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The Insular Cases Revisited: Guam, Federal Medicaid Funding, and Constitutional Subordination
Published online by Cambridge University Press: 16 September 2025
Abstract
The Insular Cases, a relic of imperial-era judicial reasoning, have long dictated the political and constitutional status of U.S. territories. In United States v. Vaello-Madeo, Justice Neil Gorsuch’s concurring opinion signaled a critical moment for reevaluating these precedents. This Note examines the enduring consequences of the Insular Cases, focusing on the Pacific Island Territory of Guam as a case study. Specifically, it explores how Guam’s political subordination—rooted in the judicial distinction between incorporated and unincorporated territories—has led to disparities in federal Medicaid funding. By analyzing the relationship between territorial representation in Congress and the structural inequities in health care funding, this Note argues that the constitutional instability caused by the Insular Cases presents a ripe opportunity for legal challenge. Justice Gorsuch’s opinion opens a path for reconsidering the Insular Cases, with federal Medicaid funding serving as a compelling vehicle for addressing the broader constitutional and democratic deficiencies imposed on U.S. territories.
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- © 2025 The Author(s). Published by Cambridge University Press on behalf of American Society of Law, Medicine & Ethics and Trustees of Boston University
References
1 142 S. Ct. 1539 (2022).
2 Id. at 1556.
3 De Lima v. Bidwell, 182 U.S. 1 (1901); Goetze v. United States, 182 U.S. 221 (1901); Dooley v. United States, 182 U.S. 222 (1901); Armstrong v. United States, 182 U.S. 243 (1901); Downes v. Bidwell, 182 U.S. 244 (1901); Huus v. N.U. & P.R. S.S. Co., 182 U.S. 392 (1901) (as cited in Juan R. Torruell, The Insular Cases: The Establishment of a Regime of Political Apartheid, 29 U. Pa. J. Int’l L. 2, 283 n.4).
4 See Id. at 1552-1552 discussing the Insular Cases in the contexts of the Spanish American War and the expansion into the territories as will be discussed in Part II. For excellent discussions of the political contexts of the Spanish-American war and political (and constitutional) debate that swept the nation, see also Stephen Kinzer, The True Flag: Theodore Roosevelt, Mark Twain, And the Birth of American Empire 200–207 (2017); Bartholomew H. Sparrow, The Insular Cases and the Emergence of American Empire 14–30 (2006).
5 See Vaello-Madero, 142 S. Ct. at 1552.
6 See id., Sotomayor dissenting footnote indicating that the issue could not be addressed by the Court because it was neither raised nor argued by parties or plainly presented by litigation.
7 Id. (“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. 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”) (Gorsuch, J., concurring).
8 Sparrow, supra note 4, at 14–29 (describing the history of territorial governance in early U.S. growth).
9 See id. at 29–30 (the island acquisitions following the 1898 war were “densely populated by non-Anglos and non-English speaking inhabitants of mixed racial background…many were Catholic and some, in the Philippines, Muslim rather than Christian”).
10 Id.
11 Id. at 5.
12 Building off the arguments exemplified by Christina Duffy Ponsa, “When Statehood Was Autonomy” in Reconsidering the Insular Cases: The Past and Future of the American Empire (Eds. Gerald L. Neuman and Tomiko Brown-Nagin, 2015), 2 (regarding the effects of the Insular Cases “the territories became…doubly marginal: neither fully ‘domestic’ not fully ‘foreign,’ and devoid of both voting representation in the federal government…they were at the top of nobody’s agenda, and stripped of the power to set their own”).
13 See Arnold H. Leibowitz, Defining Status: A Comprehensive Analysis of United States Territorial Relations 29–32 (1989) (discussing the interplay of the incorporation doctrine, political status, and federal representation in light of federal social and economic programs).
14 For an unofficial motto widely used, see Guam Visitor’s Bureau, https://www.guamvisitorsbureau.com/sites/default/files/general-information.pdf.
15 Sparrow, supra note 4, at 4.
16 Leibowitz, supra note 13, at 318 (see accompanying text: “[Guam’s]has neither present nor prospective economic value and should not, then, excite the interest of other than scientific and military men”).
17 See id. at 325, for instance, military governance “restricted all entry and exit from Guam” from 1950 to 1962. Only with the passage of the 1950 Guam Organic Act did any semblance of local democratic control over the Guam legislature begin, and birthright citizenship was bestowed by the US Congress. Id. at 329.
