I. Introduction
In United States v. Vaello-Madeo,Footnote 1 Justice Neil Gorsuch deferred “a long overdue reckoning” with the U.S. empire.Footnote 2 The Insular Cases Footnote 3—vestiges of Victorian-era imperial pursuitsFootnote 4—reappeared in Gorsuch’s concurring opinion concerning a dispute over SSI payments.Footnote 5 While not directly raised as an issue,Footnote 6 the constitutionality of the Insular Cases were undercut by the concurring opinion.Footnote 7 Lack of democratic principles and constitutional rights was commonplace for territories in U.S. history,Footnote 8 but for Guam and the other territories acquired through the Spanish-American War, the dearth of constitutional protections and democratic governance was special.Footnote 9 Marked by racial, linguistic, religious, and political differences,Footnote 10 the Supreme Court bestowed a novel constitutional status on these new territories through the series of 1901 opinions known as the Insular Cases. Footnote 11 The Insular Cases created a glaring constitutional mess, including implications for federal funding for Medicaid in the Territories. This Note focuses on the Pacific Island Territory of Guam as a case study. Discrepancies in federal funding for Medicaid between the States and the Territories hinge on a lack of representation of the Territories in Congress,Footnote 12 borne out of the judicially crafted political status from the Insular Cases. Footnote 13 The instability in the health care funding of the island, as outlined below, is thus a feature, not merely a bug of the political relationship between the U.S. Congress and the Territory of Guam. This Note argues that the door opened by Justice Gorsuch is ripe to be pursued in the case of federal Medicaid with the issue of the constitutional quandary created by the Insular Cases brought to the fore of such a challenge.
Guam proudly claims itself to be “where America’s day begins.”Footnote 14 The unincorporated territory shares its history of inclusion into American control with the several other Pacific and Caribbean islands that were annexed following the peace treaty that ended the Spanish American War in 1898.Footnote 15 Guam started America’s day under naval governance; its importance was reduced to purely military concern.Footnote 16 Guam’s government remained undemocratic, with little to no local control into the mid-twentieth century.Footnote 17 The Court devised that Guam and its companions were unincorporated territories, distinct from incorporated territories.Footnote 18 The upshot of this doctrine, as elaborated in the several decades following the initial Insular Cases,Footnote 19 is that only “fundamental limitations” of the Constitution apply to unincorporated territories.Footnote 20 The incorporation doctrine has survived to the present day and underpins the contemporary “political and constitutional subordination”Footnote 21 of Guam and the rest of the unincorporated U.S. territories. This Note focuses specifically on the manner in which the incorporation doctrine sanctions political subordination that facilitates the unacceptable instability and inequality in federal funding of health care on the island.
This argument will be developed in three parts. First, Part I will present the context of federal funding of Medicaid in Guam and address the related implications for the Island’s health care. Next, Part II will connect the issue of disparate federal Medicaid funding of Guam and the lack of representation in Congress to the Insular Cases and the political status of Guam as an unincorporated territory. Finally, Part III will present a challenge to the doctrine established in the Insular Cases based upon the preceding facts and analysis presented in Parts I and II.
