An Overdue Overturning: The Insular Cases and the Need for Heightened Judicial Review for Puerto Rico

By: Luis Manuel Rico Román



In the aftermath of Hurricane Maria, which left the entirety of Puerto Rico without power, President Donald Trump visited the island. Towards the end of his trip, President Trump began tossing paper towels into a crowd — as if he were a rock star tossing T-shirts to a concert crowd. This conduct, while disrespectful, perhaps serves as an allegory of the United States’ treatment of Puerto Rico throughout the island’s history.

Despite being U.S. citizens, Puerto Ricans are treated as second-class citizens who are not afforded most of the fundamental rights of mainland Americans. Most notably, Puerto Ricans are not allowed to vote in U.S. elections. This second-class treatment is the result of Puerto Rico’s territorial status as an “unincorporated territory.” The constitutional backbone of this arrangement was cemented by the Supreme Court in the Insular Cases of the early 1900s. These cases, which justified the United States’ colonial expansion and unilateral control over its territories, are still held as good law today. In light of the disparate treatment Puerto Ricans receive and the racist context in which the Insular Cases were written, it is time for American jurisprudence and the Supreme Court to overturn these cases and create a new constitutional framework that affords Puerto Ricans the constitutional rights they deserve.


The Legal Framework Supporting Unequal Treatment of Puerto Ricans

In 1898, the United States acquired Puerto Rico in the Spanish-American War. Puerto Rico is still a U.S. territory today and – as the Commonwealth of Puerto Rico – it is an unincorporated territory of the United States.

The Insular Cases dictate the constitutional rights of Puerto Ricans. In the first set of cases in 1901, the Supreme Court upheld that unincorporated territories are inhabited by “alien races,” differing from the United States in customs and modes of thought. Such “alien races” are not able to understand “Anglo-Saxon principles” and are therefore unable to govern themselves. Thereafter, in 1917, Congress passed the Jones Act which granted statutory citizenship to all residents of Puerto Rico. This immediately raised questions about the extent to which the U.S. Constitution would apply to residents of Puerto Rico. Another Insular Case, Balzac v. People of Porto Rico, provided the answer in 1922. Justice Taft rejected the argument that Puerto Rico had been incorporated into the Union via the Jones Act. Per Taft, nothing short of congressional incorporation or congressional action could alter the status of Puerto Rico. Most importantly, the Court held that the Constitution didn’t apply in full effect to the territories — only fundamental rights were automatically in effect. Essentially, inhabitants of unincorporated territories lack constitutional rights despite being U.S. citizens.

The holdings in these cases would affect future unequal treatment lawsuits by residents of Puerto Rico. For example, in Califano v. Torres, when a resident of the state of Connecticut moved to Puerto Rico, his benefits under the Supplemental Security Income (“SSI”) program were terminated. This program provides benefits for qualified aged, blind, and disabled persons. He decided to sue over the loss. The Supreme Court held that the unequal treatment was constitutional under rational basis review. In a similar case, Harris v. Rosario, plaintiffs challenged the Social Security Act, specifically the Aid to Families with Dependent Children program. Plaintiffs claimed that the lower level of aid provided to Puerto Rico violated the Fifth Amendment’s equal protection guarantee implied by the Amendment’s due process clause. The Supreme Court, however, held that classifications providing for differential treatment of Puerto Ricans would be constitutional so long as there is a rational basis for its actions.


The Effects of the Insular Cases

The Insular Cases only served to create disparities between the residents of Puerto Rico and other U.S. citizens. As demonstrated in Califano and Harris, Puerto Ricans can legally receive lower levels of funding from federal programs. This lower level of funding is also applicable to Puerto Rico’s Medicaid program, resulting in many Puerto Ricans not receiving the same healthcare coverage they would receive under Medicaid if they resided in the mainland United States. These disparities, however, go far beyond lesser funding from federal programs. Critically, Puerto Ricans are not allowed to vote in U.S. elections. Moreover, it is unclear what “fundamental” constitutional rights are applicable to Puerto Rico’s residents. Most recently, in 2015, then-Governor of Puerto Rico Alejandro Garcia Padilla announced the island’s outstanding debt of $72 billion was “unpayable.” Due to Puerto Rico’s territorial status as an “unincorporated territory,” Puerto Rico could not default on its debt, which only further strained the island’s economy.

