Talk:Insular Cases

Armstrong v. United States
Armstrong v. United States forms an improper link to Insular Cases. See: volume # 80. Someone ought to steadfastly correct the misguided link. Superslum 05:55, 7 July 2006 (UTC)
 * As I have said a million times before, 99% of the time if you ask someone to do something on a talk page, it will be ignored. Travb (talk) 07:12, 7 July 2006 (UTC)
 * To address the issue Superslum raises, it is not actually a "misguided link". The redirect is deliberate. The reason that Armstrong v. United States redirects to Insular Cases is because 1) it is considered one of the insular cases (as you can see from the list on the article) and 2) there is not currently any article specifically on Armstrong v. United States. So, rather than simply having a red link, the case links to the next best source of information available. If you want to write an article about Armstrong v. United States, go right ahead, that would be just super. older ≠ wiser 12:29, 7 July 2006 (UTC)
 * There are a flock of troublesome titles of United States Supreme cases.


 * United States v. Ballard (1872) and United States v. Ballard (1944) must be kept apart (somehow). I favor the extending of the titles by adding on the year of each case, placing the year in parenthesis.
 * Armstrong v. United States (1901) is one of the "insular cases," however, it must be kept apart from the earlier case, which was not involved with Hawaii (the "insula"). Superslum 13:03, 9 July 2006 (UTC)
 * There are poor links in volumes #58 and #60, Stewart v. United States; volume #68, Commander-in-chief; volume #70, The Herald; and in volumes #72, #73, #75, #76, #78, #79, #80, and #81. I had examined Volumes #40 through #91, and noticed flawed links.  Superslum 13:03, 9 July 2006 (UTC)


 * I suggest bringing this up at WikiProject U.S. Supreme Court cases. There should be a consistent style for disambiguating between court cases. I'm only tangentially interested in the cases--you'll find more interested and knowledgeable editors at the project talk page. older ≠ wiser 13:52, 9 July 2006 (UTC)
 * I placed some commentary on that Project. I had not known that there was a Project.  Someone else can do a better job with the flawed titles than I can.  I am returning to submitting biographies.  Superslum 16:21, 9 July 2006 (UTC)

Boumediene v. Bush, ___U.S.___, 128 S. Ct. 2229 (2008)
I am just citing Consejo de Playa de Ponce v. Johny Rullan, Secretary of Health of the Commonwealth of Puerto Rico case regarding Boumediene v. Bush:

''The latest expression from the Supreme Court on the Insular Cases occurred on June 12 of this very year in Boumediene v. Bush, ___U.S.___, 128 S. Ct. 2229 (2008). This case involved aliens detained as enemy combatants at the United States Naval Station in Guantanamo Bay, Cuba, who petitioned for writs of habeas corpus. Guantanamo Bay is not formally part of the United States, and under the terms of the 1903 lease between the United States and Cuba, the latter nation retained ultimate sovereignty over the territory, while the former nation exercises complete jurisdiction and control. Id. at 2251-52. Based on the federal control over the Cuban property, the Court applied the Insular Cases to hold that the detained enemy combatants were entitled to the protection of the writ — a Constitutional provision not contained in the Bill of Rights.

The Court in reaching its conclusion in Boumediene made four crucial pronouncements regarding the Insular Cases. First, citing Reid v. Covert, it recognized that the Insular Cases involved territories “with wholly dissimilar traditions and institutions” that Congress intended to govern only “temporarily”. 128 S Ct. at 2255 (emphasis added).

Second, the Court, citing Justice Brennan’s concurrence in Torres, supra, held that “[i]t may well be that over time the ties between the United States and any of its unincorporated territories strengthen in ways that are of constitutional significance. Id. at 2255 (emphasis added).

Third, the Court recognized that fundamental Constitutional rights apply to detained enemy combatant aliens in Guantanamo Bay, an unincorporated territory over which the United States has exercised jurisdiction or control for over 100 years. Id. at 2258-59.

Finally, and most important, the Court held the following:

Our basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of and govern territory, not the power to decide when where its terms apply. Even when the United States acts outside its borders, its powers are not “absolute and unlimited” but are subject “to such restrictions as are expressed in the Constitution.” Abstaining from questions involving forward sovereignty and territorial governance is one thing. '''To hold the political branches have the power to switch the Constitution on or off at will is quite another.”''' Id. at 2259 (citation omitted) (emphasis added).

