Is H. R. 6116 Constitutional?

Is H. R. 6116 Constitutional?


Warning: This post is kind of long and rambling. There is a 1 paragraph summary at the bottom.

I was browsing one of my favorite websites,, when I saw this announcement, that in the shadow of the “fiscal cliff” will probably not make headlines. H.R. 6116 is the latest bill signed into law by President Obama. Here is the relevant text.

Section 23 of the Revised Organic Act of the Virgin Islands (48 U.S.C. 1613) is amended by striking ‘‘: Provided, That’’ and
all that follows through the end and inserting a period.

(a) IN GENERAL.—Chapter 81 of title 28, United States Code, is amended by adding at the end the following:
‘‘§ 1260. Supreme Court of the Virgin Islands; certiorari ‘‘Final judgments or decrees rendered by the Supreme Court
of the Virgin Islands may be reviewed by the Supreme Court by writ of certiorari where the validity of a treaty or statute of
the United States is drawn in question or where the validity of a statute of the Virgin Islands is drawn in question on the ground of its being repugnant to the Constitution, treaties, or laws of the United States, or where any title, right, privilege, or immunity is specially set up or claimed under the Constitution or the treaties or statutes of, or any commission held or authority exercised under, the United States.’’.
(b) CONFORMING AMENDMENT.—The table of sections for chapter 81 of title 28, United States Code, is amended by adding at the end the following new item:

‘‘1260. Supreme Court of the Virgin Islands; certiorari.’’.


I was intrigued. The Virgin Islands are an interesting American possession, with a lot of Constitutional “baggage” related to the Insular Cases. The VI are obviously not a state. They are an organized, unincorporated US territory.

So, can Congress pass a law giving (or forcing, to the extent it can, since the Supreme Court has discretionary review, except for some cases arising under Voting Rights Act, I believe) direct appellate review of territorial court to the Supreme Court?

If the answer is no, then 28 USC § 1258 – Supreme Court of Puerto Rico is ostensibly unconstitutional also.

Let’s back up. The VI has a “quasi-federal court” as well as its territorial court. The quasi federal court is an Article IV Court, and the territorial court (let’s imagine its a state court) is also, really an Article IV Court. Anyways, the new law gives the Supreme Court direct appellate review of the territorial court, the one we are pretending is a state court.

Obviously, the Supreme Court can hear cases of federal questions arising out of state courts, because of its federal question jurisdiction. However, I don’t understand why this is direct appellate review, instead of review by a federal district court, and then an appeals court, and then the Supreme Court.

Anyways, previously, the 3rd circuit court of appeals heard appeals from the VI “State” Supreme Court. Which is weird, because states are direct US Supreme Court reviewed.

There are two reasons why this seems murky.

#1 An old case that might not even have effect…Taney’s lost opinion

Gordon v United States is 69 U.S. 561 (1864) and also 117 U.S. 697 (1865).

It’s a crazy case. The question was whether the the Supreme Court had jurisdiction over the Court of Claims. It was eventually mooted by a change in the Court of Claims. But before it was mooted…

As Floyd Shimomura, The History of Claims Against the United States: The Evolution from a Legislative Toward a Judicial Model of Payment, 45 La. L. Rev. 625 (1984). explains

“At this critical juncture, one of the more bizarre happenings in American legal history occurred. Two opinions explaining the Court’s decision in Gordon v. United States came into existence: one by Chief Justice Taney and another by his successor, Chief Justice Chase. Chief Justice Taney prepared a draft opinion which he gave to the clerk before his death on October 12, 1864. This opinion was subsequently lost or misplaced. In the meanwhile, Salmon P. Chase had become the new Chief Justice. He issued a formal version of the court’s 1865 dismissal in Gordon v. United States. Taney’s “lost opinion” would be recovered…

So, the Taney case might all be dicta. It’s kind of an obscure type of legal ruling, that may or may not have legal effect. At any rate, here is what Taney had to say in Gordon:

“The appellate power and jurisdiction are subject to such exceptions and regulations as the Congress shall make. But the appeal is given only from such inferior courts as Congress may ordain and establish to carry into effect the judicial power specifically granted to the United States. The inferior court, therefore, from which the appeal is taken, must be a judicial tribunal authorized to render a judgment which will bind the rights of the parties litigating before it, unless appealed from, and upon which the appropriate process of execution may be issued by the court to carry it into effect. And Congress cannot extend the appellate power of this Court beyond the limits prescribed by the Constitution, and can neither confer nor impose on it the authority or duty of hearing and determining an appeal from a Commissioner or Auditor, or any other tribunal exercising only special powers under an act of Congress; nor can Congress authorize or require this Court to express an opinion on a case where its judicial power could not be exercised, and where its judgment would not be final and conclusive upon the rights of the parties, and process of execution awarded to carry it into effect.

[Then he invokes Hayburn’s case]

And it is very clear that this Court has no appellate power over these special tribunals, and cannot, under the Constitution, take jurisdiction of any decision, upon appeal, unless it was made by an inferior court, exercising independently the judicial power granted to the United States. It is only from such judicial decisions that appellate power is given to the Supreme Court.
Indeed no principle of constitutional law has been more firmly established or constantly adhered to, than the one above stated — that is, that this Court has no jurisdiction in any case where it cannot render judgment in the legal sense of the term; and when it depends upon the legislature to carry its opinion into effect or not, at the pleasure of Congress.
It was upon this principle that the case of Hunt v. Palao, 45 U.S. 589, 4 How. 589, 11 L. Ed. 1115 (1846), was decided.

That case was originally decided in the territorial court of Florida. When the Territory became a State, Congress omitted to make provision for the transfer of the records to a tribunal of the United States, or to provide any tribunal to which a mandate might be directed, if any of the judgments of the territorial court should be affirmed or reversed. A motion was made here for a writ of error to be directed to the judges of the State court. But the motion was overruled, and the court said: “It would be useless and vain for this Court to issue a writ of error, and bring up the record and proceed to judgment upon it, when, as the law now stands, no means or process is authorized, by which our judgment could be executed.”
The decision in Hunt v. Palao was recognized and the principle again affirmed in the case of McNulty v. Batty, 51 U.S. 72, 10 How. 72, 79, 13 L. Ed. 333 (1850), and in a multitude of cases which have occurred since the present troubles began. The court has uniformly refused to take jurisdiction where there was not a court of the United States in existence, in possession of the original record, to which we were authorized by law to send a mandate to carry into effect the judgment of this court. The mandate is the form in which the judgment of this court is given, upon an appeal from an inferior court, West v. Brashear, 39 U.S. 51, 14 Pet. 51, 10 L. Ed. 350; and the court can give no judgment, and award no execution, unless there is an inferior court of the United States, in possession of the original record, over which this court has appellate power, and which it may compel to execute its judgments. If no such court exists, it could merely express an opinion, which, as we have said before, binds no one, is no judgment in the legal sense of the term, and may or may not be carried into effect at the pleasure of Congress. In relation to appeals from a State court, there is a special provision in the act of 1789, authorizing, in certain contingencies, a judgment and execution by this court.
The Constitution of the United States delegates no judicial power to Congress. Its powers are confined to legislative duties, and restricted within certain prescribed limits. By the second section of Article VI., the laws of Congress are made the supreme law of the land only when they are made in pursuance of the legislative power specified in the Constitution; and by the Xth amendment the powers not delegated to the United States nor prohibited by it to the States, are reserved to the States respectively or to the people. The reservation to the States respectively can only mean the reservation of the rights of sovereignty which they respectively possessed before the adoption of the Constitution of the United States, and which they had not parted from by that instrument. And any legislation by Congress beyond the limits of the power delegated, would be trespassing upon the rights of the States or the people, and would not be the supreme law of the land, but null and void; and it would be the duty of the courts to declare it so. For whether an act of Congress is within the limits of its delegated power or not is a judicial question, to be decided by the courts, the Constitution having, in express terms, declared that the judicial power shall extend to all cases arising under the Constitution.”

