The foundation of U.S. colonial rule is being scrutinized, reflecting ongoing legal and constitutional debates. Historically, the plenary power doctrine has granted Congress extensive authority over Native American tribes and U.S. territories such as Puerto Rico, Guam, and others, allowing for governance decisions made without clear constitutional backing. This power has allowed Congress to exert control, theoretically up to unilaterally dissolving tribal governments or imposing military rule.
Supreme Court Justices Neil Gorsuch and Clarence Thomas have previously challenged the legal basis for this expansive power in relation to Native American tribes, as seen in the case of Haaland v. Brackeen. Their recent dissent in Veneno v. United States extends this challenge to U.S. territories, questioning if the Constitution indeed allows Congress such overwhelming control. This questioning extends the judicial conversation beyond tribes to include territories for the first time.
This dialogue is gaining particular prominence as significant anniversaries approach, including the 250th anniversary of the Declaration of Independence and the 125th anniversary of the Insular Cases. These cases, rooted in early 20th-century decisions, justified colonial governance and denied certain protections to territories based on controversial interpretations of the Constitution. The calls by both Gorsuch and Justice Sonia Sotomayor in 2022 to overrule the Insular Cases reflect a broader push for reconsidering the legal frameworks governing U.S. territories.
In his dissent, Gorsuch argued that the territories clause of the Constitution does not grant Congress unlimited authority over territories, challenging a long-held interpretation affirmed by decisions such as United States v. Kagama. Gorsuch’s critique has stimulated discussion on the extent of congressional power, suggesting that these powers could justifiably be limited by constitutional principles of equality and self-governance.
The implications of overturning or modifying the plenary power doctrine and the Insular Cases are profound. Such changes could prompt Congress to reconsider the status of territories, potentially leading to greater self-determination and adjustment in governance structures. This potential shift echoes historical decisions that have reinvigorated debates, similar to the impact of overruling Plessy v. Ferguson on civil rights legislation.
While concrete outcomes remain uncertain, the Supreme Court’s role in examining and potentially reshaping U.S. territorial governance continues to be crucial. As Justice Gorsuch articulated, the need for a constitutional reconsideration of these doctrines is evident to align with America’s foundational principles. “…Whether the day of reckoning … comes sooner or later, it must come,” he noted in his dissent. This ongoing judicial scrutiny underscores the evolving interpretation of the Constitution as it pertains to U.S. territories. For a more detailed exploration, the full article on SCOTUSblog can be viewed here.