b'Department of Justice Views on the Proposed\nConstitution Drafted by the Fifth Constitutional\nConvention of the U.S. Virgin Islands\nThe following memorandum opinion was initially drafted in the Office of Legal Counsel\nat the request of the Assistant Attorney General for Legislative Affairs. It analyzes\nseveral features of the proposed constitution of the U.S. Virgin Islands. The President\nattached a copy of this memorandum to his letter transmitting the proposed constitution to Congress, along with his comments, under Public Law 94-584.\nBecause it was difficult to discern a legitimate governmental purpose that would be\nrationally advanced by provisions conferring legal advantages on certain groups defined by place and timing of birth, timing of residency, or ancestry, the memorandum\nopinion recommended that those provisions be removed from the proposed constitution.\nThe memorandum opinion concluded that the ten- and fifteen-year residence requirements\nfor governors, lieutenant governors, and judges of the U.S. Virgin Islands raise constitutional concerns and recommended that consideration be given to shortening the duration of these requirements.\nThe memorandum opinion further concluded that the provision concerning territorial\nwaters and marine resources appeared to be inconsistent with governing federal law\nand recommended that it be revised to remove any inconsistency and to make clear its\nrecognition of Congress\xe2\x80\x99s plenary control over these matters.\nFebruary 23, 2010\n\nMEMORANDUM OPINION FOR THE\nOFFICE OF MANAGEMENT AND BUDGET\nThis responds to the Office of Management and Budget\xe2\x80\x99s request for\nthe views of the Department of Justice on the proposed constitution recently adopted by a constitutional convention in the U.S. Virgin Islands\n(\xe2\x80\x9cUSVI\xe2\x80\x9d) and submitted to the President by the Governor of the USVI. 1\nBelow we provide our analysis of several features of the proposed constitution that we believe warrant comment: (1) the absence of an express\nrecognition of United States sovereignty and the supremacy of federal\nlaw; (2) provisions for a special election on the USVI\xe2\x80\x99s territorial status;\n(3) provisions conferring legal advantages on certain groups defined by\n1 See Letter for Barack H. Obama, President of the United States, from John P. de\nJongh, Jr., Governor of the U.S. Virgin Islands (Dec. 31, 2009).\n\n73\n\n\x0c34 Op. O.L.C. 73 (2010)\n\nplace and timing of birth, timing of residency, or ancestry; (4) residence\nrequirements for certain offices; (5) provisions guaranteeing legislative\nrepresentation of certain geographic areas; (6) provisions addressing\nterritorial waters and marine resources; (7) imprecise language in certain\nprovisions of the proposed constitution\xe2\x80\x99s bill of rights; (8) the possible\nneed to repeal certain federal laws if the proposed USVI constitution is\nadopted; and (9) the effect of congressional action or inaction on the\nproposed constitution.\nBecause we find it difficult to discern a legitimate governmental purpose that would be rationally advanced by the provisions conferring legal\nadvantages on certain groups defined by place and timing of birth, timing\nof residency, or ancestry, we recommend that those provisions be removed from the proposed constitution. See infra Part II.C. We conclude\nthat the ten- and fifteen-year residence requirements for USVI governors,\nlieutenant governors, and judges raise constitutional concerns, and we\nrecommend that consideration be given to shortening the duration of these\nrequirements. See infra Part II.D. As explained below, the provision\nconcerning territorial waters and marine resources appears to be inconsistent with governing federal law. We recommend that it be revised to\nremove any inconsistency and to make clear its recognition of Congress\xe2\x80\x99s\nplenary control over these matters. See infra Part II.F.\nI. Background\nThe USVI is an unincorporated territory acquired by the United States\nfrom Denmark in 1917. See 48 U.S.C. \xc2\xa7 1541(a) (2006); Convention\nBetween the United States and Denmark for Cession of the Danish West\nIndies, 39 Stat. 1706 (1916); see generally Isaac Dookhan, A History of\nthe Virgin Islands of the United States 258\xe2\x80\x9362 (1994). The USVI\xe2\x80\x99s\ngovernment is established under the Organic Act of 1936, as amended,\n48 U.S.C. \xc2\xa7\xc2\xa7 1405\xe2\x80\x931406m (2006), and the Revised Organic Act of\n1954, as amended, 48 U.S.C. \xc2\xa7\xc2\xa7 1541\xe2\x80\x931645 (2006). See also 48 U.S.C.\n\xc2\xa7\xc2\xa7 1392\xe2\x80\x931397 (2006). A 1976 act of Congress, however, permits the\nUSVI to propose a constitution for the local government of the Islands.\nSee Pub. L. No. 94-584, 90 Stat. 2899 (as amended by Pub. L. No. 96597, \xc2\xa7 501, 94 Stat. 3477, 3479 (1980), codified as note following table of\ncontents of 48 U.S.C. ch. 12 (2006)) (\xe2\x80\x9cEnabling Act\xe2\x80\x9d)).\n74\n\n\x0cDepartment of Justice Views on the Proposed Constitution of the U.S. Virgin Islands\n\nUnder the 1976 Enabling Act, the USVI\xe2\x80\x99s legislature may \xe2\x80\x9ccall [a]\nconstitutional convention[] to draft, within the existing territorial-Federal relationship, [a] constitution[] for the local self-government of the\npeople of the Virgin Islands.\xe2\x80\x9d Id. \xc2\xa7 2(a). The proposed constitution must:\n(1) \xe2\x80\x9crecognize, and be consistent with, the sovereignty of the United\nStates over the Virgin Islands . . . and the supremacy of the provisions of\nthe Constitution, treaties, and laws of the United States applicable to the\nVirgin Islands,\xe2\x80\x9d including provisions of the Organic Act and Revised\nOrganic Act that \xe2\x80\x9cdo not relate to local self-government\xe2\x80\x9d; (2) \xe2\x80\x9cprovide for\na republican form of government, consisting of three branches: executive,\nlegislative, and judicial\xe2\x80\x9d; (3) \xe2\x80\x9ccontain a bill of rights\xe2\x80\x9d; (4) \xe2\x80\x9cdeal with the\nsubject matter of\xe2\x80\x9d provisions of the Organic Act and Revised Organic Act\nthat \xe2\x80\x9crelate to local self-government\xe2\x80\x9d; and (5) provide for a system of\nlocal courts consistent with the Revised Organic Act. Id. \xc2\xa7 2(b).\nThe Enabling Act requires the Governor of the Virgin Islands to submit\na proposed constitution to the President. See id. \xc2\xa7 4 (\xe2\x80\x9cSuch constitutions\nshall be submitted to the President of the United States by the Governor[]\nof the Virgin Islands[.]\xe2\x80\x9d). The President \xe2\x80\x9cshall transmit such constitution\ntogether with his comments to the Congress\xe2\x80\x9d within sixty days of receipt.\nId. \xc2\xa7 5. Congress may approve, amend, or modify the constitution by joint\nresolution, but the constitution \xe2\x80\x9cshall be deemed to have been approved\xe2\x80\x9d\nif Congress takes no action within \xe2\x80\x9csixty legislative days (not interrupted\nby an adjournment sine die of the Congress) after its submission by the\nPresident.\xe2\x80\x9d Id. Any constitution approved by Congress takes effect only if\nthen approved by referendum in the USVI. Id.