Malcolm Rivera
The US Constitution grants Congress broad powers over territories and other areas belonging to the US, as outlined in Article IV, Section 3, Clause 2. This includes the authority to create political divisions, establish territorial governments, and make rules and regulations for these territories. The Constitution distinguishes between “incorporated” territories, which are irrevocably part of US sovereignty and have the full protection of the Constitution, and “unincorporated” territories, where only fundamental constitutional rights apply. The US has several territories, including Puerto Rico, Guam, the US Virgin Islands, and American Samoa, each with varying degrees of self-governance and constitutional protections. The constitutional status of these territories and the extent of their rights have been the subject of Supreme Court cases and ongoing debates.
| Characteristics | Values |
|---|---|
| Territory definition | All areas belonging to and under the dominion of the United States Federal Government, including land or water not included within state limits or admitted as a state into the Union |
| Territory governance | Congress has the power to set territorial governments within the United States and its territories |
| Congressional authority | Congress has broad authority over territories, including legislative power over local affairs |
| Constitutional protections | Constitutional protections are extended to incorporated territories, but not to unincorporated territories |
| Unincorporated territories | Include Puerto Rico, Guam, the Philippines, and American Samoa |
| Incorporated territories | Include Alaska and Hawaii |
| Territorial courts | Guam, the Northern Mariana Islands, and the US Virgin Islands have federal Article IV courts; Puerto Rico has a federal Article III court; American Samoa has no federal court but its territorial high court has federal jurisdiction over certain matters |
| Territorial sovereignty | The United States can extend sovereignty over occupied territories |
| Territorial rights | The constitutional guarantees of private rights are applicable in incorporated territories |
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What You'll Learn
Congress's authority over territories
Congress holds broad authority over the territories of the United States. This authority is derived from the Territory Clause, which grants Congress the power to "dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States".
In the territories, Congress has complete dominion and sovereignty, both national and local. It possesses full legislative power over all matters that a state legislature might act upon. This includes the authority to legislate directly on local territorial affairs or to delegate that power to a territorial legislature. For example, Congress may prohibit territorial legislatures from enacting local or special laws on specific subjects.
The scope of Congress's authority over the territories is broad, allowing it to legislate differently with respect to the territories compared to the states. This flexibility enables Congress to make rules and regulations that are specific to the unique circumstances and needs of each territory.
However, there are limits to Congress's authority over the territories. The legislative power of Congress and any territorial legislature it establishes is constrained by the Constitution of the United States and acts of Congress. The constitutional guarantees of private rights, for instance, apply in territories that have been incorporated into the United States by congressional action but not in unincorporated territories.
The extent of Congress's authority over territories has been examined and affirmed in various court cases, including Hooven & Allison Co. v. Evatt, Balzac v. Porto Rico, Dorr v. United States, and United States v. Gratiot. These cases have helped define and shape the understanding of Congress's broad powers in relation to US territories.
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The difference between incorporated and unincorporated territories
Incorporated territories are irrevocably incorporated within the sovereignty of the United States, and the full corpus of the U.S. Constitution is applied to them. An example of an incorporated territory is Palmyra Atoll, which is the only incorporated territory remaining. These territories are governed by the laws and protections afforded by the U.S. Constitution and are considered a part of the "United States" for legal purposes.
Unincorporated territories, such as Puerto Rico, Guam, and the Northern Mariana Islands, are lands held by the United States but are not fully incorporated into its sovereignty. The U.S. Congress applies selected parts of the Constitution to these territories, and they do not have the same pathway to statehood as incorporated territories. These territories have limited self-governance and are often referred to as ""commonwealths" or "unorganized territories."
The distinction between incorporated and unincorporated territories came about as a result of several Supreme Court cases after the Spanish-American War, when the United States acquired new territories such as the Philippines, Puerto Rico, Guam, and Wake Island. The judicial term "unincorporated" was coined to legitimize the late-19th-century territorial acquisitions without immediately granting them statehood or constitutional protections.
It is important to note that the status of some territories, such as Puerto Rico, has been the subject of ongoing debate and legal rulings. While some rulings have indicated that Puerto Rico should be considered an incorporated territory, the U.S. government still defines it as an unincorporated territory, and its status remains unresolved.
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Territorial courts and their jurisdiction
The United States territorial courts are tribunals established in the territories of the United States by the United States Congress, under Article Four of the United States Constitution, the Territorial Clause. Congress has the power to make laws concerning the territory belonging to the United States under the Constitution. These territorial courts have generally exercised a combination of federal and local jurisdiction.
