Conservative justices question the foundation of U.S. colonial rule

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Every year, students across the country learn the bedrock principle that under the Constitution the federal government is one of limited powers. Less often taught is that the Supreme Court has long rejected this founding ideal when it comes to Native Americans and people in U.S. territories. Instead, a principle known as the court’s “plenary power doctrine” gives Congress near-unlimited power to govern these communities as it sees fit – all without any firm grounding in the Constitution itself. Indeed, under the plenary power doctrine, Congress could go so far as to unilaterally dissolve a tribe or dismiss a territory’s local elected government and install (or re-install) authoritarian military rule, for any reason or no reason at all.

Justices Neil Gorsuch and Clarence Thomas have challenged the constitutional basis for this sweeping plenary power before in the tribal context. But, in a recent dissent from the denial of review in the case of Veneno v. United States, they questioned whether the Constitution grants Congress plenary power over U.S. territories, as well, something no justice has ever said before. This latest development followed earlier calls in 2022 by Gorsuch and Justice Sonia Sotomayor to overrule the Insular Cases, a series of Plessy-era decisions that have served to justify the denial of democracy, equity, and self-determination in U.S. territories. 

These conversations are especially necessary as we approach the 250th anniversary of the Declaration of Independence and the 125th anniversary of the Insular Cases next year. What do foundational values like “consent of the governed” and “all … created equal” mean for the 3.6 million residents of U.S. territories? How can one square the rejection of colonial rule in 1776 with the continued colonial governance of people in Puerto Rico, Guam, the U.S. Virgin Islands, the Northern Mariana Islands, and American Samoa, who have no say in the federal laws they are required to follow and for whom self-determination remains illusory? Perhaps most importantly, what role should all three branches of the federal government play in recognizing that this is a real problem that needs to be addressed now?

Some background

Before digging into the details of these recent legal developments, some historical context on the U.S. territories is in order. The United States has had territories even longer than it has had a Constitution. The Northwest Ordinance of 1787, for example, established the Northwest Territories a year prior to the ratification of the nation’s founding document. The word “territory” only appears once in the Constitution, with what has become known as the “territories clause” providing that “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.” 

From early on, the Supreme Court has been extremely deferential to Congress when it comes to territorial governance, with Chief Justice John Marshall describing congressional power over the territories as “absolute and undisputed.” Yet the understanding – both explicit and implicit – was that territorial status would be temporary, not permanent, with eventual statehood or independence both possibilities. 

At the same time, the court also made clear that congressional “plenary power” over U.S. territories was subject “to such restrictions as are expressed in the Constitution, or are necessarily implied in its terms.” For example, shortly after the 14th Amendment was ratified, the court noted in 1873 that the citizenship clause applied not just to states, but to U.S. territories, as well. And in 1898, Justice John Marshall Harlan wrote it was “beyond question” that constitutional protections to trial by jury “apply to the Territories.”

These well-accepted constitutional limits on congressional power began to be questioned following the 1898 Spanish-American War, when the United States annexed Puerto Rico, Guam, and the (now independent) Philippines. Debate raged as President William McKinley and other avowed “imperialists” sought to exercise full U.S. sovereignty over the people of these new territories, but to avoid recognizing U.S. citizenship, political rights, or certain other constitutional protections for people they deemed subordinate and inferior. To many, the Constitution itself appeared to be an obstacle to the country’s growing desire for overseas colonies.

The solution to this dilemma? The court, in a series of deeply divided decisions known as the Insular Cases, sided with McKinley, inventing a new doctrine to distinguish between so-called “incorporated” and “unincorporated” territories. In the latter, the Constitution would not always be “applicable,” nor would there be any promise of full political membership. This classification was expressly based on “differences of race,” with Justice Edward Douglass White, the author of this new doctrine (and a former Confederate soldier), expressing concerns about “uncivilized race[s]” “completely unfit to receive [citizenship.]” In later cases, the court refused to answer whether people born in Puerto Rico had a constitutional right to citizenship. And even after Congress recognized Puerto Ricans as U.S. citizens in 1917, the court continued to deny them a right to trial by jury.

Today, what constitutional provisions automatically apply in so-called “unincorporated” U.S. territories remains shrouded in uncertainty (which is kind of the point of the Insular Cases). The court has recognized the full application of the First Amendment’s free speech clause, the Fourth Amendment’s protections against unreasonable searches and seizures, the right to due process and equal protection, the right to travel, the appointments clause, and several other provisions. However, the Insular Cases continue to be relied on to deny the application of the citizenship clause, the Second Amendment, and even marriage equality. (It should be noted that some in the U.S. territories have argued the Insular Cases can or should be “repurposed,” based on the belief that the constitutional flexibility they created might be leveraged as a possible good thing for local autonomy.)

