Advisory Opinions - Insular Cases | Interview: Chief Judge Jeff Sutton and Neil Weare

Episode Date: September 10, 2026

Sarah Isgur and David French discuss Supreme Court updates on two cases: preferred advertising rates for political committees and Missouri’s congressional districts. Then, Judge Jeff Sutton, chief judge of the 6th Circuit and No. 1 AO judicial crush, and Neil Weare, co-director of Right to Democracy, join to discuss insular cases and where birthright citizenship stands after Trump v. Barbara.  The Agenda: –Political campaigns and discounted ad rates –Chaos in the Missouri congressional map –Our first Olympian guest –Background on insular cases –Trump v. Barbara Order Sarah’s book here. Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including access to all of our articles, members-only newsletters, and bonus podcast episodes—click here. If you’d like to remove all ads from your podcast experience, consider becoming a premium Dispatch member by clicking here. Learn more about your ad choices. Visit megaphone.fm/adchoices

Ready? I was born ready. Welcome to advisory opinions. I'm Sarah Isgar. That's David French. We've got a few Supreme Court updates for you, both on preferred advertising rates for political committees and Missouri's congressional districts. The Supreme Court has waited on both, and one of them's a mess.

But then we have a wonderful conversation for you on the insular cases. And after Trump v. Barbara, the birthright citizenship case, where birthright citizenship stands in a special little case coming out of Alaska to join us for that conversation is Chief Judge of the Sixth Circuit and number one advisory opinion judicial crush, Judge Jeff Sutton. And Neil Weir, who is the co-director of right to democracy, he was raised in Guam. And by the way, David, fun fact. He ran in the 2004 Olympics for Guam, the 1,500 meter dash. People may not know this, but the American territories can have their own Olympic teams,

including their own soccer team. You can compete in Miss Universe. You don't have to be an independent country to have your own Olympic team. So I'm just saying, Texas, what if we had our own Olympic team? That'd be really fun. He also, by the way, he's been on our podcast before a day. And for those who are like into the very deep cuts, his wife was besties with husband of the pod back at Purdue. Oh.

And so I basically consider her like another sister-in-law, which makes Neil my brother-in-law. Yeah, basically. Like, they are family to me. And Neil happens to be the expert on these territorial legal things. In fact, he's written a casebook on territorial law. So we're going to get into all that right after this. Don't you wish you could just hit skip on the worst parts of your life? You know the same way you can skip an ad.

I get it. I'm Siaiaia and I live in Ice Cove. I've made some questionable decisions that didn't end up the way I planned. And today I'm still figuring it out. Somehow things usually get worse before they get better. Apparently that's how I roll. So bundle up and come along for the bumpy ride. Stream a new episode of North of North Tuesdays on CBC Gem.

Okay, David, we have to start with the Supreme Court. Let's get this one out of the way. A per curiam on the National Republican Congressional Committee versus Sherrod Brown. A division of the Federal Communications Commission issued a public notice concerning the FCC's lowest unit charge requirements. Pursuant to those requirements, the charge is made for the use of any broadcasting station by any person who is legally qualified candidate for any public office in connection with his campaign must be set at favorable

rates known as the lowest unit charge in the weeks leading up to the primary and general elections. The notice stated that political candidates, joint fundraising committees with non-candidate members, and political parties engaged in coordinated political activity were all entitled to that lowest unit charge. So for Democratic candidates, sued to prevent that new rule from going into to effect. They argued that the requirement, which again said, any person who is a legally qualified candidate for public office only applied to the candidate committees and this, you know, division couldn't expand it to the party committees, for instance. Basically, the Supreme Court in this per curiam is like, nah, like, just leave the stay in effect. The rules will be in effect for this

election. It does apply to party committees for this election. Justice Jackson dissented I'll just read you from her dissent. In my view, the applicants are not likely to succeed on the merits of their argument that the Fourth Circuit lacked statutory jurisdiction. That was actually the end. That's the whole dissent. The argument was that you have to appeal within the administrative agency. And they did.

And the administrative agency hasn't actually done anything for many months. And then at the last minute, they were kind of like, oh, no, we're going to deny it soon. And they were like, yeah, that's why we filed in federal court. It's been constructively denied. And the Supreme Court's like, no, no, you have to go through the process. It actually, they have to wait. And then you can sue in federal court and argue that it's unlawful. In the meantime, the federal courts don't have jurisdiction over this. Come back to us when the administrative process is done. David, this is kind of ripe for abuse, right? The administrative agency then, especially for election-related stuff, has.

every incentive to sit and wait until after the election. And if you're curious why this pits Republicans versus Democrats, Republican Party committees tend to raise more money than Democratic Party committees this cycle. Democratic candidates tend to raise more money than Republican candidates. So, right, the Democratic candidates already got the lowest unit charge. And so they didn't want Republican Party committees also getting the lowest unit charge. So this is a pure partisan advantage case in terms of why it cuts Republican versus Democrat. Right. But it's a vaguely interesting administrative case in terms of exhaustion requirements and what happens when the agency isn't acting, perhaps, in good faith.

It's yet another example of premature litigation. You know, we had the Postal Service case we talked about earlier where essentially the lawsuit was filed before the final rule was promulgated. So therefore, you didn't actually have a target to shoot at when you filed the litigation. So it became, well, now we have the target. Let's shoot at it. It was enjoined immediately in the lower courts. The final rule was here it's a little bit different because, as you were saying, Sarah, there is the possibility of abuse. There's a possibility of just sort of sitting on it. But the statute's pretty clear. It says the filing of an application for review shall be a condition precedent to judicial review of any order decision report or action made or taken

pursuant to a delegation. So you have some pretty clear statutory language. It was filed too soon. And for the moment, we're just not dealing with the possibility of abuse. But it was filed too soon. So that is what it is. But that's nothing compared to the craziness of Missouri. That's weird. We're going into craziness now. All right. So Missouri, Once again, has two different sets of congressional maps. The new maps are used for the primary in Missouri. Then a court holds that those new maps have to be put on hold and sent to a referendum in the state. The Missouri GOP sues.

