Igartua-De-La-Rosa v. United States

United States Court of Appeals
For the First Circuit

No. 04-2186

GREGORIO IGARTÚA-DE LA ROSA, ET AL.,

Plaintiffs, Appellants,

v.

UNITED STATES OF AMERICA,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Raymond L. Acosta, U.S. Senior District Judge]

Before

Torruella, Circuit Judge,
Campbell, Senior Circuit Judge,
and Howard, Circuit Judge.

Gregorio Igartúa-de la Rosa, pro se.
Gregory G. Katsas, Deputy Assistant Attorney General, with
whom Peter D. Keisler, Assistant Attorney General, H.S. García,
United States Attorney, Michael Jay Singer and Matthew M. Collette,
Attorneys, Appellate Staff, Civil Division, were on brief, for
appellee.

October 14, 2004
 Per Curiam.1 Gregorio Igartúa de la Rosa ("Igartúa")

brings his federal constitutional appeal to us a third time,

contending that his inability to vote for the President and Vice-

President of the United States of America on account of his

residency in Puerto Rico is a redressable violation of his right to

equal protection as a United States citizen. We affirm the

district court's dismissal of his claim, relying on our prior

dispositions in Igartúa de la Rosa v. United States, 32 F.3d 8 (1st

Cir. 1994), cert. denied, 514 U.S. 1049 (1995) ("Igartúa I") and

Igartúa de la Rosa v. United States, 229 F.3d 80 (1st Cir. 2000)

("Igartúa II"). In Igartúa II, referring to Igartúa I, we noted

that "this court held with undeniable clarity that the Constitution

of the United States does not confer upon United States citizens

residing in Puerto Rico a right to participate in the national

election for President and Vice-President." Igartúa II, 229 F.3d

at 83.

Our prior opinions canvass the relevant constitutional

landscape. Igartúa II, 229 F.3d at 83-84; Igartúa I, 32 F.3d at 9-

11. We need only observe that Igartúa has raised no argument that

would bring the matter outside the usual "rule that earlier

decisions are binding." Igartúa II, 229 F.3d at 84 (discussing the

two exceptions to the rule). Under First Circuit precedent, a

panel such as ourselves is bound in the present circumstances by a

1
Campbell, Senior Circuit Judge and Howard, Circuit Judge.

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prior panel's ruling. Only the en banc court, i.e. all the judges

of the First Circuit sitting together, can alter a prior panel

precedent. See Williams v. Ashland Eng'g Co., Inc., 45 F.3d 588,

592 (1st Cir. 1995) ("An existing panel decision may be undermined

by controlling authority, subsequently announced, such as an

opinion of the Supreme Court, an en banc opinion of the circuit

court, or a statutory overruling."). And, of course, the Supreme

Court of the United States may, by certiorari or subsequent

precedent, overrule a circuit opinion. Id. Indeed, it seems

apparent that a definitive constitutional ruling of the magnitude

sought here can, in the final analysis, only emanate

authoritatively from the Supreme Court itself.

Affirmed.

(Dissenting Opinion follows.)

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 TORRUELLA, Circuit Judge (Dissenting). David Hume, that

most seminal of British philosophers, in his essay That Politics

May Be Reduced To A Science,2 stated that "[i]t may easily be

observed that though free governments have been commonly the most

happy for those who partake of their freedom, yet are they most

ruinous and oppressive to their provinces." Although this was a

statement made with more direct reference to England's relationship

to Ireland and its people, it is not one that is totally irrelevant

to that between the United States and Puerto Rico and the four

million United States citizens who reside there.