\nA constitutional convention in the USVI proposed a constitution under\nthe Enabling Act in 1978. The President transmitted this constitution to\nCongress with comments recommending certain changes. See Message\nfrom the President of the United States Transmitting the Proposed Constitution for the Virgin Islands, Pursuant to Section 5 of Public Law 94-584,\nH.R. Doc. No. 95-385 (1978). The constitution was then deemed approved under the Enabling Act because Congress took no action, but the\nUSVI voters rejected it in a referendum. See Department of Justice\nViews on the Constitution Adopted by the Constitutional Convention of\nthe Virgin Islands, 4B Op. O.L.C. 759, 760 n.1 (1980) (\xe2\x80\x9cDOJ Views\xe2\x80\x9d);\nS. Rep. No. 97-66, at 2 (1981). Another constitution was proposed in\n1980. The President transmitted this constitution, too, providing comments and recommending changes based in part on a memorandum from\n75\n\n\x0c34 Op. O.L.C. 73 (2010)\n\nthe Department of Justice. See Message from the President of the United\nStates Transmitting a Proposed Constitution for the Virgin Islands, Pursuant to Section 5 of Public Law 94-584, H.R. Doc. No. 96-375 (1980);\nDOJ Views, 4B Op. O.L.C. at 759. The USVI constitutional convention\nreconvened and proposed amendments to the constitution in response to\nAdministration concerns, and Congress approved a modified version of\nthe constitution by joint resolution. See Pub. L. No. 97-21, 95 Stat. 105\n(1981); S. Rep. No. 97-66, at 2; H.R. Rep. No. 97-25, at 2 (1981); Fourth\nConstitution of the Virgin Islands: Hearing Before the Senate Committee\non Energy and Natural Resources, 97th Cong. 173, 181 (1981) (\xe2\x80\x9cHearing on Fourth USVI Constitution\xe2\x80\x9d); Statement on Signing a Bill to Approve a Constitution for the United States Virgin Islands (July 10, 1981),\n1 Pub. Papers of Pres. Ronald Reagan 617 (1981) (\xe2\x80\x9cStatement on Signing\xe2\x80\x9d). The USVI electorate, however, again rejected the constitution. See\nDOJ Views, 4B Op. O.L.C. at 759.\nA constitutional convention in the USVI adopted the present proposed\nconstitution at the end of May 2009, and the Governor of the USVI submitted it to the President on December 31, 2009. See Letter for Barack H.\nObama, President of the United States, from John P. de Jongh, Jr., Governor, U.S. Virgin Islands (Dec. 31, 2009). The Governor also forwarded a\nlegal opinion on the draft constitution prepared by the Attorney General\nof the USVI. See Letter for John P. de Jongh, Jr., Governor, U.S. Virgin\nIslands, from Vincent F. Frazer, Attorney General, U.S. Virgin Islands\n(June 8, 2009) (\xe2\x80\x9cUSVI AG Op.\xe2\x80\x9d). Both the Governor and the Attorney\nGeneral expressed concerns that the proposed constitution was inconsistent with the Enabling Act and the U.S. Constitution.\nII. Discussion\nA. Recognition of U.S. Sovereignty and the\nSupremacy of Federal Law\nThe Enabling Act requires any proposed constitution for the USVI to\n\xe2\x80\x9crecognize\xe2\x80\x9d and \xe2\x80\x9cbe consistent with\xe2\x80\x9d U.S. sovereignty and the supremacy\nof the applicable provisions of the Constitution, treaties, and laws of the\nUnited States. Enabling Act \xc2\xa7 2(b)(1). The current proposed constitution,\nlike the one initially proposed in 1980, does not include an express statement directly satisfying this requirement. Indeed, one provision of the\n76\n\n\x0cDepartment of Justice Views on the Proposed Constitution of the U.S. Virgin Islands\n\ncurrent constitution states, without any reference to the U.S. Constitution\nor federal law, that \xe2\x80\x9c[t]his Constitution shall be the supreme law of the\nVirgin Islands,\xe2\x80\x9d Constitution of the Virgin Islands of the United States,\nFifth Constitutional Convention art. II, \xc2\xa7 5 (June 1, 2009) (\xe2\x80\x9cProposed\nConst.\xe2\x80\x9d), and in several places the proposed constitution refers to the\nUSVI\xe2\x80\x99s \xe2\x80\x9csovereignty\xe2\x80\x9d or \xe2\x80\x9cright of self-determination.\xe2\x80\x9d E.g., id. pmbl. \xc2\xb6 6;\nid. art. XII, \xc2\xa7 2. Particularly in light of these provisions, we think it would\nbe preferable if Congress revised\xe2\x80\x94or urged a reconvened constitutional\nconvention to revise\xe2\x80\x94the proposed constitution to include a more express\nrecognition of U.S. sovereignty and especially of the supremacy of federal\nlaw, as Congress did in considering the 1980 proposed constitution. Even\nin its current form, though, we conclude, as the Department did in reviewing the 1980 proposed constitution, that a number of provisions in the\npresent proposed constitution considered together bring it into substantial\ncompliance with the Enabling Act\xe2\x80\x99s requirement that the proposed constitution recognize U.S. sovereignty and the supremacy of federal law. See\nDOJ Views, 4B Op. O.L.C. at 760\xe2\x80\x9361.\nBecause the Department\xe2\x80\x99s analysis of the 1980 proposed constitution\ninforms our analysis of the current proposed constitution, we begin by\ndescribing the Department\xe2\x80\x99s 1980 analysis and the development of that\nearlier proposed constitution in some detail. The 1980 proposed constitution, like the constitution proposed now, included no express statement of\nfederal sovereignty and supremacy. And that earlier proposed constitution\ndescribed \xe2\x80\x9c[t]his Constitution and laws of the Virgin Islands enacted\nunder it\xe2\x80\x9d as \xe2\x80\x9cthe supreme law of the Virgin Islands.\xe2\x80\x9d H.R. Doc. No. 96375, at 7. The Justice Department nonetheless concluded that the 1980\nproposed constitution was in \xe2\x80\x9csubstantial compliance\xe2\x80\x9d with section\n2(b)(1) of the Enabling Act because other provisions effectively acknowledged United States sovereignty and the supremacy of federal law. DOJ\nViews, 4B Op. O.L.C. at 760\xe2\x80\x9361. As the Department explained, the 1980\nproposed constitution\xe2\x80\x99s preamble included a statement \xe2\x80\x9cdeclar[ing] that\nthe Virgin Islands assume \xe2\x80\x98the responsibilities of self-government in\npolitical union with the United States.\xe2\x80\x99\xe2\x80\x9d Id. at 760 (quoting H.R. Doc. No.\n96-375, at 1). In prior testimony regarding a proposed constitution for the\nterritory of Guam, a Justice Department witness had observed that\n\xe2\x80\x9c[n]early 200 years of political history have established that political\nunion with the United States necessarily carries with it the recognition of\nthe sovereignty of the United States and the supremacy of its laws,\xe2\x80\x9d and\n77\n\n\x0c34 Op. O.L.C. 73 (2010)\n\nthat a statement in the preamble of the Guam constitution referring to\n\xe2\x80\x9cpolitical union\xe2\x80\x9d with the United States was therefore \xe2\x80\x9csufficient to overcome any contention that the explicit or tacit approval of the constitution\nby Congress would have the effect of relinquishing the sovereignty of the\nUnited States over Guam and the supremacy of Federal laws.\xe2\x80\x9d Constitution of Guam: Hearing Before the Senate Committee on Energy and\nNatural Resources, 95th Cong. 64 (1978) (statement of Herman Marcuse,\nAttorney-Adviser, Office of Legal Counsel, Dep\xe2\x80\x99t of Justice). By the\nsame token, the Department concluded that the reference to \xe2\x80\x9cpolitical\nunion\xe2\x80\x9d in the 1980 USVI proposed constitution sufficiently recognized\nfederal sovereignty and supremacy to satisfy the Enabling Act. DOJ\nViews, 4B Op. O.L.C. at 761. The Department further observed that a\ndraft official analysis of the 1980 proposed constitution interpreted its\npreamble as recognizing U.S. sovereignty and that the proposed 1980\nUSVI constitution elsewhere limited the legislative power of the USVI\ngovernment to \xe2\x80\x9csubjects . . . consistent with . . . the Constitution and laws\nof the United States applicable to the Virgin Islands.\xe2\x80\x9d Id. at 760; see also\nHearing on Fourth USVI Constitution at 58 (reproducing draft official\nanalysis); H.R. Doc. No. 96-375, at 7.