18 Sparrow, supra note 4, at 5.
19 Id. at 205.
20 Christina Duffy Ponsa-Kraus, The Insular Cases Run Amok: Against Constitutional Exceptionalism in the Territories, 131 Yale L. J. 2449, 2452 (2022).
21 Sparrow, supra note 4, at 7. See generally Juan Torruella The Insular Cases: A Declaration of Their Bankruptcy and My Harvard Pronouncement in Reconsidering the Insular Cases: The Past and Future of the American Empire 61 (Gerald Neuman and Tomiko Brown-Nagin ed., 2015) (arguing that the incorporation doctrine and the judicially created status of unincorporated territories are devoid of constitutional basis and only subordinated the unincorporated territories to the U.S. Congress).
22 See Marcella Nunez-Smith et al., Quality of Care in the US Territories, 171 Archives Internal Med. 1528 (2011) (finding that “[c]ompared with hospitals in the US states, hospitals in the US Territories have significantly higher 30-day mortality rates and lower performance on every core process measure for patients discharged after AMI, HF, and PNE”).
23 Investigation into Health Care Disparities of U.S. Pacific Island Territories: Hearing Before the Subcommittee on Human Rights and Wellness, 108th Cong. 25 (2004) (prepared statement of David Cohen, Deputy Assistant Secretary, Office of Insular Affairs, U.S. Department of Interior).
24 Id.; Strengthening Healthcare in the U.S. Territories for Today and into the Future: Hearing Before the Subcommittee on Health of the Committee on Energy and Commerce, 116th Cong. 57-62 (2019) (statement of Maria Theresa Arcangel, Chief Human Service Administrator, Division of Public Welfare, Guam Department of Public Health and Social Services); Impacts of the Covid-19 Pandemic in the Territories: Hearing Before the Committee on Energy and Natural Resources, 106th Cong., 38-39 (2020) (statement of Hon. Michael F. Q. San Nicolas, Congressman- Guam, U.S., House of Representatives).
25 See Nicole Huberfeld, Federalizing Medicaid, 14 U. Pa J. Const. L. 431 (2011) (discussing the critical role federal funding of programs like Medicaid has on local communities, noting that “As a recent empirical study has shown, Medicaid is undeniably important in terms of providing a patient safety net, supplying funding for the states, and generally supporting the healthcare system…”).
26 See supra note 25, at 61 (written statement of Maria Theresa Arcangel, Chief Human Service Administrator, Division of Public Welfare, Guam Department of Public Health and Social Services).
27 Medicaid and CHIP in Guam: Fact Sheet, Macpac, https://www.macpac.gov/publication/medicaid-and-chip-in-guam/ (last visited Oct. 8, 2022).
28 Id.
29 Id.
30 See Section 1108(g) of the Social Security Act. Note that while the Section 1108 Allotment for 2019 was $18 million, supplemental funds through the Further Consolidated Appropriations Act of 2020 and the Family First Coronavirus Response Act of 2021 raised the Federal dollars for Medicaid to $130.9 and $129.7 for 2020 and 2021 respectively. See Medicaid and CHIP in the Territories: Fact Sheet, Macpac (2021), Table 2, https://www.macpac.gov/wp-content/uploads/2019/07/Medicaid-and-CHIP-in-the-Territories.pdf. See also Medicaid and CHIP in Guam: Fact Sheet, Macpac (2021), https://www.macpac.gov/publication/medicaid-and-chip-in-guam/.
31 See Matching Rates, Macpac, https://www.macpac.gov/subtopic/matching-rates/.
32 Medicaid and CHIP in Guam: Fact Sheet, Macpac (2021), https://www.macpac.gov/publication/medicaid-and-chip-in-guam/.
33 See Strengthening Healthcare in the U.S. Territories for Today and into the Future: Hearing Before the Subcommittee on Health of the Committee on Energy and Commerce, 116th Cong. 13 (2019) (statement of Anne L. Schwartz, Ph.D., Executive Director, Medicaid and Chip Payment and Access Commission) [hereinafter Hearing on Strengthening Healthcare].
34 Medicaid and CHIP in Guam: Fact Sheet, Macpac (2021), https://www.macpac.gov/publication/medicaid-and-chip-in-guam/ (last visited Oct. 8, 2022). Several other time-limited Federal supplements will be discussed in full in Part III below.
