Rights groups urge Biden to repudiate racist U.S. Supreme Court rulings

[February 11, 2022]  By Lawrence Hurley

WASHINGTON (Reuters) - Civil rights groups on Thursday asked President Joe Biden's administration to disavow century-old Supreme Court rulings suffused with racist language that gave the government license to treat people living in Puerto Rico and other U.S. territories differently than other Americans.

The 13 groups, led by the American Civil Liberties Union, said in a letter to Attorney General Merrick Garland that the Justice Department should publicly condemn a series of rulings in the early 1900s called the Insular Cases.

The activists pointed to Biden's January 2021 executive order in which he pledged to advance racial equity. Other groups signing the letter included the Lawyers' Committee for Civil Rights Under Law and the Hispanic Federation, a Latino advocacy group.

The rulings, starting in 1901, came in the aftermath of the acquisition of overseas territories following the 1898 Spanish-American War and established that Puerto Ricans and those living in some other U.S. territories do not possess the same rights under the U.S. Constitution as people living in U.S. states.

One Supreme Court justice at the time referred to territories "inhabited by alien races" and another endorsed the notion that the United States can seize "an unknown island, peopled with an uncivilized race" without conferring citizenship.
 

The letter from the activists said that the Justice Department's "continued embrace of the Insular Cases cannot be reconciled with this administration's pledge to affirmatively advance equity and racial justice."

The activists said they were prompted to write the letter by the Justice Department's approach in a November Supreme Court oral argument concerning whether Congress can bar Puerto Ricans from the federal Supplemental Security Income (SSI) program that provides benefits to low-income elderly, blind and disabled people.

During the argument, Justice Neil Gorsuch specifically asked Deputy Solicitor General Curtis Gannon, representing the administration, for its position on the cases.

"Why shouldn't we just admit that the Insular Cases were incorrectly decided?" Gorsuch asked.

Gannon responded that although the "reasoning and rhetoric there is obviously anathema," the Supreme Court did not need to say anything about the cases to decide the question about SSI benefits, thereby missing an opportunity to denounce them, the activists said.

The Supreme Court justices, pictured in 1899. LOC/via REUTERS

"It's like having laws on the books that don't outlaw lynching," said Laura Esquivel, vice president of federal policy and advocacy at the Hispanic Federation. "Why would the U.S. government want to leave those laws there? Why would they not want to repudiate them?"

Alejandro Ortiz, an ACLU lawyer, said it would be an "easy win" for Biden's administration to condemn the Insular Cases because there is consensus now that they were based on racist reasoning.

"This is one easy example of systemic racism, where racism has been built into the way the federal government treats people who live in the territories, who are overwhelmingly people of color," Ortiz added.

The Insular Cases could play a more prominent role in another case heading toward the justices on whether people born in American Samoa, another territory, are entitled to full U.S. citizenship at birth.

There are five U.S. territories in total - the other three being Guam, the Virgin Island and the Northern Mariana Islands. Puerto Rico is by far the most-populous, with about 3 million people. Many Puerto Ricans have long complained that the Caribbean island's residents are treated worse than other Americans despite being U.S. citizens.

In the case before the court, Biden's Justice Department continued an appeal initially filed by Republican former President Donald Trump's administration while at the same time urging Congress to extend SSI benefits to Puerto Rico.

Based on the oral argument, it was unclear how the Supreme Court would rule, with a decision due by the end of June.

If the court rules in favor of Puerto Rican resident Jose Luis Vaello-Madero, who has argued that he should receive the benefit, more than 300,000 Puerto Rico residents could become eligible at an estimated cost to the U.S. government of $2 billion annually.

(Reporting by Lawrence Hurley; Editing by Will Dunham)

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