It goes to the Supreme Court and Justice Kavanaugh denies the emergency application. So what is left is that, yep, they used one set of districts for the primary, and they're going to have to use a different set of districts, the old districts for the general election. But hours later, a federal district judge in Missouri says, no, that would be nuts. You can, in fact, must, in fact, use those new districts, the districts that were used for the primary for the general election. So this is a weird situation, David, where you have a set of litigation that goes up through the Missouri Supreme Court, then to the Supreme Court, the U.S. Supreme Court says one set of cases that come up through the Missouri Supreme Court. From there, they appeal to the U.S. Supreme Court. And the U.S. Supreme Court's like, nope, we're leaving the Missouri Supreme Court in place. It's their state. Let them run it. Then you have a federal district judge with a different now. It starts as a federal case having a different. outcome. This is being appealed immediately to the Eighth Circuit. David, my read is that the, weirdly, the federal district judge's ruling is what is currently, what must be currently in place in Missouri because the other case, that state case that went through the Missouri Supreme Court is dead now

because the application was denied by the U.S. Supreme Court. That is not the same as a U.S. Supreme Court decision about which districts are appropriate to use. Yeah, it's confused. I think we can make it relatively simple. You have the state litigation where it was the state Supreme Court that sets aside the new maps. That, as you said, that state litigation is now functionally over. And according to the state Supreme Court, the new maps are out.

The old maps are in. There is separate federal litigation on federal constitutional claims where a federal court has said the federal constitutional claims mean that the old maps are out and the new maps are in. And that is going to govern unless until a federal appellate court decides that that's wrong. So as of right now, I think it's right to say. and listeners, if you think we're interpreting this incorrectly, the most recent relevant ruling is a federal ruling on federal constitutional grounds, and the state court ruling on state law grounds is not operative at the moment because of the federal ruling on federal constitutional grounds, and we're going to be appeal. You'll be seeing this appeal then the next days and weeks.

I think that's exactly right. I also think it is bizarre. I can't, I don't understand how it could possibly be lawful to have primaries with one district and not have different, not have new primaries and just go into a general election with those candidates. Nope, that doesn't work. It's, it's weird. I mean, I think the only way that you could really argue that it works is like the Missouri Supreme Court essentially says, look, guys, primaries are local party private things. and you guys did this on your own before we weighed in. But then how do we even know who the candidates are for the general election? And primaries are kind of public-private partnerships at this point.

It's more complicated than that. Yeah. So what an absolute, ever-loving mess that is unfolding in Missouri. All right. Well, more to come. We are also, there are other emergency applications pending at the Supreme Court, including the mail ballot executive order, which is back at the Supreme Court, the Trump administration has asked them to weigh back in. So we are waiting for that. And in the meantime, you've got to stick

around for our conversation with Chief Judge Jeff Sutton and Olympian Neil Weir about the insular cases. Let's start with why Judge Sutton thinks the Northwest ordinance should be in the Mount Rushmore of American law, along with the Declaration of Independence, the Articles of Confederation, and the U.S. Constitution. He's like, these are the big four. So, I don't know, are these territories more like the colonies, more like the proto-states, or are they something entirely different? You'll find out right after this.

We welcome to the pod, Chief Judge Jeff Sutton of the Sixth Circuit, and Neil Weir rhymes with beer, who competed. representing Guam and is the co-director of Right to Democracy. We're going to, I mean, David and I are so excited about this. I'm a little bit bubbling over because I spent all yesterday preparing for this, and now I have too much. If everyone will turn their hymnals, and by hymnals, I mean their Who Decides Book by Chief Judge Jeffrey S. Sutton, if you will

turn your hymnals to page 102. I will read to you from a specific section here. In another way, their pre-statehood experiences echoed the experiences of the first 13 states. Nobles oblige went only so far in the British Empire. Parliament did not treat the residents of its colonies in the same way it treated British citizens, often failing to heed their complaints, always denying them a way to protect their interests, the right to vote. That, of course, was the central complaint that triggered the revolution, a lack of representation of the American colonies in Parliament, and the long train of abuses and usurpations that resulted. A comparable problem arose in the American territories. Instead of colonies of the British Empire, they became territories of an American Empire,

often ignored, often frustrated by a lack of representation in the national government, a lack of local authority over their own affairs, and a lack of local understanding by the federally appointed officials who ruled them. Now, interestingly, Judge, you're not talking about Guam and American Samoa and Puerto Rico here. You're talking about basically almost everyone who becomes a state. Exactly. I mean, I guess you'd say 37 of the states had this transitional territory status featured to them, and they very quickly realized their experiences were not unlike the colonies. They were controlled by D.C. as opposed to London.

And the way it worked in the territories is the president could appoint a governor. So the governor reported to the president. The president could appoint territorial judges. And throughout this experience, the territories got more and more frustrated with lack of representation. I mean, there's a fun story in Montana where a judge, a territorial judge from New England, knew nothing about Montana, presumably was friends with the president. He's suddenly in Montana handling a trial. The jury reports for duty. The judge notices that one of the jurors does not have a proper jacket on. He stops the proceedings, talks to the clerk of court, says to the juror, you know, this is a very important proceeding. We need you formally dress. Please put your, get a jacket. The clerk orders the juror to leave. Five minutes go by, 10, 15, half hour.

The judge now inpatient says to the clerk, what's going on? The clerk says, you told the juror to go get his coat. He lives 40 miles away. He got on his horse. He'll be back as soon as he can. these territorial judges had no sense for the territories. They weren't respected by the territorial residents. And it kind of is what increased the pace of getting statehood. So the whole goal was to get from territory status as soon as possible to statehood, which was ultimately a function, partly a population, but ultimately it was up to Congress to do the, we're letting you in.

And of course, over time, it was pro-slavery, anti-slavery states that became very complicated. who got admitted, who didn't. But that's the experience of Ohio, my state, you know, 37 of the states in the country had that status. What's different, and this is where I guess Neil would come in, is just the current territories don't seem to be on the path to statehood. Or if they are on the path to statehood, it's not quite clear when that's going to happen. And maybe even some ambivalence about whether to have statehood in some of the territories. Okay, before we get to modern times just yet, once again, reading from the hymnal, page 105, all in all, the Northwest Ordinance belongs on a Mount Rushmore of American laws. Will you just explain what the Northwest Ordinance was and why you think like it's the American Declaration of Independence, the Constitution, and like the Northwest Ordinance?