\nIn accordance with the Justice Department\xe2\x80\x99s conclusions, the President\nstated in his message transmitting the 1980 proposed constitution to\nCongress that \xe2\x80\x9c[t]he document implicitly recognizes the sovereignty of\nthe United States and the supremacy of United States law over locallyenacted legislation, and is, therefore, in substantial compliance with the\npertinent provision of the Enabling Act that established the procedure for\nthe drafting of a constitution for the Virgin Islands.\xe2\x80\x9d H.R. Doc. No. 96375, at iii.\nDiscussions in Congress led to a suggestion that an additional reference\nto U.S. sovereignty and federal supremacy be added. See Hearing on\nFourth USVI Constitution at 173, 194. The USVI constitutional convention then proposed and Congress adopted an additional clause qualifying\nthe draft constitution\xe2\x80\x99s statement that the USVI constitution and laws\nenacted under it constituted the \xe2\x80\x9csupreme law of the Virgin Islands\xe2\x80\x9d so\nas to assert such supremacy only \xe2\x80\x9c[t]o the extent not inconsistent with the\nConstitution and laws of the United States.\xe2\x80\x9d S. Rep. No. 97-66, at 4; H.R.\nRep. No. 97-25, at 2, 11; Pub. L. No. 97-21, 95 Stat. at 109.\n\n78\n\n\x0cDepartment of Justice Views on the Proposed Constitution of the U.S. Virgin Islands\n\nThe current proposed USVI constitution appears no less compliant with\nsection 2(b)(1) of the Enabling Act than the constitution originally proposed in 1980, if not also the revised version of that constitution ultimately approved by Congress. Much as the preamble of the 1980 constitution described the USVI as \xe2\x80\x9cassuming the responsibilities of selfgovernment in political union with the United States,\xe2\x80\x9d H.R. Doc. No. 96375, at 1, the preamble of the current proposed constitution declares that\nthe USVI is \xe2\x80\x9cassuming the responsibilities of self-government as an\nunincorporated territory of the United States.\xe2\x80\x9d Proposed Const. pmbl. \xc2\xb6 1\n(emphasis added). The term \xe2\x80\x9cunincorporated territory of the United\nStates,\xe2\x80\x9d like the term \xe2\x80\x9cpolitical union,\xe2\x80\x9d carries a well-established meaning\nsignifying recognition of the supremacy of the United States government.\nTerritorial Court of the Virgin Islands v. Richards, 673 F. Supp. 152, 157\n(D.V.I. 1987) (identifying the USVI as an \xe2\x80\x9cunincorporated territory\xe2\x80\x9d and\ndescribing Congress\xe2\x80\x99s authority over the territory as \xe2\x80\x9cplenary\xe2\x80\x9d), aff\xe2\x80\x99d,\n847 F.2d 108, 112 (3d Cir. 1988); Harris v. Boreham, 233 F.2d 110, 113 \xe2\x80\x93\n14 (3d Cir. 1956) (describing Congress\xe2\x80\x99s \xe2\x80\x9csovereignty\xe2\x80\x9d over \xe2\x80\x9cunincorporated territories, such as the Virgin Islands\xe2\x80\x9d); S. Rep. No. 97-66, at 4\n(report on the 1980 constitution describing the USVI as \xe2\x80\x9can unincorporated territory of the United States subject to the plenary authority of the\nCongress\xe2\x80\x9d). Indeed, the Constitution itself prescribes that \xe2\x80\x9c[t]he Congress\nshall have Power to dispose of and make all needful Rules and Regulations\xe2\x80\x9d with respect to United States territories. U.S. Const. art. IV, \xc2\xa7 3,\ncl. 2. The current proposed constitution\xe2\x80\x99s acknowledgment of the USVI\xe2\x80\x99s\nstatus as an \xe2\x80\x9cunincorporated territory of the United States\xe2\x80\x9d thus implies\nrecognition of the United States\xe2\x80\x99 sovereignty over the USVI.\nFurthermore, the current proposed constitution also recognizes congressional authority over the USVI by describing the 1917 treaty between\nthe United States and Denmark as \xe2\x80\x9cconfirm[ing]\xe2\x80\x9d that Congress may\n\xe2\x80\x9cdetermine[]\xe2\x80\x9d the \xe2\x80\x9ccivil rights and political status of the inhabitants\xe2\x80\x9d of\nthe USVI, Proposed Const. pmbl. \xc2\xb6 3; it limits the legislative power of\nthe USVI to \xe2\x80\x9csubjects of legislation consistent with . . . the Constitution\nand laws of the United States,\xe2\x80\x9d just as the 1980 proposed constitution did,\nid. art. V, \xc2\xa7 1; H.R. Doc. No. 96-375, at 7; and in certain other provisions\nit acknowledges the applicability of federal law, e.g., Proposed Const. art.\nIV, \xc2\xa7 4 (prohibiting any \xe2\x80\x9cpolitical or religious test\xe2\x80\x9d for public office\n\xe2\x80\x9cother than an oath or affirmation to support the Constitution and laws of\nthe Virgin Islands, and the Constitution and laws of the United States\xe2\x80\x9d);\n79\n\n\x0c34 Op. O.L.C. 73 (2010)\n\nid. art. VII, \xc2\xa7 2 (providing that decisions of the USVI Supreme Court \xe2\x80\x9con\nquestions arising under this Constitution and the laws of the Virgin Islands shall be final, except as Federal law may provide for review of such\ndecisions by courts of the United States\xe2\x80\x9d); id. art. VII, \xc2\xa7 3 (requiring rules\nin USVI courts to be consistent with the United States Constitution and\nfederal laws). It is true that the current proposed constitution also states\nthat it \xe2\x80\x9cshall be the supreme law of the Virgin Islands.\xe2\x80\x9d Id. art. II, \xc2\xa7 5. But\nwhile, as noted above, Congress revised the similar supremacy provision\nin the 1980 proposed constitution to declare that \xe2\x80\x9c[t]his Constitution and\nlaws of the Virgin Islands enacted under it shall be the supreme law of the\nVirgin Islands\xe2\x80\x9d only \xe2\x80\x9c[t]o the extent not inconsistent with the Constitution\nand laws of the United States,\xe2\x80\x9d Pub. L. No. 97-21, 95 Stat. at 109; see\nalso Hearing on Fourth USVI Constitution at 173, 194; S. Rep. No. 97-66,\nat 4; H.R. Rep. No. 97-25, at 2, 11, the President and the Department of\nJustice deemed the 1980 proposed constitution in \xe2\x80\x9csubstantial compliance\xe2\x80\x9d with the Enabling Act even without this change. Moreover, the\noriginal supremacy provision in the 1980 proposed constitution was\narguably less consistent with United States sovereignty and federal supremacy than the current provision. The supremacy clause of the 1980\nproposed constitution appeared in a provision addressing legislative\npowers and asserted the supremacy not only of the proposed constitution,\nbut also of \xe2\x80\x9claws of the Virgin Islands enacted under it.\xe2\x80\x9d H.R. Doc. No.\n96-375, at 7. In contrast, the supremacy provision of the current proposed\nconstitution appears in a stand-alone section and refers only to the USVI\nconstitution. Proposed Const. art. II, \xc2\xa7 5. It may therefore be reasonably\nunderstood to indicate only that the USVI constitution is \xe2\x80\x9cthe supreme\nlaw of the Virgin Islands\xe2\x80\x9d in the sense of superseding other USVI laws\nbut not federal law. Cf. Maine Const. art. X, \xc2\xa7 6 (referring to the Maine\nconstitution as \xe2\x80\x9cthe supreme law of the State\xe2\x80\x9d); Iowa Const. art. XII, \xc2\xa7 1\n(\xe2\x80\x9cThis constitution shall be the supreme law of the state, and any law\ninconsistent therewith, shall be void.\xe2\x80\x9d).\nAccordingly, while we think it would be preferable if Congress revised\xe2\x80\x94or urged a reconvened constitutional convention to revise\xe2\x80\x94the\nproposed constitution to include a more express recognition of U.S. sovereignty and especially of the supremacy of federal law, as Congress did\nin considering the 1980 proposed constitution, we believe the proposed\nconstitution is in substantial compliance with section 2(b)(1) of the Enabling Act. DOJ Views, 4B Op. O.L.C. at 761.\n80\n\n\x0cDepartment of Justice Views on the Proposed Constitution of the U.S. Virgin Islands\n\nB. Political Status Elections\nIn Article XVII, the proposed constitution provides for a \xe2\x80\x9cspecial election,\xe2\x80\x9d to be held after a year of \xe2\x80\x9cPublic Education\xe2\x80\x9d programs conducted\nby a \xe2\x80\x9cPolitical Status Advisory Commission,\xe2\x80\x9d on \xe2\x80\x9cthe status and federal\nrelations options of: (1) statehood, (2) free association, and (3) Independence.