In the early years of the federal government, Congress typically established for each territory a superior court with three judges appointed by the President. It also authorized the territorial government to establish other courts as necessary. In some territories, the superior court judges served during good behaviour, while in others, they served a fixed term of four years. In some territories, the judges served with the governor to enact laws until the territory's population was large enough to qualify for an elected legislature.
In 1805, Congress extended to the superior courts the authority to exercise the jurisdiction of federal district and circuit courts in all cases in which the federal government was concerned. The act organizing the territorial government of Wisconsin in 1836 established a new model for territorial courts that Congress generally followed into the twentieth century. Congress created a four-tiered judicial system for Wisconsin, with a supreme court, three district courts, probate courts, and justices of the peace. The nineteenth-century territorial supreme courts were limited to appellate jurisdiction, and the district courts were granted the same jurisdiction as US district and circuit courts in cases involving the federal government.
There are currently three territorial courts within the federal system: the district courts of Guam, the Northern Mariana Islands, and the Virgin Islands. The United States District Court in Puerto Rico is not a true United States court established under Article 3 of the Constitution, but rather under Article IV, §3. It is created by virtue of the sovereign congressional faculty, granted under Article 4, §3, of the Constitution, of making all needful rules regarding US territory. The United States Court of Appeals for the First Circuit has jurisdiction over Puerto Rico, Massachusetts, Rhode Island, Maine, and New Hampshire. Matters of federal law arising in American Samoa are generally adjudicated in the United States District Court for the District of Hawaii or the District Court for the District of Columbia.
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The Insular Cases
The categorizations and implications put forth by the Insular Cases still govern the United States' territories today. However, the vitality of the Insular Cases has been questioned by some Justices, and there have been calls to overturn the cases and expand the rights of the roughly 3.5 million residents of the five permanently inhabited, unincorporated territories still governed by the United States.
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Territorial sovereignty
The term "United States" may refer to the territory over which the sovereignty of the United States extends. The United States Constitution grants Congress the authority to establish rules and regulations regarding territories belonging to the country. This includes the power to set territorial governments within the United States' boundaries, as well as the ability to dispose of and regulate its property. Congress has full legislative power over US territories, and can choose to delegate that power to a local legislature.
Organized territories are lands under federal sovereignty that are not part of any state or the federal district. These territories are granted a degree of self-governance by Congress through an organic act, subject to Congress's plenary powers under the Territorial Clause of the Constitution's Article Four, Section 3. The District of Columbia and territories are under the direct authority of Congress, although each is allowed home rule.
The US has made a distinction between incorporated and unincorporated territories. An incorporated territory is land that has been irrevocably incorporated within the sovereignty of the United States, with the full US Constitution applying. An unincorporated territory, on the other hand, is land held by the United States, where only selected parts of the Constitution apply. Examples of incorporated territories include Alaska and Hawaii, while Puerto Rico, Guam, and the Philippines are examples of unincorporated territories.
The United States also has dependent territories, such as Guantanamo Bay Naval Base, which is administered by the US under a perpetual lease from Cuba. The US has historically administered other territories, such as the Panama Canal Zone, the Trust Territory of the Pacific Islands, and occupied territories during World War II, such as sections of Italy and Clipperton Island. The US has also co-administered territories with other countries, such as the Free Territory of Trieste with the UK.
The US has claims to oceans and maritime zones, as outlined by the United Nations Convention on the Law of the Sea. It also exercises extraterritoriality on military installations, embassies, consulates, and research centers in foreign countries, as well as in Antarctica.
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Frequently asked questions
A territory is a tract of land or water that is under the dominion of the United States federal government but is not necessarily within the national boundaries or any individual state.
Incorporated territories are lands that have been irrevocably incorporated within the sovereignty of the United States, and to which the full corpus of the U.S. Constitution applies. Unincorporated territories are lands held by the United States, to which only selected parts of the Constitution apply.
Examples of incorporated territories include Alaska and Hawaii. Examples of unincorporated territories include Puerto Rico, Guam, the Philippines, and American Samoa.
Congress has broad authority over territories of the United States. It can make laws concerning the territory belonging to the United States and can set territorial governments within the boundaries of the country. Congress has extended the full range of constitutional protections enjoyed by United States residents in incorporated territories, but not in unincorporated territories.
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