Well, a couple of things are fun about this. One, there's a couple Northwest Ordinances. There's actually one before there's a federal constitution. So I think that's in 1787, and that's by the Confederation Congress. But it's essentially doing something similar. What's so great about the Northwest Ordinance that the first Congress puts together is it banned slavery in the territories. And so the Northwest's ordinance covers six future states. And every single one of those territories from the outset, slavery was banned.

So that's really quite striking. when you think about all the other features of the U.S. Constitution that have racist components to them, the odd voting representation formulas, things that we're really all quite ashamed of, it's quite striking that in that same year, 1789, when the U.S. Constitution goes into effect with all those defective provisions, Congress is able to pass a law that says, we're not going have slavery in the Northwest Territory. And that becomes the future of six states. And obviously, you know, a lot of those states, Ohio is a great example that helps to explain why they were so abolitionist as time went on. They had that as part of their kind of origin story. So yes,

I do think the Northwest Ordinance belongs on the Mount Rushmore of American legal documents with the Declaration of Independence Constitution Bill of Rights. So if we have a history and it goes something like this, every one of the states after the first 13 colonies went through some period of territorial status. Except Texas. Except, well, except Texas, independent republic. California. California was never an independent republic. Don't give them credit where it's not due. Vermont, I will grant you. But okay, in the main, 40 plus states had some sort of territorial status for a while. But then we have the actual existing territories. right now and a lot of them are the product at this very unique time in history the spanish-american

war in late 19th century which takes place against the backdrop of sort of the race for africa the european powers are really expanding their colonial ambitions and america never saw itself as a colonial power even though manifest destiny that was not considered sort of colonialism but here you have the spanish-american war and we see a bunch of Spanish colonies, the Philippines, Puerto Rico, other places, and they're now suddenly part of America ostensibly as a result of this treaty. And many of them, now the Philippines were obviously an independent country now, but there was a grinding insurgency that started right after the Spanish-American War ended, that was bloodier in many ways than the Spanish-American

War itself. So how much of the, you know, we're going to get to the insular cases, but in that moment in history, was America seeing itself as a version of a colonial power, or was there internal division there at that moment? Were we really looking at something like a quote unquote American Empire at that point? I'll be curious what Neil says, but my take on it is the period up to 1898 is not that different from the period after. 1898. I mean, we have this whole manifest destiny idea that, well, gee, it was kind of natural to go from the East Coast to the West Coast.

But, hey, we were pretty aggressive in deciding this was our land and not yours, and it wasn't 100% obvious how that would play out. It's true, the Philippines are pretty far away. And so you would say that's a different type of conquest. But the idea that it wasn't until 1898 that Americans believed in conquest, I don't know. I guess I would say they did before then, and that's why Manifest Destiny was this kind of idea that it was the natural order of things that America would go from the east to west coast

and Rio Grande up to whatever the Canadian border is and why it's there. God only knows. But, you know, I'm not sure 1898 is in President McKinley is when we suddenly believe in conquest. Well, the reason I highlighted that is because we were still, we didn't think of ourselves, as a colonial power, like that for whatever reason, Manifest Destiny didn't read to us as we're like Britain and France. But then when you grab the Philippines and you have these non-continental territories far flung across the ocean, all of a sudden it's kind of smacking us in the face, isn't it? I agree with that. I'm curious what Neil says about that. Yeah, I would see 1890 as kind of more of a demarcation line. You know, you had the United States with the Declaration of a Declaration

of Independence founded as an explicit rejection of colonial rule. This idea of consent of the governed really built into the DNA of the United States at that early juncture. Certainly, Conquest was the story from 1776 all the way through 1898. But there really was a difference, I think, in the United States wasn't looking to necessarily govern the people that were living those areas. They wanted to displace them. I mean, it's almost, I mean, it is worse than colonial rule. It's genocide. But starting in 1898, you had really this discussion in a shift, and it was actually one of the prominent issues for the presidential election at the time with President McKinley. Would the United States jettison its founding values of being anti-colonial, rejecting colonial rule

in order to obtain explicit sovereignty over these new island communities inhabited by people that didn't look like the people that were living in the rest of the United States at the time. And without giving them not just the promise of statehood, but the promise of any political participation or even the protection of basic constitutional rights or even recognition. of citizenship, which we can talk about more later. Okay. So we've sort of laid the foundation the territories in the continental United States. Let's just keep referring to Ohio.

When Ohio is a territory judge, they don't have the right to vote for president, right? They can vote for their local government. They are governed by D.C. Basically, they do not have all the rights and privileges of the U.S. Constitution, correct? Yeah, that's right. So the governor and the territorial court appointed from D.C., once they had a certain population, they could start to elect their own legislature. But that was really the only thing that was local control until they had statehood. Okay. But big difference, right, there's a path to statehood, a very knowable, like, written down path to statehood. Like, check these boxes. It's not a May issue. It's a shall issue, statehood, if you will. Yeah, I don't know about that. I mean, boy, you talk. it took a while that they could grow out Congress could be pretty grouchy. It wasn't like when you

became a territory, the clock started ticking and within 20 years you got a statehood. So they're all over the map. And so no surprise, very political when Congress decided to allow new states to enter. But there was a path. That's exactly right. And that path started with territory status. Okay. So, Neil, let's go to the insular cases. Their cases, is because it's a series of cases that are happening at the very turn of the century, but the gist of them is all the same,

which is the Constitution doesn't follow the flag. They're pretty, well, Justice Gorsuch writes about and describes the insular cases at great length in a recent case in his concurrence. I'll just read a piece of this, which I think Neil presumably likes very much, maybe even has it tattooed somewhere.