\xe2\x80\x9d Proposed Const. art. XVII, \xc2\xa7\xc2\xa7 1, 2(a). Because Congress in the\nEnabling Act has authorized conventions to draft a USVI constitution\nonly for \xe2\x80\x9clocal self-government\xe2\x80\x9d \xe2\x80\x9cwithin the existing territorial-Federal\nrelationship,\xe2\x80\x9d Enabling Act \xc2\xa7 2(a); see also S. Rep. No. 94-1033, at 4\n(1976) (emphasizing that \xe2\x80\x9cthe constitution [authorized by the Enabling\nAct] is not a status document and that the issue of local self-government\nshould not be delayed or confused with discussions relating to alterations\nin existing federal relations\xe2\x80\x9d); id. at 8 (letter from the Assistant Secretary\nof the Interior to the same effect), some may question the appropriateness\nof the inclusion of this provision in the proposed constitution. We do not\nbelieve, however, that this provision violates the Enabling Act.\nGiven Congress\xe2\x80\x99s constitutional authority over territories, any change\nin status for the USVI would require action by Congress. See U.S. Const.\nart. IV, \xc2\xa7 3, cl. 2; see also, e.g., Examining Bd. of Eng\xe2\x80\x99rs, Architects &\nSurveyors v. Flores de Otero, 426 U.S. 572, 586 n.16 (1976); Simms v.\nSimms, 175 U.S. 162, 167\xe2\x80\x9368 (1899); Talbott v. Silver Bow County, 139\nU.S. 438, 445\xe2\x80\x9346 (1891); First Nat\xe2\x80\x99l Bank v. Yankton County, 101 U.S.\n129, 132\xe2\x80\x9333 (1879); Bluebeard\xe2\x80\x99s Castle, Inc. v. Gov\xe2\x80\x99t of the Virgin Islands, 321 F.3d 394, 397 (3d Cir. 2003). The special election therefore\nwould not effect any departure from the \xe2\x80\x9cexisting territorial-Federal\nrelationship.\xe2\x80\x9d Moreover, the USVI local government has established\npublic education commissions on the USVI\xe2\x80\x99s territorial status in the past\nand in 1993 held a referendum on the subject. We believe such efforts to\ncanvass the electorate on issues of fundamental concern may serve valid\npurposes of local self-government. See, e.g., 1988 V.I. Sess. Laws 5332;\nsee generally H.R. Rep. No. 111-357, at 4 (2009); Stanley K. Laughlin,\nJr., The Law of the United States Territories and Affiliated Jurisdictions\n380 (1995).\n\n81\n\n\x0c34 Op. O.L.C. 73 (2010)\n\nC. Classifications Based on Place and Timing of\nBirth, Timing of Residence, and Ancestry\nSeveral provisions of the proposed constitution give special advantages\nto \xe2\x80\x9cNative Virgin Islanders\xe2\x80\x9d and \xe2\x80\x9cAncestral Native Virgin Islanders.\xe2\x80\x9d\nThese provisions raise serious concerns under the equal protection guarantee of the U.S. Constitution, which has been made applicable to the\nUSVI by the Revised Organic Act.\nIn Article III, Section 2, the proposed constitution would define \xe2\x80\x9cNative Virgin Islander\xe2\x80\x9d to mean (1) \xe2\x80\x9ca person born in the Virgin Islands after\nJune 28, 1932,\xe2\x80\x9d the enactment date of a statute generally extending United\nStates citizenship to USVI natives residing in United States territory as of\nthat date who were not citizens or subjects of any foreign country, see Act\nof June 28, 1932, ch. 283, 47 Stat. 336 (now codified at 8 U.S.C.\n\xc2\xa7 1406(a)(4) (2006)); and (2) a \xe2\x80\x9cdescendant[] of a person born in the\nVirgin Islands after June 28, 1932.\xe2\x80\x9d \xe2\x80\x9cAncestral Native Virgin Islander\xe2\x80\x9d\nwould be defined as (1) \xe2\x80\x9ca person born or domiciled in the Virgin Islands\nprior to and including June 28, 1932 and not a citizen of a foreign country\npursuant to 8 U.S.C. [\xc2\xa7] 1406,\xe2\x80\x9d the statute governing United States citizenship of USVI residents and natives; (2) \xe2\x80\x9cdescendants\xe2\x80\x9d of such individuals; and (3) \xe2\x80\x9cdescendants of an Ancestral Native Virgin Islander residing\noutside of the U.S., its territories and possessions between January 17,\n1917 and June 28, 1932, not subject to the jurisdiction of the U.S. and\nwho are not a citizens [sic] or a subjects [sic] of any foreign country.\xe2\x80\x9d\nProposed Const. art. III, \xc2\xa7 1. 2\n\nThe third prong of this definition appears circular insofar as it defines \xe2\x80\x9cAncestral\nNative Virgin Islander\xe2\x80\x9d in terms of descendants of \xe2\x80\x9cAncestral Native Virgin Islanders\xe2\x80\x9d (a\ncategory of people already encompassed by the definition\xe2\x80\x99s second prong), and it is also\ngrammatically ambiguous with respect to whether the qualifying terms modify the\n\xe2\x80\x9cdescendants\xe2\x80\x9d or the \xe2\x80\x9cAncestral Native Virgin Islander\xe2\x80\x9d from whom they are descended.\nWe think it clear that these classifications could not be considered tribal within the\nmeaning of the Indian Commerce Clause, U.S. Const. art. I, \xc2\xa7 8, cl. 3, that is, as falling\nwithin the established body of law defining the special relationship between aboriginal\npeoples of the United States and the federal government. In any event, that Clause empowers Congress, not the government of the Virgin Islands.\n2\n\n82\n\n\x0cDepartment of Justice Views on the Proposed Constitution of the U.S. Virgin Islands\n\n1. Property Tax Exemption for\nAncestral Native Virgin Islanders\nUnder the proposed constitution, the USVI legislature would be authorized to impose real property taxes, but \xe2\x80\x9c[n]o Real Property tax shall be\nassessed on the primary residence or undeveloped land of an Ancestral\nNative Virgin Islander.\xe2\x80\x9d Proposed Const. art. XI, \xc2\xa7 5(g). The property tax\nexemption for Ancestral Native Virgin Islanders raises serious equal\nprotection concerns. The Equal Protection Clause of the Fourteenth\nAmendment, which has been extended to the USVI by statute, see 48\nU.S.C. \xc2\xa7 1561 (2006), 3 generally requires only that legislative classifications be rationally related to a legitimate governmental purpose. See, e.g.,\nHeller v. Doe, 509 U.S. 312, 319 \xe2\x80\x9320 (1993). But the proposed constitution does not identify a legitimate governmental purpose that the real\nproperty tax exemption for Ancestral Native Virgin Islanders would\nfurther, and it is difficult for us to discern a legitimate governmental\npurpose that the exemption could be said to further.\nThe definition of Ancestral Native Virgin Islander appears to combine\ntwo sub-classes: (i) individuals born or domiciled in the USVI before a\ncertain date and (ii) descendants of such persons. The first sub-class may\ninclude many long-time residents of the USVI, but to the extent the real\nproperty tax exemption is designed to benefit such long-time residents it\nraises serious equal protection concerns. The Supreme Court has held that\nstatutes limiting benefits, including property tax exemptions, to citizens\nresiding in a jurisdiction before a specified date are not rationally related\nto any legitimate governmental purpose. For example, in Hooper v. Bernalillo County Assessor, 472 U.S. 612 (1985), the Court held that a New\nMexico property tax exemption applicable only to Vietnam War veterans\nwho resided in the state before a certain date violated equal protection by\n\xe2\x80\x9ccreat[ing] two tiers of resident Vietnam veterans, identifying resident\nveterans who settled in the State after May 8, 1976, as in a sense \xe2\x80\x98secondclass citizens.\xe2\x80\x99\xe2\x80\x9d Id. at 623. Explaining that \xe2\x80\x9csingling out previous resi3 See also, e.g., Gov\xe2\x80\x99t of the Virgin Islands v. Davis, 561 F.3d 159, 163\xe2\x80\x9364 n.3 (3d Cir.