Overturning Vaello Madero does not certify overturning insular cases.

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.