I don't know. I will ask your wife. Certainly does. Certainly has it. A century ago in the insular cases, this court held that the federal government could rule Puerto Rico and other territories largely without regard to the Constitution. It is past time to acknowledge the gravity of this error and admit what we know to be true. The insular cases have no foundation of the Constitution and rest instead on racial stereotypes. They deserve no place in our law. So walk us through the insular cases to Justice Gorsuch here in 2022 and why they're still on the books. Sure. So the insular cases came about shortly after the Spanish-American War as these questions about the application of the Constitution, the rights of the people living in these areas began to bubble up through executive actions, legislative actions to finally reach the Supreme Court.

And the most prominent of them, Downs v. Bidwell, which just turned 125 years old this year, actually, and, you know, kind of history goes first full circle, it seems like sometimes had to do with tariffs, everyone's favorite Supreme Court issue this year. Tariffs aren't ranges from Puerto Rico. And the question was, was this consistent with the uniformity clause, which requires uniform terrorists and imposts, quote, within the United States? But really underlying these considerations, and if you look at the briefs from the U.S. Justice Department at the time, they really were trying to answer these broader questions about what is the power of the federal government over these communities. Does, as you said, the Constitution follow the flag. Do limits in the Constitution that apply throughout the United States apply to these newly acquired territories and peoples? And the Supreme Court, in a deeply divided five, four decision, you know, we're familiar with those these days as well, established this

new category, really invented out of whole cloth, this idea of, quote, incorporated and unincorporated territories. The incorporated territories, the Constitution would fully apply. There'd be a path to statehood, and they'd be recognized as citizens. For the unincorporated territories, the full constitution would not apply. They would not necessarily be recognized as citizens. That'd be up to Congress and they would they would not be on the path to full political rights and statehood. You know, and this is all kind of shorthand. But, you know, what's the big difference between incorporated and unincorporated territories? What's the color of the skin of the people who live there? What language do they speak? What's their religion? And these are some of the things that Justice

Gorsuch talks about in his concurring opinion by Amerioreau as really being contrary to not just the text and history of the Constitution, but so many other values. So you have the Supreme Court in this series of cases in the early 1900s recognizing that the uniformity clause doesn't apply. Really, the only other constitutional right that is squarely considered by the court is questions of criminal jury proceedings processes and grand juries. They don't actually get to a lot of the specific constitutional questions about the territories, but they don't. there becomes this shorthand that, well, Congress can kind of do whatever it wants there. The courts will back off. These are really just questions for the political branches to decide for

themselves. Now, to more recent times, you have the Supreme Court starting to express skepticism towards this Insular case's framework as early as the 1950s around the time of Brown v. Board. There was a plurality in a case, Reed v. Covert, involving jury trials for service members in Japan that came up. There were some other cases with pluralities similarly expressing skepticism towards the Insert case's framework. But really, it began to come to a head over the last 10 years or so. As these issues started to become before the court, the court has had six or seven recent cases addressing constitutional and other issues. in Puerto Rico and other U.S. territories before it. The court has consistently come short of overruling the answer cases,

while justices like Justice Breyer have called them a dark cloud. There's been majorities that have criticized them and narrowed them, possibly down to just their specific historical context and the specific legal issues they addressed. But then you have other justices like Justice Gorsuch coming out, speaking out against them. In that same case, he was joined by Justice Sotomayorke, who called the insular cases, quote, odious and wrong. And then most recently, you have Justice Katanji Brown Jackson and a concurrence in Barbara critiquing the insular cases and listing them as a

series of examples where the Supreme Court has, quote, denied Americans the, quote, promise of securing equal citizenship. So you have at least three justices on record speaking out against them, yet despite several opportunities for the court to overrule them, they remain the law of the land. They remain not overruled the way that Plessy versus Ferguson has been overruled by the courts or Dred Scott has been overruled or Korematsu or these other cases. And so that's really where we are today. And on that, you know, in that timeline, the big thing that has changed why we are doing

this podcast is Trump v. Barbara. It's the birthright citizenship case. I want to put a pin in it really quickly, though, because this is advisory opinions, David, and even with the insular cases, I feel some need maybe something a little short of steel manning the insular cases, or at least all parts of the insular cases. Even advisory opinions maybe can't go that far. But we can like cardboard the insular cases or something. And that's why among many other reasons, including my extreme fondness, Judge Sutton is here. Because Judge Sutton, I guess, to me, it seems really crazy that we just say, like, the Constitution doesn't apply

over there, you don't have voting rights, and yet you're part of America, you're not part of any other country, you're not foreign in any sense, such that, like, for instance, just to talk about birthright citizenship for a moment, if you come to this country illegally, and have a child here, that child is an American citizen. But if you are in American Samoa, you are a U.S. national who has a child, your child is not an American citizen. They are a U.S. national. So you are better off if you are in American Samoa coming to the United States illegally somehow

and having your child here because they can be a citizen. But if they're born in American Samoa, nope. no citizenship. They're not citizens of anywhere else either. They're just U.S. nationals, not American citizens, can't vote. That seems absolutely insane to me, Judge. But at the same time, this is why we talked about the Northwest Ordinance and the territorial rules applying to what would become other states. It's hard to argue from an originalism standpoint that you can't have like the Constitution doesn't apply rules. Well, you know what's so fun about this moment and you know I'm just a lower court judge so just have a front row seat watching the

Supreme Court as they address this but I think what's really fun about this is you know justice gorsuch was quite confidently making originalist case for overruling the insular cases a professor Mike Ramsey a terrific originalist scholar has written a really thoughtful article that explains why the insular cases are wrong on originalist grounds And at the same time, you have more progressive justices skeptical of these cases. So you really have a situation where they're vulnerable, I would say. But obviously, it's for the Supreme Court, not the lower courts. The thing I might add to the conversation, however, is that, you know, if you take a case like Plessy

or Dred Scott and you pull out the bigotry, the interest in segregation, everything, the thread pulls the whole sweater apart, what I think is tricky about the insular cases, if you pull out the racism, you pull out the incorporated, unincorporated idea, which seems made up, you are still stuck with a Constitution that doesn't make it crystal clear how all of this should work. I mean, lots of parts of the Constitution very explicitly say you only get benefits if you're in a state. I mean, privileges and immunities clause, it's only if you're in a state. the Republican form of government guarantee only in a state. Obviously, citizens, by becoming a citizen, you don't get every right in the Constitution. If you're in a territory, for example, you still don't

have a right to vote for Congress because you're not a state. So I don't think it's as simple as those other odious cases where you just pull the thread out and all of a sudden you have a clear answer. And I suspect this is one reason the court has been unsure how to look at this, because I think a lot of quite complicated questions arise. If you overrule the insular cases, you still have to decide what this means. They're not going to overrule them and then say, even if you're in a territory, you automatically get to vote for president or somehow every territory automatically becomes a state. I don't see that.