II. Federal Medicaid Funding for Guam
Overall, the quality of health care in the U.S. Territories is comparatively worse than in the U.S. mainland.Footnote 22 Officials have long noted that, on average, health outcomes are worse in the Pacific Island Territories, with a higher prevalence of serious diseases among Island residents.Footnote 23 The same aggravating factors stressing Guam’s health care system are identified by experts today as they were nearly twenty years ago: the remoteness of the island, the inability to raise adequate funds through local and federal sources for health care needs, and the challenge of retaining sufficient health care professionals.Footnote 24 Access to federal funding is fundamental to understanding the causal source of health disparities between the U.S. mainland and the outcomes of the health care system in Guam.Footnote 25 The balance between need and available health care on the island is fragile,Footnote 26 and federal funding plays a key role in maintaining the balance; as of 2019, roughly one in five individuals in Guam were enrolled in Medicaid.Footnote 27 A leading administrator of the Guam Department of Public Health and Social Services testified before Congress that the inability to afford health care delays residents’ ability to seek early treatment, only causing further financial strain on the health care system in the long term.Footnote 28 This administrator further testified that the single public hospital, Guam Memorial Hospital Authority (GMHA), struggles financially due to the high proportion of low-income, uninsured, and underinsured patients coupled with the lack of timely Medicaid payments alongside the dearth of federal funds through the Disproportionate Share Hospital (DSH) payments it would receive if it were a stateside hospital.Footnote 29
Adding to the instability and fragility of the balance between need and available health care in Guam is the disparity in federal funding for Medicaid compared to the States. First, unlike that of the States, which may pull funds as needed, Guam’s federal Medicaid has an annual spending cap known as the Section 1108 allotment.Footnote 30 Second, the Federal Medical Assistance Percentage (FMAP)—the federal reimbursement rate intended to fund States relative to their capacity to self-fund Medicaid from the State’s internal revenueFootnote 31—was set for Guam by statute at fifty-five percent.Footnote 32 For instance, commenting on this disparity in 2019, the executive director of the Congressional advisory body on Medicaid and CHIP, MACPAC, estimated that Guam would recover eighty-three percent FMAP if calculated in parity with the States.Footnote 33
Indeed, the public health emergency triggered by the COVID-19 pandemic temporarily stimulated the FMAP for Guam to 89.2% during the emergency period.Footnote 34 In a recent legislative victory for the Territories,Footnote 35 the Consolidated Appropriations Act of 2023 indefinitely increased the FMAP for Guam, the other Pacific Island Territories, and the Virgin Islands to eighty-three percent.Footnote 36 Medicaid funding to Guam and the other Territories has been supplemented with additional spending through the Affordable Care Act,Footnote 37 the Family First Coronavirus Response Act,Footnote 38 and most recently, the Consolidated Appropriations Act of 2023 extended supplemental funding and indefinitely increased the FMAP for Guam.Footnote 39 And despite these measures, instability and “funding cliffs” have had negative impacts on the overall quality of Guam’s health care funding system.
As the pandemic waned in the minds of policymakers and the series of supplemental Medicaid fundsFootnote 40 ran into a possible fiscal cliff,Footnote 41 Guam and the other Unincorporated Territories faced the uncertain challenge of keeping their strained health care systems afloat.Footnote 42 In the last hours of 2022, Congress passed the aforementioned Consolidated Appropriations Act of 2023, averting the Medicaid cliff facing the Territories.Footnote 43 While the recent Appropriations Act indefinitely increases the FMAP for Guam, this Note argues that creating a stable source of funds for the U.S. Territories goes beyond this purportedly “permanent” fix. The bottom line is that only addressing the lack of Congressional representation permitted by Insular Cases can truly rectify the “chronic underfunding”Footnote 44 of the health care system on the island.
Federal funding of Medicaid for Guam has a nominally “permanent source” of annually capped allotments and fixed federal matching.Footnote 45 Language in the Social Security Act enabling federal Medicaid and Child Health Insurance Program (CHIP) expenditures “considers” Guam a state for the purposes of the statute.Footnote 46 However, when it comes to spending limits and access to federal dollars, Guam is permitted only a fixed allotment and has historically had less federal FMAP matching.Footnote 47 This arrangement is quite unlike that of a state in which access to Medicaid dollars is open-ended.Footnote 48 Despite the ostensibly “permanent” nature of this federal funding, the funding is not stable—Congresswoman Eshoo made this clear in a statement before the House Subcommittee on Health, outlining the uncertain nature of Medicaid funding for the Territories and the six stopgap funding measures since 2010 required to keep the Territories funded.Footnote 49 Ultimately, the nature of this instability leads to heightened costs on the dependent Territory health care systems.Footnote 50 As noted above, for Guam, the balance between the demand and available care is fragile at best.
The current structure of federal funding for Guam’s Medicaid program creates uncertainty for patients and health care providers. For example, Delegate San Nicolas testified before Congress that the Section 1108 cap and the lowered FMAP rate resulted in delayed payments to health care vendors.Footnote 51 Additionally, operating under a fee-for-service payment structure,Footnote 52 these shortfalls and uncertainties in the funding structure for Medicaid in Guam affect private health care providers, which are often unwilling or unable to accept “Medicaid-eligible patients” due to related delays or potential delays in Medicaid payments.Footnote 53 Complicating this further is the fact that Guam’s health care providers do not benefit from federal DSH Payments,Footnote 54 nor does Guam receive SSI payments that would otherwise fund providers of those who, if not based on their territorial status, would be eligible for SSI funds.Footnote 55 Delegate San Nicolas further notes that Guam is neither eligible for the ACA marketplace nor the associated federal subsidies, resulting in high rates of uninsured and underinsured individuals in the Territory.Footnote 56 Combined with the uncertainty in the stop-gap funding for Medicaid, the underfunding of the program, and the various other inequities with respect to federal funding of health-related programs, like SSI, create a more costly and deleterious outcome for Guam’s health care system.
