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“The job guarantee asserts that, if individuals bear a moral duty to work, then society and employers bear a reciprocal moral duty to provide good, dignified work for all,” Jeff Spross adds in the influential center-left journal Democracy.

A job guarantee would fundamentally transform the current labor market in the United States. Our current conception of full employment is inadequate; we discuss a bold policy in this paper to bring the United States to a permanent, more accurate indicator of full employment—by which we mean that everyone who seeks a job can find one at non-poverty wages. Beyond providing full employment, the job guarantee could be a turning point for American workers. Workers are faced with stagnating real wages and a continued erosion of labor’s share of income. The job guarantee could significantly alter the current power dynamics between labor and capital—particularly for low-wage workers and traditionally marginalized groups.

Benefits of the program reach beyond those directly employed under the NIEC. If a job guarantee were to be implemented, it also would function as a de facto employment floor in the labor market. Private employers would have to offer wages and benefits that are at least competitive with the NIEC in order to attract workers. The universal nature of the program would ensure jobs for all—including those with some forms of disability who may not be employed through the private sector. The universal design is critical to ending working poverty and involuntary unemployment; this is in contrast to other forms of intervention in the labor market, such as minimum wage laws, which do not ensure access to employment in the first place. Nevertheless, complementary changes to the existing social insurance system would be necessary to eliminate poverty entirely, as some individuals may be unable to work for various reasons.[54] Despite the discussion of full employment as a national priority for nearly a century now, policymakers have failed to deliver an economy that prioritized employment for all. Full employment is a goal that the private market in unable to achieve, therefore requiring government intervention in the labor market. Above, we discuss a transformative policy proposal—a federal job guarantee—whereby the government engages in the direct hiring of workers at non-poverty wages to achieve, and maintain, a full employment economy. Whether or not policymakers agree with the specifics we suggest in our proposal, we encourage them to think about bold solutions to achieve and maintain full employment. Restructuring our public policies to eradicate involuntary unemployment and poverty is within our reach.

With regards to real-world examples of JG programs, the empirical record of direct public employment programs ranges from large-scale programs in India (National Rural Employment Guarantee Act), Argentina (Plan Jefes y Jefas) or the US (New Deal) to smaller-scale programs such as youth employment guarantees. While these programs offer insights about a potential outline of the JG as well about its social and economic effects, their applicability, however, is limited since those programs were of smaller scale, targeted to specific groups or time-limited. In contrast, the JG, as outlined in this paper, is a universal program of national scale.

As discussed above, the JG is a permanent, universal program that provides jobs to all, in good times or bad. The program in India comes close to such a program. The NREGA guarantees at least 100 days of wage work to each household per year. The program enshrines the right to paid work into law—a right that has been written into the constitutions of many countries, inspired by the United Nations Declaration of Human Rights, though signatory countries have yet to meet that mandate. India’s program guarantees work by household only, not per individual—as in this JG proposal.

First, it is necessary to describe exactly how the Green Job Guarantee is intended to work, at least in a general sense. To do so, it may be most helpful to first understand the intent of a general Jobs Guarantee/ELR proposal. In general, a Federal Jobs Guarantee program could be defined as: “…a public option for jobs. It is a permanent, federally funded, and locally administered program that supplies voluntary employment opportunities on demand for all who are ready and willing to work at a living wage. While it is first and foremost a jobs program, it has the potential to be transformative by advancing the public purpose and improving working conditions, people’s everyday lives, and the economy as a whole (Tcherneva, 2018).”

A federal jobs guarantee is a simple idea with transformational potential: it’s the idea that the government would provide a job for anyone that wanted one, because there are people who need jobs, and there is work to be done. Proponents of a federal jobs guarantee say that the federal government, in partnership with local job boards, could bridge the gap between willing labor and necessary work. Most interestingly, proponents argue that a federal jobs guarantee could address the failure of the private labor market to provide decent paying jobs by offering $15 minimum hourly pay, health care, and other benefits, forcing the private sector to offer more to compete.

A federal jobs guarantee is a pretty simple idea: if you want a job, you get one, at a living wage and with full benefits that we associate with full-time labor, like healthcare. Granular specifics such as the level of wages offered or the specific level of non-wage benefits can vary, but all job guarantee proposals share those basic attributes.

