NYSBA Acts on Unjust Insular Cases Ahead of Possible Supreme Court Review

By Brandon Vogel

NYSBA Acts on Unjust Insular Cases Ahead of Possible Supreme Court Review

7.22.2022

By Brandon Vogel

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The New York State Bar Association’s Executive Committee voted Tuesday to approve a resolution declaring that all citizens of the United States including residents of the U.S. Territories be treated equally and afforded the same rights.

“This resolution allows for The New York State Bar Association to join the fight for equal treatment for the residents of the U.S. Territories and the fight to urge the U.S. Supreme Court to overturn the so-called Insular Cases,” said Sherry Levin Wallach, president of the New York State Bar Association.

The Insular Cases are rulings that the U.S. Supreme Court and lower courts have relied on to justify unequal treatment of the residents of the territories that the United States gained in the Spanish American War and in the early 20th Century — the U.S. Virgin Islands, American Samoa, Guam, the Northern Mariana Islands and Puerto Rico.

The Executive Committee on Tuesday also agreed to file a joint resolution with the Virgin Islands Bar Association that would ask the American Bar Association’s meeting in August to pass a similar resolution and join in these efforts. The purpose of the resolution is to put the force of the ABA behind efforts to overturn the Insular Cases.

Anthony Ciolli, a past president of the Virgin Islands Bar Association and a special assistant to the chief justice of the Virgin Islands, worked alongside the New York State Bar Association to craft the resolution.

“This is one of the biggest diversity issues of our time,” Ciolli said. “We cannot truly say that as a nation we’re committed to diversity, equity and inclusion until all the citizens of the United States are treated equally. After all, our Constitution guarantees it.”

The rulings have been challenged in multiple legal venues, and last spring the U.S. Supreme Court refused to overrule the Insular Cases and denied Jose Louis Vaello-Madero, a Puerto Rican New Yorker, his Social Security benefits when he became a resident of Puerto Rico. In his concurring opinion, Associate Justice Neil Gorsuch made it clear that he believes the court should make amends for its mistakes regarding the territories.

“A century ago in the Insular Cases, this court held that the federal government could rule Puerto Rico and other territories largely without regard to the Constitution,” Gorsuch wrote in April. “It is past time to acknowledge the gravity of this error and admit what we know to be true: The Insular Cases have no foundation in the Constitution and rest instead on racial stereotypes. They deserve no place in our law.”

On June 1, the first day of Levin Wallach’s presidency, NYSBA launched a task force to review the laws and court decisions that have led to second-class citizenship and unequal treatment for American citizens who live in the U.S. territories and make recommendations to create equality.

Experts on NYSBA’s Task Force on the U.S. Territories believe they can appeal to the U.S. Supreme Court’s newfound commitment to originalist interpretation by stressing that the “Insular Cases” are an affront to the Constitution that was created by anti-colonialists.

The Supreme Court is expected to consider whether to take up Fitisemanu v. United States, at a conference in October. The plaintiffs argue that citizens of American Samoa should have the same rights and privileges as residents of the fifty states. If review is granted, the court will issue a briefing schedule and amicus briefs would be due by November or December.

About the New York State Bar Association
The New York State Bar Association is the largest voluntary state bar association in the nation. Since 1876, NYSBA has helped shape the development of law, educated, and informed the legal profession and the public, and championed the rights of New Yorkers through advocacy and guidance in our communities.

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