These disparities are exacerbated by Puerto Ricans’ lack of voting representation in Congress. The Resident Commissioner of Puerto Rico to the United States Congress is a non-voting congressional member. This nullifies the ability of residents of Puerto Rico to draw congressional members’ attention to the important social, political and economic issues affecting the island. For example, in 1945 the U.S. Navy began using the municipality of Vieques for live-fire exercises. Despite protests from the residents of Vieques, these military practices would continue, eventually becoming routine bombings carried out as military exercises. In 1999, a bombing exercise killed a civilian security guard and left four others wounded. Thereafter, mass protests continued until President Bush announced the Navy would leave Vieques. It took a little over fifty years for the U.S. to take action on the Vieques Navy exercises. By contrast, when the U.S. Navy used the Hawaiian island of Kahoolawe as a practice ground, Hawaiian congressional members secured legislation terminating these practices within ten years.

A more recent example of the disparities in the treatment of Puerto Rico and mainland states is the federal response to Hurricane Maria (which hit Puerto Rico) versus federal aid to Hurricane Harvey (which hit Texas). Response to Maria lagged behind the response to Harvey in several areas. Despite both being category four hurricanes, Puerto Rico received almost $4,000 less of housing assistance per household, on average, for Maria than Texas did for Harvey.

As a result of these inequalities, there is an ongoing factitious debate in Puerto Rico about the island’s territorial status. The question of whether Puerto Rico should join the Union as a state has been one of the most divisive issues on the island for decades. Other alternatives to statehood include maintaining the current “territory” status or becoming an independent nation. This issue is one that will likely not be resolved anytime soon due to discord amongst residents of Puerto Rico. Nonetheless, there is an alternative that could help alleviate disparities.


Overturning the Insular Cases?

The Insular Cases were written in a racist and imperialist context that does not hold up in contemporary times. The Supreme Court has previously overturned decisions written with similarly racially antagonistic motives. For example, until recently, jury verdicts in criminal trials did not have to be unanimous. In Ramos v. Louisiana, the Supreme Court overturned the constitutionality of non-unanimous juries, recognizing that non-unanimous juries were declared constitutional in a racist context. Similarly, Plessy v. Ferguson’s “separate but equal” racial mandate was overturned by Brown v. Board of Education. Recognizing the motivations of the judges who wrote the Insular Cases is the first step in creating a path to achieving equal rights under the law for Puerto Ricans.

In addition, it is critical that Puerto Ricans’ demands for equal treatment receive a higher level of scrutiny under the equal protection clause. Rational basis review will merely ensure the status quo. One alternative is that the Court recognize Puerto Ricans as a discrete and insular minority. Any statute discriminating against Puerto Ricans would automatically trigger heightened scrutiny. This may be too much, in the Court’s eyes, given that Puerto Rico remains an “unincorporated territory.” Another alternative suggests the Supreme Court apply a heightened rational basis review similar to that in Plyler v. Doe. In this case, the Court invalidated a statute barring children who were not U.S. citizens from state education fund eligibility. Scholars argue that this approach would help the courts play a bigger role in declaring unequal treatment statutes unconstitutional. Any heightened judicial scrutiny approach would help ensure that critical federal welfare programs could not outright discriminate against Puerto Ricans. This does not mean the U.S., nor the Supreme Court, would embrace Puerto Rico as a state. That decision is ultimately one that should be left to the people of Puerto Rico. Instead, it means that Puerto Ricans would be recognized as equal U.S. citizens deserving of constitutional protections and not as “alien races” unable to “understand Anglo-Saxon principles.”

Progress is being made, as lower court judges sometimes declare the racist rationales behind the Insular Cases unconstitutional. Moreover, in Harris v. Rosario, Justice Thurgood Marshall wrote a dissent where he noted that the Insular Cases were questionable. However, in a conservative-led Supreme Court, the hope for overturning the Insular Cases may be slim. Perhaps settling the island’s territorial status, whichever its outcome, might not be such a bad alternative to ending the disparities supported by this legal regime after all.

LRomanHeadshotAbout the Author: Luis Manuel Rico Román is a 2L student at Cornell Law School. He received his undergraduate degree in German and Government & Legal Studies from Bowdoin College. Before attending law school, he conducted research in Germany under a Fulbright Research Fellowship on refugee integration policy.



Suggested Citation: Luis Manuel Rico Román, An Overdue Overturning: The Insular Cases and the Need for Heightened Judicial Review for Puerto Rico, Cornell J.L. & Pub. Pol’y: The Issue Spotter (Nov. 16, 2020),