The Territories Clause

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory . . . belonging to the United States. . . .

—Gary S. Lawson

Introduction

The United States “is the name given to our great republic, which is composed of States and territories.”¹ Today, non-state federal territories include the District of Columbia, Guam, the Virgin Islands, American Samoa, and the Commonwealths of Puerto Rico and the Northern Mariana Islands. Within the boundaries of states, the United States owns and governs more than a quarter of the country’s land mass, and the Department of the Interior is one of the world’s largest property managers.

Even at the Framing, the United States owned and governed a vast territory. There has long been a broad consensus that Congress can rule federal territory as a government with general rather than specifically enumerated legislative power. The Supreme Court has declared repeatedly that Congress has “general and plenary” power over federal territory.² Yet the Territories Clause still became among the most contentious clauses in the Constitution. The issue of territorial governance was at the heart of the Civil War and debates over imperialism.

History Before 1787

Shortly after independence from England was declared, the former colonies began to plan for the expansion of the United States. In 1776, John Dickinson prepared the initial draft of the Articles of Confederation. Article 19 would have given the Continental Congress extensive power to govern new territories.³ In 1780 and early 1781, New York, Connecticut, and Virginia granted substantial amounts of land for “the use and benefit of such of the United States, as shall become members of the federal alliance of the said states.”⁴ The Articles of Confederation, ratified on March 3, 1781, lacked any provision concerning governance of the territories; Dickinson’s proposed Article 19 was not part of the final document. Nonetheless, no one raised any serious objections to the Confederation Congress’s power to administer territory held by the United States.⁵ Everyone assumed that the power must exist.

In 1784, the Confederation Congress enacted a relatively thin framework for local self-government in the territories outside the thirteen states.⁶ In 1787, this framework was replaced by a more elaborate structure known as the Northwest Ordinance.⁷ The new structure continued to provide for some measure of territorial self-governance, but Congress added several positions appointed by the central government, including a governor, a secretary, and a judiciary.⁸ The Northwest Ordinance guaranteed to residents of the territories the rights of trial by jury, property, and contract.⁹ Article VI of the Ordinance abolished slavery within the territory but also created a process for the return of runaway slaves that was a forerunner of the Fugitive Slave Clause.¹⁰

The Constitutional Convention

On August 30, 1787, Gouverneur Morris of Pennsylvania offered a proposal: “The Legislature shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the U. States.”¹¹ The provision was approved with no recorded debate.¹² Morris later privately explained that he wrote the provision to address the acquisition of a future territory such as Canada or Louisiana. In that case, “it would be proper to govern them as provinces and allow them no voice in our councils.” Morris explained that “[i]n wording the third section of the fourth article, I went as far as circumstances would permit to establish the exclusion” and added that “[c]andor obliges me to add my belief, that, had it been more pointedly expressed, a strong opposition would have been made.”¹³

The Ratification Debates

The Territories Clause was not a major issue in the ratification debates. In Federalist No. 43, James Madison observed that this clause grants “a power of very great importance, and required by considerations. . . .” A Massachusetts Anti-Federalist wrote that this provision “surrender[s] into the hands of Congress all the western territory, of larger extent I conceive than the kingdoms of Great Britain and Ireland.” 14 He remarked that “so concise, and so ample a conveyance of such a[n] extent of territory, couched in such smooth and easy language I never before read.” Once the Constitution was ratified, however, the Territories Clause became central to much constitutional and political discourse.

Early Practice

The Constitution was ratified in 1788. The new United States government assumed ownership of the vast Northwest Territory, and further cessions from states were expected. Leading Founding-era figures, including Thomas Jefferson, hoped to acquire additional territory ranging from Canada to Cuba.¹⁴ The Northwest Ordinance of 1787 promised that the Northwest Territory would eventually be formed into three to five states. Moreover, Article VI, Clause 1 of the Constitution guaranteed that the “Engagements” of the old government, such as that promise in the Ordinance, would be “valid” and “fulfilled” (See Essay No. 153). However, some provision needed to be made for the governance of this federally held territory until states were formed. Provisions were also needed for the governance of subsequently acquired federal territory.