Costs related to the instability in Medicaid funding are also apparent when coupled with the fact that Guam is a Health Professional Shortage area and a Medically Underserved area, which results in Medicaid recipients having to resort to more costly emergency room care, in addition to reports of health care providers refusing to take Medicaid patients due to the delays in payment.Footnote 57 Similarly, the heightened cost of medical supplies related to shipping expenses associated with the remoteness of Guam only further strain the limited Medicaid dollars.Footnote 58
The sizable migrant population residing in Guam illustrates the precarity of the balance of Guam’s health care system and federal funding. The Micronesian migrant population hailing from several island nations makes up eleven percent of Guam’s population.Footnote 59 Collectively known as the Freely Associated States (FAS), the Marshall Islands, the Federated States of Micronesia, and Palau are part of the Compact of Free Association with the United States.Footnote 60 Challenges in accessing health care due to language barriers and poverty, as well as high rates of untreated diabetes, heart disease, and obesity are particularly common among the FAS migrants residing in Guam.Footnote 61 While originally eligible for Medicaid, 1996 welfare reforms made FAS migrants ineligible for these programs.Footnote 62 The issue of covering the payments for uninsured medical services provided to FAS migrants in Guam has come before Congress numerous times.Footnote 63 Representatives from Guam raised the issue in 2019,Footnote 64 2020,Footnote 65 and finally, 2021 saw the reinstatement of eligibility of Medicaid for FAS migrants through the Covering our FAS Allies Act and its enactment in the Consolidated Appropriations Act of 2021.Footnote 66 Despite the eligibility for Medicaid, enrollment is surprisingly low, with only some 1,300 enrollees out of the 19,000 eligible FAS migrants on the Island.Footnote 67 Coverage for uncompensated health care from the FAS migrant community is indeed a costly issue; a report in 2018 claims that between 2008 and 2017, $123,354,639 in uncompensated health care fees were owed to Guam Memorial Hospital Authority resulting from FAS migrants’ admittances.Footnote 68
Suffice it to say, the dynamic of Medicaid funding in Guam is complex and is tied into issues of uncompensated care for low-income, highly vulnerable communities, which in turn create risks and costs for health care providers across the island. Coupled with the instability inherent in Medicaid’s funding structure, the chronic underfunding and uncertainty of future funding has a ripple effect across Guam’s health care system. Picking up on this theme, this Note will next expound upon the dynamic relating to the stopgap funding that has kept Medicaid afloat in the Territories. Ultimately, the point of this demonstration is to underscore the severe health care consequences of the constitutional mess created by the Insular Cases and the incorporation doctrine that excludes U.S. citizens from federal representation.
A. The Affordable Care Act & the 2019 Medicaid Cliff
The Affordable Care Act enabled a massive increase in federal funding for the Unincorporated Territories and set the increased funds to expire in 2019, resulting in the recent fiscal cliffs for federal funding of Medicaid in the Unincorporated Territories.Footnote 69 Addressing the expiration of the supplemental funds became the top priority for the representatives of each Unincorporated Territory leading up to the 2019 fiscal cliff.Footnote 70 The funding for Guam in the 2019 fiscal year, along with the ACA funds, amounted to $292.78 million; without such funds, the Section 1108 allotment totaled $17.97 million.Footnote 71 It was estimated that the federal funds for Guam’s Medicaid would exhaust between April and June of 2020.Footnote 72 In such an event, a leading public health official from Guam expected the effect would be the termination of fifty percent of the Territory’s Medicaid beneficiaries and would only result in inflating Guam’s already substantial population of uninsured individuals.Footnote 73 Of course, Guam did not face this Medicaid cliff alone; all five unincorporated territories were confronted with the stark possibility of vital funding shuttered from their already fragile health care systems.Footnote 74
The policy debate regarding the extension of federal supplemental funding, the removal of the Section 1108 cap, and an increase to the FMAP for territories was complicated by a corruption scandal in Puerto Rico’s Medicaid administration.Footnote 75 Resulting arrests occurred just days before Congressional hearings on the Medicaid cliff began in D.C.Footnote 76 Republican Senators were quick to raise concerns related to these arrests and the “ongoing lack of transparency in the government of Puerto Rico.”Footnote 77 Ultimately, however, the Further Consolidated Appropriations Act for 2020 averted the Medicaid cliff, extending temporary supplemental funding for two years.Footnote 78 Guam was allotted $130.9 million for the 2020 fiscal year and $129.7 million for the following fiscal year.Footnote 79 While the continued funding was much needed, the term limit of 2021 only highlights the pattern of passing the buck on the issue of chronic underfunding of the Territories’ health care systems.
