IJniWl States General Awounting Of’fiw Report to the Ranking Minority GAO Member, Committee on Interior and Insular Affairs, Houw of’ ‘Representatives Applicability of Relevant Provisions of the U.S. Constitution illIIII IIIllllH 144197 _ l-“.. .--. I _“.-.“_.-,-_l.l-__*--“,“,““--~,- -UP - United States General Accounting Office GAO Washington, D.C. 20648 Human Resources Division B-217276 June 20,lQQl The Honorable Don Young Ranking Minority Member Committee on Interior and Insular Affairs House of Representatives Dear CongressmanYoung: This report responds to your request for information on the treatment, under the US, Constitution, of five U.S. insular areas--Puerto Rico, the US. Virgin Islands, American Samoa,Guam, and the Northern Mariana Islands (see fig. 1). We have included information on which provisions of the Constitution have been extended by federal laws to these areas and those the courts have determined apply to these five insular areas.’ The Congresshas extended certain constitutional provisions to the insular areas acting pursuant to the Territorial Clause of the Constitu- tion.2 The Territorial Clause authorizes the Congressto “make all needful Rules and Regulations respecting the Territory or other Prop erty” of the United States. The courts determine the applicability of con- stitutional provisions by interpreting laws as well as the Constitution. ‘We use the term “federal laws” broadly. In addition to organic acts, our use of the term includes a covenant and a military decree. Organic acts are laws that confer powers of government upon a territory. The covenant is the Northern Mariana Islands Covenant. It is approved by the Congress and signed by the President, but differs from other federal laws in that it embodies a bilateral agreement and recognizes that certain unilateral changes to it would be a violation of that agreement. The mili- tary decree is the Naval Governor’s military decree for American Samoa. This executive action was taken pursuant to a delegation of authority from the Congress in 1929. It is not clear whether the decree continued to be in force after 1961 when the President transferred administration of American Samoa from a naval governor to the Secretary of the Interior. However, the naval governor’s Bill of Rights has become part of the local code of America Samoa. pus. const. art. IV, sec. 3, cl. 2. Page 1 GAO/HRD-91-18 The U.S. Ckmstitution and Insular Arena 5217276 Figure 1: Location of U.S. lnrular Arear TV I Northern ‘\ American Samoa We researchedrelevant federal laws and court decisionsto determine Scopeand the applicability of specific provisions in the Constitution (see app. I) to Methodology the five insular areas3 We also consulted with legal experts on relations with these insular areas. At your request, we focused on seven selected provisions or subjects: . congressionalrepresentation, l the Uniformity Clause, 9 the CommerceClause, l presidential election, l trial by jury, 3There are nine other U.S. insular areas that we do not address in this report. The areas are: Navassa Island in the Caribbean, and Baker Island, Howard Island, Kingman Reef, Jarvis Island, Johnson Atoll, Midway Island, Palmyra Island, and Wake Island in the Pacific. Most of these islands are wild- life refuges and uninhabited; however, Johnson Atoll and Midway and Wake Islands support a few U.S. military personnel. Page 2 GAO/H&D-91-18 The U.S. Constitution and Insular Areas 0217276 . the Equal Protection Clause,and . voting rights. We also agreedto review an eighth subject, income taxation in the insular areas, which doesnot involve a question of the applicability of the Constitution. In this section, we describethe extent to which federal income tax laws are followed in the insular areas. The local constitutions or laws of insular areas often grant rights equivalent to rights granted by the U.S. Constitution, not explicitly extended by federal laws nor held applicable by federal courts. There- fore, for each of the eight subjects discussedin this report, we also sum- marized the comparable rights and provisions of local constitutions and laws governing the citizens of the insular areas. We conducted our review between July and October 1990. Limitations of Our Review We use the phrase “insular area” in this report. This was done to avoid any implication about the political relationship of these areas with the United-States.Each of the five areas has a unique historical and legal relationship with the United States and each considersthe terminology used to describe that relationship to be a sensitive issue (see apps. V-IX). There are numerous blank spacesnext to the constitutional provisions in appendix I, which details the federal court casesand statutes that extend or exclude relevant provisions to the five insular areas. These blanks exist for two reasons.First, many constitutional provisions are not relevant to the states or insular areas. For example, provisions establishing and granting powers to the legislative, executive, and judi- cial branches of government do not directly affect states or insular areas. And second,we did not independently determine the applicability of those provisions that may be relevant, but only whether there was a federal court caseor statute explicitly addressingthem. Page 3 GAO/HRDSl-18 The U.S. Constitution and Inmlar Areas B-217276 The Constitution does not apply in full to the five insular areas, which Background are considered“ unincorporated.