And then you have this other huge. complication. You know, unlike what was going on in the early 1900s, some of the territories today, they may have complaints. Neal's from Guam. He knows this better than I do. But they now, they are electing their own legislature. Under the Guam Organic Act, they have a lot of local sovereignty. In fact, I would say in most ways, Guam looks more like a state than anything. It's got a lot of local representation sovereignty. And they're getting a lot of federal support from the national government. So I suspect it's actually kind of a complicated question how far Guam wants to go. And I'm sure they'd like to be citizens and get birthright citizenship.

That seems true. And probably most of the Bill of Rights. But, you know, they have an organic act that already puts the Bill of Rights in place by statute. And amazingly, the Guam Supreme Court can go beyond it. They can do just like states. They can adopt interpretations. that are even better than the U.S. Supreme Court protection of our fundamental rights. So in some ways, you know, to call this colonialism strikes me as not super nuanced, at least at this point in history. It may have been colonialism at one point, but at this point, there's a lot of local control. They have control over who their Supreme Court justice are,

and those Supreme Court justices can be better than the U.S. Supreme Court of protecting free speech rights, criminal procedure rights. So I guess that's a long-winded way of saying it's a little complicated what's next, even if they did overrule these features of the insular cases, the racism and this weird dichotomy between incorporated and unincorporated territories. Well, you know, it's interesting. And, Neil, I'd love to get your thoughts on this, because just to underline what you said, Judge, the Constitution, you know, I haven't thought about Article IV, Section 3, Clause 2,

much in my life, I have to say. But 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. So that's a big sweeping grant of authority to Congress right there to govern the territories. And the question is, and it seems to me, you know, you're hitting the nail on the head in that there is a separate sphere of authority that exists that Congress has over the territories as granted by the Constitution. But what does that mean for other provisions of the Constitution, like the free speech clause, et cetera? And so, Neil, I'm just curious, let's all, let's all be on the same page that all the racist aspects of the insular cases are

horrific. A lot of the reasoning that is rooted in the racist aspect should be swept away and relegated to the dustbin of history. But we still have this explicit constitutional grant authority to Congress, and how do you see it playing with the other parts of the Constitution, the Bill of Rights, the 14th Amendment, et cetera. How do you harmonize these two things? Sure. So I think in some ways, it is complicated. In other ways, I think it's pretty straightforward. So Justice Gorsuch himself, in this concurring opinion, calling for the answer to cases to be overruled, recognizes that there's still going to be lots of constitutional questions that would remain necessary to answer and Judge Sutton raised a number of them. That's also true in places like the District of

Columbia, right? It's not a state. How do these constitutional provisions apply there? And are there really any kind of constitutional differences between a non-federal jurisdiction like the District of Columbia and a non-federal jurisdiction like the territories? I think how people kind of get or have trouble kind of understanding the relationship is because we are so set to think of the federal system and the 50 states, this kind of federalist structure. And the territories kind of throw that apart because of this idea of plenary power established through the territory clause, which I'll note is not in Article 1 of the Constitution, which deals with Congress. It's an Article 4 of the Constitution, which deals with admission of the states. So query how that should inform the scope of

powers provided by that text. But tabling that question. It's almost like we need a book about the structural constitution called Who Decides, question mark. Or maybe the next book. Maybe the next book addressing these questions. Because it's the plenary power means the combined powers of the national government and of a state government. So you have Congress that can, exercise these broad national powers just as it can anywhere. But it could also say, well, in Guam, the speed limits 25 miles an hour. Congress could pass a law saying that in Guam, Congress could not pass a law. Good luck passing that law in Texas with respect to Texas. And so that really, I think, kind of gets people, you know, kind of confused because this is not the way we think about a national

government. And other countries, that's totally normal. In many countries, they have a unitary national government. They don't have federalism. They can pass the law of, you know, what's the speed limit in any part of the country. So that's one element of it. And then I guess I would also push back, though, against Judge Sutton's idea that what we have in Guam or other territories today is really just kind of a mirror of what exists in the states. And so that Organic Act itself establishing this framework, and it's been amended a number of times over time, expressly states in its opening section to declare Guam as an unincorporated territory. And what did Congress mean when it did that?

It's you're not on the path to statehood. You're not on the path to independence. We're going to continue governing you, really however we want. And part of the Organic Act also says that Congress has the power to annul any local legislation. So again, that's not a power that Congress can. an exercise with respect to Texas. They can't come in and say Texas, you know, you wanted to enact this law, Congress, we're going to enact a different law instead, unless there's, you know, some federal scope of power for that. With respect to even judicial decisions and structure, you know,

I think it's undisputed that Congress could come in and say, well, it's been nice having your elected governor, your elected legislature, a court that, you know, appeals to the Supreme Court rather than some other court. We're going to change all that just because we want to. We got the vote. now. There's no kind of constitutional baseline that's understood as applying to the rights in these areas, although that has been recently questioned. There's a decision, a dissent to denial of certiorari in a recent case, Veneno, where you had Justice Gorsuch joined by Justice Thomas, questioning even the idea of plenary power over the territories at all. Can Congress come in in 26 and say, you know, no more governor, no more legislature, no more court system, we're going to

just send, you know, a viceroy down to govern you. So there are a lot of questions that remain unanswered, but this idea that the relationship between people in U.S. territories today and the federal government is really anything different than what you opened up with kind of talking about the relationship between the 13 American colonies and the British government, the parallels are all too troubling, you know, particularly as we celebrate 250 years of consent of the governed and the Declaration of Independence. Just to make this more a little bit more concrete, Puerto Rico, 3 million plus Americans living there. Right now, how much is Puerto Rico governing itself and how much is it sort

of under the control of federally appointed authorities slash managers? There's some really interesting sort of economic control, financial control of Puerto Rico. Yeah, so up until 10 years ago, a lot of people thought, well, Puerto Rico is basically self-governing. It's got its own constitution, its own governor, its own legislature. But then a Democratic administration, the Obama administration, imposed or created this federal oversight board, which has extraordinarily broad powers to over the budget and finances of Puerto Rico can annul local legislation. And they've done that repeatedly. And most recently, President Trump fired a majority of the board members when it seemed they're going a direction that he didn't like.