Congressional Control of Territories

The Territories Clause resembles the Federal District Clause and the Federal Enclave Clause, which give Congress the power of “exclusive Legislation” over both the nation’s capital and federal lands acquired from and within states (See Essay Nos. 64 and 65).¹⁵ The Territories Clause also appears to be a plenary grant of power to Congress to govern territory as a general government. The text does not seem to require that each act of legislation must be traced to an enumeration of power beyond the Territories Clause itself. On this understanding, in the territories, Congress could pass a general criminal code, regulate the private law of torts and contracts, provide for rules of marriage and descent, and behave as any state government within its own jurisdiction could behave. This view emerges naturally from the text, which places territories in the same phrase as, and gives Congress the same power over, “other Property,” such as inkwells and wagons.

One early debate concerned whether the Territories Clause applied only to territory possessed by the national government in 1788. In Dred Scott v. Sandford (1857), Chief Justice Roger B. Taney and a plurality of the U.S. Supreme Court expressed this view when denying that Congress had power to prohibit slavery in the subsequently acquired Louisiana Territory.¹⁶ Albert Gallatin, President Thomas Jefferson’s Secretary of the Treasury, had anticipated this argument half a century earlier. He noted that Article IV, Section 3, Clause 2 references both “Territory or other Property.” Gallatin explained that “as the words ‘other property’ follow, and must be embraced by the same construction which will apply to the territory, it would result . . . that the United States could not, after the Constitution, either acquire or dispose of any personal property.”¹⁷ In other words, the notion that the Territories Clause does not apply to subsequently acquired territory is wholly implausible. Gallatin’s view has prevailed.

Does the Constitution impose any limits on territorial legislation? The answer is obviously that it does. Congress, for example, can pass territorial legislation only by complying with the formalities of Article I, Section 7 for lawmaking. If that is true, however, one must then ask what other parts of the Constitution might also limit the reach of the Territories Clause.

The simple answer would be that all parts of the Constitution that limit federal power would also limit regulation of federal territories. However, while that simple answer might well be correct as a matter of original meaning, it has never been the law and is emphatically not the law today.

From the Founding onward, Congress has entrusted the inhabitants of federal territories with as much power of self-governance as has seemed prudent at the time. Congress has long authorized elected territorial legislatures to exercise broad authority. These laws created autonomous lawmaking bodies that act with no “intelligible principle” to guide them. If the Constitution’s general separation-of-powers principles apply to territorial governance, this arrangement seems to violate even the weakest form of the nondelegation doctrine. Courts have nonetheless repeatedly and consistently upheld territorial legislatures against such challenges—albeit with little reasoning.¹⁸ The Supreme Court also has held that the Constitution’s requirement of uniformity for duties and tariffs throughout the United States does not apply to territories.¹⁹ Judges in federal territories do not have the tenure and salary guarantees that Article III, Section 1 requires for federal judges. Since 1829, the courts have consistently upheld this anomaly²⁰ in rulings that have been subject to vigorous academic criticism.²¹

Since the middle of the twentieth century, many federal territories have been allowed to elect their own executive officers, such as governors. These elections appear to violate the Appointments Clause,²² which requires that federal “officers of the United States” must be appointed by the President, executive department heads, or federal courts. In 2020, the Supreme Court held that territorial officials who exercise purely local functions are not federal officers subject to the Appointments Clause.²³ However, the Court did not explain what exactly those territorial officials were.²⁴ That holding might not extend to high-ranking territorial officials such as governors, who sometimes have authority to execute federal law and not merely territorial law. The bottom line is that for more than two centuries, territorial governance has stood largely, though not quite entirely, outside the Constitution’s normal structural rules.

