Sarah and David start with two loose ends at the Supreme Court: A per curiam order in National Republican Congressional Committee v. Brown keeps the Federal Communications Commission’s “lowest unit charge” advertising rule in effect for political parties this election cycle, and an increasingly complicated fight continues over Missouri’s congressional maps, with same-day state-court and federal rulings contradicting each other.
Then it’s a full segment with AO’s No. 1 judicial crush, Chief Judge Jeff Sutton of the U.S. Court of Appeals for the 6th Circuit, and co-director of Right to Democracy (and 2004 Guam Olympian) Neil Weare on the Insular Cases – the century-old holding that the Constitution doesn’t follow the flag into America’s territories – tracing it from the Northwest Ordinance through the Spanish-American War to this year’s birthright-citizenship ruling in Trump v. Barbara, and a real-world test case now playing out in an American Samoan community in Whittier, Alaska.
Agenda
- [2:19] Political campaigns and discounted ad rates
- [6:37] Chaos with the Missouri congressional map
- [11:42] Our first Olympian guest
- [23:53] Background on the Insular Cases
- [45:44] Trump v. Barbara
Episode Takeaways
- A per curiam with a one-line dissent: In National Republican Congressional Committee v. Brown, the Court left in place an FCC rule extending “lowest unit charge” political ad rates to party committees coordinating with candidates, over an objection from four Democratic candidates that the rule only covers candidate committees. Justice Ketanji Brown Jackson wrote a one-sentence dissent, and the Court told litigants to let the agency finish before running to federal court.
- Missouri’s map mess: The Missouri Supreme Court reverted to the state’s old congressional map for the general election, and Justice Brett Kavanaugh declined to disturb that outcome. Hours later, a federal district court ruled on separate federal constitutional grounds that the new maps must stay in place for the general election instead. Sarah and David agree the federal ruling currently controls since the state case is now over on state-law grounds, until the U.S. Court of Appeals for the 8th Circuit weighs in.
- The Northwest Ordinance belongs on the Mount Rushmore of American law: Sutton makes the case that the 1787 Northwest Ordinance ranks alongside the Declaration of Independence, Articles of Confederation, and the Constitution, because it banned slavery from the outset in the territory that would become six states – a striking counterpoint to the racial compromises baked into the Constitution ratified that same era. He traces how 37 states passed through this territorial status, governed by presidentially appointed governors and judges with no vote for president, en route to statehood – a process Congress controlled with no fixed timeline.
- The Insular Cases: Weare walks through Downes v. Bidwell (which just turned 125) and its sibling cases, in which a divided Court created the “incorporated” versus “unincorporated” territory distinction – full constitutional rights and a path to statehood for the former, neither guaranteed for the latter. Justice Neil Gorsuch in a 2022 concurrence said the Insular Cases “have no foundation in the Constitution and rest instead on racial stereotypes” and “deserve no place in our law.” Justice Sonia Sotomayor called the cases “odious and wrong,” while Jackson’s concurrence in Barbara lists them among the Court’s failures to secure “equal citizenship.” Despite three justices on record against them, the Insular Cases – unlike Plessy v. Ferguson, Dred Scott v. Sandford, and Korematsu v. United States – have never been formally overruled.
- Trump v. Barbara collides with a voter fraud case in Whittier, Alaska: Weare’s clients, Michael Pese and Tupe Smith, are U.S. nationals from American Samoa (not birthright citizens, since Samoa falls outside the citizenship clause under current doctrine) who were indicted for perjury and voter fraud after a DMV clerk incorrectly told them “U.S. national” and “U.S. citizen” were the same thing on a voter-registration form. Tupe – who’d just won a local school-board seat with 96 percent of the vote – was arrested at home, handcuffed in front of her children, and strip-searched before her husband bailed her out. The Alaska Court of Appeals just ruled that voter fraud requires “consciousness of wrongdoing,” a win for the defense, and Weare has now filed a reply brief arguing that the Court’s reasoning in Barbara – that the citizenship clause’s “United States” includes territories as well as states – means his clients are citizens after all. Sarah calls it a bad vehicle given the stakes (up to 10 years in prison) but notes any circuit ruling on the underlying constitutional question would likely force the Supreme Court to finally confront how Barbara’s logic applies beyond the 50 states.