The Court’s extremely recent pronouncements in Boumediene at this time require this Court, as asked by the Commonwealth Secretary, to reexamine whether Puerto Rico, after one hundred ten (110) years under the American Flag, remains an unincorporated territory (as is Guantanamo Bay), or whether it has evolved beyond said stage.''

United States District Court decision addressing the distintion between Incorporated vs Unincorporated territories and the Insular Cases

--Seablade (talk) 18:29, 20 December 2009 (UTC)

Additional References included it regarding this case.
Additional References included it regarding this case.

Justice Black, writing for the plurality, contrasted the cases before him with the Insular Cases, which involved territories "with wholly dissimilar traditions and institutions" that Congress intended to govern only "temporarily." Id., at 14. Justice Frankfurter argued that the "specific circumstances of each particular case" are relevant in determining the geographic scope of the Constitution. Id., at 54 (opinion concurring in result). And Justice Harlan, who had joined an opinion reaching the opposite result in the case in the previous Term, Reid v. Covert, 351 U. S. 487 (1956), was most explicit in rejecting a "rigid and abstract rule" for determining where constitutional guarantees extend. Reid, 354 U. S., at 74 (opinion concurring in result). He read the Insular Cases to teach that whether a constitutional provision has extraterritorial effect depends upon the "particular circumstances, the practical necessities, and the possible alternatives which Congress had before it" and, in particular, whether judicial enforcement of the provision would be "impracticable and anomalous." Id., at 74-75; see also United States v. Verdugo-Urquidez, 494 U. S. 259, 277-278 (1990) (Kennedy, J., concurring) (applying the "impracticable and anomalous" extraterritoriality test in the Fourth Amendment context).

That the petitioners in Reid were American citizens was a key factor in the case and was central to the plurality's conclusion that the Fifth and Sixth Amendments apply to American civilians tried outside the United States. But practical considerations, related not to the petitioners' citizenship but to the place of their confinement and trial, were relevant to each Member of the Reid majority. And to Justices Harlan and Frankfurter (whose votes were necessary to the Court's disposition) these considerations were the decisive factors in the case.

--Seablade (talk) 17:04, 23 December 2009 (UTC)

(ii) Discussions of the Constitution's extraterritorial application in cases involving provisions other than the Suspension Clause undermine the Government's argument. Fundamental questions regarding the Constitution's geographic scope first arose when the Nation acquired Hawaii and the noncontiguous Territories ceded by Spain after the Spanish-American War, and Congress discontinued its prior practice of extending constitutional rights to territories by statute. In the so-called Insular Cases, the Court held that the Constitution had independent force in the territories that was not contingent upon acts of legislative grace. See, e.g., Dorr v. United States, 195 U. S. 138. Yet because of the difficulties and disruption inherent in transforming the former Spanish colonies' civil-law system into an Anglo-American system, the Court adopted the doctrine of territorial incorporation, under which the Constitution applies in full in incorporated Territories surely destined for statehood but only in part in unincorporated Territories. See, e.g., id., at 143. Practical considerations likewise influenced the Court's analysis in Reid v. Covert, 354 U. S. 1, where, in applying the jury provisions of the Fifth and Sixth Amendments to American civilians being tried by the U. S. military abroad, both the plurality and the concurrences noted the relevance of practical considerations, related not to the petitioners' citizenship, but to the place of their confinement and trial. Finally, in holding that habeas jurisdiction did not extend to enemy aliens, convicted of violating the laws of war, who were detained in a German prison during the Allied Powers' post-World War II occupation, the Court, in Johnson v. Eisentrager, 339 U. S. 763, stressed the practical difficulties of ordering the production of the prisoners, id., at 779. '''The Government's reading of Eisentrager as adopting a formalistic test for determining the Suspension Clause's reach is rejected because: (1) the discussion of practical considerations in that case was integral to a part of the Court's opinion that came before it announced its holding, see id., at 781; (2) it mentioned the concept of territorial sovereignty only twice in its opinion, in contrast to its significant discussion of practical barriers to the running of the writ; and (3) if the Government's reading were correct, the opinion would have marked not only a change in, but a complete repudiation of, the Insular Cases' (and later Reid's) functional approach. A constricted reading of Eisentrager overlooks what the Court sees as a common thread uniting all these cases: The idea that extraterritoriality questions turn on objective factors and practical concerns, not formalism. Pp. 25-34.'''