A similar story was repeated during the COVID-19 pandemic. The pandemic and the accompanying economic shutdown had a particularly devastating impact on Guam’s economy.Footnote 80 The stress of the pandemic pushed Guam’s health care system to the brink.Footnote 81 And while the Families First Coronavirus Response Act (FFCRA) supplied needed supplemental allotments of $133.2 million in federal Medicaid dollars, the funding was yet again set to expire at the end of Fiscal Year 2022.Footnote 82 The Build Back Better Act (BBBA) H.R. 5376 was slated to permanently increase Medicaid funding and add SSI benefits to the Territories.Footnote 83 However, these provisions were not included in the Inflation Reduction Act and the permanent increase in Medicaid spending for the Territories was not passed.Footnote 84 Thus, the same fiscal cliff that faced the Territories in 2019 unsurprisingly reappeared as the exhaustion of federal Medicaid funds came before Congress in 2022.
B. (Another) Looming Fiscal Cliff & a “Permanent” Fix
In 2021, Democratic members of the House Committee on Energy and Commerce, chaired by Congressman Frank Pallone, called for an overhaul of the structure of federal Medicaid funding, proposing long-term solutions of eliminating the Section 1108 allotment and permanently increasing the FMAP rate.Footnote 85 These notions were advanced in the proposed Insular Area Medicaid Parity ActFootnote 86 and the proposed Territorial Equity Act.Footnote 87 Republicans were purportedly less supportive of the proposed overhaul—reportedly seeking more oversight before any change to funding.Footnote 88 The legislative history of the Consolidated Appropriations Act of 2023 (“Appropriations Act”) does not reveal exactly what the deliberative process entailed. Nevertheless, Section 5101 of the Appropriation act extends the eighty-three percent FMAP rate for Guam, the other Pacific Territories, and the U.S. Virgin Islands indefinitely. Footnote 89 Additionally, the Appropriations Act includes reimbursed payment for Territories’ “qualified data system improvement expenditures”Footnote 90 Overall, the Appropriations Act is a major step forward for Guam and is a positive move for a more stable source of federal funding for the Island’s health care system. However, fundamental aspects of the federal funding structure for Medicaid and the health care system writ large in Guam are yet to be addressed. Namely, the Section 1108 Allotment contributes to the instability and fragility of Guam’s health care system. At the core of all this is the subject of the following section: representation and the lack thereof rooted in the Victorian-era doctrine of incorporation.