35 See John O’Connor, $1.7T Spending Bill Solidifies Higher Federal Medicaid Rate, Guam Daily Post (Dec. 22, 2022), https://www.postguam.com/news/local/1-7t-spending-bill-solidifies-higher-federal-medicaid-rate/article_7f34a4b2-80f8-11ed-93dd-e3b7d4e18786.html (quoting Delegate Michael San Nichols “We are so grateful to our colleagues that we can now have Medicaid for Guam permanently fixed as we conclude our service to the people”).
36 Consolidated Appropriations Act of 2023, H.R. 2617, 117th Cong. § 5101(b)(3) (2022) (enacted).
37 Hearing on Strengthening Healthcare, supra note 33, at 31 (referring to table 2 sources of Medicaid ACA provides overall and broken down by Territory).
38 See Alison Mitchell, Cong. Rsch. Serv., Medicaid Financing for the Territories: In Focus, (2022).
39 See Tony Romm, “Congress has a $1.7 trillion bill to fund the government. Here’s what’s in it,” Wash. Post (Dec. 22, 2022), https://www.washingtonpost.com/us-policy/2022/12/22/spending-bill-omnibus-congress/; see also Edwin Park, End of the Year Appropriations Bill Would Avert Medicaid Fiscal Cliff for Puerto Rico and the Territories, Georgetown Univ. Health Pol’y Inst. Ctr. for Child. and Fams. (Dec. 20, 2022), https://ccf.georgetown.edu/2022/12/20/end-of-the-year-appropriations-bill-would-avert-medicaid-fiscal-cliff-for-puerto-rico-and-the-territories/.
40 As will be discussed below, the Territories’ Federal Medicaid funding was supplemented through the Patient Protection and Affordable Care Act (hereinafter ACA); these funds expired at the end of the calendar year 2019. In light of the COVID-19 Pandemic, the Further Consolidated Appropriations Act of 2020 and the Family First Coronavirus Response Act (hereinafter FFCRA) temporarily supplemented the Medicaid funding of Guam and other territories’ healthcare systems. See Alison Mitchell, supra note 38.
41 See Edwin Park, Lack of Federal Action Puts Puerto Rico and Other Territories in Peril of Dire Medicaid Fiscal Cliff, Yet Again, Georgetown Univ. Health Pol’y Inst. Ct.r For Child. and Fams. (Oct. 4, 2022), https://ccf.georgetown.edu/2022/10/04/lack-of-Federal-action-puts-puerto-rico-and-other-territories-in-peril-of-dire-medicaid-fiscal-cliff-yet-again/; Lina Stolyar Robin Rudowitz, Implications of the Medicaid Fiscal Cliff for the U.S. Territories, kff (Sept. 14, 2021), https://www.kff.org/medicaid/issue-brief/implications-of-the-medicaid-fiscal-cliff-for-the-u-s-territories/.
42 See John O’Connor, $20M Medicaid shortfall ahead, without congressional action, The Guam Daily Post (Sept. 20, 2022), https://www.postguam.com/news/local/20m-medicaid-shortfall-ahead-without-congressional-action/article_beead886-37da-11ed-bea1-3b81d05062df.html.
43 See Tony Romm, “Congress has a $1.7 trillion bill to fund the government. Here’s what’s in it,” Wash. Post (Dec. 22, 2022), https://www.washingtonpost.com/us-policy/2022/12/22/spending-bill-omnibus-congress/
44 Hearing on Strengthening Healthcare, supra note 33.
45 See Mitchell, supra note 38.
46 Medicaid and CHIP in Guam: Fact Sheet, Macpac (2021), https://www.macpac.gov/publication/medicaid-and-chip-in-guam/ (last visited Oct 8, 2022) (citing § 1101(a)(1) of the Social Security Act).
47 See id.; Section 1108(g) of the Social Security Act.
48 Medicaid and CHIP in Guam: Fact Sheet, Macpac (2021), https://www.macpac.gov/publication/medicaid-and-chip-in-guam/ (last visited Oct. 8, 2022) (citing § 1101(a)(1) of the Social Security Act)—provide one piece of depth showing that states do indeed have an “uncapped” source of funds).
49 Averting A Crisis: Protecting Access to Healthcare in the U.S. Territories, Hearing Before the Subcommittee on Health of the Committee on Energy and Commerce, 117th Cong. 2–3 (2021) (statement of Anna G. Eshoo, Congresswoman) (stating that“[o]ver the past decade, Congress has voted on six separate occasions to provide stopgap funds to certain territories, including as recently as December 2019”).