If on the one hand it can be argued that Puerto Rico and

its "citizens" are better off materially than they were when the

island was invaded 106 years ago,3 the undeniable fact is that it

2
David Hume, Political Essays 15 (Charles W. Hendel ed., 1953).
3
The estimated infant mortality rate for 2004 is 8.37 deaths per
1,000 live births. Central Intelligence Agency, World Factbook
(2004), Puerto Rico, available at
http://www.odci.gov/cia/publications/factbook/print/rq.html (last
visited Oct. 8, 2004). Life expectancy is 77.49 years. Id. The
death rate is 7.77 per thousand, and the birth rate is 14.1 births
per thousand. Id. The literacy rate is 94.1%. Id. Gross
Domestic Product ("GDP") per capita in 2003 was $16,800. Id. In
1933, in comparison, the infant mortality rate was 139.4 deaths per
1,000 live births. Compendio de Estadísticas Sociales - 1981, P.R.
Planning Board, San Juan (1982). Life expectancy in 1902 was 36.36
years. Id. The birth rate in 1900 was 40.5 births per thousand.
United States-Puerto Rico Commission on the Status of Puerto Rico
151, Table C1-5 (1966). The death rate in 1900 was 25.3 per
thousand. Id. Literacy in 1899 was 20.4%. José Vázquez Calzada,
La Población de Puerto Rico y su Trayectoria 82, tbl.59 (1978)
(unpublished). GDP per capita in 1930 was $122. Daniel Creamer,
The Net Income of the Puerto Rican Economy 1940-1944, at 21-22
(n.d.). In the fiscal year 2000, federal expenditures in Puerto

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has been, and continues to be, at the basement of the American

hegemony. One indicium of this condition is its comparative

economic condition. Its residents have an annual per capita income

of $16,800 in contrast with those of Mississippi, the poorest

state, at $23,448 per capita. It is even more disparate if we look

to the national average, which is $37,800.4 The unemployment rates

officially average over 11%, although they are de facto much

higher. Even at the official rate, however, they stand at twice

the national average.5 While these dismal statistics prevail,

Puerto Rico is second only to Mexico as a market for U.S. goods in

Latin America6 and several billion dollars are "repatriated"

Rico amounted to $12.1 billion. Bureau of the Census, U.S. Dep't.
of Commerce, Consolidated Federal Funds Report (2000), available at
http://www.census.gov/prod/2001pubs/cffr-00.pdf.
4
Current income figures come from the Central Intelligence
Agency, World Factbook, and the U.S. Department of Commerce, Bureau
of Economic Analysis. As a matter of historical comparison, in
1930, Puerto Rico had a per capita GDP of $122, compared to
Mississippi's $202 and the overall U.S. figure of $619. 62 Bureau
of Economic Analysis, U.S. Dep't. of Commerce, Survey of Current
Business, 8 (Aug. 1982).
5
Bureau of Labor Statistics, U.S. Dep't of Labor.
6
During July to December 2003, Puerto Rico received $8.65 billion
in U.S. exports, leading Brazil, the next largest market for U.S.
exports in Latin America, which received $5.98 billion during that
period. Mexico received $50.82 billion in U.S. exports during the
same period, a figure more than four times smaller than Puerto
Rico's, once adjusted for population. Making Manufacturing
Operations in Puerto Rico More Competitive, 29 Puerto Rico Business
Review 1, (Mar. 2004); U.S. Trade (Imports, Exports and Balance) by
Country, Foreign Trade Statistics, U.S. Census Bureau, available at
http://www.census.gov/foreign-trade/balance/index.html.

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annually from Puerto Rico to the Mainland by U.S. based companies

doing business in Puerto Rico,7 while sheltered from the I.R.S.8

Meanwhile, while nearly half of the population of Puerto Rico lives

below the poverty level,9 compared to 12.5% in the United States,10

the Supreme Court in Harris v. Rosario, 446 U.S. 651 (1980),

validated the discriminatory treatment by Congress in the payment

of Social Security benefits to Puerto Rico residents vis-à-vis

those on the Mainland, stating as one of the grounds for this

outcome that granting the same benefits to the residents of Puerto

Rico could disrupt the local economy. Id. at 651. See also

Califano v. Torres, 435 U.S. 1, 5 n.7 (1978). It should be noted

that Puerto Rico residents pay the same Social Security tax as the

citizens who reside in the states and receive full benefits.

7
Ingresos Netos al Fondo General del Gobierno Estatal,
Departamento de Hacienda, Gobierno de Puerto Rico, available at
(showing amounts paid in so-called "toll gate" tax to the
Commonwealth of Puerto Rico on capital exiting the island).
8
The income tax provisions of the Internal Revenue Code are
inapplicable to most income derived from Puerto Rico sources. 26
U.S.C. § 933. This is an irrelevant benefit to most residents of
Puerto Rico because of their low income levels. United States
companies are able to "repatriate" income pursuant to I.R.C. § 30A.
26 U.S.C. 30A.
9
The poverty rate in Puerto Rico in 2000 was 48.2%. Personas por
Debajo del Nivel de Pobreza por Municipio, Censo de 2000, Oficina
del Censo, Gobierno de Puerto Rico, available at,
http://www.censo.gobierno.pr/Censo_Poblacion_Vivienda/Datos_Histo
ricos/Datos_Nivel_Pobreza_2000.htm.
10
Income, Poverty, and Health Insurance Coverage in the United
States: 2003, U.S. Department of Commerce, Economics and Statistics
Administration, U.S. Census Bureau.