A federal jobs guarantee is as simple as it sounds on the surface: everyone in the country will be guaranteed a job by the US government should they desire one. There are two versions right now gaining attention. One plan is written by academics Mark Paul, Sandy Darity, and Darrick Hamilton. The other was written by Pavlina Tcherneva. In general, these plans promise: Guaranteed jobs in infrastructure repair, ecological restoration, caregiving, and community development projects.∂ Benefits like health insurance, paid sick leave/vacation, and retirement plans.∂ Control for state and local governments that will decide which kinds of jobs to create.∂ A reduced uptake of welfare programs and unemployment insurance as well as decreased criminal justice costs.∂ The key difference between the two plans is the minimum wage for the new jobs. The Tcherneva plan establishes a $15 minimum wage and the Paul et al. plan calls for an $11.80 minimum wage for all federally guaranteed jobs. Yet, both have the same underlying goal: Permanently solve the problem of involuntary unemployment by making the federal government the employer of last resort.

Like essentially every other phrase orbiting the matter of these islands’ legal and constitutional status, “the law of the territories” is a phrase without settled legal meaning. Does it refer simply to law as it affects the territories? The unique wrinkles and exceptionalisms reserved to that context? If the Insular Cases are overruled, does a “law of the territories” still exist? Or does the term imply an intent to carve an appreciable and more lasting substantive domain of constitutional law—a field, even, complete with its own enduring treatises or casebooks? To continue our conversation with Indian Country: is a law of the territories more like “Indian law”433 or “tribal law?”434

How one answers this question inevitably carries some view as to how durable the territories’ present limbo is. If one is of the view that Puerto Rico can remain indefinitely under U.S. sovereignty without voting representation in our national government, then conceiving of the law of the territories as a sort of permanent field on par with Indian law might make sense. If one believes that 100 years of citizenship-without-voting and self-government-without-sovereignty can be redressed tomorrow by a single judicial ruling, then it probably shouldn’t, except maybe as a historical device.

But as David Alan Sklansky presciently wrote of Korematsu two years before Trump v. Hawaii overturned it, “[j]udicial overruling is not the only way that a decision can lose its status as ‘law.’”380 If the goal is to actually resolve the territories’ present colonial condition, then Aurelius gives us every reason to believe that inviting federal judges to shoot first and ask questions later is a terrible strategy. Turning the page requires us to think much harder about the tangled web of interests that have surfaced in overseas imperialism’s wake and the many possible post-Insular Cases worlds that the judiciary could fashion, including those where territorial exceptionalism finds a new home within the text.381

By the same token, it requires deeper thinking about how to ask courts to appreciate and honor those interests without licensing permanent and unreviewable colonialism or talismanic constitutional opt-outs. Judge Lucero’s highly idealized picture of the Insular Cases’ framework—namely, its capacity to be “repurposed” in the name of “respect” for local autonomy and Indigenous selfdetermination—is frequently weaponized as a justification for blind [uninformed] 'judicial acceptance of relationships plainly rooted in invidious discrimination.382 Similarly, the unqualified position advanced by the American Samoan government that “the political branches rather than the courts are best positioned to consider the wishes of the American Samoan people” may be of use in the instant litigation,383 but ignores the plain institutional reality that accompanies the territories’ disenfranchisement in the nation’s political process.384

In a famous essay offered in the form of a hypothetical dissent to Brown, Bell offers a critique that calls to mind both Katyal and Justice Sotomayor’s problems with how Trump v. Hawaii supposedly overruled Korematsu:

The majority’s decision to overturn Plessy is inadequate because it systematically glosses over the extent to which Plessy’s stark formalism participated in the consolidation of American racism. Rather than critically engaging American racism’s complexities, the Court substitutes one mantra for another . . . . Rewiring the rhetoric of equality (rather than laying bare Plessy’s racist underpinnings and consequences) constructs American racism as an eminently fixable aberration.358

Before attempting to reorient the conversation on judicial engagement with U.S. territories’ constitutional limbo, Part IV describes the ways in which contemporary calls for judicial intervention remain undertheorized. An overriding focus on getting the Court to formally overturn the Insular Cases’ racist logic has yielded little in the way of workable frameworks for whatever comes next. Through the lens of contemporary calls for the Insular Cases’ judicial overthrow, this Part explores the harms that ill-considered judicial engagement—even if well intentioned—stands to visit on territorial communities. Distilling key lessons from all that has yet to be observed about Aurelius, this Part challenges those who read that case principally as a missed opportunity.

In recent years, many of the loudest calls for judicial intervention in the Insular Cases suffer from—and indeed invite—the same analytical problem observed in Aurelius. Employing a similarly warped frame to paint the constitutional developments of U.S. empire as a relic or aberration, those who pushed hardest for the Court to overturn the Insular Cases in Aurelius—and have criticized it for failing to do so—do not appear to appreciate either the numerous ways in which territorial exceptionalism and the manipulation of legal ambiguity can survive without the Insular Cases, or the risks such interventions pose for the path-dependent legal interests that have grown around those indefensible rulings.