51 Averting A Crisis: Protecting Access to Healthcare in the U.S. Territories, Hearing Before the Subcommittee on Health of the Committee on Energy and Commerce, 117th Cong. 39 (2021) (statement of Delegate Michael F. Q. San Nicolas) [hereinafter Hearing on Averting a Crisis].
52 Medicaid and CHIP in Guam: Fact Sheet, Macpac (2021), 2 (under the Fee-for-service benefits model, “the state pays providers directly for each covered service received by a Medicaid beneficiary” as opposed to a managed care plan where “the state pays a fee to a managed care plan for each person enrolled in the plan” Provider payment and delivery systems, Macpac, https://www.macpac.gov/medicaid-101/provider-payment-and-delivery-systems/).
53 Hearing on Averting a Crisis, supra note 51, at 39.
54 See supra note 33 (Written statement of Maria Theresa Arcangel, Chief Human Service Administrator, Division of Public Welfare, Guam Department of Public Health and Social Services) (without DSH payments, Guam healthcare providers that serve a high proportion of uninsured, underinsured, uninsured, and Medicaid recipients whose payments are complicated by the federal funding issues articulated above, are not benefited the federal payments that would otherwise be awarded to state-side providers based on the exclusion of the Territories from DSH payments).
55 Hearing on Averting a Crisis, supra note 51, at 39.
56 Id.
57 Hearing on Strengthening Healthcare, supra note 33, at 57 (statement of Maria Theresa Arcangel).
58 Id.
59 Daily Post Staff, Compact migration up 68% over 5 years, The Guam Daily Post (June 16, 2020), https://www.postguam.com/news/local/compact-migration-up-68-over-5-years/article_9bd820a0-af4d-11ea-9143-ff08ed481ea7.html.
60 Thomas Lum, Cong. Rsch. Serv., The Freely Associated States and Issues for Congress( 2020).
61 See Jackson Stephens Pacific Daily News, Micronesian migrant communities face barriers to health care access, insurance, Medicaid, Pac. Daily News (Nov. 13, 2022), https://www.guampdn.com/news/micronesian-migrant-communities-face-barriers-to-health-care-access-insurance-medicaid/article_910d0bf8-5122-11ed-a414-4f70b93cf59c.html (interviewing Alex Silverio, manager of the Guam Office of Minority Health at the Department of Public Health and Social Services).
62 See The Asian & Pacific Islander American Health Forum, S. 1504 Medicaid Restoration for Citizens of Freely Associated States Act of 2011, https://www.apiahf.org/wp-content/uploads/2014/07/2014.07.15_Medicaid-Reinstatement-for-COFA-Migrants-_Factsheet-1.pdf (“[i]n 1996, the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), commonly referred to as welfare reform, changed the categories of persons eligible for certain federal safety-net programs including Medicaid and the Children’s Health Insurance Program (CHIP). As a result, COFA (also known as FAS) migrants were stripped of their ability to qualify for these programs. In the aftermath of PRWORA, some states continued to provide health care services to COFA migrants using their own funds, recognizing the contributions and health needs of COFA migrant populations in their states.” Guam’s capacity to cover the related healthcare services, as demonstrated, is much less than better funded states).
63 Id. Noting that at least 19 attempts to reinstate this community under Medicaid and CHIP had been brought before Congress.
64 See supra note 33, (statement of Maria Theresa Arcangel, Chief Human Service Administrator, Division of Public Welfare, Guam Department of Public Health And Social Services).
65 See Impacts of the Covid-19 Pandemic in the Territories: Hearing Before the Committee on Energy and Natural Resources, 106th Cong. 39 (2020) (statement of Hon. Michael F.Q. San Nicolas, Congressman- Guam).
66 Letter from Rep. Michael F.Q. San Nicolas to Lourdes A. Leon Guerrero, Governor of Guam, (Mar. 15, 2022) https://sannicolas.house.gov/sites/sannicolas.house.gov/files/wysiwyg_uploaded/03.15.2022%20CMSN%20LTR%20TO%20GOV%20RE%20COFA%20MEDICAID.pdf. Cf., Phill Leon Guerrero, Tally of regional migrants under Medicaid differs between 2 sources, The Guam Daily Post, (Mar. 26, 2022), https://www.postguam.com/news/local/tally-of-regional-migrants-under-medicaid-differs-between-2-sources/article_26a7505a-a436-11ec-ada0-43b3cc5ebd98.html.
67 Id.
68 Office of the Governor, Government of Guam, Impact of the Compacts of Free Association on Guam: FY 2004 to 2017, (Jan. 2018) at 49, https://www.doi.gov/sites/doi.gov/files/uploads/guam-fy2017-compact-impact-report.pdf.