\n2009) (recognizing applicability of the Fifth and Fourteenth Amendment Due Process\nClauses to the USVI under the Revised Organic Act); Hendrickson v. Reg O Co., 657 F.2d\n9, 13 n.2 (3d Cir. 1981) (same); Moolenaar v. Todman, 433 F.2d 359, 359 (3d Cir. 1970)\n(per curiam) (requiring adherence to \xe2\x80\x9cthe constitutional requirements of equal protection\nof the law\xe2\x80\x9d in the USVI).\n\n83\n\n\x0c34 Op. O.L.C. 73 (2010)\n\ndents for the tax exemption[] [and] reward[ing] only those citizens for\ntheir \xe2\x80\x98past contributions\xe2\x80\x99 toward our Nation\xe2\x80\x99s military effort in Vietnam\xe2\x80\x9d\nwas \xe2\x80\x9cnot a legitimate state purpose,\xe2\x80\x9d the Court held that the tax exemption\nviolated the Equal Protection Clause by \xe2\x80\x9ccreat[ing] fixed, permanent\ndistinctions . . . between . . . classes of concededly bona fide residents.\xe2\x80\x99\xe2\x80\x9d\nId. at 622\xe2\x80\x9323 (quoting Zobel v. Williams, 457 U.S. 55, 59 (1982)); see\nalso, e.g., Att\xe2\x80\x99y Gen. of N.Y. v. Soto-Lopez, 476 U.S. 898, 909, 911 (1986)\n(plurality opinion) (applying heightened scrutiny to invalidate civil service employment preference limited to veterans who lived in the state\nwhen they entered the armed forces); id. at 913 (Burger, C.J., concurring\nin judgment) (same under rational basis review); Bunyan v. Camacho, 770\nF.2d 773, 776 (9th Cir. 1985) (invalidating law enacted by Guam legislature awarding certain retirement credits for higher education degrees to\nGuam civil servants only if they resided in Guam before pursuing the\ndegree).\nMoreover, even as to this sub-class, the real property tax exemption\nproposed here appears to be even less constitutionally justifiable than\nbenefits for long-time residents. In Nord linger v. Hahn, 505 U.S. 1\n(1992), the Supreme Court upheld a California real property valuation\nsystem that disfavored newer purchasers (though not necessarily newer or\nlonger-term residents), and the Court recognized as legitimate two governmental interests for such a system: \xe2\x80\x9clocal neighborhood preservation,\ncontinuity, and stability,\xe2\x80\x9d id. at 12, and honoring the reliance interests of\nlong-time property owners, id. at 12\xe2\x80\x9313. To the extent that those interests\nmight be offered in defense of tax benefits for long-time residents or\nproperty owners, they cannot justify the real property tax exemption for\nAncestral Native Virgin Islanders. Neither of those interests appears to be\nrationally furthered by the first sub-class included in the proposed property tax exemption for Ancestral Native Virgin Islanders because membership in that sub-class is defined neither by length of residence nor even by\nlength of property ownership in the USVI, but simply by having been\nborn or having lived in the USVI many years ago. Thus, for example, an\nindividual born in the USVI on June 28, 1932, who left the Islands the\nfollowing year and who moved back to the Islands and bought a home\nthere 50 years later (or who simply bought an undeveloped piece of land\nthere 50 years later) would be entitled to immunity from real property\ntaxes even though an individual who had spent his or her whole life in the\nUSVI and had owned the same home there for the past 50 years, but who\n84\n\n\x0cDepartment of Justice Views on the Proposed Constitution of the U.S. Virgin Islands\n\nhad been born there of parents who had arrived in the USVI as immigrants\non June 29, 1932, would not be so shielded. How a system permitting this\nkind of discrimination could be said to further neighborhood stability or\nreliance interests of long-time property owners is unclear.\nThe second sub-class benefitted by the real property exemption for Ancestral Native Virgin Islanders also seems difficult to justify as furthering\na legitimate governmental interest, for the second sub-class is defined\nsimply by parentage or ancestry. We need not delve into whether this use\nof \xe2\x80\x9cancestry\xe2\x80\x9d in classifying citizens would be deemed \xe2\x80\x9csuspect\xe2\x80\x9d and thus\nsubject to heightened scrutiny under the Fourteenth Amendment. See, e.g.,\nMass. Bd. of Retirement v. M urgia, 427 U.S. 307, 312 & n.4 (1976) (per\ncuriam) (identifying alienage, race, and ancestry as classifications subject\nto strict scrutiny). Again, it is unclear to us what legitimate governmental\npurpose would support favoring so starkly the descendants of individuals\nborn or resident long ago in the USVI regardless of the descendants\xe2\x80\x99 own\nconnections (or lack thereof) to the Islands.\nBecause we find it difficult to discern a legitimate governmental purpose that would be rationally advanced by providing property tax exemptions only for Ancestral Native Virgin Islanders, we would recommend\nrevising the proposed constitution to eliminate Article XI, Section 5(g).\n2. Provisions on Voting and Office-Holding\nFavoring Native Virgin Islanders and\nAncestral Native Virgin Islanders\nProvisions in the proposed constitution that limit certain offices and the\nright to vote in certain elections to Native Virgin Islanders and Ancestral\nNative Virgin Islanders or that guarantee members of those groups the\nright to participate in certain elections present similar issues. Under the\nproposed constitution, the positions of Governor and Lieutenant Governor\nwould be open only to members of these groups, Proposed Const. art. VI,\n\xc2\xa7 3(d), as would service on the Political Status Advisory Commission, an\neleven-member body composed of four appointed members and seven\nelected members that would promote awareness of the USVI\xe2\x80\x99s political\nstatus options and advise the Governor and Legislature on \xe2\x80\x9cmethods to\nachieve a full measure of self-government.\xe2\x80\x9d Id. art. XVII, \xc2\xa7\xc2\xa7 1(b), 3. The\nspecial election on \xe2\x80\x9cstatus and federal relations options\xe2\x80\x9d provided for\nunder the proposed constitution would be \xe2\x80\x9creserved for vote by Ancestral\n85\n\n\x0c34 Op. O.L.C. 73 (2010)\n\nNative and Native Virgin Islanders only, whether residing within or\noutside the territory.\xe2\x80\x9d Id. art. XVII, \xc2\xa7 2. And the proposed constitution\nwould guarantee that \xe2\x80\x9cAncestral and Native Virgin Islanders, including\nthose who reside outside of the Virgin Islands or in the military, shall\nhave the opportunity to vote on\xe2\x80\x9d amendments to the USVI constitution.\nId. art. XVIII, \xc2\xa7 7. 4\nThe provisions concerning eligibility to vote in certain elections raise\nequal protection concerns. To the extent one might attempt to justify the\nlimitation on the electorate for the special election on status options as\nakin to a durational residence requirement, we believe it is too restrictive\nto be so justified. Although the Supreme Court has upheld a very brief\nresidential limitation on eligibility to vote in one instance based on a\nstate\xe2\x80\x99s legitimate interest in \xe2\x80\x9cprepar[ing] adequate voter records and\nprotect[ing] its electoral processes from possible frauds,\xe2\x80\x9d Marston v.\nLewis, 410 U.S. 679, 680 (1973) (per curiam) (upholding 50-day durational residence requirement), it has held that even a requirement of one\nyear\xe2\x80\x99s residence for voting, as opposed to office-holding, violates constitutional equal protection guarantees, Dunn v. Blumstein, 405 U.S. 330,\n360 (1972) (invalidating state\xe2\x80\x99s requirement that voters have resided in\nthe state for one year and the county for three months). Moreover, the\nclassifications here are not based on length of residence, and their effects\nappear potentially arbitrary. As discussed above, the categories of Ancestral Native Virgin Islanders and Native Virgin Islanders are based simply\non place and timing of birth, the fact of having resided in the USVI before\na certain date regardless of for how brief a time, or ancestry, regardless of\nthe individual\xe2\x80\x99s own connection to the USVI. Thus, they could prohibit,\nfor example, a foreign-born but life-long resident of the USVI from voting\non political status, but would permit any qualifying ancestral descendant,\nincluding those who have never lived in the USVI, to do so. Cf. SotoThe right to vote on such amendments does not appear to be limited to these groups,\nas the same provision requires that amendments be submitted \xe2\x80\x9cto the electors of the\nVirgin Islands.