“4 Unincorporated areas are under the sovereignty but not consideredan integral part of the United States.”As mentioned earlier, federal laws explicitly extend certain parts of the Constitution to specific insular areas. In addition, the SupremeCourt long ago decided that “fundamental” personal rights declared in the Constitution apply to citizens of “U.S. territories.“6 Also, the courts have determined that certain other parts of the Constitution apply to indi- vidual insular areas, dependingon each area’s unique relationship with the United States. The Department of the Interior has primary federal responsibility for all insular areas except Puerto Rico. All departments, agencies,and offi- cials of the executive branch deal directly with Puerto Rico; any matters concerningthe fundamentals of the U.S.-PuertoRican relationship are referred to the Office of the President.’ Interior’s role in administering the insular areas is primarily limited to providing technical assistance, representing insular area views to the federal government, and over- seeingfederal government expenditures and operations. Sincethe United States established sovereignty over the five insular areas, each has pursued greater self-government.Originally, military governors administered the areas, Eventually, the governors were replaced by appointed civilian administrators. In subsequentyears, the areas were authorized to adopt their own constitutions and elect their own governors. Puerto Rico, American Samoa,and the Northern Mari- anas have adopted constitutions; the Virgin Islands and Guam have not. All of the areas have elected governors (see app. II for more information on the relationships between the areas and the United States). 4The Supreme Court has held that the Constitution does not apply in full to unincorporated areas. Balzac v. People of Port0 Rico, 268 U.S. 298 (1922); Dorr v. United States, 196 U.S. 138 (1904); and Downes v. Bidwell, 182 U.S. 244 (1901). See also JDS Realty Corporation v. Government of the Virgin Islands, 824 F.2d 266,269 (3d Cir. 1987). 61ncontrast, Alaska and Hawaii were incorporated into the United States before they became states. The Congress explicitly extended all provisions of the Constitution many years before granting state- hood. The Congress extended the entire Constitution to Hawaii in 1900 and Alaska in 1912. See Act of April 30, 1900, sec. 6,31 Stat. 141; and Act of August 24,1912, sec. 3,37 Stat. 612. Alaska and Hawaii were admitted to the Union as states in 1969. “Reid v. Covert, 364 U.S. 1,13 (1967); Dorr v. United States, 196 U.S. 138 ,146-N? (1904); and Downes v. Bidwell, 182 U.S. 244,290-291(1901). Although the Court has not precisely defined which parts of the Constitution are fundamental, it has found, on a case-by-casebasis, various parts to be fundamental. See, for exam le, Balaac v. People of Porto Rico, 268 U.S. 298,312-313 (1922), in which the Supreme y urt siud that the right to due process of law is fundamental. ‘Memorandum of the President, 26 Fed. Reg. 6696 (1961). Page 4 GAO/HUD-91-18 The U.S. Constitution and Insular Areas B-217276 Residentsof four of the insular areas are American citizens; American Samoansresiding in the islands are for the most part American nationals, who may or may not be citizens.*The residents of all five areas enjoy many of the samerights as U.S. citizens in the states. But somerights have not been granted to citizens of the insular areas. Federal law extends many provisions of the Constitution to one or more Applicability of the of the five insular areas. Although not all constitutional rights have Constitution to the beenexplicitly extended to the insular areas,their local constitutions U.S. Insular Areas and laws grant many of these same rights. Still, someconstitutional rights cannot be granted by the constitutions and laws of the areas. For example, the residents of areas cannot vote in national elections, nor do they have voting representation in the Congress.g A complete table of the constitutional provisions that federal laws explicitly extend and those the courts have determined apply appears in appendix I. The following is a summary of seven selectedprovisions or subjects in the Constitution as they relate to the areas. Congressional The Constitution establishesthe U.S. Houseof Representativesand Representation Senate,to be composedof representatives elected by the citizens in each state.lONot being states, the insular areas cannot elect representatives or senators.