69 See Selena Simmons-Duffin, America’s “Shame”: Medicaid Funding Slashed In U.S. Territories, NPR (Nov. 20, 5:00 AM, 2019), https://www.npr.org/sections/health-shots/2019/11/20/780452645/americas-shame-medicaid-funding-slashed-in-u-s-territories (quoting the co-director of the Program on Medicaid and the Uninsured of KFF, regarding the origin of the Fiscal cliff “It is true: Giving these additional funds with a set expiration date, the legislation itself did create the cliff”); see also Letter from Sen. Charles E. Grassley, et. al., to Alex Azar, Jul. 17, 2019, https://www.finance.senate.gov/imo/media/doc/07172019 SFC PR Letter.pdf (“The authors of the ACA arrived at a significant, but temporary, expansion of the federal role in financing Puerto Rico’s Medicaid program. However, as indicated earlier, we are not aware of any analytical support for the pace of expansion inserted into the ACA by its authors on a temporary basis. And we are not aware of any reasoning behind the AVA authors’ having chosen to make the expansion temporary”).
70 See U.S. Dept Interior, Interagency Group on Insular Areas Annual Report on 2019 Activities to the President of the United States, 5 (2019); Simmons-Duffin, supra note 69.
71 Hearing on Strengthening Healthcare, supra note 33, at 26 (prepared statement of Anne L. Schwartz, Ph.D., Table 2).
72 Id. at 30.
73 Hearing on Strengthening Healthcare, supra note 33, at at 58 (statement of Maria Theresa Arcangel) (reporting that the then estimated uninsured population rate of 24.8% would only increase).
74 Simmons-Duffin, supra note 69 (describing the impacts of the Medicaid cliff for the various Territories).
75 See Patricia Mazzei, Puerto Rico Ex-Officials Accused of Steering $15.5 Million in Contracts to Consultants, N.Y. Times, (Jul. 10, 2019), https://www.nytimes.com/2019/07/10/us/puerto-rico-corruption.html.
76 Id.
77 Letter from Charles E. Grassley, Sen.to Alex Azar, Sec. Dep’t Health and Human Servs. (Jul. 17, 2019) https://www.finance.senate.gov/imo/media/doc/07172019 SFC PR Letter.pdf.
78 Mitchell, supra note 38.
79 Id.
80 See Impacts of the Covid-19 Pandemic in the Territories, Hearing before the Committee on Energy and Natural Resources, 116th Cong. 40 (written statement of Congressman Michael F.Q. San Nicolas, noting Guam’s economic dependence on tourism).
81 See Robin Rudowitz, Kendal Orgera, and Lina Stolyar, Challenges in the U.S. Territories: Covid-19 and the Medicaid Financing Cliff, KFF, (May 18, 2021), https://www.kff.org/coronavirus-covid-19/issue-brief/challenges-in-the-u-s-territories-covid-19-and-the-medicaid-financing-cliff/ (“or example, in September 2020 in Guam, when fatalities increased and as more providers left the island, island officials looked to recruit 100 nurses from mainland U.S. or nearby Philippines”).
82 Robin Rudowitz and Lina Stolyar, Medicaid Financing and the U.S. Territories: Implications of the Build Back Better Act, KFF, (Feb. 9, 2022), https://www.kff.org/policy-watch/medicaid-financing-and-u-s-territories-implications-build-back-better-act/.
83 Javier Balmaceda, Build Back Better Permanently Extends Economic Security to Puerto Rico and Other Territories, Ctr. on Budget and Pol’y Priorities, (Dec. 14, 2021), https://www.cbpp.org/sites/default/files/12-14-21tax.pdf.
84 Sabrina Corlette, Healthcare Provisions in the Inflation Reduction Act: Implications for States, State Health & Value Strategies, https://www.shvs.org/healthcare-provisions-in-the-inflation-reduction-act-implications-for-states/ (last visited Oct. 11, 2022).
85 Dorthy Mills-Gregg, Democrats Want to Fix Territories’ Long-Term Medicaid Funding Issue, Inside Health Pol’y, (Mar. 18, 2021, 4:31 PM), https://insidehealthpolicy.com/daily-news/democrats-want-fix-territories%E2%80%99-long-term-medicaid-funding-issues.