In the end, the structure by which Guam and the unincorporated territories are funded by the federal government is corrupted by the process by which the territories are governed. Delegate Plaskett, representing the U.S. Virgin Islands, gave voice to this idea when she addressed her colleagues before the House Committee on Energy and Commerce regarding Medicaid funding: “to have us continually come and beg you for money to be treated equitably is absolutely unfair. And all of us, as Members of Congress—all of you on this committee—should be embarrassed that you have Members of Congress asking you to be treated fairly.”Footnote 91 Delegate Plaskett’s testimony encapsulates the legislative history and the structure of federal Medicaid funding that produces the instability in the health care system of Guam and the other Territories. The nature of the Unincorporated Territories, being effectively unrepresented in any meaningful manner,Footnote 92 fundamentally corrupts the process of federal funding of Medicaid and, at its core, robs the process of any constitutional legitimacy.Footnote 93 As Professor Hammond has argued,
“[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[.]”Footnote 94
III. An “Unincorporated Territory” – The Specter of the Insular Cases and their Progeny
In the summer of 2017, the United States government commenced a civil suit against Jose Luis Vaello Madero for the recovery of $28,081, which he had received as SSI benefits.Footnote 95 Despite the fact that Mr. Vaello Madero had resided in New York for nearly thirty years, when he relocated to Puerto Rico in 2013, the SSI benefits he enjoyed in New York became void, according to the Social Security Administration.Footnote 96 Mr. Vaello Madero challenged the recovery action against him on constitutional grounds, moving for summary judgment.Footnote 97 The District Court for Puerto Rico ruled in his favor, finding as a matter of law the exclusion of Puerto Rico under Section 1382(e) of the Social Security Act and Supplemental Disability Benefits violated the equal protection clause of the Fifth Amendment.Footnote 98 The First Circuit Court of Appeals affirmed the District Court in an opinion authored by Judge Torruella.Footnote 99 In an 8-1 majority opinion, the Supreme Court reversed the lower courts, holding that the equal protection clause does not require Congress to confer SSI benefits to Puerto Rico.Footnote 100 The Court held that “Congress may distinguish the Territories from the States in tax and benefits programs such as Supplemental Security Income, so long as Congress has a rational basis for doing so.”Footnote 101 Justice Kavanaugh, authoring the majority opinion, presented the holding as “dictated” by Califano v. Torres Footnote 102 and Harris v. Rosario,Footnote 103 which support the Court’s deferential rational-basis test applied to Congress’s exclusion of the Unincorporated Territories from SSI benefits.Footnote 104 The majorities in Vaello Madero and Rosario fundamentally rely upon a particular reading of the Territory Clause of the Constitution,Footnote 105 which enshrines “broad authority to legislate with respect to the U.S. Territories.”Footnote 106
The uncritical acceptance of Congress’s “broad authority,” and its purported plenary power over “the U.S. Territories”Footnote 107 forced the Court to make a powerful assumption regarding Congress’s relationship with the territories. The majority in Vaello Madero sensed this, concluding that “Vaello Madero’s position would usher in potentially far-reaching consequences.”Footnote 108 The assumption is unnamed in the majority opinion. The specter of the Insular Cases haunts its opinion, as it does in Torres and Rosario. The dissent in Rosario calls this to our attention,Footnote 109 as does Justice Gorsuch’s concurrence in Vaello Madero. Justice Marshall’s dissent in Rosario points out that the proposition is taken as fact with no authority cited in the majority opinion, that Congress, with a rational basis, may treat the Unincorporated Territories differently.Footnote 110 Marshall intimates that the only source of authority for the Court to rule as it did was buried in the “questionable”Footnote 111 language of Downes v. Bidwell and Balzac v. Puerto Rico. Footnote 112 Justice Marshall points out that the then-recent cases of the Court had rebutted the limitation of constitutional protections to Puerto Rico and the other territories.Footnote 113 Yet despite the Court distancing itself from the strongest pronouncements of the incorporation doctrine espoused in the Insular Cases,Footnote 114 the Court has not overturned the persistent doctrine of the Cases. Vaello Madero is a prime example of such persistence. And thus, even today, while an incremental expansion of constitutional rights has been applied to the territories, they remain “foreign to the United States in a domestic sense.”Footnote 115 And just as Justice White reasoned in 1901, today, the territories remain in such limbo because they have “not been incorporated into the United States, but [were] merely appurtenant thereto as a possession.”Footnote 116 This doctrine thus continues to give life to the proposition that the U.S. Congress has unparalleled “broad authority” over the territories more than 120 years after their acquisition.
