SCOTUSblog by By Neil Weare 11/24/2025
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Every year, students across the country learn the bedrock principle that under the Constitution the federal government is one of limited powers. Less often taught is that the Supreme Court has long rejected this founding ideal when it comes to Native Americans and people in U.S. territories. Instead, a principle known as the court’s “plenary power doctrine” gives Congress near-unlimited power to govern these communities as it sees fit – all without any firm grounding in the Constitution itself. Indeed, under the plenary power doctrine, Congress could go so far as to unilaterally dissolve a tribe or dismiss a territory’s local elected government and install (or re-install) authoritarian military rule, for any reason or no reason at all.
Justices Neil Gorsuch and Clarence Thomas have challenged the constitutional basis for this sweeping plenary power before in the tribal context. But, in a recent dissent from the denial of review in the case of Veneno v. United States, they questioned whether the Constitution grants Congress plenary power over U.S. territories, as well, something no justice has ever said before. This latest development followed earlier calls in 2022 by Gorsuch and Justice Sonia Sotomayor to overrule the Insular Cases, a series of Plessy-era decisions that have served to justify the denial of democracy, equity, and self-determination in U.S. territories.
These conversations are especially necessary as we approach the 250th anniversary of the Declaration of Independence and the 125th anniversary of the Insular Cases next year. What do foundational values like “consent of the governed” and “all … created equal” mean for the 3.6 million residents of U.S. territories? How can one square the rejection of colonial rule in 1776 with the continued colonial governance of people in Puerto Rico, Guam, the U.S. Virgin Islands, the Northern Mariana Islands, and American Samoa, who have no say in the federal laws they are required to follow and for whom self-determination remains illusory? Perhaps most importantly, what role should all three branches of the federal government play in recognizing that this is a real problem that needs to be addressed now?
Some background
Before digging into the details of these recent legal developments, some historical context on the U.S. territories is in order. The United States has had territories even longer than it has had a Constitution. The Northwest Ordinance of 1787, for example, established the Northwest Territories a year prior to the ratification of the nation’s founding document. The word “territory” only appears once in the Constitution, with what has become known as the “territories clause” providing that “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.”
From early on, the Supreme Court has been extremely deferential to Congress when it comes to territorial governance, with Chief Justice John Marshall describing congressional power over the territories as “absolute and undisputed.” Yet the understanding – both explicit and implicit – was that territorial status would be temporary, not permanent, with eventual statehood or independence both possibilities.
At the same time, the court also made clear that congressional “plenary power” over U.S. territories was subject “to such restrictions as are expressed in the Constitution, or are necessarily implied in its terms.” For example, shortly after the 14th Amendment was ratified, the court noted in 1873 that the citizenship clause applied not just to states, but to U.S. territories, as well. And in 1898, Justice John Marshall Harlan wrote it was “beyond question” that constitutional protections to trial by jury “apply to the Territories.”
More:
https://www.scotusblog.com/2025/11/conservative-justices-question-the-foundation-of-u-s-colonial-rule/