That's currently being contested in federal court, whether the president can fire members of this board. There's been multiple Supreme Court cases about the board, the Rellius case addressing whether it must follow the appointments clause, other cases. But absolutely today in Puerto Rico, they're governed by this unelected federal board. No law can be passed essentially without them giving their okay. They can't enter into contracts, like government contracts, without getting the okay of this federal oversight board. So it's not a democracy. But what triggered this was Puerto Rico going bankrupt, right?

It's actually not that, though, because what triggered it is that federal law did not allow them to go bankrupt. They were not included in federal bankruptcy proceedings. things, they attempted to create a bankruptcy law themselves. And the Supreme Court said, no, you can't do that. That's not within your powers. That's something Congress has to do. And so they came in with this solution that 10 years later remains governing the island and its people without any. Can I just add one quick thing. Neil, I want to see, Neil, if you and I agree on this. I do agree with you under current law, even if we get rid of the insular cases. There is this threat.

where Congress can always come in to any of these six territories and suddenly just throw everything to the side. And, you know, you can imagine if you live in a territory not being happy with that potential threat. So I agree with you on that point. But wouldn't you say that if you think of the six territories, they're on this weird spectrum where some of them have a lot more local control than others. Like, for example, I think Puerto Rico is the only territory that has Article 3 judges, which is really striking. District of Columbia, of course, you know, I would say in some ways has the most local control. But wouldn't you say it's kind of, each one is a little different? I mean, in other words, you can't just say, oh, territory,

it therefore has this relationship with the national government. They each have their own statute, and over time, they've really gotten quite idiosyncratic in each territory. Yeah, I think as a statutory and regulatory matter, each of them, is unique and different. In terms of the broad powers, the federal government claims over them, there aren't a lot of differences there. And we've started seeing that manifest in some of the recent federal actions with relation to citizenship and other issues. Okay. I want to move to Trump v. Barbara. This is the birthright citizenship case that was just decided this term. I will read to you from the opening of the chief's opinion. At issue in this case,

whether the Constitution guarantees citizenship to children born of parents unlawfully or temporarily present in the United States. The 14th Amendment provides, quote, all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside. Nobody argues that American Samoa, for instance, is not in the United States. It's not anywhere else. And that it's subject to the jurisdiction of the United States. I mean, we've certainly proven that over the last 30 minutes.

So it seems pretty clear that that clause has always applied to American Samoa, but definitely, definitely would apply after the Supreme Court decision, although it would be dicta because that was specifically about a president's executive order that didn't deal with U.S. nationals, but rather people with even less subject to the jurisdiction thereof status than someone born in America and Samoa. And this brings us to the case that's happening in Alaska right now, which I, Neil, you sent this to me many months ago, maybe more than a year ago now. And I'm super into it, following it very closely. Here's the basics. And feel free to to tell me I'm wrong after. But basically,

guy and his family from American Samoa, who are not birthright citizens and therefore U.S. nationals, moves to Alaska, fun times. And he moves to an American Samoa community in Alaska. There's only like 250 people in the town. They all live in one, you know, basically apartment complex in town. When he goes to get his driver's license, it's like, hey, are you a U.S. citizen, a U.S. national, a this or this or this.

and he checks U.S. National. Correct. And then there's the like motor voter part where it says, are you a U.S. citizen? Yes or no. And he's like, oh, this doesn't say U.S. National. Like an American Samoa, I can vote for my local person. And the DMV person is like, oh, U.S. national and U.S. citizen are the same thing. Just check yes. And he's like, yeah, they're not the same thing. And she's like, no, no, no, it's the same thing. Definitely check yes. And he's like, okay, he and his wife and several other people check yes. This is under penalty of perjury. Then there's like a hot tip from someone about voter fraud running rampant in this 250-person town.

And the police show up and start knocking on all the doors in the apartment complex. And, you know, the transcript, by the way, that you guys included in the brief between the police officer, who also doesn't think there's a difference between being a U.S. national and a U.S. citizen is really. something. He is indicted, along with his wife, charged with the crime of perjury, because he checked yes on are you a U.S. citizen for the purpose of voting and did, in fact, it appears, voted unlawfully because he's not a U.S. citizen. But there's this birthright citizenship clause, Neil. And so you have teed up this really kind of remarkable follow-on to Trump v. Barbara to the insular cases themselves in this very weird voter fraud. I'm putting that in quotes because in total they indicted nine people,

one of whom I think passed away. So like we're talking eight people who are U.S. nationals, but technically not U.S. citizens, except they're definitely U.S. citizens if I read the stupid birthright citizenship clause, but whatever. And by the way, had a really fun conversation with husband of the pod last night where I was like, now wait, let's talk about perjury for a second because there's two different parts to this. One, that the thing you said was false and two, that you knew it was false. Normally, it's really hard to prove the person knew it was false. In this case, he knew checking U.S. citizen was false, but in fact, it was not false, maybe. And can that still be perjury? We decided, no, it has to be both. You have to have the

actus reus and the mental state. So he can have the mental state to believe he was lying. But if he was it lying, albeit, you know, without his knowledge, he didn't commit perjury. So Neil, tell us where this case is right now, where it's headed, and what are the problems? Why might this not result in truth and justice in the American way? Yeah, so you got it all right. And we represent both Michael Passe and his wife, Tupé Smith, these kind of questions around intent and mens rea. We actually just got a win on Friday from the Alaska Court of Appeals saying that in order to commit voter fraud, there has to be a consciousness of wrongdoing. The state was arguing, oh, no, she didn't have to have any conscious intent of wrongdoing. She checked the wrong box.