The incorporation doctrine, in its fullest sense, holds that “unincorporated” territories “were to receive only unspecified ‘fundamental’ constitutional protections”Footnote 117 such that Congress could govern the unincorporated territories “contrary to constitutional provisions.”Footnote 118 This is abundantly clear in Guam’s first fifty years of U.S. rule, from its acquisition in 1898 to 1950,Footnote 119 Guam was governed under Navy rule in such a manner that a 1947 Senate Report claimed: “[t]he Constitution of the United States does not apply to Guam.”Footnote 120 Indeed, Guam had little semblance of local rule, let alone democratic governance, until the Organic Act of Guam granted U.S. citizenship and replaced Navy governance with a civil government.Footnote 121 Even today, the representation of citizens residing in Guam is limited—Guam does not have a single voting representative in the U.S. Congress,Footnote 122 nor can resident citizens vote for President.Footnote 123 Professor Duffy Ponsa-Kraus characterizes this subordinated political status without effective representation as an invisibility that has “trapped [the territories]… in a second-class status”Footnote 124 “at the top of nobody’s agenda, and stripped of the power to set their own.”Footnote 125 Professor Andrew Hammond has identified this as a contributing factor across the board in the inability of the Territories to receive adequate social welfare.Footnote 126 As outlined in Part I, federal funding for Medicaid and Guam’s health care funding crises directly implicate the incorporation doctrine and the manner in which the Insular Cases have “plac[ed] [the territories] outside the default arrangement of American public law.”Footnote 127 The lack of federal representation permitted through the specter of the Insular Cases is a critical factor as to why Guam and other territories have unstable and unequal federal funding for health care social programs. Ultimately, the imbalance and instability demonstrated in Part I hinge on the lack of federal representation engendered by the incorporation doctrine. And perhaps more fundamentally, upon a deeper history of empire and colonial subjugation of the unincorporated island territories.
It is worth developing an understanding of the deeper history of the American colonization and political subjugation of Guam. When Guam became a possession of the United States in 1899, the island was a military installation under the Department of the Navy.Footnote 128 Guam’s people did not have any semblance of representation until 1917 with the creation of an “advisory body,” of which members were selected by the U.S. Navy governor.Footnote 129 The municipal electoral system established under Spanish rule, where the Chamorro population—the indigenous people of Guam—had relative control over island governance, however unequal, was replaced by a system of appointment by the Naval Governor.Footnote 130 Military-imperial rule extended into the cultural life of the island and the Chamorro language was prohibited from schools and public offices.Footnote 131 Family relations, the role of women, and larger kinship ties were “reordered” by Naval decree for the purpose of “moral advancement…[and] generally recognized customs of civilized society.”Footnote 132 The process of assimilation was at the heart of the American’s self-conceptualization of their role on the island, articulated in 1950 in a Navy report, describing how the Navy had “found” the Chamorro people in 1898:
“A population so abused and oppressed over the centuries, so disease-infested, so isolated from the world, so haunted by superstition, that it was a listless ambitionless, unorganized mass of humanity stirred only by the hope for individual survival. That was what was handed to the Navy Department 50 years ago to rehabilitate, to organize, to administer, and to make productive.”Footnote 133
The effects of this history of colonization and political subjugation on Guam, specifically and across the territories, have direct impacts on health outcomes.Footnote 134 Professor Halabi has argued that disparate health outcomes between the territories and the U.S. mainland “are the predictable result of healthcare systems leveled then reorganized to accommodate a permanent U.S. military presence; their reorganization has worked to the long-term detriment of territorial populations; and their situation is sustained by current U.S. territorial health policy.”Footnote 135 Additionally, and specific to Guam, Professor Hattori has demonstrated how U.S. Navy regulation and health programs in Guam were significant mechanisms of assimilation and colonial control and had substantial effects on Chamorro culture and the Guamanian population.Footnote 136 This self-ordained mission of rehabilitation, in many ways, spurred the movement for Chamorro democratic self-rule.Footnote 137 In 1901, thirty-two Chamorro men from the capital, Hagåtña addressed the U.S. Congress, petitioning it for self-rule, describing the military rule as “distasteful and highly repugnant to the fundamental principles of civilized government.”Footnote 138