(iii) The Government's sovereignty-based test raises troubling separation-of-powers concerns, which are illustrated by Guantanamo's political history. Although the United States has maintained complete and uninterrupted control of Guantanamo for over 100 years, the Government's view is that the Constitution has no effect there, at least as to noncitizens, because the United States disclaimed formal sovereignty in its 1903 lease with Cuba. The Nation's basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. To hold that the political branches may switch the Constitution on or off at will would lead to a regime in which they, not this Court, say "what the law is." Marbury v. Madison, 1 Cranch 137, 177. These concerns have particular bearing upon the Suspension Clause question here, for the habeas writ is itself an indispensable mechanism for monitoring the separation of powers. Pp. 34-36.

(iv) Based on Eisentrager, supra, at 777, and the Court's reasoning in its other extraterritoriality opinions, at least three factors are relevant in determining the Suspension Clause's reach: (1) the detainees' citizenship and status and the adequacy of the process through which that status was determined; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner's entitlement to the writ. Application of this framework reveals, first, that petitioners' status is in dispute: They are not American citizens, but deny they are enemy combatants; and although they have been afforded some process in CSRT proceedings, there has been no Eisentrager-style trial by military commission for violations of the laws of war. Second, while the sites of petitioners' apprehension and detention weigh against finding they have Suspension Clause rights, there are critical differences between Eisentrager's German prison, circa 1950, and the Guantanamo Naval Station in 2008, given the Government's absolute and indefinite control over the naval station. Third, although the Court is sensitive to the financial and administrative costs of holding the Suspension Clause applicable in a case of military detention abroad, these factors are not dispositive because the Government presents no credible arguments that the military mission at Guantanamo would be compromised if habeas courts had jurisdiction. The situation in Eisentrager was far different, given the historical context and nature of the military's mission in post-War Germany. Pp. 36-41.

(d) Petitioners are therefore entitled to the habeas privilege, and if that privilege is to be denied them, Congress must act in accordance with the Suspension Clause's requirements. Cf. Rasul, 542 U. S., at 564. Pp. 41-42. —Preceding unsigned comment added by 74.213.91.69 (talk) 17:30, 23 December 2009 (UTC)

--Seablade (talk) 05:26, 23 December 2009 (UTC)

Cite: (FindLaw Reference)

These considerations resulted in the doctrine of territorial incorporation, under which the Constitution applies in full in incorporated Territories surely destined for statehood but only in part in unincorporated Territories. See Dorr, supra, at 143 ("Until Congress shall see fit to incorporate territory ceded by treaty into the United States, ... the territory is to be governed under the power existing in Congress to make laws for such territories and subject to such constitutional restrictions upon the powers of that body as are applicable to the situation"); Downes, supra, at 293 (White, J., concurring) ("[T]he determination of what particular provision of the Constitution is applicable, generally speaking, in all cases, involves an inquiry into the situation of the territory and its relations to the United States"). As the Court later made clear, "the real issue in the Insular Cases was not whether the Constitution extended to the Philippines or Porto Rico when we went there, but which of its provisions were applicable by way of limitation upon the exercise of executive and legislative power in dealing with new conditions and requirements." Balzac v. Porto Rico, 258 U. S. 298, 312 (1922). It may well be that over time the ties between the United States and any of its unincorporated Territories strengthen in ways that are of constitutional significance. Cf. Torres v. Puerto Rico, 442 U. S. 465, 475-476 (1979) (Brennan, J., concurring in judgment) ("Whatever the validity of the [Insular Cases] in the particular historical context in which they were decided, those cases are clearly not authority for questioning the application of the Fourth Amendment--or any other provision of the Bill of Rights--to the Commonwealth of Puerto Rico in the 1970's"). But, as early as Balzac in 1922, the Court took for granted that even in unincorporated Territories the Government of the United States was bound to provide to noncitizen inhabitants "guaranties of certain fundamental personal rights declared in the Constitution." 258 U. S., at 312; see also Late Corp. of Church of Jesus Christ of Latter-day Saints v. United States, 136 U. S. 1, 44 (1890) ("Doubtless Congress, in legislating for the Territories would be subject to those fundamental limitations in favor of personal rights which are formulated in the Constitution and its amendments"). Yet noting the inherent practical difficulties of enforcing all constitutional provisions "always and everywhere," Balzac, supra, at 312, the Court devised in the Insular Cases a doctrine that allowed it to use its power sparingly and where it would be most needed. This century-old doctrine informs our analysis in the present matter.

