Bad Bunny and the SCOTUS Precedent That Denies Constitutional Rights to Puerto Ricans

The Super Bowl halftime show does not normally offer much in the way of educational value. But Sunday’s performance by the musician Bad Bunny did help teach a valuable civics lesson to certain uninformed conservative pundits.

Consider the right-wing commentator Tomi Lahren. She was apparently unaware of the fact that people born in Puerto Rico—such as Bad Bunny—are U.S. citizens. “He is not an American artist,” Lahren falsely asserted before being corrected by her interlocutor, who informed Lahren that Puerto Rico “is part of America, dear.”

Perhaps Bad Bunny’s performance will encourage others to learn more about Puerto Rico’s unique relationship with the United States. For those interested in reading up on the legal angle, allow me to recommend Justice Neil Gorsuch’s 2022 concurrence in the case of United States v. Vaello Maduro.

As Gorsuch explained, between 1901 and 1904, the U.S. Supreme Court decided a series of cases, now known collectively as the Insular Cases, which held that the U.S. Constitution does not fully apply to the residents of Puerto Rico and other territories that were then recently acquired by the U.S. as a result of its victory in the Spanish-American War.

“A century ago in the Insular Cases,” Gorsuch wrote, “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 in the Constitution and rest instead on racial stereotypes. They deserve no place in our law.”

The Insular Cases have certainly warped American law in many ways. For example, despite the fact that Congress specifically granted U.S. citizenship to Puerto Ricans in 1917, the Supreme Court in 1922 relied on the Insular Cases for its holding that the constitutional right to trial by jury, an “institution of Anglo-Saxon origin,” should not apply in Puerto Rico. “It is locality that is determinative of the application of the Constitution, in such matters as judicial procedure,” the Court said in Balzac v. Porto Rico, “and not the status of the people who live in it.”

Yet as Gorsuch pointed out in Vaello Maduro, “nothing in the Constitution…authorizes judges to engage in the sordid business of segregating Territories and the people who live in them on the basis of race, ethnicity, or religion.” The time is overdue, Gorsuch concluded, for the Supreme Court to overrule the Insular Cases. “Our fellow Americans in Puerto Rico,” he observed, “deserve no less.”

I have no idea if Gorsuch is a fan of Bad Bunny’s music. But I would not be surprised to learn that Gorsuch is a fan of Bad Bunny’s recent contributions to American civic education.

The U.S. Court of Appeals for the 5th Circuit has just teed up what may prove to be the next big immigration case on the Supreme Court’s docket.

In a decision issued on Friday, a divided three-judge panel of the 5th Circuit ruled in favor of the Trump administration’s policy of detaining without bond most aliens that it seeks to deport. This means that even an alien without a criminal record who has lived peacefully in the United States for years would still have zero chance to seek temporary release on bond from immigration detention while his or her proceedings played out.

As Politico‘s Kyle Cheney has observed, this policy is “a reversal of every administration’s position for the last 30 years.” Furthermore, the 5th Circuit’s blessing of the policy runs counter to hundreds of decisions issued by other federal judges. “A POLITICO review of thousands of ICE detention cases found that at least 360 judges rejected the expanded detention strategy—in more than 3,000 cases—while just 27 backed it in about 130 cases,” Cheney reported.

The Supreme Court seems unlikely to ignore a legal dispute of this magnitude. Perhaps the question for now is whether SCOTUS will eventually agree to hear this particular case on appeal or take up another one like it. We’ll see.