As a matter of constitutional doctrine, Aurelius’s simplest lesson is that the harms attributable to territorial exceptionalism and unbounded federal power do not depend on the Insular Cases remaining good law. It indicates that even if the Court were to broadly overturn the sum of the Insular Cases and explicitly hold that the Constitution “applies” in full to the territories, there is little to stop it from reconstructing the current order within the bounds of the constitutional text. Whatever its symbolic or political value may be, the legal effect of enumer ation—of retethering Puerto Rico and other territories to the Constitution—will be determined entirely by how the Court reads that text as it applies to them.187 Aurelius warns of what will happen if that reading continues under a warped lens.

A. Status Manipulation: Preserving, Transforming, and Constructing Liminality

But Aurelius’s troubles do not end there. More than import existing exceptionalism into text, it overwrote constitutional doctrine in a way that made it nearly impossible to reckon with the depth of its entanglement with American overseas imperialism. This approach paves the way for wholesale deletion—rather than considered management—of promises and legal interests lodged in the territories’ path-dependent idiosyncrasies.48 Aurelius teaches that ill-considered judicial intervention threatens more than an empty repackaging of the status quo; it poses an imminent threat to Indigenous-rights and self-determination interests that have yet to be disentangled from the Insular Cases framework.

In this way, the most important lesson of Aurelius is that the constitutional problems of territorial exceptionalism run far deeper than the specific doctrinal holdings of the Insular Cases, such that those cases’ precipitous judicial overthrow is unlikely to spell an end to the core harms of the legal order they represent.49 Marketing the Insular Cases as doctrinal relics “long ‘overruled in the court of history,’”50 those who urged the Aurelius Court to overturn the Insular Cases—and who now criticize it for failing to do so—paint them as discrete aberrations that can be shored up in a single knockout blow. But it is Aurelius’s orientation to the doctrine—not the doctrine itself—that reveals the potential for the worst of both worlds: an empty repudiation of historical racism that both recharters second-class status within the text and erases existing promises to protect land, culture, or autonomy, and self-determination.

The reason to overrule the Insular Cases is not, however, to resolve the political status of the territories, which the Court cannot do. It is to end the proposition that the unincorporated territories exist in a nearly extraconstitutional zone. Again, doing so would have the salutary twofold effect of reining in the purely teleological and poorly reasoned jurisprudence engendered by that proposition, while withdrawing once and for all the Court’s implicit imprimatur from the outrageous notion that a U.S. territory can remain a territory forever—notwithstanding the flagrant political illegitimacy and shameless hypocrisy of a representative constitutional democracy that allows itself, in perpetuity, to govern a people without representation.

The fact is that not even Justice White, who originally insinuated the doctrine of territorial incorporation into the Court’s jurisprudence, went so far as to endorse indefinite territorial status explicitly. On the contrary, in the closing passages of his concurring opinion in Downes, he did the opposite, albeit in characteristically racist-imperialist terms:

However, other Justices evidently had difficulty accepting the proposition that a geographical classification, whatever its sordid history, should receive strict scrutiny. Justice Thomas, for example, wanted to know what analysis Vaello Madero’s lawyer, Hermann Ferré, would apply to the case of “someone who is of Italian descent [and] has lived in New York City all his life and decides” to move to Puerto Rico, thereby losing his eligibility for SSI benefits.387 Ferré replied that upon moving to Puerto Rico, such a person would instantly be in the same politically powerless position as any other resident of Puerto Rico,388 which is, of course, true: anyone who establishes residence in Puerto Rico loses voting representation in the federal government regardless of their race, ethnicity, or anything else about them. But Thomas seemed unconvinced. “So you are transferring the relationship with Puerto Rico to the individual who happens to reside in Puerto Rico?” he asked.389 When Ferré answered in the affirmative, Thomas pressed him: “Do you have any [cases] where we have transferred the treatment of a state to an individual?”390 Ferré did not because there aren’t any.

Even so, the analogy to discrete and insular minorities has intuitive appeal. Residents of unincorporated territories are politically powerless with respect to the federal government, and the vast majority of them arguably share all of the features that define discrete and insular minorities. These include a history of discrimination against them (in this case, based on race and ethnicity—again, it was because the people of these territories were perceived as nonwhite that the Court invented the unincorporated territory in the first place); the immutability of shared traits giving rise to such discrimination (where immutability, a contested concept to be sure, refers to traits that members of the minority either cannot or should not have to change and that have been assigned a subordinating social meaning—all of which can be said about residence in an unincorporated territory); and the arbitrariness of the classifications affecting them (where arbitrariness refers to the moral irrelevance of the traits targeted by such classifications, which instead serve the purpose of reinforcing status hierarchies—as the category of the unincorporated territory surely does). Indeed, well before Vaello Madero, there existed scholarship powerfully arguing that classifications based on residence in an unincorporated territory should receive strict scrutiny.391