Petitioning Congress would take another five decades, with the Department of the Navy repelling any congressional inquiry into the matter of citizenship and civil government in Guam on the basis that such requests were interfering with military affairs.Footnote 139 After the devastating 1941-1944 occupation by the Japanese and the return of American military,Footnote 140 2,850 acres of “the island’s finest terrain” was expropriated for U.S. military use as U.S. strategy focused on fortifying the island and preparing it for bombing runs against Japan in the final months of World War II.Footnote 141 The expropriation policy combined with continued discriminatory policies against Chamorros in the Navy despite widespread and fierce resistance to the Japanese occupation sparked spirited debate regarding Guam’s status.Footnote 142 By 1949, the Guamanian legislature had enough. That Spring, the Guam Legislature, tired of being ignored by the Navy governors, staged a walk-out, referred to in the press at the time as “Guam’s Boston Tea-Party,” in defiance of the military rule.Footnote 143 In tandem with the lobbying by John Collier and the Institute of Ethnic Affairs, Guam’s Congress pushed hard for citizenship and civil government for Guam.Footnote 144 By 1947, an internal Secretary of Defense committee—“the Hopkins Committee”—concluded that the people “of both Guam and American Samoa are entitled to full American citizenship and should be made citizens at the earliest possible date by Act of Congress.”Footnote 145 Yet, in the same year, a Senate Report claimed: “[t]he Constitution of the United States does not apply to Guam.”Footnote 146 The push for citizenship came to the fore, not from the acts of outsiders, but from the Guam Congressional Assembly in a final legislative session.Footnote 147 Before walking out in protest, the Guam legislators voted to transmit a “Bill to Provide an Organic Act and Civil Government for the Island of Guam.”Footnote 148 By that July, the Bill to Provide an Organic Act and Civil Government for the Island of Guam (“Organic Act”) became law following both executive and congressional action in response to the legislative walk-out on Guam.Footnote 149 The Organic Act contained no language regarding statehood.Footnote 150 And while, the Organic Act provided congressional citizenship and moved the island’s government to a more autonomous position, Congress has rejected the island’s draft Constitution and proposals for state and commonwealth status.Footnote 151 And most importantly for the present discussion, the Organic Act conferred by Congress the official status as an unincorporated territory upon Guam.Footnote 152
In addition to Guam’s lack of representation, unincorporated territories are unfavorably situated
“[u]nlike a state, which possesses the procedural means to meaningfully advocate on its behalf via the normal political process, a U.S. territory has no such tools; it is devoid of voting representation in the federal legislature and the Executive, and dependent instead on ‘virtual representation to consider its policy preferences and local interests.”Footnote 153
On the one hand, the Territories are not States, and thus the Congress’s reservation of voting members of its body to States is, in one reading, constitutionally valid.Footnote 154 Yet, on the other hand, as Professor Duffy Ponsa-Kraus articulated, at their core, the Insular Cases violate principles of democratic representation.Footnote 155 Upholding such principles “is an inviolable commitment of the Constitution’s own bedrock conception of political legitimacy. Perpetual territorial status violates it.”Footnote 156 And further, Professor Duffy Ponsa-Kraus argues, “the Insular Cases gave rise to nothing less than a crisis of political legitimacy in the unincorporated territories…” and so long as the Insular Cases are good law, this crisis is prolonged.Footnote 157 Ultimately, the incorporation doctrine has unconstitutionally elongated this limbo-status of the Unincorporated Territories. And it is this dynamic between the incorporation doctrine and the artificial elongation of the territory status and corresponding lack of federal representation that constitutes the fundamental deficiency of the Insular Cases. This deficiency ought to be challenged head-on with the purpose of overturning the persistent Insular Cases.
IV. The Fundamental Deficiency of the Incorporation Doctrine
Attacking the incorporation doctrine is a necessary fight for the equitable and stable funding of Medicaid and related programs in Guam, and, more fundamentally, constitutional legitimacy. The workarounds developed by the Court in recent years, by applying “more and more” fundamental rights to the Unincorporated Territories, is untenable.Footnote 158 The nature of the political relationship between Guam and the U.S. Congress—which the Court and the Supreme Court of Guam have characterized as a plenary relationshipFootnote 159—is a fundamental deficiency that should be challenged before the courts. Some have thrown up their arms, finding challenges in the courts a dead end—arguing that “there is little left to do besides make reasoned appeals to Congressional leaders.”Footnote 160 However, there are several reasons for pursuing a robust challenge to the incorporation doctrine in the courts.