\xe2\x80\x9d Proposed Const. art. XVIII, \xc2\xa7 7. Although the term \xe2\x80\x9celectors of the\nVirgin Islands\xe2\x80\x9d is undefined, the proposed constitution elsewhere provides that \xe2\x80\x9c[e]very\ncitizen of the United States and the Virgin Islands eighteen (18) years of age or older and\nregistered to vote in the Virgin Islands shall have the right to vote.\xe2\x80\x9d Id. art. IV, \xc2\xa7 1. The\nseparate provisions establishing special voting rights and opportunities for Ancestral\nNative Virgin Islanders and Native Virgin Islanders suggest that the term \xe2\x80\x9celectors of the\nVirgin Islands\xe2\x80\x9d refers to the broader group of eligible voters.\n4\n\n86\n\n\x0cDepartment of Justice Views on the Proposed Constitution of the U.S. Virgin Islands\n\nLopez, 476 U.S. at 915 (Burger, C.J., concurring in judgment) (discussing\n\xe2\x80\x9cirrationality\xe2\x80\x9d of law that \xe2\x80\x9cwould grant a civil service hiring preference\nto a serviceman entering the military while a resident of [the state] even\nif he was a resident only for a day,\xe2\x80\x9d but that would deny the preference to\na veteran \xe2\x80\x9cwho was a resident of [the state] for over 10 years before\napplying for a civil service position\xe2\x80\x9d); Dunn, 405 U.S. at 360 (concluding\nthat the state interest in \xe2\x80\x9cknowledgeable\xe2\x80\x9d voters did not justify a durational residence requirement for voting because \xe2\x80\x9cthere is simply too attenuated a relationship between the state interest in an informed electorate and\nthe fixed requirement that voters must have been residents in the State for\na year and the county for three months\xe2\x80\x9d); Kramer v. Union Free Sch. Dist.\nNo. 15, 395 U.S. 621, 632 (1969) (rejecting, under strict scrutiny, restrictions on franchise for school board elections because \xe2\x80\x9c[t]he classifications in [the statute] permit inclusion of many persons who have, at best, a\nremote and indirect interest in school affairs and, on the other hand,\nexclude others who have a distinct and direct interest in the school meeting decisions\xe2\x80\x9d).\nThe proposed constitution\xe2\x80\x99s guarantee that Native Virgin Islanders and\nAncestral Native Virgin Islanders \xe2\x80\x9cresid[ing] outside of the Virgin Islands\xe2\x80\x9d may vote on amendments to the USVI constitution also raises\nequal protection concerns. Proposed Const. art. XVIII, \xc2\xa7 7. To uphold\ninclusion of non-resident voters in local government elections against\nequal protection challenges, courts have required a showing that the nonresident voters have a \xe2\x80\x9csubstantial interest\xe2\x80\x9d in the elections in question.\nSee, e.g., May v. Town of Mountain Village, 132 F.3d 576, 583 (10th Cir.\n1997) (upholding inclusion of nonresident property owners in town electorate because such voters \xe2\x80\x9chave a substantial interest in township elections\xe2\x80\x9d); Bd. of County Comm\xe2\x80\x99rs of Shelby County, Tenn. v. Burson, 121\nF.3d 244, 248\xe2\x80\x9351 (6th Cir. 1997) (deeming participation of city voters in\ncounty school board elections irrational and thus impermissible under\nFourteenth Amendment where city voters had their own independent\nschool board and lacked a substantial interest in county school board\nelections); Hogencamp v. Lee County Bd. of Educ., 722 F.2d 720, 722\n(11th Cir. 1984) (deeming city taxpayers\xe2\x80\x99 contribution of 2.74% of county\nschool board\xe2\x80\x99s budget \xe2\x80\x9cinsufficient by itself to create a substantial interest\nin the city residents\xe2\x80\x9d justifying their participation in county school board\nelections). Because many non-resident Ancestral Native Virgin Islanders\nand Native Virgin Islanders may have no connection to the Islands apart\n87\n\n\x0c34 Op. O.L.C. 73 (2010)\n\nfrom ancestry, it is unclear whether their inclusion in the electorate for\nUSVI constitutional amendments would satisfy this standard.\nFinally, although the residential duration requirements discussed below\nfor Governor and Lieutenant Governor and members of the Political\nStatus Advisory Commission would prevent non-resident individuals who\nqualify as Native Virgin Islanders or Ancestral Native Virgin Islanders\nfrom serving in those offices, it is unclear what legitimate governmental\npurpose would be advanced by narrowing the subset of longtime residents\nwho could hold those offices to Native Virgin Islanders and Ancestral\nNative Virgin Islanders.\nIn the absence of any identified legitimate governmental interest to\nsupport such provisions concerning voting and office-holding based on\nplace of birth, residence many decades ago, or ancestry, we would again\nrecommend that these provisions be removed from the proposed constitution. 5\nD. Residence Requirements for Office-Holding\nIn addition to the birth and ancestry qualifications discussed above, the\nproposed constitution imposes substantial residence requirements on a\nnumber of USVI offices. In particular, the Governor and Lieutenant\nGovernor would be required to have been \xe2\x80\x9cdomiciliar[ies]\xe2\x80\x9d of the USVI\nfor at least fifteen years, ten of which \xe2\x80\x9cmust immediately precede the\ndate of filing for office,\xe2\x80\x9d Proposed Const. art. VI, \xc2\xa7 3(a); judges and\njustices of the USVI Supreme Court and lower court to be established\nunder the proposed constitution would be required to have been \xe2\x80\x9cdomiciled\xe2\x80\x9d in the USVI for at least ten years \xe2\x80\x9cimmediately preceding\xe2\x80\x9d the\njudge or justice\xe2\x80\x99s appointment, id. art. VII, \xc2\xa7 5(b); the Attorney General\nand Inspector General would need to have resided in the USVI for at least\nfive years, id. art. VI, \xc2\xa7\xc2\xa7 10(a)(1), 11(a)(2); 6 and the members of the\n5 Because we conclude that the restrictions on voting present clear equal protection\nconcerns under the Fourteenth Amendment, we need not consider whether they may also\nviolate the Fifteenth Amendment\xe2\x80\x99s prohibition on denial or abridgement of the right to\nvote \xe2\x80\x9con account of race, color, or previous condition of servitude.\xe2\x80\x9d U.S. Const. amend.\nXV; see also 48 U.S.C. \xc2\xa7 1561 (extending Fifteenth Amendment to USVI).\n6 The proposed constitution appears ambiguous with respect to how this five-year period is determined. It provides: \xe2\x80\x9cThere shall be an Attorney General, who shall be appointed by the Governor with the advice and consent of the Senate, and at the time of the\n\n88\n\n\x0cDepartment of Justice Views on the Proposed Constitution of the U.S. Virgin Islands\n\nPolitical Status Advisory Commission would be required to have been\n\xe2\x80\x9cdomiciliaries\xe2\x80\x9d of the USVI for \xe2\x80\x9ca minimum of five years,\xe2\x80\x9d id. art. XVII,\n\xc2\xa7 1(b). In addition, the proposed constitution would require that USVI\nSenators be \xe2\x80\x9cdomiciled\xe2\x80\x9d in their legislative district \xe2\x80\x9cfor at least one year\nimmediately preceding the first date of filing for office.\xe2\x80\x9d Id. art. V, \xc2\xa7 3(c).