In some cases, the Court has sought to ground federal power to govern territories in sources other than the Territories Clause, such as the treaty power or general notions of sovereignty.²⁵ In practice, little has turned on these disputes, as the claimed scope of the power has not seemed to vary significantly with the claimed source. As the Court noted in 1880, “there have been some differences of opinion as to the particular clause of the Constitution from which the power [to govern territory] is derived, but that it exists has always been conceded.”²⁶

Constitutional Rights in the Territories

To what extent do protections of individual rights, such as the Bill of Rights, apply to federal governance of territories? In the early twentieth century, the United States became an empire with territories around the world, and the federal government had to decide whether to impose American legal institutions, such as trial by jury, on cultures that were unfamiliar with such practices. The Supreme Court addressed this issue in a series of cases decided over the course of two decades. These decisions, known as the Insular Cases, developed the “doctrine of territorial incorporation,”²⁷ which distinguishes territories that are likely candidates for future statehood from those that are not. For the former, all provisions of the Constitution apply of their own force to territorial inhabitants. For the latter, those provisions that are “fundamental” apply of their own force to territorial inhabitants; “non-fundamental” constitutional rights apply only if and how Congress chooses to extend them. The requirements of criminal juries and grand jury indictment have been deemed specifically not to be fundamental in this sense.

This doctrine has been universally criticized by scholars but has never been overruled. The Court cited the doctrine approvingly in Boumediene v. Bush (2008),²⁸ declaring that this “century-old doctrine informs our analysis in the present matter.”²⁹ In United States v. Vaello Madero (2020), the Court declined an invitation to reconsider the doctrine, although Justice Neil Gorsuch vigorously urged its overruling in an appropriate case.³⁰

Moreover, the courts have applied federal equal protection principles differently to inhabitants of territories. Courts have upheld, for example, race-based employment preferences and restrictions on land sales in territories.³¹ Such regimes would likely be unconstitutional if imposed in states. Vaello Madero clarified that congressional distinctions between territorial and non-territorial residents need only satisfy a rational basis standard.³² Thus, under current doctrine, the Constitution does not apply to territorial governance in a straightforward, uniform, and easily understood fashion.

Presidential Power over the Territories

What are the President’s authorities in the territories? During times of war, American forces will sometimes occupy foreign land. Under international law principles, an occupying force has both the power and the duty to govern the occupied territory. However, the Territories Clause only empowers Congress to legislate over territory that “belong[s] to the United States,” and occupied territory does not belong to the United States. Therefore, the clause does not authorize congressional legislation to govern occupied territory. Instead, the power to govern occupied territory during wartime stems from the President’s “executive Power” and role as commander in chief of the military.³³

Territorial governance in that setting is both part of and limited by the international laws of war.³⁴ It is unsettled whether Congress could take part in that governance pursuant to its own war powers or the Necessary and Proper Clause. In the past, some occupied territories were conveyed to the United States pursuant to a treaty of peace, thereby becoming “Territory . . . belonging to the United States.” At that point, the President’s wartime powers of governance seem to end and Congress’s power to govern under the Territories Clause seems to begin. But what if Congress does not get around to governing?

This sequence of events occurred with respect to California in 1848 following the Mexican–American War. Congress, largely because of gridlock over slavery, did not pass a statute for the governance of California—not even a general statute delegating authority to executive officials. Military officials in California nonetheless, and with no congressional authorization, set up a peacetime military government that included customs offices to collect tariffs. Cross v. Harrison (1854) upheld the constitutionality of a peacetime military government in federal territory.³⁵ That precedent was extended following the Spanish–American War.³⁶ The precise scope of this presidential authority to erect military governments during peacetime has yet to be fully explored.

Open Questions

• Are the Insular Cases still good law?
• Do any structural provisions other than Article I, Section 7 limit Congress’s power over territories?
• Can the United States maintain and govern territory indefinitely without making the territory a state or granting it independence? Can the United States unilaterally grant a territory independence without the territory’s consent?
• Does United States governance of territories such as Puerto Rico violate international law?³⁷