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 This brief and admittedly superficial synopsis of some of

the conditions extant in the relationship between the United States

and its citizens in Puerto Rico, does not, of course, tell the

whole picture or even the most important components of this

lopsided situation.11 Together with others of a more fundamental

kind, however, they manifestly establish the colonial nature of the

U.S.-Puerto Rico relationship.12

The conundrum created by the Insular Cases13 and People

v. Balzac, 182 U.S. 298 (1922), not only gives underlying support

to this subservient condition, but more importantly, it relegates

the U.S. citizens who reside in Puerto Rico to perpetual inequality

by insulating the political branches of government from any

effective pressure from these citizens, who have neither voting

representation in Congress nor the right to vote for the offices of

11
For a starter, see Juan R. Torruella, The Supreme Court and
Puerto Rico: The Doctrine of Separate and Unequal (1984).
12
See José Trías Monge, Puerto Rico: The Trials of the Oldest
Colony in the World (1997).
13
Ocampo v. United States, 234 U.S. 91 (1914); Dorr v. United
States, 195 U.S. 138 (1904); Hawaii v. Mankichi, 190 U.S. 197
(1903); Downes v. Bidwell, 162 U.S. 244 (1901); Dooley v. United
States, 182 U.S. 222 (1901); De Lima v. Bidwell, 182 U.S. 1 (1901).
In a nutshell, these cases created the status of unincorporated
territory whereby Puerto Rico, Guam and the Philippine Islands were
held to be subject to Congress's plenary power pursuant to the
territorial clause of the Constitution. See U.S. Const. art. IV,
§ 3, cl. 2. Together with the ruling in Balzac, decided after the
grant of U.S. citizenship to the residents of Puerto Rico, the
Court decided that only "fundamental rights" under the Constitution
were extended to Puerto Rico. See Balzac, 258 U.S. at 312-13.

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President and Vice-President. Additionally, the laws enacted by

Congress are applied to them without their participation in their

enactment, or consent in their application. This abusive shield

and undemocratic condition can only be penetrated by the

unpolitical branch of government. Only the judicial branch can

correct this denigrating and unacceptable condition, one which was

created in the first place by that branch in the Insular Cases, et

al.

The dead end with which these citizens are today faced

was forecast by Justice Harlan in his dissent in Downes when he

said: "The idea that this country may acquire territories anywhere

upon the earth, by conquest or treaty, and hold them as mere

colonies or provinces -- the people inhabiting them to enjoy only

those rights as Congress chooses to accord to them -- is wholly

inconsistent with the spirit and genius, as well as with the words,

of the Constitution." Downes, 182 U.S. at 380 (Harlan, J.

dissenting).

The doctrine of inequality created by the Supreme Court

in the Insular Cases stands on the same discredited theoretical

footing as that espoused by the majority in Plessy v. Ferguson, 163

U.S. 537 (1896),14 and which was put to rest by the Supreme Court

in Brown v. Board of Education, 347 U.S. 483 (1954). Had the

14
Justice Harlan also dissented, famously, in Plessy. 163 U.S.
at 552.

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Supreme Court awaited for the political branches to correct the

gross injustice perpetrated by Plessy upon the discrete minority

against which it was directed, it is likely that state-sponsored

racial segregation would still be with us. Equally on point, it is

the judicial branch that is called upon to protect minorities from

the otherwise unchecked abuses of a potentially oppressive

majority.15 "[P]rejudice against discrete and insular minorities

may be a special condition, which tends seriously to curtail the

operation of those political processes ordinarily to be relied upon

to protect minorities, and . . . may call for correspondingly more

searching judicial inquiry." United States v. Carolene Prods. Co.,

304 U.S. 144, 152 n.4 (1938).

Although the political rights of the United States

citizens residing in Puerto Rico are at stake, the issue presented

is not a "political question" any more than were the rights claimed

in Brown. Cf. Marbury v. Madison, 5 U.S. 137 (1802) ("The province

of the court is, solely, to decide on the rights of individuals

. . . .").

Those born in Puerto Rico have since 1917 been born

citizens of the United States. See Jones Act (Puerto Rico), Act of

March 2, 1917, § 5, ch. 145, 39 Stat. 951 (1917); 8 U.S.C. § 1402.

