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ArtIV.S3.C2.3 Power of Congress over Territories

Article IV, Section 3, Clause 2:

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

Congress holds broad authority over territories of the United States.1 The Court has held that, with regard to territories, “Congress has the entire dominion and sovereignty, national and local, Federal and state, and has full legislative power over all subjects upon which the legislature of a state might legislate within the state.” 2 Congress may legislate directly with respect to the local affairs of a territory, or it may delegate that power to the territories,3 except as limited by the Constitution.4 Pursuant to this authority, for example, Congress has prohibited territorial legislatures from enacting local or special laws on enumerated subjects.5 Further, Congress has extended the full range of constitutional protections enjoyed by United States residents in territories that have been incorporated as a part of the country by congressional action,6 but has not done so in "unincorporated" territories (i.e., those territories not clearly on the pathway to U.S. statehood).7 Congress may establish, either directly or indirectly through authorization to a territorial legislature, “legislative courts” pursuant to the Property Clause, rather than “constitutional courts” established by Article III.8 These legislative courts also may exercise admiralty jurisdiction despite the fact that admiralty jurisdiction may be exercised in the states only by Article III courts.9 Congress also may establish non-judicial territorial offices,10 and if the powers and duties assigned to these offices are “primarily local” in nature, then the manner of appointment for officials to these offices does not have to comply with Article II’s Appointments Clause.11

Footnotes
1
Hooven & Allison Co. v. Evatt, 324 U.S. 652, 673–74 (1945); Balzac v. Porto Rico, 258 U.S. 298, 305 (1922); Dorr v. United States, 195 U.S. 138, 149 (1904); United States v. Gratiot, 39 U.S. (14 Pet.) 526, 537 (1840); Sere & Laralde v. Pitot, 10 U.S. (6 Cranch) 332, 336–37 (1810). See also Vermilya-Brown Co. v. Connell, 335 U.S. 377, 381 (1948); United States v. Vaello Madero, No. 20-303, slip op. at 2 (U.S. Apr. 21, 2022) (explaining that the Territory Clause “affords Congress broad authority to legislate with respect to the U.S. Territories” and that, in “[e]xercising that authority, Congress sometimes legislates differently with respect to the Territories . . . that it does with respect to the States.” ). back
2
Simms v. Simms, 175 U.S. 162, 168 (1899). See also El Paso & Ne. Ry. Co. v. Gutierrez, 215 U.S. 87 (1909); United States v. McMillan, 165 U.S. 504, 510 (1897); The Late Corp. of the Church of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1, 42 (1890); First Nat’l Bank v. County of Yankton, 101 U.S. 129, 133 (1880). back
3
Binns v. United States, 194 U.S. 486, 491 (1904). See also Murphy v. Ramsey, 114 U.S. 15, 44 (1885); Sere & Laralde, 10 U.S. (6 Cr.) at 336. back
4
Simms, 175 U.S. at 163; Wagoner v. Evans, 170 U.S. 588, 591 (1898); Walker v. New Mexico & S. Pac. R.R. Co., 165 U.S. 593, 604 (1897) back
5
Binns, 194 U.S. at 491. See also Murphy, 114 U.S. at 44; Sere & Laralde, 10 U.S. (6 Cranch) at 336. back
6
Simms, 175 U.S. at 163; Wagoner, 170 U.S. at 591; Walker, 165 U.S. at 604. back
7
Balzac v. Porto Rico, 258 U.S. 298 (1922); Dorr v. United States, 195 U.S. 138 (1904); Downes v. Bidwell, 182 U.S. 244 (1901) (collectively, the Insular Cases). The Court stated: “The guaranties of certain fundamental personal rights declared in the Constitution, as, for instance, that no person could be deprived of life, liberty, or property without due process of law,” apply to persons in Puerto Rico. Balzac, 258 U.S. at 312. However, the full scope of constitutional provisions that are applicable in Puerto Rico and the other territories is unsettled. Id. ( “The Constitution, however, contains grants of power, and limitations which in the nature of things are not always and everywhere applicable and the real issue in the Insular Cases was not whether the Constitution extended to the Philippines or Porto Rico when we went there, but which ones of its provisions were applicable by way of limitation upon the exercise of executive and legislative power in dealing with new conditions and requirements.” ). See also Posadas de P.R. Assocs. v. Tourism Co. of P.R., 478 U.S. 328, 331 n.1 (1986) (equality of voting rights applicable in Puerto Rico); Rodriguez v. Popular Democratic Party, 457 U.S. 1, 7–8 (1982) ( First Amendment speech applicable in Puerto Rico); Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663 (1974) (procedural due process applicable in Puerto Rico); Torres v. Puerto Rico, 442 U.S. 465 (1979) (search and seizure applicable in Puerto Rico); Examining Bd. v. Flores de Otero, 426 U.S. 572 (1976) (equal protection principles applicable in Puerto Rico); Ocampo v. United States, 234 U.S. 91 (1914) ( Sixth Amendment jury trial applicable in Philippines); Hawaii v. Mankichi, 190 U.S. 197 (1903) (grand jury indictment and trial by jury applicable in Hawaii). See also Califano v. Torres, 435 U.S. 1, 4 n.6 (1978) (right to travel assumed). The vitality of the Insular Cases has been questioned by some Justices (see, e.g., Harris v. Rosario, 446 U.S. 651, 652–53 (1980); Torres v. Puerto Rico, 442 U.S. 465, 474, 475 (1979) (concurring opinion of four justices)) Reid v. Covert, 354 U.S. 1, 14 (1957) (plurality opinion)), but the Court adheres to it (United States v. Verdugo-Urquidez, 494 U.S. 259, 268 (1990)). See also Fin. Oversight & Mgmt. Bd. for P.R. v. Aurelius Inv., LLC, 140 S. Ct. 1649, 1655 (2020) (describing the Insular cases as “much-criticized,” but declining to overrule them “whatever their continued validity.” ). back
8
Am. Ins. Co. v. Canter, 26 U.S. (1 Pet.) 511, 546 (1828). See also Romeu v. Todd, 206 U.S. 358, 368–69 (1907); United States v. McMillan, 165 U.S. 504, 510 (1897); McAllister v. United States, 141 U.S. 174, 180 (1891); The City of Panama, 101 U.S. 453, 460 (1880); Reynolds v. United States, 98 U.S. 145, 154 (1879); Hornbuckle v. Toombs, 85 U.S. (18 Wall.) 648, 655 (1874); Clinton v. Englebrecht, 80 U.S. (13 Wall.) 434, 447 (1872); Benner v. Porter 9 (How.) 235, 236 (1850). back
9
Am. Ins. Co. v. Canter, 26 U.S. (1 Pet.) at 545 ( “Although admiralty jurisdiction can be exercised in the states in those Courts, only, which are established in pursuance of the 3d article of the Constitution; the same limitation does not extend to the territories.” ); The City of Panama, 101 U.S. at 460. back
10
Fin. Oversight & Mgmt. Bd. for P.R., 140 S. Ct. at 1654–55. back
11
Id. at 1665. See supra ArtII.S2.C2.3.4 Ambassadors, Ministers, and Consuls Appointments. back