\nThese requirements, particularly those requiring more than five years of\nresidence, raise potential equal protection concerns. As explained in the\nDepartment of Justice\xe2\x80\x99s comments on the proposed 1980 constitution,\n\xe2\x80\x9c[t]he Supreme Court has held that candidates for public office \xe2\x80\x98do have\na federal constitutional right to be considered for public service without\nthe burden of invidiously discriminatory disqualifications.\xe2\x80\x99\xe2\x80\x9d DOJ Views,\n4B Op. O.L.C. at 766 (quoting Turner v. Fouche, 396 U.S. 346, 362\n(1970)). Though noting that the Supreme Court has summarily affirmed\nthree decisions upholding five- to seven-year residence requirements for\nstate senators and governors, id. at 767 (citing Chimento v. Stark, 353 F.\nSupp. 1211, 127 (D.N.H. 1973), aff\xe2\x80\x99d, 414 U.S. 802 (1973); Kanapaux v.\nEllisor (D.S.C. unreported), aff\xe2\x80\x99d, 419 U.S. 891 (1974); Sununu v. Stark,\n383 F. Supp. 1287 (D.N.H. 1974), aff\xe2\x80\x99d, 420 U.S. 958 (1975)), the Department\xe2\x80\x99s memorandum observed that the Supreme Court \xe2\x80\x9chas not as yet\npassed on durational residence requirements for the holding of office,\xe2\x80\x9d id.,\nand that lower courts have struck down laws imposing residence requirements of five or more years on certain state or local offices, id. at 767\xe2\x80\x9368\n(collecting cases). The 1980 Justice Department memorandum therefore\nconcluded that while certain five-year residence requirements in the 1980\nproposed constitution likely would not \xe2\x80\x9cgive rise to serious constitutional\nproblems,\xe2\x80\x9d there was \xe2\x80\x9cevery reason to question whether the courts\n[would] uphold\xe2\x80\x9d fifteen-year residence requirements for the offices of\nGovernor and Lieutenant Governor under that proposed constitution. Id.\nat 768.\nLikewise, the President observed in his message to Congress that the\nfifteen-year residence requirements in the 1980 constitution \xe2\x80\x9cmay violate\nthe Federal constitutional prohibition against discriminatory qualifications\nfor public office.\xe2\x80\x9d H.R. Doc. No. 96-375, at iv. As for Congress, the\nappointment must . . . have resided in the Virgin Islands at least five (5) years next\npreceding his election.\xe2\x80\x9d Proposed Const. art. VI, \xc2\xa7 10(a)(1). Given that the Attorney\nGeneral would be appointed rather than elected, the reference to the period \xe2\x80\x9cnext preceding his election\xe2\x80\x9d seems unclear.\n\n89\n\n\x0c34 Op. O.L.C. 73 (2010)\n\nlegislative history indicates that its approval of the 1980 constitution did\nnot signify any \xe2\x80\x9copinion on the merits of these provisions\xe2\x80\x9d and that it too\nrecognized that the fifteen-year \xe2\x80\x9cdomiciliary qualifications\xe2\x80\x9d in that constitution might \xe2\x80\x9cbe invalidated if they are found to be incompatible with\nthe United States Constitution.\xe2\x80\x9d H.R. Rep. No. 97-25, at 3; see also\nS. Rep. No. 97-66, at 5.\nThe case law since 1980 on durational residence requirements for state\nand local offices generally supports the Department\xe2\x80\x99s analysis provided at\nthat time. In Clements v. Fashing, 457 U.S. 957 (1982), a plurality of the\nSupreme Court observed that \xe2\x80\x9cthe existence of barriers to a candidate\xe2\x80\x99s\naccess to the ballot \xe2\x80\x98does not of itself compel close scrutiny\xe2\x80\x99\xe2\x80\x9d and that\n\xe2\x80\x9c[d]ecision in this area of constitutional adjudication is a matter of degree,\nand involves a consideration of the facts and circumstances behind the\nlaw, the interests the State seeks to protect by placing restrictions on\ncandidacy, and the nature of the interests of those who may be burdened\nby the restrictions.\xe2\x80\x9d Id. at 963 (plurality opinion) (quoting Bullock v.\nCarter, 405 U.S. 134, 143 (1972)). Clements, however, did not involve\ndurational residence requirements, but rather provisions requiring a waiting period or mandatory resignation before certain current state officeholders could seek new elective offices. See id. at 966\xe2\x80\x9371. In another\ncase, a concurring opinion, citing Chimento\xe2\x80\x99s approval of a seven-year\nresidence requirement for a state governor, suggested that residence\nrequirements may serve legitimate purposes, but this opinion did not\nelaborate on how long a period of prior residence may be required. See\nZobel, 457 U.S. at 70 (Brennan, J., concurring) (observing that \xe2\x80\x9callegiance and attachment may be rationally measured by length of residence\n. . . and allegiance and attachment may bear some rational relationship to\na very limited number of legitimate state purposes\xe2\x80\x9d).\nOne court of appeals has concluded, based on the Supreme Court summary affirmances cited in the Department\xe2\x80\x99s 1980 memorandum, that at\nleast \xe2\x80\x9csome durational residency requirements are constitutional.\xe2\x80\x9d City of\nAkron v. Bell, 660 F.2d 166, 168 (6th Cir. 1981). This court thus upheld a\none-year residence requirement for city council members based on the\nlocal government\xe2\x80\x99s interest in \xe2\x80\x9cknowledgeable candidates.\xe2\x80\x9d Id. at 168\xe2\x80\x9369.\nIn other recent decisions, courts have similarly upheld relatively brief\nresidence requirements for state or local offices, typically applying only\nrational basis review and deeming such laws adequately justified by the\ngovernmental interest in ensuring familiarity with local concerns. See,\n90\n\n\x0cDepartment of Justice Views on the Proposed Constitution of the U.S. Virgin Islands\n\ne.g., MacDonald v. City of Henderson, 818 F. Supp. 303, 306 (D. Nev.\n1993) (one-year residence requirement for city council); Hankins v. Hawaii, 639 F. Supp. 1552, 1556 (D. Haw. 1986) (five-year residence requirement for Hawaii governor under state constitution); Schiavone v.\nDeStefano, 852 A.2d 862, 866\xe2\x80\x9367 (Conn. Sup. Ct. 2001) (five-year residence requirement for city mayor); Civil Serv. Merit Bd. of City of Knoxville v. Burson, 816 S.W.2d 725, 734 (Tenn. 1991) (one-year residence\nrequirement for municipal civil service boards); State ex rel. Brown v.\nSummit County Bd. of Elections, 545 N.E.2d 1256, 1259\xe2\x80\x9360 (Ohio 1989)\n(two-year residence requirement for city council); Langmeyer v. Idaho,\n656 P.2d 114, 118 (Idaho 1982) (five-year residence requirement for\nappointment to local planning and zoning board); see also, e.g., Thournir\nv. Meyer, 909 F.2d 408, 411 (10th Cir. 1990) (upholding under rational\nbasis review state requirement that unaffiliated candidates have been\nregistered as unaffiliated voters in the state for at least one year before\nfiling for office); White v. Manchin, 318 S.E.2d 470, 488, 491 (W. Va.\n1984) (applying strict scrutiny based on the fundamental right \xe2\x80\x9cto become\na candidate for public office\xe2\x80\x9d but upholding state constitutional requirement that state senators have resided in their district for at least one year\nbefore their election). On the other hand, at least one federal court has\nrecently applied strict scrutiny to invalidate a state requirement that state\nlegislators have resided within their legislative districts for at least one\nyear. See Robertson v. Bartels, 150 F. Supp. 2d 691, 696, 699 (D.N.J.\n2001) (applying strict scrutiny based on \xe2\x80\x9cthe combined right of persons to\nrun for public office and the right of voters to vote for candidates of their\nchoice\xe2\x80\x9d); see also, e.g., Peloza v. Freas, 871 P.2d 687, 691 (Alaska 1994)\n(applying heightened scrutiny under state constitution and invalidating\nthree-year residence requirement for city council).