Whatever one thinks of the arguments above, all of them reflect uncertainty as to the relevance of the Insular Cases, and none of them turns on the merits of the doctrine of territorial incorporation. A Justice who agrees with the government would have no occasion to mention the Insular Cases, let alone reconsider their doctrine. One who agrees with Vaello Madero would have no need to reach their merits, because their role in his argument is purely historical. That is, on his reasoning, if Congress “incorporated” Puerto Rico tomorrow but continued to exclude it from the SSI program, strict scrutiny should still apply by virtue of Puerto Rico’s status as a previously unincorporated territory, because the history that makes the classification suspect cannot be overruled. Overruling the Insular Cases in this context would have been bizarre and gratuitous.393

In short, there were the Insular Cases again in Vaello Madero, making trouble yet evading review. The fact is that even if the doctrine of territorial incorporation were squarely presented to the Court, it would be no mean feat for the Court to overrule the Insular Cases clearly and definitively. The doctrine of territorial incorporation has confused people ever since Justice Harlan, dissenting in Downes v. Bidwell, wrote that “this idea of ‘incorporation’ has some occult meaning which my mind does not apprehend. It is enveloped in some mystery which I am unable to unravel.”394 To this day, scholars and lawyers vigorously debate the meaning and implications of the doctrine.395 When the Court finally takes it on, the risk of unhelpful and even incoherent reasoning within and across opinions will be high. Perhaps as much as any case the Court has decided, an opinion reconsidering the Insular Cases would benefit from rigorous and focused briefing. These landmark, notorious, racist, confusing, infuriating, and profoundly influential cases deserve to be presented to the Court, front and center, for consideration on their merits.

When the Court overrules the Insular Cases, it should be crystal clear both that it is overruling them and what exactly about them it is overruling. Along with being racist and imperialist, the Insular Cases were notoriously ambiguous and confusing. The decision that overrules them must be the opposite or it will only make matters worse. Specifically, it must overrule the doctrine of territorial incorporation—not merely disclaim the racism that gave rise to it while leaving the doctrine itself untouched. That means overruling both propositions in the Insular Cases: that certain constitutional provisions do not apply in certain territories because they are “unincorporated” and that the United States has the power to subject territories to territorial status indefinitely.

The latter problem does not lend itself easily to judicial resolution, while the former, which is the only way for the Court to get at either, rarely arises. Indeed, it did not arise at all in either Aurelius or Vaello Madero because the government did not contest the applicability of a constitutional provision in either case. As a result, invocations of the Insular Cases in these two cases were a frustrating exercise in shadow-boxing.339

As noted above, Vaello Madero is an equal-protection challenge to Puerto Rico’s exclusion from the SSI program, which provides benefits to needy people who are disabled or elderly. The government does not argue that the equal-protection guarantee does not apply in Puerto Rico. Instead, it defends Puerto Rico’s exclusion from the program on the ground that Puerto Rico is a territory and Congress has plenary power to discriminate against territories as long as it has a rational basis to do so.373 Its merits brief before the Supreme Court did not even mention the Insular Cases. 374 But Vaello Madero’s did, citing them as evidence of a history of racism against Puerto Ricans that should translate into strict scrutiny of legislation classifying on the basis of residence in Puerto Rico.375

Early in the argument, Chief Justice Roberts seemed to surprise Deputy Solicitor General Curtis Gannon by asking whether the Insular Cases have anything to do with Vaello Madero. 376 Gannon responded by explaining that the Insular Cases are not relevant because they “were about whether . . . different portions of the Constitution . . . apply differently to different territories,” whereas in Vaello Madero the government concedes that the equal-protection component of the Fifth Amendment’s Due Process Clause applies to Puerto Rico.377

The appeal of constitutional exceptionalism lies in its apparent solicitude toward territorial cultures in a time of consensus against cultural imperialism. But as we have seen, the cases that employ constitutional exceptionalism could have reached the same results without it. Gratuitous constitutional exceptionalism promotes poor legal reasoning and perpetuates doubts about the applicability of constitutional provisions where there should be none. Such uncertainty alone is oppressive.279 Moreover, even where there are reasonable doubts over the applicability of a given constitutional provision, constitutional exceptionalism exacerbates the confusion and uncertainty. Worse, it leaves intact a legal framework that ensures the indefinite political subordination of the residents of unincorporated territories, which, cultural accommodation or not, remain subject to U.S. sovereignty without voting representation in the federal government.