The right to vote is a fundamental right inherent in citizenship.

15
See John Stuart Mill, On Liberty 10 (Prometheus ed. 1986)
("'[T]he tyranny of the majority' is now generally included among
the evils against which society requires to be on guard.").

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Tashjian v. Republican Party, 479 U.S. 208, 217 (1986). It is

fundamental because it is preservative of all other rights by

adding the validating imprimatur of the ballot box to the business

of government. Furthermore, it has been considered a fundamental

right since at least 1886, see Yick Wo v. Hopkins, 118 U.S. 356,

370 (1886), and repeatedly thereafter in a variety of

circumstances, see Bush v. Gore, 531 U.S. 98, 104 (2000); Buckley

v. Valeo, 424 U.S. 1, 49 n.55 (1976); Lubin v. Panish, 415 U.S.

709, 721 (1974); Bullock v. Carter, 405 U.S. 134 (1972); Phoenix v.

Kolodziejski, 399 U.S. 204 (1970); Harper v. Virginia Bd. of

Elections, 383 U.S. 663, 667 (1966); Reynolds v. Sims, 377 U.S.

533, 561-62 (1964), being variously described as "a right at the

heart of our democracy," Burson v. Freeman, 504 U.S. 191, 198

(1992), and as being "too important in our free society to be

stripped of judicial protection," Wesberry v. Sanders, 376 U.S. 1,

7 (1964). This is particularly relevant in the present

circumstances since even under the notorious Insular Cases, the

Constitution extends fundamental rights to Puerto Rico. See

Balzac, 258 U.S. at 312-13.

The indefinite disenfranchisement of the United States

citizens residing in Puerto Rico constitutes a gross violation of

their civil rights as guaranteed by the Fifth Amendment and by

international treaties to which our Nation is a signatory. The

Fifth Amendment is fully applicable to the actions of the U.S.

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Government in Puerto Rico. Cf. Examining Bd. of Eng'rs v. Flores,

446 U.S. 572 (1976). An equal protection component, similar to

that in the Fourteenth Amendment, is part of the due process clause

contained in the Fifth Amendment and serves as a constraint on the

United States. Bolling v. Sharpe, 347 U.S. 497 (1954). The utter

failure of the Government of the United States to protect its

citizens in Puerto Rico from continued national disenfranchisement

is a violation of due process.

It is also a violation of Article 21 of the Universal

Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810

at 71 (1948) ("UDHR"), proclaimed by the member nations of the U.N.

General Assembly shortly after World War II. The UDHR provides

that:

(1)Everyone has the right to take part in the
government of his country, directly or through
freely chosen representatives.
. . .

(3) The will of the people shall be . . .
expressed in periodic and genuine elections
which shall be by universal and equal suffrage
. . . .

Although the UDHR does "not of its own force impose obligations of

international law," Sosa v. Alvarez-Machain, 125 S. Ct. 2739, 2767

(2004), it has been recognized for its "moral authority" by the

Supreme Court. Id.16

16
This Nation's highest court has referred to the provisions of
the UDHR on several occasions since its adoption in 1948. See
Knight v. Florida, 528 U.S. 990, 996 (1999) (Breyer, J.,

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 The United States has committed itself to specific