1. Loughborough v. Blake, 18 U.S. (5 Wheat.) 317, 319 (1820). ↩︎
2. Late Corp. of the Church of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1, 42 (1890). ↩︎
3. 4 Letters of Delegates to Congress, 1774–1789, at 243 (Paul H. Smith ed., 1979). ↩︎
4. 19 J. Cont. Cong. 211 (Mar. 7, 1781); Gary Lawson & Guy Seidman, Are People in Federal Territories Part of “We the People of the United States”?, 9 Tex. A. & M. L. Rev. 655, 668 (2022). ↩︎
5. James G. Wilson, The Imperial Republic: A Structural History of American Constitutionalism from the Colonial Era to the Beginning of the Twentieth Century 73 (2002). ↩︎
6. 26 J. Cont. Cong. 276 (Apr. 23, 1784). ↩︎
7. Ordinance for the government of the territory of the United States, North West of the river Ohio, 32 J. Cont. Cong. 334 (July 13, 1787). ↩︎
8. Gregory Ablavsky, Administrative Constitutionalism and the Northwest Ordinance, 167 U. Pa. L. Rev. 1631, 1633 (2019). ↩︎
9. 32 J. Cont. Cong. 340 (July 13, 1787). ↩︎
10. Steven Gow Calabresi & Gary Lawson, The U.S. Constitution: Creation, Reconstruction, the Progressives, and the Modern Era 913–14 (2020). ↩︎
11. 2 Farrand’s 466. ↩︎
12. Id. at 459. ↩︎
13. 3 Farrand’s 404. ↩︎
14. Letter from Thomas Jefferson to President James Madison (Apr. 27, 1809), https://perma.cc/8A32-YSS6. ↩︎
15. Art. I, § 8, cl. 17. ↩︎
16. Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 432–43, 448–49 (1857). ↩︎
17. Letter from Albert Gallatin to Thomas Jefferson (Jan. 13, 1803), https://perma.cc/KE57-XQUJ. ↩︎
18. District of Columbia v. John R. Thompson Co., 346 U.S. 100, 106–09 (1953); Cincinnati Soap Co. v. United States, 301 U.S. 308, 323 (1937). ↩︎
19. Downes v. Bidwell, 182 U.S. 244 (1901). ↩︎
20. Am. Ins. Co. v. 356 Bales of Cotton, Canter, 26 U.S. (1 Pet.) 511 (1828). ↩︎
21. Gary Lawson & Guy Seidman, The Constitution of Empire: Territorial Expansion and American Legal History 149 & n.45 (2004). ↩︎
22. Art. II, § 2, cl. 2. ↩︎
23. Fin. Oversight & Mgmt. Bd. for P.R. v. Aurelius Inv., LLC, 590 U.S. 448 (2020). ↩︎
24. Seth Barrett Tillman & Josh Blackman, Offices and Officers of the Constitution, Part III: The Appointments, Impeachment, Commissions, and Oath or Affirmation Clauses, 62 S. Tex. L. Rev. 349, 410–12 (2023). ↩︎
25. Sere v. Pitot, 10 U.S. (6 Cranch) 332, 336–37 (1810). ↩︎
26. National Bank v. Cnty. of Yankton, 101 U.S. 129, 132 (1880). ↩︎
27. Balzac v. Porto Rico, 258 U.S. 298 (1922). ↩︎
28. 553 U.S. 723 (2008). ↩︎
29. Id. at 759. ↩︎
30. United States v. Vaello Madero, 142 U.S. 1539, 1552 (2022) (Gorsuch, J., concurring). ↩︎
31. Wabol v. Villacrusis, 958 F.2d 1450 (9th Cir. 1992). ↩︎
32. Vaello Madero, 142 U.S. at 1542–43. ↩︎
33. Art. II, § 2, cl. 1. ↩︎
34. Fleming v. Page, 50 U.S. (9 How.) 603 (1850). ↩︎
35. 57 U.S. (16 How.) 164 (1854). ↩︎
36. Santiago v. Nogueras, 214 U.S. 260 (1909). ↩︎
37. Gary Lawson & Robert D. Sloane, The Constitutionality of Decolonization by Associated Statehood: Puerto Rico’s Legal Status Reconsidered, 50 B.C. L. Rev. 1123 (2009). ↩︎