Keith Mack
The United States has several territories, including Puerto Rico, Guam, American Samoa, the Northern Mariana Islands, and the U.S. Virgin Islands. These territories are subject to the dominion and sovereignty of the U.S. Congress, which has full legislative power over them. While Congress can legislate directly on local territorial affairs, it may also delegate this power to territorial legislatures, which then have all legislative power except as limited by the U.S. Constitution and acts of Congress. In 2022, the U.S. Supreme Court ruled that Congress has wide latitude in mandating reasonable tax and benefit schemes in U.S. territories, but it did not address whether these territories are incorporated or unincorporated. This distinction is important because it determines the extent to which constitutional protections apply to the territories. While some territories, like Puerto Rico, have been granted a degree of self-governance, such as the ability to draft their own constitutions and elect their own governors, the recent passage of the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA) has been seen as a reversal of this trend towards self-governance. So, while U.S. territories have some autonomy in passing laws, these laws cannot override U.S. laws, and the power to make laws that override local territorial laws ultimately rests with Congress.
US Territories and their laws
| Characteristics | Values |
|---|---|
| Can US territories pass laws that override US laws? | No, Congress has full legislative power over US territories and can impose discriminatory tax regimes. |
| US territories | American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the US Virgin Islands |
| US unincorporated territories | Insular areas or overseas possessions |
| US territories and self-determination | The Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA) has intruded on Puerto Rico’s sovereignty and halted its progression toward federalism. |
| US territories and citizenship | The Jones Act granted Puerto Ricans citizenship and the right to elect their legislature. |
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What You'll Learn
- The US Congress has full legislative power over US territories
- US territories are not subject to the same constitutional protections as US states
- US territories can be considered part of the United States for legal purposes
- The US Supreme Court has ruled that US territories are subject to reasonable tax and benefit schemes
- The US Congress has the power to dispose of and make rules for US territories
The US Congress has full legislative power over US territories
In 1886, Congress prohibited territorial legislatures from enacting local or special laws on certain subjects. Congress has also extended the full range of constitutional protections enjoyed by US residents to incorporated territories, but not to unincorporated territories. The distinction between incorporated and unincorporated territories remains legally relevant, with Puerto Rico being a notable example of an unincorporated territory.
In 2022, the US Supreme Court held that the territorial clause of the US Constitution allows Congress broad authority to mandate "reasonable" tax and benefit schemes in Puerto Rico and other territories. However, the Court did not address the incorporated/unincorporated distinction. This has resulted in a status quo, with Puerto Rico still defined as an unincorporated US territory.
Despite this, Puerto Rico has made significant strides towards self-governance. In 1950, Congress passed Public Law 600, which allowed Puerto Rico to draft its own constitution and elect its own governor. This led to Puerto Rico being considered a "commonwealth". However, the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA) has been seen as a fundamental intrusion on Puerto Rico's sovereignty, with some arguing that it defies territorial federalism.
In summary, while US territories may have a degree of legislative autonomy, the US Congress ultimately retains full legislative power over them, including the power to make rules and regulations, legislate on local affairs, and establish constitutional protections.
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US territories are not subject to the same constitutional protections as US states
The United States has several territories under its control, including Puerto Rico, American Samoa, Guam, the Northern Mariana Islands, and the U.S. Virgin Islands. These territories are not considered part of the United States but are still subject to U.S. sovereignty. The question of whether these territories are subject to the same constitutional protections as U.S. states is a complex one and has been the subject of much debate and numerous court cases over the years.
In 1856, the United States began acquiring unincorporated territories, also known as overseas possessions or insular areas, under the Guano Islands Act. This Act authorized the president to take possession of unclaimed islands to mine guano. The United States has also acquired territories through other means, such as the Treaty of Paris (1898), which ended the Spanish-American War. The status of these unincorporated territories, and whether they are afforded the same constitutional protections as states, has been a source of contention.
In 1922, the Supreme Court considered the constitutional position of unincorporated territories in Balzac v. People of Porto Rico. The Court held that a U.S. court in Puerto Rico was not a true United States court established under Article 3 of the Constitution. This case, along with several others decided around the same time, are known as the Insular Cases. In these cases, the Court recognized that certain fundamental personal rights declared in the Constitution, such as due process protections, apply to persons in Puerto Rico. However, the full scope of constitutional provisions applicable in Puerto Rico and other unincorporated territories remains unsettled.
In 2021, the United States Court of Appeals for the Tenth Circuit ruled in Fitisemanu v. United States that American Samoans are not entitled to birthright citizenship and declined to overrule the Insular Cases. This decision was upheld by the U.S. Supreme Court. Additionally, in 2022, the Supreme Court held in United States v. Vaello Madero that the territorial clause of the Constitution allows Congress to mandate "reasonable" tax and benefit schemes in Puerto Rico and other territories that are different from those in the states. However, the Court did not address the incorporated/unincorporated distinction or the full extent of constitutional protections in these territories.
While the territories may have some degree of self-governance, such as the ability to draft their own constitutions and elect their own governors, they are still ultimately subject to the dominion and sovereignty of Congress. Congress has the power to legislate directly with respect to the local affairs of a territory or delegate that power to the territory's legislature. The constitutional guarantees of private rights are applicable in incorporated territories but not in unincorporated territories. Therefore, it can be concluded that US territories are not subject to the same constitutional protections as US states, as the extent of their protections is determined by Congress and may differ from those afforded to states.