86 Insular Area Medicaid Parity Act, H.R. 265, 117th Cong. (2021).
87 Territory Equity Act, H.R. 2713, 117th Cong. (2021).
88 See e.g., Mills-Gregg, supra note 85.
89 Consolidated Appropriations Act of 2023, H.R. 2617, 117th Cong. § 5101(b)(3) (2022) (enacted).
90 Id. § 5101(f)(i).
91 Averting A Crisis: Protecting Access to Healthcare in the U.S. Territories, Hearing Before the Subcommittee on Health of the Committee on Energy and Commerce, 117th Cong. 24 (2021), (statement of Hon. Stacey E. Plaskett).
92 See Andrew Hammond, Territorial Exceptionalism and the American Welfare State, 119 Mich. L. Rev. 1639, 1663 (2021).
93 Hammond, supra note 92, at 1663.
94 Id.
95 See United States v. Vaello Madero, 356 F. Supp. 3d 208, 211 (D.P.R. 2019), aff’d on other grounds, 956 F.3d 12 (1st Cir. 2020), rev’d, 142 S. Ct. 1539 (2022).
96 Id.
97 Id. at 211–12.
98 Id. at 215.
99 See United States v. Vaello-Madero, 956 F.3d 12, 32 (1st Cir. 2020), rev’d, 142 S. Ct. 1539 (2022).
100 See United States v. Vaello-Madero, 142 S. Ct. 1539, 1541 (2022).
101 Id. at 1552–53.
102 435 U.S. 1 (1978).
103 446 U.S. 651 (1980).
104 Vaello-Madero, 142 S. Ct. 1543. Note that both opinions were moved through summary proceedings without oral argument and without full briefing see Rosario, 446 U.S. 651, 652 (1980) (Marshall, J., dissenting).
105 U.S. Const. Art. IV Sec 3, cl. 2.
106 Vaello-Madero, 142 S. Ct. 1541. See also Rosario, 446 U.S. 651–2 (1980).
107 The argument regarding the application of the equal protection clause is not the primary focus. Justice Sotomayor, in her lone dissent, accomplishes a superior job than this author could in arguing its application and rebutting several premises underlying the majority’s opinion when it comes to tax and federal benefit programs. See Vaello-Madero, 142 S. Ct., 1557 (2022) (Sotomayor, J., dissenting).
108 Vaello-Madero, 142 S. Ct., 1543 (2022) (foreshadowing treatment of the Territories as States).
109 Rosario, 446 U.S. 653 (1980) (Marshall J., dissenting) (pointing out that “[w]hile some early opinions of this Court suggest that various protections of the Constitution do not apply to Puerto Rico, the present validity of those decisions is questionable”) (citing Torres v. Puerto Rico, 442 U.S. 465, 475–476 (1979) (Brennan, J., concurring).
110 Rosario, 446 U.S. 652–53 (1980).
111 Id. at 653.
112 Id.
113 See id. 653–54 (citing Calero-Toledo v. Pearson Yacht Leasing co., 416 US 663, 668–669, n.5 (1974) (holding that Puerto Rico is subject to the Due Process Clause of either the Fifth or Fourteenth Amendment); Torres v. Puerto Rico, 442 US 465, 471 (1979) (holding that the fourth amendment by extension of the fourteenth amendment is fully applicable to Puerto Rico)).
114 See Torres v. Puerto Rico, 442 U.S. 465, 475 (1979) (Brennan, J., concurring) (arguing that “[w]hatever the validity of the old cases such as Downes v. Bidwell…, Dorr v. United States,…, and Balzac v. Puerto Rico,… 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”); see also Reid v. Covert, 354 U.S. 1, 14 (1975) (plurality opinion) (“[neither] the cases [Insular 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 inoperative 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”).
115 Downes v. Bidwell, 182 U.S. 244, 341 (1901) (White, J., concurring).
116 Id. at 342. See Sparrow supra note 4, at 5 (describing the origin and development of the incorporation doctrine as not fully formed until the 1922 decision in Balzac). See also Ponsa-Kraus, supra note 12 (summarizing the effects of the incorporation doctrine as “relegate[ing] the unincorporated territories to an unprecedented status: confusing and ambiguous; constitutionally inferior to the United States’ nineteenth-century territories; and denied even the implicit promise of statehood that earlier territories had always apparently enjoyed”).
117 Sparrow, supra note 4, at 5.
118 Id. at 139.
119 Not including the period between 1941 and 1944 during which Japan occupied the Island see George J. McMillin, Surrender of Guam to the Japanese, 2 Guam Recorder, 9 (1972).
