” are left without recourse.
So why is this allowed?
Flip open your nearest hardcopy (or digital) of the Constitution. Sure, it would be easy to locate the Preamble, powers of the branches, the Bill of Rights, but embedded within one of the world’s most transformative documents is the provision that Congress may “make all needful rules and regulations” respecting the Territories (Article IV, Section 3, clause 2). The clause, however, does not the unequal treatment alone make.
Rather, the most ancient roots of this lie with the Court itself. In a series of 1900s decisions—known as the Insular Cases—the Court held that Congress may operate outside of the Constitution when dealing with the Territories.