The nonprofit Right to Democracy said this week that a Monday dissent by Supreme Court Justices Neil Gorsuch and Clarence Thomas marks a historic first: two Justices explicitly rejecting the idea that Congress holds plenary power (or near-unlimited authority) over the residents of U.S. territories.

In an email to supporters and media who cover the topic of U.S. territorial politics, the group’s co-director and attorney, Neil Weare, called the new dissent “significant,” noting that it is the first time any federal judge (to their knowledge) — and especially any Supreme Court Justice — has challenged the constitutional foundation of Congress’ control over the territories.

“The idea that Congress has unrestricted plenary power over U.S. territories is not grounded in the text or history of the U.S. Constitution,” Weare said. “It is significant to have two Justices now calling into question this unrestrained congressional authority over people in U.S. territories.”

The dissent was issued as the Court declined to review Veneno v. United States, a case challenging the federal government’s power over Indian Country. The Justices wrote that the Constitution’s Territories Clause — which authorizes Congress to make “needful Rules and Regulations” for territories belonging to the United States — does not give Congress “plenary power even within the Territories themselves.” The dissent also cited United States v. Vaello Madero (2022), where Gorsuch wrote that the government “may not ignore that charter in the Territories any more than it may in the States.”

According to Right to Democracy, this connection shows the Justices are rejecting the idea that Congress’ power to govern U.S. territories is unrestrained — and instead affirming that it is bound by the Constitution, not by Congress itself.

The term plenary power in constitutional law refers to complete and exclusive authority over a subject matter, limited only by the Constitution itself. For more than a century, that doctrine has shaped how the federal government governs Puerto Rico, Guam, the U.S. Virgin Islands, American Samoa, and the Northern Mariana Islands. The U.S. Supreme Court’s early-20th-century Insular Cases established that Congress could treat the territories differently from the states, allowing lawmakers to decide which constitutional rights apply.

Scholars and courts condemned those decisions for their explicitly racist language, a rationale Gorsuch himself criticized in 2022 as “shameful.”

Dr. Adi Martínez Román, Right to Democracy’s co-director based in Puerto Rico, said the dissent resonates across the territories, where residents remain subject to federal laws without voting representation in Congress or full participation in presidential elections. 

“People across all five U.S. territories have consistently rejected the exercise of undemocratic, unchecked power over our communities by the federal government,” she explained. “The repudiation of this plenary power by these two conservative Justices is timely as we approach the 250th anniversary of the Declaration of Independence and consider what ‘consent of the governed’ means for people in U.S. territories who have been denied self-determination for over 125 years.”

Right to Democracy, which believes in “confronting and dismantling the undemocratic colonial framework governing people in U.S. territories,” said it will convene a virtual panel later this month with legal experts to discuss what the dissent could mean for the constitutional status of U.S. territories and future challenges to the Insular Cases.

We want to keep The Latino Newsletter accessible without paywalls. To help, you can donate here. Any amount (one-time or monthly) will keep us going.

And now a word from our sponsor

Consider this your wake-up call.

Morning Brew}} is the free daily newsletter that powers you up with business news you’ll actually enjoy reading. It’s already trusted by over 4 million people who like their news with a bit more personality, pizazz — and a few games thrown in. Some even come for the crosswords and quizzes, but leave knowing more about the business world than they expected.

Quick, witty, and delivered first thing in the morning, Morning Brew takes less time to read than brewing your coffee — and gives your business brain the boost it needs to stay sharp and in the know.

Try Morning Brew for free

Venezuela Tensions: From the Washington Post, “The USS Gerald R. Ford aircraft carrier has entered waters near Latin America, prompting Venezuela to put the entire country’s military arsenal at the ready, as the U.S. naval buildup fuels speculation that the Trump administration intends to dramatically escalate its deadly counternarcotics campaign there.”

Grijalva Finally Sworn In: From the Associated Press, “Democrat Adelita Grijalva was sworn in as the newest member of Congress on Wednesday, more than seven weeks after she won a special election in Arizona to fill the House seat last held by her late father.”

“Apaga el Odio” Campaign: Advocacy group Mijente launched an “Apaga el Odio” bilingual campaign, noting on Instagram that “Univision and Telemundo are broadcasting Trump’s deportation messaging straight into our homes. They are airing DHS ads pressuring our people to leave quietly or be hunted down by ICE. This is how a culture of fear spreads: in our living rooms, during novelas, in the background.”

Julio Ricardo Varela is the founder of The Latino Newsletter. He is also its current part-time publisher and executive director. He wrote, edited, and published this edition of The Latino Newsletter.

Consider donating to The Latino Newsletter. Any contribution, no matter how small, helps keep this newsletter free and accessible to all. ¡Gracias mil!