120 Katherine Unterman, Trial Without Jury in Guam, USA, 38 Law and Hist. Rev. 811, 814 n.12 (2019); this opinion regarding the application of the Constitution in Guam apparently extends back to 1904 and the opinion of the Attorney General, see Arnold H. Leibowitz, The Application of Federal Law to Guam, 16 Va. J. Int’l 21 n.7, (1975) (noting also the concurring opinion of Justice Gray in Downes v. Bidwell “[t]he civil government of the United States cannot extend immediately, and of its own force, over territory acquired by war. Such Territory must necessarily, in the first instance, be governed by the military power under the control of the President as commander in chief” 182 U.S. 244, 345 (1901)). Discussion on the Insular Cases below.
121 See Tom C.W. Lin, Americans, Almost Forgotten, 107 Calif. L. Rev. 1249, 1257 (2019) (citing Organic Act of Guam, Pub. L. No, 81–630, 64 Stat. 384 (1950) (codified as amended at 48 U.S.C. §§ 1421-1425 (2012)).
122 Id. See also, Hammond, supra note 92, at 1663.
123 Tom C.W. Lin, Americans, Almost Forgotten, 107 Calif. L. Rev. 1249, 1257 (2019) (except in the presidential primary election).
124 Ponsa-Kraus, supra note 12, at 2.
125 Id.
126 Hammond, supra note 92, at 1663 (arguing that “[t]he consequence of territories outside the constitutional scheme is to deliver them to the whims of Congress, a national legislative body in which they are not represented. This lack of formal and meaningful representation in the federal government means that territories are at a profound disadvantage with respect to relying on the political process to advocate for their interests, including when it comes to social protection”).
127 Id. Hammond cites the famous footnote 4 in Carolene Products, implicating John Hart Ely’s foundational argument regarding “discrete and insular minorities” and the challenge of political representation and the Court’s responsibility of judicial review. This argument will be further explored below in Section III.
128 See Ediberto Roman, The Other American Colonies, 164 (2006); Laura Thompson, Guam: Study in Military Government, 13 FAR E. SURV. 16, 149 (1944).
129 See Roman, The Other American Colonies, 164.
130 Thompson, supra note 128, at 149.
131 Id. at 150.
132 Anne Perez Hattori, Navy Blues: US Naval Rule on Guam And the Rough Road to Assimilation, 18989-1941, 5 Pacific Asia Inquiry, 18 (2014)(citing Governor Orders).
133 Report on Guam, 1899-1950, U.S. Navy (Cited in Hattori, supra note 132, at 13).
134 See Sam F. Halabi, The Healthcare Legacy of the Mission Civilisatrice in Unincorporated U.S. Territories, 20 NW. U. J. Int’l Hum. Rts. 121 (2022).
135 Id. at 123.
136 See generally, Anne Perez Hattori, Colonial Dis-Ease: US Navy Health Policies and the Chamorros of Guam 1989-1941 (2004).
137 Anne Perez Hattori, Navy Blues: US Naval Rule on Guam And the Rough Road to Assimilation, 1898-1941, 5 Pacific Asia Inquiry, 13 (2014).
138 Id. quoting Petition Relating to Permanent Government for the Island of Guam, House Document No. 419, 1902 in Hale’-ta, Hinasso’: Tinigi put Chamorro, Insight: The Chamorro Identity. Hagåtña: Political Status Education Coordinating Commission, 23-25 (1994).
139 See Timothy P. Maga, The Citizen Movement in Guam 53 Pac. Hist. Rev. 59, 63 (1984); Anne Perez Hattori, Righting Civil Wrongs: The Guam Congress Walkout of 1949, Univ. Hawaii Manoa 6 (1995) (documenting 7 other petitions by Guamanians to the US Congress for citizenship and civil government).
140 See Hattori, supra note 139, at 10–13.
141 Maga, supra note 139, at 68.
142 Id. See also Hattori, supra note 139, at 11–13.
143 See Hattori, supra note 139, [].
144 Id. at 22–23.
145 Leibowitz, supra note 13, at 334 (quoting Hopkins, Tibin, and Ryerson, Hopkins Committee Report for the Secretary on the Civil Government of Guam and American Samoa, (Dept. of the Navy, 1947).