That's up to five to ten years in jail. Alongside that, that on behalf of Michael, the day after the Barbara oral argument, we filed a motion to dismiss raising this constitutional. defense, that because he was born on U.S. soil, subject to U.S. law, under the text and history of the citizenship clause, quite clearly, he's a U.S. citizen. Then you had the Barber decision come down, and you had Chief Justice John Roberts say in no unclear terms. If you're born on American soil, subject to American law, you're an American citizen, even if you look at the dissents, they make clear that this idea of the geographic scope of the United States is very expansive. No suggestion that applies in states but not territories, even in the dissents.

And so we are very interested to hear, well, what would state prosecutors say after Barbara? The answer, nothing. They didn't cite Barbara at all. They didn't mention any of the holdings of Barbara. They didn't deal with the dissents. No mention of Barbara. No mention of Barbara. mention of Wong Kim Arc, no textual or historical analysis of the citizenship clause,

simply a reliance on some other federal court of appeals decisions that had reached a contrary result relying on the insular cases. So actually just today, we're filing our reply brief in that motion to dismiss, highlighting how Barbara really does make clear, not just on this question of subject to the jurisdiction thereof that it addressed, but also this broader question of what is the geographic scope of the United States, that under the common law principles that were the basis for the adoption of the citizenship clause, it's clear that it was to apply in states and territories alike. You even had the Supreme Court right after it was ratified, saying that it put to rest any questions that there may have been prior to the citizenship

clause that people born in these Western territories might be citizens. You had people who drafted the 14th Amendment say, oh, you know, Section 2 of the 14th Amendment, that talks about the several states. What did we mean when we said in the United States, we meant the states and territories? So, you know, here in this criminal case, it's going to be an issue that the court has to address in order to decide whether, as you said, these elements of these criminal charges will hold up. And based on the Supreme Court's decision in Barbara, based on the text and history of the Constitution, really all unrebutted by the state of Alaska in any way, there is a recognition that they do have a right to citizenship, just like someone born in Texas or Washington, D.C. or wherever your listeners may be. Well, some of them are in like Australia. So no, you are not American citizens. but so it seems to me like in some ways this is a bad vehicle because if there's any other off-ramp

we're playing with five to ten years potentially of someone's life in no way should we make this a test case just for funsies to see if we can uh you know apply birthright citizenship to the territories so any off-ramp on the way presumably you guys will take for your clients right if the state decides to dismiss it because they think they could lose take it if they decide on the mens rea thing, you know, that like, you can win on basically the DMV lady told me to. Take it. So that's one reason why this case may not get very far. And presumably you hope it doesn't get very far. But it's also teed up so nicely. Oh, it's so perfect. It's so perfect. Yeah, but I would say, you know, beyond the criminal issue, you know, Michael and Tupe don't want to go to jail. They want to raise their children and be

part of their community. At the same time, you know, the reason Tupay was initially arrested was she had ran for, she'd been recruited to run for a local school board, had ran for that office, and won with 96% of the vote. People in the community have asked Michael to run for city council there. Of the 250 people that live in Whittier, nearly a third of them are American Samoan, who, you know, absent a recognition that their citizens will not be able not. have a say in the decisions that impact their community, even at a local level, much less at a state level or for president. And so beyond these criminal issues, Michael and Tupay want to be able to have a voting say in their community, want to be able to run for office

or even hold the office that they were elected to. They want to be able to have the equal dignity of anyone else in that community. And that was so troubling when Tupay, this is just a week after she was elected, Alaska straight troopers showed up to her door, arrested her handcuffed her in front of her two young children, took her to the police station where she was put in prison, strip searched, and forced to wear a prison uniform before her husband was able to bail her out. And so they went from being really leaders and well-respected members of their community to being treated like they're criminals. And so this recent win before the Alaska Court of Appeals is a real vindication.

that they didn't act with any kind of wrongful intent. But up until now, the state continues to very aggressively prosecute these cases. It's really hard to explain what their motivation is in doing so. You can draw maybe some negative references. But as long as they keep pushing this forward, these questions will be addressed in the criminal context or they could be addressed in some other context in the future. So I have a question. I'm teaching an adult education class about

five forgotten Supreme Court cases that have changed America and the goal is to take this very interested group of of Nashvilleians who are many of them are advisory opinions listeners and to explain to them cases they've never heard about but still really matter to this day and I began with the Slaughterhouse cases that was my first that was my my first stab the gutting of the privileges or immunities clause early on post-Civil War and whether that all meant, do the insular cases belong in my class? I will say yes.

Okay. And the reason I'll say yes is not because of the impact they have on American Samuans living in Whittier. It's because the insular cases and really their holdings are quite scary and really an open invitation to authoritarian. So you have in the insular cases, the Supreme Court expressly ruling that constitutional limits don't apply to the federal government when acting with respect to U.S. citizens on U.S. soil, much less when the United States acts in a foreign country

or is addressing non-citizens either in a foreign country or domestically. So this is the height of when the Constitution and its establishment of a limited government should hold. US citizens on US soil. And so it doesn't take a lot of imagination on how a president or Congress, and we've started seeing that with things like the recent Trump executive order on birthright citizenship, targeting people born in the territories

to deny them recognition of citizenship. We've seen that in Congress with a new proposal called the End Birthright Citizenship for Territories Act, which would end birthright citizenship starting January 1, 2027. Using these with respect to territories, but also perhaps in other contexts. So these are a really dangerous precedent

that has been allowed to stay on the books that who knows how it might be wielded. I kind of analogize it to a loaded gun sitting on the table that's just waiting for a president or Congress to pick it up. And so that's why it's dangerous, whether you're living in Tennessee, Texas, or an American Samoan in Whittier, Alaska. I agree with Neil. You should teach it.

I wouldn't do it through the import-export clause. I would teach it the way Neil just suggested. The reason I love talking about territories is it's just another layer of understanding how federalism and local control ought to work. It's just a variation of local control point. And, you know, it's a little more complicated because of the congressional power behind the scenes. But the reality is it's a local control issue. And that just strikes me as something we ought to be talking more about and might help us a little bit with our polarized times. We don't have to nationalize everything.

