U.S. Congress Has ‘Plenary Power’ Of Territories

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Pacific Islands Development Program, East-West Center With Support From Center for Pacific Islands Studies, University of Hawai‘i

Solicitor: Congress calls the shots, must approve future status

By Fili Sagapolutele

PAGO PAGO, American Samoa (The Samoa News, Feb. 28, 2016) – A legal counsel with the US Interior Department Office of the Solicitor made clear to governors of the US territories and their representatives that the US Congress has "plenary power" over the insular areas and explained three options available for future political status for three territories.

Maria Lurie was one of the two federal presenters during Tuesday’s forum on Self Determination in American Samoa, US Virgin Islands and Guam. The other presenter is a legal counsel with the US State Department.

Lurie, who pointed out that her presentation is based on her own thoughts, explained the "plenary power" of Congress over territories, saying that land that falls under the sovereignty of the United States comes in two separate categories —land that is either a state or not a state — which means American Samoa, US Virgin Islands and Guam.

And this means, she said, "Congress has plenary power over these US territories."

"The Supreme Court [of the United States] has recognized that the Congress is calling the shots," she said, adding that Congress gives the local government of the three territories a lot of say as to "what happens on the day-to-day basis and how they (the territories) structure themselves and how they go forward."

"But ultimately, control resides with the US Congress... and we shouldn’t lose sight of that," she said and noted that "as recognized by the Supreme Court, the [US] Constitution has conferred on Congress the right" over the territories.

And this goes back to 1901 court cases — now referred to as the Insular Cases — in the aftermath of the Spanish-American War, she said.

"I want to completely recognized [that] the Insular Cases have been roundly criticized as perhaps being infirm in their constitutional analysis and also to be ossified in time and to reflect a point of view that may not be embraced today," she explained.

However, she said the Insular Cases by the Supreme Court have never been overturned. She also provided background on what led to the Insular Cases.

As to why Congress has plenary authority over the territories, she said, "the legal theory is that it arises under the Territorial Clause" of the US Constitution under Article IV, Section Three, Clause Two — which states that the territory or property of the US, the Congress shall have the proper authority to dispose of and make rules and regulations with respect to the territory or other property belonging to the US.

And the plenary authority remains with Congress and continues until such time as the US territory is either a state or leaves sovereign control of the United States, she said and moved on to three future political status options available to American Samoa, US Virgin Islands and Guam.

For example, the territories may want to continue their Territorial Status and that status means Congress still has plenary control. "Even if you are still in Territorial Status, it doesn’t mean you need to maintain the format one is exercising as a Territory," she said and explained for example American Samoa may decide to become an "organized unincorporated territory" or perhaps Guam may choose to become a "Commonwealth" — similar to that of the Commonwealth of the Northern Mariana Islands (CNMI).

However, she stressed that as a Commonwealth, it is still a territory and Congress still have plenary power.

(Samoa News notes that American Samoa’s current political status is an unorganized and unincorporated territory).

Second option is becoming a State — or statehood. And under the US Constitution, new states may be admitted by Congress into the union, she said and noted some of the benefits of being a state — voting privileges for the US president; and voting members in both the US House and the US Senate. (Currently all delegates from the territories are in the US House and cannot vote on the House floor.)

However, she notes that statehood comes with obligations, such as paying federal taxes, which is something the territories are not paying now.

And the third option is Independence — which would require Congressional approval to disposal of such property — meaning the territory. Lurie notes that Independence means the former territory would not be automatically entitled to — among other things — receiving monetary support or military protection of the US.

However, she noted another type of independence — ‘freely associated states’ such as the Republic of the Marshall Islands and Republic of Palau where they have a compact agreement with the US. The compact allows among other things, residents of the freely associated states to enter the US as non-migrants and have the ability to establish residence and work in the United States.

As to how residents of the three territories would move forward with a preference with their political relationship with the US, Lurie said "one particular pathway... is a plebiscite" where electors vote on the preference.

And she emphasized that, "even if there is an expression of will [of the people], it will need to have approval of the United States Congress for it to happen."

American Samoa Community College director of Community & Natural Resources, Tapaau Dr. Daniel Mageo Aga — who represented American Samoa on the panel discussion — informed the gathering that "the people of American Samoa want to keep a strong relationship with the United States" and they "also want to protect lands and culture."

"It is between those two pillars that we are navigating our political status," he said.

Samoa News points out that the last plebiscite in American Samoa was in 1976 when voters approved a move to have electors in the territory elect its governor and lieutenant governor.

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