The Insular Cases created a system of political subordination in which unincorporated territories are unable to represent their interests before the U.S. Congress. The basis for this status quo is elusive, with no foundation in the Constitution. The late Judge Torruella decried the lack of federalism in the relationship engendered by the Insular Cases, as more akin to a colonial relationship than a federal one.Footnote 161 Justice Gorsuch argued in his concurrence to Vaello-Madero, that the rationale underpinning the Insular Cases “claim support in academic work of the period, ugly racial stereotypes, and theories of social Darwinists. But they have no home in our Constitution or its original understanding.”Footnote 162 These arguments form the basis for directly challenging the Insular Cases, and this challenge is one for the courts; indeed, scholarship on the matter has coalesced around the argument for strong judicial review of the Insular Cases. Footnote 163
The Insular Cases, as demonstrated in Part II above, act as a crutch to Congress and the judiciary in their continuation of the doctrine of incorporation and Congressional inaction with respect to territorial status. The Insular Cases and the constitutional doctrine they stand for permit nothing to change, and Guam remains, as oft-said, at the top of no one else’s agenda and unable to set its own.Footnote 164 The funding for public health, as illustrated in Part I, is a prime example of this tragic catch-22. If the Court were to overturn the cases and the underlying doctrine of incorporation, the judiciary, Congress, and the executive would lose the ability to lean on the old crutch of Court-approved political subordination–as they now do. Pressure could be exerted free from old legal doctrine. In a sense, a ruling against the Insular Cases would clear the political channels of the judicially co-signed “poison”Footnote 165—such that advocates for Guam’s stable and equitable funding of Medicaid and other federal public health programs, of which are now denied, could argue on a constitutional basis for their application in Guam. Thus, the artifice of an “unincorporated” territory would not defer the full rights and protections of the Constitution.
But realistically, such an overruling is in no way a silver bullet. Indeed, the challenges facing the Unincorporated Territories generally and Guam specifically concerning federal funding for its health system will not disappear without further robust action within the federal and local government, even in the overruling of the Insular Cases. While the void created by removing the status of “unincorporated” creates undeniable uncertainty, it should not be confused with the granting of statehood or political equality by itself. Such status is not guaranteed by the act of revoking the incorporation doctrine.Footnote 166 Such a change in the status quo is not without risk of unforeseen negative consequences as was seen in the so-called termination policy in which the Federal Government extinguished the federal trust relationship with over 100 Native American Tribes between 1945 and 1960.Footnote 167 The impacts of the termination policy on cultural sovereignty, retention of land, and the economic well-being of affected individuals were profound.Footnote 168 While Guam’s status as an unincorporated territory is markedly different from the trust relationship between Tribes and the Federal Government, the point of this example underscores the possible unforeseen consequences of dramatically changing the relationship between Guam and the Federal Government.
Ultimately, Congress will have a tremendous role in determining the status of the territories now classified as unincorporated. But by revoking the doctrine of incorporation, the citizens and representative government of Guam will have a prominent role in shaping that determination in a manner that is currently left to Congress’ discretion.Footnote 169 Furthermore, overruling the Insular Cases would provide more maneuverability to Guam with respect to Congress and the federal programs and funds for public health and the health care systems of the island. The broad authority Congress wields over the territories and the ability to deny equal treatment and benefits is significant, as demonstrated in the case study of Guam and federal funding of Medicaid. The removal—a rejection of the Insular Cases by the Supreme Court—of the crutch that allows such purported “broad authority” would be a meaningful tool for the territories and the citizens who reside in them. A direct and foreseeable consequence of such an overruling is stabilization in the federal funding of Guam’s health care system.
The consequence of stabilizing federal funding for Guam’s Medicaid structure would substantially ease the major strains on the island’s health infrastructure as indicated in Part I. Health care providers could more readily depend on federal funds in the long term, without the current uncertainty as to the source of the funds or if they will be reimbursed for their services.Footnote 170 Additionally, the public hospital system could apply for much-needed funds through DSH payments for its treatment of disproportionately high numbers of underinsured and low-income individuals, including the Micronesian migrant population.Footnote 171 Removing the barriers imposed by the incorporation doctrine could make Guam eligible for SSI distribution to its disabled and low-income individuals.Footnote 172 In sum, the significant challenges posed by limited and unstable federal funding for the island’s health care system could be more effectively addressed through the overruling of the incorporation doctrine. And furthermore, revoking the Insular Cases removes the crutch that the Court and Congress have relied on in enabling the sad state of affairs between the territories and the U.S. Congress wherein, “Americans who live in U.S. territories lack both the political safeguards that constitutional law associates with the federalism of the American system and the fundamental rights jurisprudence that constitutional law provides for ‘discrete and insular minorities.’”Footnote 173