Gorsuch’s dissent from denial

That brings us back to the case at hand. In Veneno v. United States, the defendant was convicted of federal assault charges even as both he and the victim were enrolled members of the Jicarilla Apache Nation and the assault occurred on tribal land. Quentin Veneno petitioned the court to reverse his conviction, and, among other things, challenged the court’s 1886 decision in United States v. Kagama, which recognized “the constitutional authority [of Congress] to criminalize the conduct of Indians on Indian land.” Fifteen months later – a long time by court standards – the court denied review, with Gorsuch, joined by Thomas, dissenting from that denial.

The issue of the territories clause arose in Gorsuch’s dissent because it had been invoked by the court in Kagama as a source of authority for congressional intervention into tribal affairs. Rebutting this idea, Gorsuch quoted the text of the territories clause to explain that it “affords Congress only the power to make ‘needful Rules and Regulations’ for ‘Territor[ies] … belonging to the United States,’” and rejected that it could “supply authority for Congress to regulate conduct on tribal lands within States.”

Gorsuch could have stopped there. Instead, he went further – much further – making the bold statement that “[the Territories] Clause, rightly understood,” does not “endow the federal government with plenary power even within the Territories themselves.” Never before had he, nor Thomas, nor for that matter any federal judge, questioned the application of the plenary power doctrine in U.S. territories. Gorsuch thus made it clear that his attack on the plenary power doctrine was not just limited to the tribal context, but extended to claims of unlimited congressional power over U.S. territories, as well.

In support of this far-reaching proposition, Gorsuch cited his concurring opinion in United States v. Vaello Madero, a case upholding the denial of Supplemental Security Income benefits in Puerto Rico. In Vaello Madero, Gorsuch attacked the Insular Cases head on. Specifically, he declared in a concurring opinion that “the Insular Cases have no foundation in the Constitution and … deserve no place in our law.” Gorsuch went on to call these cases “shameful” and based on “ugly racial stereotypes, and the theories of social Darwinists.”

Addressing the scope of federal power over U.S. territories, the cited passages from Gorsuch’s opinion in Vaello Madero quoted Federalist 45 to reject the “doctrine” that existed prior to the American Revolution, “that the people were made for kings, not kings for the people.” He emphasized language from Harlan’s most prominent Insular Cases dissent, declaring: “‘Monarchical and despotic governments’ may possess the power to act ‘unrestrained by written constitutions.’ But our Nation’s government ‘has no existence except by virtue of the Constitution,’ and it may not ignore that charter in the Territories any more than it may in the States.”

Although on opposite sides in Vaello Madero, Sotomayor also expressed the view that the Insular Cases “were premised on beliefs both odious and wrong,” and shared Gorsuch’s “hope [that] the Court will soon recognize that the Constitution’s application should never depend on … the misguided framework of the Insular Cases.”

So what does it all mean?

If one day Gorsuch and Thomas’s rejection of the “plenary power doctrine” and Gorsuch’s and Sotomayor’s calls to overrule the Insular Cases get five votes, what might that mean practically? To be fair, it is not entirely clear.

Recent scholarship has examined the text and history of the territories clause to explore what it would mean for Congress to have broad, but not unlimited, power over U.S. territories. It’s possible that far-reaching congressional actions like unilaterally rescinding local constitutions, dissolving local legislatures or courts, vetoing local laws, or imposing rule by a military or appointed governor – all powers Congress currently claims – could be deemed as exceeding its power to make “needful Rules and Regulations” for people in U.S. territories. Going further, courts could even conclude that “[t]he Constitution does not give Congress a blank check to govern the territories indefinitely as it deems appropriate” – possibly requiring Congress to transition territories to statehood, independence, or some other non-colonial status, through a process of self-determination.

More broadly, rejecting the plenary power doctrine or overruling the Insular Cases could create new political space and pressure for Congress to finally respond to calls from U.S. territories for self-determination and decolonization, much as overruling Plessy v. Ferguson helped serve as a catalyst for Congress to address calls to end segregation and racial discrimination.

But this much is clear: The Supreme Court has played a significant role in shifting the United States from a country founded on the explicit rejection of colonial rule to one that has embraced it for the last 125 years. As Gorsuch explained in his dissent from the denial of review in Veneno, these judicially created doctrines “demand reconsideration if this Court is ever to bring coherence to the law and make good on its promise of fidelity to the Constitution.” “[W]hether the day of reckoning … comes sooner or later, it must come.”