binding international obligations regarding the right to vote of

all of its citizens. The International Covenant on Civil and

Political Rights, 999 U.N.T.S. 171 (1967), opened for signature

Dec. 16, 1966 (entered into force Mar. 23, 1976) (ratified by the

Senate April l2, 1992, 138 Cong. Rec. S-4781, S-4783) ("ICCPR"), to

which the United States has been a party for the past twelve years,

states in clear and unambiguous terms in Article 25 that "[e]very

citizen shall have the right and opportunity . . . to vote . . . at

genuine periodic elections which shall be by universal and equal

suffrage . . . ." Furthermore, Article 2, Para. 1 states that each

signatory "undertakes . . . to ensure to all individuals within its

territory and subject to its jurisdiction the rights recognized in

the present Covenant . . . without distinction . . . ." Most

dissenting) (noting U.N. Human Rights Committee decision that ten
year delay between death sentence and execution not necessarily a
violation of UDHR as informative precedent in Eighth Amendment
case); Dandridge v. Williams, 397 U.S. 471, 520 n.14 (1970) (citing
UDHR Article 25 as informative "on the issue of whether there is a
'right' to welfare assistance"); Zemel v. Rusk, 381 U.S. 1, 14 n.13
(1965) (citing UDHR Article 13 in discussion of scope of due
process); Kennedy v. Mendoza-Martínez, 372 U.S. 144, 161 n.16
(1963) (noting, in rejecting revocation of U.S. citizenship as
consequence of remaining abroad to evade military service, the
UDHR's guarantee "of the right of every citizen to retain a
nationality"); Am. Fed'n of Labor, Ariz. State Fed'n of Labor v.
Am. Sash & Door Co., 335 U.S. 538, 549 n.5 (1949) (Frankfurter, J.,
concurring) (citing UDHR provision on freedom from mandatory
association in context of discussing foreign standards of labor
law).

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importantly, in Paragraph 2, the signatory nations commit

themselves that

[w]here not already provided for by existing
legislati[on], . . . each State Party . . .
undertakes to take necessary steps, in
accordance with its constitutional processes
and with the provisions of the present
Covenant, to adopt such legislative or other
measures as may be necessary to give effect to
the rights recognized in the present Covenant.

Additionally, in Paragraphs 3 (a) and (b), each State Party

undertakes "[t]o ensure that any person whose [ICCPR] rights or

freedoms . . . are violated shall have an effective remedy," to

ensure that such rights are "determined by competent judicial,

administrative or legislative authorities, or by any other

competent authority provided for by the legal system of the State,

and to develop the possibilities of judicial remedy." Paragraph

3(c) makes clear that these remedies shall be enforced by the

"competent authorities."

Those portions of the UDHR that rise to the level of

customary international law, see Restatement (Third) of Foreign

Relations Law of the United States, Pt. VII, introductory note

(1987) ("[A]lmost all States would agree that some infringements of

the human rights enumerated in the Declaration are violations of

the [U.N.] Charter of customary international law."), in addition

to the ICCPR and the obligations established thereunder, are the

law of the land. U.S. Const. art. VI, § 2 ("This Constitution, and

the Laws of the United States which shall be made in Pursuance

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thereof; and all Treaties made, or which shall be made, under the

Authority of the United States, shall be the supreme Law of the

Land . . . .").

The ICCPR was signed by the United States in 1976 and

ratified thereafter by the Senate in 1992. See 138 Cong. Rec. S-

4781, S-4783. Although the Senate added an Understanding that the

ICCPR would not be self-executing, id., I cannot countenance that

this Nation would have committed to the ICCPR by signature and

ratification if compliance with the obligations enumerated therein

was not contemplated. The duplicity and cynicism that would be

implicit if such were the case would be a stain on our national

honor and integrity of monstrous proportions. Because I refuse to

believe that the United States would so act, I cannot but conclude

that there is no legal excuse for continued non-compliance with

these agreements.

Although there exists no individual cause of action to

enforce the ICCPR in the instant case,17 I am nonetheless compelled

17
Most courts to address the ICCPR have found that its non-self-
executing nature precludes the existence of a private right of
action to enforce its provisions. See, e.g., Igartúa I, 32 F.3d at
10 n.1; see also United States v. Duarte-Acero, 132 F. Supp. 2d
1036, 1040 n.8 (summarizing caselaw). Nevertheless, federal courts
have found that provisions of the ICCPR can be enforced via the
implementing legislation of the Alien Tort Claims Act. See Estate
of Cabello v. Fernández-Larios, 157 F. Supp. 2d 1345, (S.D. Fla.
2001) (finding that plaintiff may bring claim under ATCA for
violation of ICCPR Article 6 right to life); Ralk v. Lincoln
County, Ga., 81 F. Supp. 2d 1372, 1380 (S.D. Ga. 2000) (finding
plaintiff could bring claim under ATCA for violation of ICCPR)
(relying on Abebe-Jira v. Negewo, 72 F.3d 844 (11th Cir. 1996)).

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to recognize that the United States is in violation of its

obligation under Article 25 to afford universal suffrage to its

citizens. See Restatement (Third) of Foreign Relations Law of the

United States § 321 (1987) ("Every international agreement in force

is binding upon the parties to it and must be performed by them in

good faith.").

The United States has taken some actions to meet some of

its obligations both under domestic and international law to

validate the right of all citizens to vote in national elections.

The Constitution was thus amended in 1961 to allow citizens

resident of the District of Columbia, (an unincorporated territory

of the United States, as is Puerto Rico), to vote for the offices

of President and Vice-President. U.S. Const. amend. XXIII.

