Immigration Article of the Day: Aurelius's Article III Revisionism: Reimagining Judicial Engagement with the Insular Cases and "The Law of the Territories" by James Campbell

Aurelius's Article III Revisionism: Reimagining Judicial Engagement with the Insular Cases and "The Law of the Territories" by James Campbell, Yale Law Journal, Vol. 131, No. 2542, 2022

Abstract

The Supreme Court’s unanimous decision upholding the appointments structure of Puerto Rico’s controversial Financial Oversight and Management Board in FOMB v. Aurelius has, to date, yielded commentary fixated on what the Justices did not say. The bulk of that commentary criticizes the Court for declining to square up to and overturn the Insular Cases, the series of early twentieth-century decisions holding that the Constitution does not fully apply to Puerto Rico and other “unincorporated” possessions populated by “savages” and persons of “uncivilized race.” However, Aurelius teaches that the core constitutional problems of territorial exceptionalism and status manipulation run far deeper than the doctrinal framework of the Insular Cases—such that those cases’ ceremonious judicial overthrow is unlikely to spell an end to the harms of the legal order they represent.

Observing the Aurelius Court’s inclination to erase overseas expansion from its account of Article III doctrine, this Article questions the wisdom of urging judicial overthrow of the Insular Cases without a coherent rubric for the many doctrinal universes that might emerge from such an intervention. Together, the framing problems on display in Aurelius and the lessons from the recently overturned Japanese-internment case Korematsu v. United States suggest that although the Insular Cases are plainly indefensible, ill-considered judicial intervention will pose a grave threat to procedurally legitimate self-determination and to path-dependent interests with roots in that troubled framework. This Article reorients a conversation inclined to view judicial overthrow of the Insular Cases as an end in itself toward more informed and productive judicial engagement that secures legal recognition of territories’ agency in charting their own future. Formally condemning or over- ruling the Insular Cases will mean little if judges fail to account for the threshold ambiguities enabling territorial status manipulation across constitutional domains, which Aurelius shows can be effected with or without express reliance on the Insular Cases or the Incorporation Doctrine. Ultimately, this Article proposes a conversation with Federal Indian law as a starting point for theorizing judicial engagement with the Insular Cases and the so-called “law of the territories.”

KJ