Under this view, it would seem that the Supreme Court can only review Article III and state court decisions. Article I and Article IV courts would seem to be special legislative courts. And from here:

“Furthermore in Glidden Co. v. Zdanok, 370 U.S. 530 (1962) the court cited Balzac (an Insular case) and made the following statement regarding courts in unincorporated territories:

Upon like considerations, Article III has been viewed as inapplicable to courts created in unincorporated territories outside the mainland, Downes v. Bidwell, 182 U.S. 244, 266 -267; Balzac v. Porto Rico, 258 U.S. 298, 312 -313; cf. Dorr v. United States, 195 U.S. 138, 145 , 149, and to the consular courts established by concessions from foreign countries, In re Ross, 140 U.S. 453, 464 -465, 480. 18″

#2 The Insular Cases

In short, “The “deepest ramification” of the Insular Cases is that inhabitants of unincorporated territories such as Puerto Rico {and the VI}, “even if they are U.S. citizens”, may have no constitutional rights, such as to remain part of the United States if the United States chooses to engage in deannexation.” from here.

So, the constitutional rights of Virgin Islanders are not the same as the people of Missouri. They are not really United States citizens.


So I just read up on my Virgin Islander citizenship law. This is a great document on the citizenship status of people in various insular possessions. You should check out the State Department document here. Virgin Islanders are in fact citizens. And apparently full fledged citizens too.

“Under the INA (effective December 24, 1952 to present), the definition of:
(1) “United States,” for nationality purposes, was expanded to add
Guam; and, effective November 3, 1986, the Commonwealth of the
Northern Mariana Islands (in addition to Puerto Rico and the Virgin
Islands of the United States). Persons born in these territories on
or after December 24, 1952 acquire U.S. citizenship at birth on the same terms as persons born in other parts of the United States”

I was previously going to argue some kind of “Virgin Islanders aren’t citizens and can’t use the federal courts” but they are citizens.

{But from here, I was wrong anyways:

“When invoking federal question jurisdiction, federal statutes provide aliens with access to the federal court system in the following three scenarios: allegations of civil rights violations by the federal government, allegations of Equal Protection Clause violations by the federal government, and allegations of violations of the Refugee Act of 1980.

Generally, both legal and illegal immigrants have the right to bring suit in United States federal court. Federal civil rights statutes also expressly permit aliens to bring claims of civil rights violations in federal court. States have generally provided aliens with access to their court systems as well, provided that the alien resides within the particular state.

U.S. courts typically grant nonresident aliens the right to sue only if the cause of action arose within the United States.”}

However, the State Department doc further states:

“Even though the convention referred to “citizenship in the United States” rather than U.S. nationality, it was administratively held that, consistent with the rulings of the Supreme Court in the “Insular Cases” on the status of inhabitants of territories acquired by treaty (see 7 FAM 1121.2-2 a), Danish citizens residing in the U.S. Virgin Islands on January 17, 1917, who did not elect to preserve their Danish citizenship became non-citizen U.S. nationals (3 Hackworth, Digest of International Law 147; 38 Op Atty. Gen. 525 (1936); 3 I. & N. 870 (1950); 6 I. & N. 226 (1954)).”

So, any remaining Danish non-citizen US nationals might not have access to the federal courts, especially if the VI is not considered part of the United States for issue arising within the United States!


Well, wrong again. Puerto Rico and the VI are considered part of the US, at least for purposes of the FTCA. So they probably are considered part of the United States for just about everything.



Well, that was long and rambling. Here is the “too long didn’t read” version:

The president just signed a bill. It gave the Virgin Islands Supreme Court direct appellate review by the United States Supreme Court. This made me curious, because non Article III courts sometimes have trouble with appellate review by the Supreme Court. I thought maybe a mysterious court case from the 1850s might spell trouble. But it’s not really binding precedent as much as it is dicta. Then maybe the Insular cases provided some relief. But it doesn’t really seem to be applicable to Virgin Islanders today (except for those Danish Virgin Islanders!).

So, its more than likely Constitutional. But a good learning example for the various curious elements of the Constitution and and US Insular non state insular possessions.


Posted on December 31, 2012, in Uncategorized and tagged , , , , , , , , , , , . Bookmark the permalink. Leave a comment.

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