So, Judge, I will take your argument under advisement on the curriculum. But it is fascinating. It's absolutely fascinating. We will keep everyone informed as the Alaska case makes its way. In the meantime, by the way, if you are interested in such things, Judge Sutton has written two books for you. 51 imperfect solutions is the first one. And then who decides is the follow-up on the structural constitutional issues. And, you know, I mean, look, I was rereading them yesterday. They're great reference guides to have around about state constitutions.

Highly recommend. And what's so interesting about this Alaska case to me is oftentimes the reason we don't talk about a lot of cases when they're percolating is because the likelihood of the Supreme Court taking the case is just infinitesimally low. But here, if a lower court held that birthright citizenship did, by necessity, apply to American Samoans, for instance. And the circuit court either way said yes or no, the Supreme Court would almost certainly have to take that because you cannot have lower court sort of overturning 125 years of American practice without the Supreme Court wading into it.

So plus, it's super duper interesting in the wake of Trump v. Barbara, where you have basically three categories. One, automatic birthright citizenship, if you are born on U.S. soil. Two, statutory birthright citizenship. This would apply to like John McCain, for instance, or Ted Cruz, you're born to American parents, but you're born on a military base or something like that. Statutory birthright citizenship also applies to some folks in the territories. And then not a birthright citizenship. That would apply if you are not a U.S. citizen in American Samoa. You're a U.S. national and you have kids. They're still U.S. nationals. It's like this very weird. you can't get out of the circle.

Chief Judge Jeffrey S. Sutton, Chief Judge for another, just under a month of the Sixth Circuit. I'm so concerned that the Sixth Circuit is just going to run amok under... Oh, no, it's the golden era. It's going to be a golden era once I leave. No, everyone's quite eager and it's very exciting.

I don't know. The Iron Fist, with which you have ruled, handing that over to soon. to be Chief Judge Kethledge. I mean, does he even know that he is like statutorily required to come on advisory opinions to explain stuff to us? I don't know. And Neil, I mentioned this in the intro, but we are basically in-laws because of the

long-term friendship of our spouses and, you know, say hi to sister-in-law of the pod for me when you get off. She says hi back. Thank you for everything you're doing. By the way, I spent way too long last night reading everything about your Olympic debut in 2004. I don't know. That was like the rabbit hole I did last night after kids' bedtime. So if anyone's curious, Neil Weir, the 1500 in the 2004 Olympics.

It actually, it's a cool legal story, weirdly enough. It's amazing. There is, yeah. Thank you guys so much for joining us. Thank you. Thank you. Don't you wish you could just hit Skip? on the worst parts of your life? You know, the same way you can skip an ad? I get it. I'm Siaia

and I live in Ice Cove. I've made some questionable decisions that didn't end up the way I planned. And today, I'm still figuring it out. Somehow things usually get worse before they get better. Apparently, that's how I roll. So bundle up and come along for the bumpy ride. Stream a new episode of North of North Tuesdays on CBC Gem. Well, David, that was everything I hoped it would be a primer on the insular cases with Judge Sutton giving us a history of the territories. It's just like so in his wheelhouse. By the way, he's prepared for like a full 20 hours of just reading all of this stuff just to help us walk through that history. It's just always so grateful when he comes around. Oh, yeah, yeah. And it's so interesting. I mean, I think you don't have to be a history nerd. I don't think to find this stuff interesting because, you know, America is a very complicated place. Our history is very complicated. And you can just spend an entire lifetime learning and uncovering new things. And it's just shockingly relevant. You know, Guam is a relatively small place, but there's more than 3 million people living in Puerto Rico right now. And this kind of never. and Everland, this quasi status. It's really fascinating. And, you know, when you actually look at some of the arguments around the insular cases, they really echo some of the darker and more ugly

anti-immigrant sentiment that you get today because it's sort of like, you know, you read the insular cases, like, well, the blessings of liberty don't extend to those people. The alien race, it referred to them as. Yeah, exactly. And so. And so you get this sense of like, well, they're not in our club. They're not one of us. It's sort of the very clear, not just subtext, but text of the insular cases. And if I, you know, reading, and it was fairly interesting and fun to go back and read it, fun and disturbing at the same time.

But I kept thinking all of this language in these cases is triggering Justice Gorsuch. Like if there's one thing we've learned from him after all the Native American cases, he looks at historical injustice in it, he wants to do something about it. So it's fascinating. By the way, David, you missed a real opportunity to connect with our younger listeners with Kendrick Lamar, they not like us. And if we had more money on this podcast, we would have the outro music. You know, they not like us. I don't even know what that song is. Oh, my God, it's the Kendrick Lamar Drake. This is the strikes a chord and it's in a minor. Oh, now, okay, okay, okay. Yeah. Yeah. I don't know much about hip hop, but I know there was a

beef, and I remember that line. Sorry, trying to strike a chord, and it's probably a minor. Mm-hmm. Yeah. Anyway, that's what we're going to leave this podcast. You stuck with that song in your head and Kendrick Lamar. I mean, that's basically, if you want to summarize the insular cases, they not like us. They're not like us. And that's a problem for the U.S. Constitution. Next time on advisory opinions, we have so many of these circuit cases that are building up, David. We've got to start getting through these.

A really, I mean, it was made for A.O. Second Circuit case on a teacher who has like a, I don't know, like four foot by six foot pride flag on one wall and then like a five foot by three foot pride flag on the next wall. and the school tells her to take it down. Does she have to? Did they violate her rights? I don't know. We've got Bar Association dues, KTAM,

plus the gun surveillance case, the funding additions, the loper bright that we didn't get to. And then, David, I think of myself as a soft unitary executive person. There's hard unis out there. And Caleb Nelson has written a new law review article on the vesting clause, which is what the unies point to,

versus the necessary and proper clause. And I went into it being like, I can get through this really quick. I won't find it persuasive and then I can move on with my life and live in my soft uni world. Ah, David. I've got problems. And then we've got Andy Smarick's incredible article on how judicial history and tradition went wrong. And the three questions that everyone should be asking.

Yeah. So that'll be next time on advisory opinions. Promise. We're going to keep it tight so we can get through a ton of stuff on the next episode. Don't worry. Next time on advisory opinions.