Justice Black, writing for the plurality, contrasted the cases before him with the Insular Cases, which involved territories "with wholly dissimilar traditions and institutions" that Congress intended to govern only "temporarily." Id., at 14.

The Court also reasons that Eisentrager must be read as a "functional" opinion because of our prior decisions in the Insular Cases. See ante, at 26-29. It cites our statement in Balzac v. Porto Rico, 258 U. S. 298, 312 (1922), that " 'the real issue in the Insular Cases was not whether the Constitution extended to the Philippines or Porto Rico when we went there, but which of its provisions were applicable by way of limitation upon the exercise of executive and legislative power in dealing with new conditions and requirements.' " Ante, at 28. But the Court conveniently omits Balzac's predicate to that statement: "The Constitution of the United States is in force in Porto Rico as it is wherever and whenever the sovereign power of that government is exerted." 258 U. S., at 312 (emphasis added).

I will not adjudicate if this case is part or not of the insular cases; however is clear to me that the insular cases were applied on Boumediene.

--Seablade (talk) 01:09, 24 December 2009 (UTC)

Torres v. Puerto Rico ,
Citing U.S. Supreme Court Position about the Insular Cases in Torres v.Puerto Rico

In Torres, Justice Brennan wrote a concurring opinion, joined by Justices Stewart, Marshall, and Blackmun. In the same, he noted that the present validity of the Insular Cases was questionable:

Whatever the validity of [the Insular Cases], in the particular historical context in which they were decided, those cases are clearly not authority for questioning the application of the Fourth Amendment - or any other provision of the Bill of Rights - to the Commonwealth of Puerto Rico in the 1970s. As Justice Black declared in Reid v. Covert: “neither the cases nor their reasoning should be given any further expansion. The concept that the Bill of Rights and other constitutional protections against arbitrary government are inoperant when they become inconvenient or when expediency dictates otherwise is a very dangerous doctrine and if allowed to flourish would destroy the benefit of a written Constitution and undermine the basis of our government”. 442 U.S. at 475-476

--Seablade (talk) 18:52, 20 December 2009 (UTC)

Who decided which territories were "insular"
Was the question of which territories were unincorporated established by the court, or by legislation? In particular, why was Hawaii considered an incorporated territory? --Jfruh (talk) 03:34, 8 July 2015 (UTC)
 * A combination of both&mdash;the Supreme Court decided that Hawaii was incorporated in large part because the Organic Act for the territory conferred U.S. citizenship on the people of Hawaii. (Downes v. Bidwell; Hawaii v. Manchiki.) U.S. citizenship was not conferred on the populations of the territories acquired in the Spanish-American War or American Samoa, and this is one reason offered for their "unincorporated" status at the time. This rationale for the distinction broke down, of course, after the people of several territories were also made U.S. citizens (Puerto Rico 1917, U.S. Virgin Islands 1927, Guam 1950), but by that point the status of the different territories was entrenched, and the Court found continued grounds for distinguishing the status of Puerto Rico from that of, e.g., Alaska and finding Puerto Rico to still be unincorporated. (Balzac v. Porto Rico). (The word "insular" simply derives from the Latin for "island" and does not connote a specific territorial status: pre-statehood Hawaii and the pre-independence Philippine Islands and Puerto Rico were all sometimes referred to as "insular territories," although not all the territories were ever administered through the Bureau of Insular Affairs.) Newyorkbrad (talk) 07:07, 8 July 2015 (UTC)

New Insular Cases
Recent scholarship suggests that the United States Supreme Court is currently establishing new Insular Cases.

Willie Santana, The New Insular Cases, 29 Wm. & Mary J. Women & L. 435 (2023), https://scholarship.law.wm.edu/wmjowl/vol29/iss2/4

Jorge M. Farinacci Fernós, The ‘New’ Insular Cases and the Territorial Clause: From Temporary Incorporation to Permanent Unincorporation, 34 Cent. J. 37 (2022). Available at: https://digitalcommons.law.buffalo.edu/journal_articles/1070 206.16.244.179 (talk) 16:35, 8 May 2023 (UTC)