146 Katherine Unterman, Trial Without Jury in Guam, USA, 38 Law and Hist. Rev. 811, 814 n.12 (2019); this opinion regarding the application of the Constitution in Guam apparently extends back to 1904 and the opinion of the Attorney General, see Arnold H. Leibowitz, The Application of Federal Law to Guam, 16 Va. J. Int’l 21 n.7, (1975) (noting also the concurring opinion of Justice Gray in Downes v. Bidwell “[t]he civil government of the United States cannot extend immediately, and of its own force, over territory acquired by war. Such Territory must necessarily, in the first instance, be governed by the military power under the control of the President as commander in chief” 182 U.S. 244, 345 (1901)).
147 Hattori, supra note 139, at 34.
148 Id.
149 See Maga, supra note 139, at 76–77.
150 Leibowitz, supra note 13, at 335.
151 See id., at 336–38.
152 Id.
153 Developments in the Law — The U.S. Territories, 130 Harv. L. Rev. 1616, 1654 (2017).
154 See John C. Fortier, The Constitution is Clear: Only States Vote in Congress, 116 Yale L. J. [forum online] 2007.
155 Ponsa-Kraus, supra note 20, at 2460.
156 Id.
157 Ponsa-Kraus, supra note 20, at 2458.
158 Vaello-Madero, 142 S. Ct. 1539, 1555 (2022) (Gorsuch, J., concurring) (arguing that the Court has applied “specious logic” in recent cases as a workaround to dealing with the challenge of the Insular Cases, asserting that “[t]hat solution is no solution,” citing S. Cleveland, Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth Century Origins of Plenary Power Over Foreign Affairs, 81 Texas L. Rev. 1, 241–43 (2002) (collecting cases)).
159 See Camacho v. Estate of Gumataotao, 2010 Guam 1, ¶ 16(discussing one of the infamous Insular Cases of Binns v. United States, 1994 U.S. 486, 490-94 (1904) as “articulating that Congress has plenary power to fashion the governments of its territories however it chooses”). Davis v. Guam, 932 F.3d 822, 825 (9th Cir. 2019)
160 See Sam F. Halabi, The Healthcare Legacy of the Mission Civilisatrice in Unincorporated U.S. Territories, 20 NW. U. J. Int’l Hum Rts. 121, 159 (2022) (concluding that “With the U.S. Supreme Court unwilling to interpret the Constitution as constraining plenary Congressional authority in the territories, there is little left to do besides make reasoned appeals to Congressional leaders”).
161 See Juan R. Torruella, Why Puerto Rico Does Not Need Further Experimentation with Its Future: A Reply to the Notion of Territorial Federalism, 131 Harv. L. Rev. F. 65, at 104 (2018).
162 Vaello-Madero, 142 S. Ct. 1539, 1554 (2022) (Gorsuch J., concurring) (in his concurring opinion, Justice Gorsuch outlines the theories and rationale that underpin the holding of Downes and the Insular Cases that “Applying the Constitution made sense in ‘contiguous territor[ies] inhabited only by people of the same race, or by scattered bodies of native Indians.’ But it would not do for islands ‘inhabited by alien races, differing from us in religion, customs, laws, methods of taxation, and modes of thought”).
163 See Developments in the Law — The U.S. Territories, 130 Harv. L. Rev. 1616, 1655 (2017); Juan R. Torruella, Why Puerto Rico Does Not Need Further Experimentation with Its Future: A Reply to the Notion of Territorial Federalism, 131 Harv. L. Rev. F. 65, 98 (2018) (Two distinct positions regarding the political relationship between the territories and the federal government arrive on relative common ground with respect to a more robust judicial review. Judge Torruella comes to a similar conclusion as Developments regarding a more “decisive” judicial review, leveling his analysis against the Insular Cases while citing the famous footnote four of Carolene Products Co., which spawned John Hart Eley’s theory relied upon in Developments. Whereas Developments concluded with ambiguity how its robust judicial review ought to deal with the Insular Cases, Judge Torruella’s argument was quite clear in his advocation of overruling said cases).
164 See Ponsa-Kraus, supra note 12, at 2.
165 Vaello Madero, 142 S. Ct. 1539, 1556 (2022) (Gorsuch, J., concurring).
166 See Fortier, supra note 154.
167 See Donald Lee Fixico, Termination and Relocation: Federal Indian Policy, 1945-1960, 183–86 (Univ. New Mexico Press, 1990).
168 Id.
169 See Leibowitz, supra note 13, at 335–342 (describing the limits of political autonomy based on the status of unincorporated).
170 See supra note 50 and accompanying text.
171 See supra note 53.
172 See supra note 54.
173 Hammond, supra note 92, at 1663 (citation omitted).