However, said citizens continue to be represented in Congress on an

unequal footing with the U.S. citizens residing in the States, as

are, of course, the United States citizens of Puerto Rico.

Furthermore, in 1986, Congress passed the Uniformed and

Overseas Citizens Absentee Voting Act, 42 U.S.C. §§ 1973ff-1973ff-

6, which allows United States citizens residing outside the United

States to vote in federal elections as absentee voters in their

Moreover, at least one court has determined that the individual
rights guaranteed by the ICCPR may be raised defensively. Duarte-
Acero, 132 F. Supp. 2d at 1040 n.8, aff'd, 296 F.3d 1277 (11th Cir.
2002) (recognizing defense, but determining that procedural
requirements of ICCPR do not apply to United States action carried
out on foreign territory).

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last state of residence. But because the statute's definition of

"United States" includes Puerto Rico, 42 U.S.C. §§ 1973ff-6(8), the

residents of Puerto Rico who would otherwise qualify to vote

pursuant to this statute are disqualified.

Since we decided Igartúa II in 2000, the United States

has taken no action towards the national enfranchisement of its

citizens in Puerto Rico or towards ending the present colonial

relationship. This total inaction is particularly poignant at this

moment in our history, when we seek to convince the inhabitants of

far-flung places of the world of the democratic process and the

validity of its expression through the ballot box.18 It is nothing

short of ironic that close to 3,500 U.S. citizens from Puerto Rico

support these goals by their presence in Iraq and Afghanistan as

members of our Armed Forces, while they are themselves denied these

rights particularly with regards to the election of their Commander

in Chief. Their presence in these distant lands has not been

without some cost.19

18
See David Roche & Carlotta Gall, Afghans Studying the Art of
Voting, N.Y. Times, Oct. 4, 2004, at A1 (discussing challenges
facing Afghanistan's first-ever democratic elections).
19
As of September 28, 2004, twenty U.S. citizens from Puerto Rico
have died in Iraq, the 4th U.S. jurisdiction per capita. Twentieth
Puerto Rican Soldier Killed in Iraq, The Associated Press State &
Local Wire, Sept. 28, 2004. Two more have died in Afghanistan.
Nearly 3,500 Puerto Ricans in Action in Afghanhistan, Iraq, Puerto
Rico Herald, Nov. 21, 2003. Puerto Rico had the second highest per
capita casualty rate in the Nation in the Korean Conflict and the
twelfth in the Vietnam War. Nancy San Martin, A Military History,
The Miami Herald, Jan. 21, 2004, available at 2004 WL 56367293.

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 The total default by the United States of its

constitutional and international obligations with respect to the

citizens of the United States residing in Puerto Rico, release me

from any obligation to give stare decisis recognition to our prior

decisions in Igartúa I and Igartúa II. "Our Constitution . . .

neither knows nor tolerates classes among citizens," Plessy, 163

U.S. at 559 (Harlan, J. dissenting), and yet what we have in this

case is without a question the creation and perpetuation of a class

of sub-standard, second-class citizens, with less rights than those

enjoyed by the main class of U.S. citizens.

Given the failure by the United States to take steps to

rectify this clear violation of a fundamental right, I believe that

the courts of the United States are required to take such

extraordinary measures as are necessary to protect the discrete

groups that are "completely under the sovereignty and dominion of

the United States." Cherokee Nation v. Georgia, 30 U.S. 1 (1831)

(Marshall, C.J.); see Carolene Prods. Co, 304 U.S. at 152 n.4. The

United States citizens residing in Puerto Rico are such a group.

Because the normal avenues of government are not open to

the United States citizens who reside in Puerto Rico to end the

limitless and unconstitutional (see Downes, 182 U.S. at 380

(Harlan, J. dissenting) colonial condition that deprives these

citizens of the equality that should be inherent in United States

citizenship, it becomes incumbent upon the judicial branch to take

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such extraordinary measures as are necessary and appropriate to

protect the rights of this discreet and insular minority. As an

initial remedy, I would reverse the judgment of the district court

and remand for the entry of a declaratory judgment consistent with

the views expressed by me and stating that the United States has

failed to meet its obligations under Article 25 of the ICCPR.

"This is of the very essence of judicial duty." Marbury, 5 U.S. at

178.

For the above reasons I respectfully dissent from the

opinion of my brethren in the majority.

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