Opinion: Commonwealth’s covenant predicated on Insular Cases’s allowances


By Jose S. Dela Cruz

Pursuant to the Insular Cases that were decided by the U.S. Supreme Court about a century ago, the U.S. Constitution does not apply “of its own force” to the “unincorporated” territories of the United States. Constitutional rights that are deemed “fundamental” in the 50 States are not necessarily fundamental in the unincorporated territories, such as Guam and the Virgin Islands. Further, pursuant to the Territorial Clause of the U.S. Constitution, the U.S. Congress has “plenary powers” over all U.S. territories, but not the CNMI.

Unlike the territories of the United States and the Commonwealth of Puerto Rico, the Northern Mariana Islands joined the United States voluntarily pursuant to the negotiated terms of the Northern Marianas Covenant agreement. Under the terms of the Covenant, for example, the United States agreed that the Northern Marianas shall have the right to restrict the acquisition of land ownership to persons of Northern Marianas descent, to restrict the right to a jury trial, and to deviate from the “one person, one vote” rule with respect to the composition of the CNMI Senate. 

The United States Government, as a party to the Covenant agreement, was able to agree to the three exceptions just mentioned because of the Insular Cases rulings which were decided in 1901 and the years immediately following. Those cases ruled that the U.S. Constitution does not apply “of its own force” to a territory belonging to the United States, unless a territory is “destined for statehood.” Those three exceptions—as to the Northern Mariana Islands–were agreed to by the CNMI and the United States pursuant to the terms of the Covenant agreement. The Covenant agreement left it to the courts to decide the validity of the three constitutional exceptions. And the federal courts, after 1978, have ruled that those three exceptions do not violate the U.S. Constitution based on the Insular Cases ruling.

Notwithstanding the constitutional validity of those three exceptions, the U.S. Constitution expressly provides that U.S. territories are subject to the plenary powers of Congress. In other words, Congress has full and complete power over the territories. In contrast to the U.S. “territories,” however, the Northern Mariana Islands joined the United States voluntarily as a self-governing “commonwealth,” but not as a territory subject to the plenary power of Congress under Territorial Clause of the U.S. Constitution. Under the Covenant agreement with the CNMI, the United States agreed not to exercise its plenary powers under the Territorial Clause with respect to the Northern Mariana Islands. The “commonwealth” status of the CNMI is, therefore, quite different from the U.S. territories in this very important respect. The CNMI is not subject to the plenary power of Congress. 

Indeed, the CNMI is subject only to the terms and provisions of the Covenant, which in turn is the political instrument that sets forth which specific provisions of the U.S. Constitution apply to the CNMI. Indeed, the basic reason for enumerating “the constitutional provisions applicable to the CNMI” is because, under the Insular Cases ruling, the U.S. Constitution does not apply “of its own force” to the U.S. territories and the NMI commonwealth, since they are all “not destined for statehood.” Although the CNMI is not subject to the plenary powers that Congress has over the territories under the Territorial Clause of the U.S. Constitution, the NMI Covenant wanted to make clear that certain, specific provisions of the Constitution would apply to the CNMI under its commonwealth political relationship with the United States. Thus, the enumeration of the specific constitutional provisions applicable to the CNMI. 

The Northern Mariana Islands is referred to as a “commonwealth” of the United States, subject to and governed by the terms of the Covenant, not by the Insular Cases or subject to the Territorial Clause of the U.S. Constitution. It is true that, since the commencement of Northern Marianas self-government in 1978, the CNMI has many times been labelled a “territory,” like Guam and the Virgin Islands. But even in the generic sense, the word “territory” that is wrong because the CNMI is not a U.S. territory–it is a U.S. commonwealth. Indeed, it is the terms of the NMI Covenant agreement that governs our political relationship with the United States. 

So, to recap, the fundamental difference between the CNMI and the U.S. territories, such as Guam and the Virgin Islands, is the fact that the CNMI is not subject to the Territorial Clause of the U.S. Constitution. It is not a “property” belonging to the United States. It is instead a political entity that is a member of the American political family under the terms of the Covenant. This particular point is extremely significant for both the United States and the CNMI because the U.S. Congress, by joint resolution approving the NMI Covenant, agreed not to exercise its plenary powers over the CNMI with respect to CNMI self-government. This is not the case with the other territories, such as Guam and the Virgin Islands. The U.S. Congress continues to have plenary powers over the U.S. territories, pursuant to the Territorial Clause of the U.S. Constitution.

In closing, the Territorial Clause of the U.S. Constitution reads:

The Congress shall have the power to dispose of and to make such needful Rules and Regulations respecting the Territory or other Property belonging to the United States;…

This is the Territorial Clause of the U.S. Constitution that expressly gave Congress its plenary powers over the territories. The power is broad and general; and allows Congress to dispose of a territory or a property belonging to the United States. It also has the power make all needful rules and regulations respecting the territories and properties of the United States. It is this provision that the Covenant agreement replaced as to the Northern Mariana Islands. The Northern Mariana Islands cannot be disposed of by the U.S. Congress. Neither could the Congress enact rules and regulations that interfere with the internal affairs of the CNMI Government.

It would be great to see all the U.S. territories of the United States given the same treatment politically and legally as the CNMI, but the U.S. Supreme Court ruling in U.S. Vaello-Madero that was just rendered a week ago unfortunately decided that the Insular Cases is apparently still alive and well. If you are a U.S. citizen and you are residing in one of the territories, including Puerto Rico, the benefits provided under the federal Supplemental Security Income (SSI) are not available to you. In contrast, SSI benefits are available for residents of the CNMI, because it is was negotiated by the CNMI and the U.S. under the Covenant agreement. Is this fair to the citizens of the U.S. territories? Of course not. But only Congress can rectify this unfairness.

Jose S. Dela Cruz is the first chief justice of the CNMI

As Gonno, Saipan


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