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US territories can be considered part of the United States for legal purposes
The United States has several territories under its control, including American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands. These territories are considered a part of the United States for legal purposes, but they are not states and do not have the same rights and protections as states.
The U.S. Congress has full legislative power over these territories and can make laws for them. Congress can also choose to delegate the power to make laws to the local legislatures of these territories. However, the laws made by these territorial legislatures cannot contradict the Constitution of the United States or any acts of Congress.
In 1856, the U.S. acquired its first unincorporated territories, also known as overseas possessions or insular areas, under the Guano Islands Act. This Act authorized the president to take possession of unclaimed islands to mine guano. The U.S. has also acquired territories through other means, such as the Treaty of Paris in 1898, which ended the Spanish-American War.
The term "unincorporated territory" was coined to legitimize the late 19th-century territorial acquisitions without citizenship and their administration without constitutional protections. These unincorporated territories do not enjoy the full range of constitutional protections that are granted to residents of incorporated territories or states.
Puerto Rico is an example of a U.S. territory that has moved towards greater self-governance. In 1950, Congress passed a law allowing Puerto Rico to draft its own constitution and elect its own governor. However, despite these moves towards self-governance, Puerto Rico is still considered an unincorporated territory, and its sovereignty has been intruded upon by acts such as the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA).
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The US Supreme Court has ruled that US territories are subject to reasonable tax and benefit schemes
In 2022, the United States Supreme Court ruled that the territorial clause of the US Constitution allows Congress to implement "reasonable" tax and benefit schemes in US territories, including Puerto Rico. This ruling, United States v. Vaello Madero, affirmed that Congress has broad latitude in mandating tax and benefit policies in territories that differ from those in the states. However, the Court did not address the distinction between incorporated and unincorporated territories. As a result, Puerto Rico remains defined as an unincorporated territory by the US government.
The term ""unincorporated territory"" refers to territories acquired by the US without granting them statehood or constitutional protections. The judicial term was coined to legitimize late-19th-century territorial acquisitions, such as Puerto Rico, which were not granted citizenship or constitutional rights. The case law allowed Congress to impose discriminatory tax regimes on these territories, effectively treating them as protective tariffs.
The Supreme Court's ruling in United States v. Vaello Madero has significant implications for the tax and benefit policies in US territories. It affirms Congress's power to implement unique tax and benefit schemes in these territories, recognizing their distinct circumstances and needs. However, it also highlights the complex legal status of territories like Puerto Rico, which remains unincorporated despite arguments that it has evolved into an incorporated territory over time.
The tax and benefit schemes mandated by Congress for US territories must be "reasonable," according to the Supreme Court. This ruling sets a precedent for evaluating the fairness and legality of tax and benefit policies in these territories. It remains to be seen how this standard of "reasonableness" will be applied and enforced in practice.
While the Supreme Court's decision provides guidance on tax and benefit policies, it does not address the broader question of the legal status of US territories. The distinction between incorporated and unincorporated territories has significant implications for the rights and protections afforded to the residents of these territories. The Court's decision to maintain the status quo leaves the resolution of this complex issue for another day.
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The US Congress has the power to dispose of and make rules for US territories
The US Congress has broad authority over US territories and their legislatures. The US Constitution states that "Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States". This means that Congress has the power to make laws and regulations for US territories and can acquire, sell, or govern these territories as it sees fit.
Congress has the entire dominion and sovereignty over US territories, both national and local, and has full legislative power over all subjects that a state legislature might act upon. This means that Congress can legislate directly on local territorial affairs or delegate that power to territorial legislatures. However, Congress has prohibited territorial legislatures from enacting local or special laws on certain enumerated subjects.
The US Constitution also does not prejudice any claims of the United States or of any particular state. This means that Congress can impose different tax and benefit schemes in US territories compared to the states, as seen in the case of Puerto Rico. The Supreme Court has upheld this power, stating that the territorial clause of the Constitution allows Congress this latitude as long as the schemes are "reasonable".
The status of US territories and the extent of their rights have been questioned in several court cases, such as Balzac v. People of Porto Rico in 1922, which ruled that a US court in Puerto Rico was not a true US court. The Insular Cases, a series of Supreme Court decisions, have also been criticised for their "shameful" and "rotten foundation" by some justices, who have urged the Court to overrule them when possible. Despite this criticism, the Court has continued to adhere to these cases.
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Frequently asked questions
No, US territories cannot pass laws that override US laws. Congress has the power to make and enforce laws in US territories, and it can choose to legislate directly or delegate that power to the territories.
The US has five inhabited territories: American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the US Virgin Islands. These are considered "unincorporated" territories, which means they are not on a clear pathway to US statehood and do not have the same constitutional protections as US states.
US territories have some degree of autonomy and can make their own laws, but their power is limited by the US Constitution and acts of Congress. For example, Congress has prohibited territorial legislatures from enacting local or special laws on certain subjects.
No, residents of US territories do not have the same rights as US citizens. They do have certain fundamental personal rights guaranteed by the US Constitution, such as due process rights, but they do not have the full range of constitutional protections enjoyed by residents of US states.
