We are nearing the turn for home of the current Supreme Court term. This upcoming week is the last week of arguments for the term. After the upcoming Friday conference, the Supreme Court will take its last two-week recess which will be followed by several weeks of issuing opinions until all of the opinions are done.
Thursday saw the first large opinion dump from the Supreme Court. This post will focus on the two with the most political significance.
First up is the latest on Puerto Rico. The U.S. Constitution implicitly assumes that territorial status is temporary with Congress having ultimate control over the territory and the laws that apply in the territory until it can become a state. On the other hand, once a territory becomes a state, it has equal status to other states.
For the original territories (the old Northwest and old Southwest), all of the land contained within those territories had become states by 1850 (approximately sixty years). For the Louisiana purchase, putting aside the weird situation of Oklahoma (in which the Louisiana Purchase part of the state was given to native tribes), it took approximately eighty years, but some of the states created from the Louisiana Purchase are still sparsely populated. It took approximately sixty-years after the Mexican-American war and the Gadsen Purchase for all of that territory to become states. We are now 120 years since the end of the Spanish-American war, and the territories that we gained in that war (the Northern Marianas, Guam, and Puerto Rico) are still territories. Of the other territories that we gained at the same time (American Samoa and Hawaii), only Hawaii has become a state. And the U.S. Virgin Islands (acquired in 1917) has passed a century as a territory.
This week, the U.S. Supreme Court considered the fact that the Social Security Administration’s Supplemental Income program does not apply to Puerto Rico. Applying long-standing and infamous precedent, the U.S. Supreme Court held that Congress, in establishing programs, can create different rules for the territories than it does for the states. While there are problems with the existing precedents, the real issue is that Congress has failed to address the status of the territories.
To put things simply, the framers never intended for territorial status to be permanent. In other countries, territories have representation in the national legislature. But in the U.S., only states get representation. But we have had possession of the current territories for way too long.
Congress needs to act. It is clear that Guam, the Northern Marianas, and American Samoa will never have the type of population that would support a state (currently a combined population of about 250,000). They either need to be joined to Hawaii (something that would probably not make the residents of these territories or Hawaii happy) or granted independence. Likewise, the U.S. Virgin Islands also lack the level of population that would justify statehood. But Puerto Rico has more than enough population for statehood — enough for four or five representatives in Congress. The U.S. Virgin Islands and Puerto Rico should be joined together and admitted as one state. Either that or we shoujld let Puerto Rico go.
Finally, there is D.C. What was originally seen as a small population is now a major city with greater population than several states. If Congress does not want to give the non-governmental part of D.C. statehood (or at least voting representation in Congress), then it should cede that part of D.C. back to Maryland (which admittedly does not want it back).
The bottom line is that this permanently inferior status for residents of the territories must end.
The other major case involves sign regulations. Many cities and counties have laws governing signs — sometimes part of the zoning code and sometimes as an independent ordinance. Several years ago, the U.S. Supreme Court made the not surprising conclusion that those regulations were subject to the First Amendment. The last time that the Supreme Court looked at this issue, it found that regulating the signs by topic was a content-based restriction which was presumptively invalid. This year’s case involved a more common form of sign regulation. Many ordinances make a distinction based on whether a sign is “on premises” of the subject of the sign (typically a sign advertising the business that owns the property or its products) or “off premises.” In the current case, an advertising company (Reagan National Advertising) claimed that this restriction was content-based, and, thus, presumptively invalid requiring a showing by the city (Austin, Texas) that there was a compelling interest in the ordinance and that the ordinance was narrowly tailored. While the Supreme Court has in recent years has applied a very pro-speech interpretation of the First Amendment, they did not go along with the advertiser in this case. Instead, the Supreme Court held that the on vs. off-premises distinction was not based on the message being sent (merely who was sending it). As such, the regulation was viewed as content-neutral and subject to a less strict standard for its validity.
The significance of this week’s decision on the sign regulation is that it represents a minor step back from the Roberts Court’s push of the First Amendment as a burden to government regulation. However, even the majority position this week was not as favorable to Austin as it could have been. With other Free Speech and Free Exercise cases on the docket this year, it will be worth seeing if this case is an exception to the general tendencies of the last decade or if this case is the beginning of a more pragmatic approach to these issues.