\nInsofar as the territorial status and unique history and geography of\nthe USVI make familiarity with local issues particularly important for\noffice-holders there, the governmental interests supporting durational\nresidence requirements for USVI offices may be particularly strong. See\nDOJ Views, 4B Op. O.L.C. at 768; see also, e.g., Hankins, 639 F. Supp. at\n1556 (observing that \xe2\x80\x9c[t]he State has a strong interest in the assurance that\nits governor will be a person who understands the conditions of life in\nHawaii\xe2\x80\x9d and that \xe2\x80\x9c[t]his concern has \xe2\x80\x98particular relevance in a small and\ncomparatively sparsely populated state\xe2\x80\x99\xe2\x80\x9d (quoting Chimento, 353 F. Supp.\nat 1215)); cf. Bell, 660 F.2d at 168 (noting that \xe2\x80\x9cthe interests of [a state\n91\n\n\x0c34 Op. O.L.C. 73 (2010)\n\nor local] governmental unit in knowledgeable candidates and knowledgeable voters may be served by differing lengths of durational residency\nrequirements\xe2\x80\x9d). Yet at least some courts might consider the lengthy\nresidence requirements here\xe2\x80\x94particularly the ten- or fifteen-year periods required for USVI judges, governors, and lieutenant governors\xe2\x80\x94\nunjustified. Cf. Clements, 457 U.S. at 963 (plurality opinion) (observing\nthat \xe2\x80\x9c[d]ecision in this area of constitutional adjudication is a matter of\ndegree\xe2\x80\x9d); Summit County Bd. of Elections, 545 N.E.2d at 1260 (upholding two-year residence requirement but deeming it \xe2\x80\x9cconceivable that such\na requirement may be too long in duration to serve a legitimate state\ninterest\xe2\x80\x9d).\nAccordingly, we would note that these provisions raise constitutional\nconcerns, and we would recommend that consideration be given to shortening the ten- and fifteen-year residence requirements for USVI governors, lieutenant governors, and judges. Cf. H.R. Doc. No. 96-375, at iv,\n10, 22 (recommending that 1980 proposed constitution be revised to\nrequire that the Governor and Lieutenant Governor have been domiciliaries of the USVI for ten years instead of fifteen years, even though\nprovision required only five years of residence immediately preceding the\ndate of taking office).\nE. Potentially Unequal Legislative Districts\nThe proposed constitution defines electoral districts for several USVI\noffices, including members of the USVI Senate. The Senate, which would\nserve as the USVI\xe2\x80\x99s unicameral legislature, would include between eleven\nand fifteen members. Proposed Const. art. V, \xc2\xa7\xc2\xa7 1, 2(a). Beginning with\nthe first election in 2012, the Senate would consist of (1) six Senators\nelected \xe2\x80\x9cat large\xe2\x80\x9d by the Islands as a whole, three of whom must be residents of St. Croix and three of whom must be residents of St. Thomas or\nSt. John; (2) two Senators elected from each of two sub-districts on St.\nCroix; (3) two elected from each of two sub-districts on St. Thomas; and\n(4) one elected from St. John. Id. art. V, \xc2\xa7 2(a)(1). At least once every ten\nyears and within 120 days of the publication of the official census for the\nIslands, the Senate would be required to appoint a \xe2\x80\x9creapportionment\ncommission,\xe2\x80\x9d which would develop a plan, to be approved by the USVI\nSupreme Court, for the reapportionment of \xe2\x80\x9cAt-Large and sub-district\n\n92\n\n\x0cDepartment of Justice Views on the Proposed Constitution of the U.S. Virgin Islands\n\nsenate seats that are contiguous and compact areas.\xe2\x80\x9d Id. art. V, \xc2\xa7 2(b). 7\nAlthough the proposed constitution provides that the areas in these districts \xe2\x80\x9cshall be constituted as to give, as nearly as is practicable, representation in proportion to the census population,\xe2\x80\x9d the plan also would be\nrequired to \xe2\x80\x9cprovide for at least one Senator from St. John.\xe2\x80\x9d Id. art. V,\n\xc2\xa7 2(b). These provisions, particularly the reservation of a Senate seat for\nSt. John, raise equal protection concerns because they may prove to be at\nodds with the principle of \xe2\x80\x9cone person one vote.\xe2\x80\x9d\nThe Supreme Court has held that the Equal Protection Clause of the\nFourteenth Amendment requires states to \xe2\x80\x9c\xe2\x80\x98make an honest and good faith\neffort to construct districts [for legislative representatives] as nearly of\nequal population as is practicable.\xe2\x80\x99\xe2\x80\x9d Larios v. Cox, 300 F. Supp. 2d 1320,\n1339 (N.D. Ga. 2004) (quoting Reynolds v. Sims, 377 U.S. 533, 556\n(1964)), aff\xe2\x80\x99d, Cox v. Larios, 542 U.S. 947 (2004). As noted above, this\nrequirement is applicable to the USVI by statute. See 48 U.S.C. \xc2\xa7 1561;\nMoolenaar v. Todman, 433 F.2d 359, 359 (3d Cir. 1970) (per curiam).\nAccordingly, insofar as the islands comprising the USVI have (or later\ndevelop) populations significantly disproportionate to the number of seats\nreserved for them in the Senate, the provisions for specified geographic\nrepresentation may be subject to challenge for violating this \xe2\x80\x9cone person\none vote\xe2\x80\x9d requirement of equal protection.\nThe Supreme Court has established a burden-shifting framework for\nevaluating \xe2\x80\x9cone person one vote\xe2\x80\x9d claims based on the deviation in population per representative between the most overrepresented and the most\nunderrepresented electoral districts in a jurisdiction, factoring in at-large\nrepresentatives. See, e.g., Bd. of Estimate of N.Y. City v. Morris, 489 U.S.\n688, 701\xe2\x80\x9302 & n.9 (1989); Brown v. Thomson, 462 U.S. 835, 842\xe2\x80\x9343\n(1983). As a general rule, \xe2\x80\x9can apportionment plan with a maximum population deviation under 10%\xe2\x80\x9d constitutes only a \xe2\x80\x9c\xe2\x80\x98minor deviation from\nmathematical equality\xe2\x80\x99\xe2\x80\x9d and is \xe2\x80\x9c\xe2\x80\x98insufficient to make out a prima facie\ncase of invidious discrimination under the Fourteenth Amendment.\xe2\x80\x99\xe2\x80\x9d\nBrown, 462 U.S. at 842 (quoting Gaffney v. Cummings, 412 U.S. 735, 745\n(1973)). Districting plans with such deviations may not be \xe2\x80\x9cautomatically\nimmune from constitutional attack,\xe2\x80\x9d but they are at least \xe2\x80\x9cpresumptively\nconstitutional, and the burden lies on the plaintiffs to rebut that presump7 Article V, \xc2\xa7 2(b) refers to a plan for \xe2\x80\x9creappointment\xe2\x80\x9d rather than \xe2\x80\x9creapportionment.\xe2\x80\x9d\nWe assume this is a typographical error.\n\n93\n\n\x0c34 Op. O.L.C. 73 (2010)\n\ntion.\xe2\x80\x9d Larios v. Cox, 300 F. Supp. 2d at 1340\xe2\x80\x9341; see also Cox v. Larios,\n542 U.S. at 949 (Stevens, J., concurring) (describing Court\xe2\x80\x99s summary\naffirmance as \xe2\x80\x9cproperly reject[ing]\xe2\x80\x9d the defendants\xe2\x80\x99 \xe2\x80\x9cinvitation\xe2\x80\x9d to\n\xe2\x80\x9ccreat[e] a safe harbor for population deviations of less than 10 percent\xe2\x80\x9d).\n\xe2\x80\x9cA plan with larger disparities in population . . . creates a prima facie case\nof discrimination and therefore must be justified by the State.\xe2\x80\x9d Brown,\n462 U.S. at 842\xe2\x80\x9343; see also Voinovich v. Quilter, 507 U.S. 146, 160\xe2\x80\x9362\n(1993). Legitimate justifications for a disparity may include preserving\nthe integrity of political subdivisions or recognizing natural or historical\nboundaries, see DOJ Views, 4B Op. O.L.C. at 766 (citing Reynolds v.\nSims, 377 U.S. 533, 580\xe2\x80\x9381 (1964); Swann v. Adams, 385 U.S. 440, 444\n(1967)), and the Supreme Court has upheld even a sizeable deviation from\npopulation equality in light of \xe2\x80\x9cthe importance, consistency, and neutrality of the state policies alleged to require the population disparities.\xe2\x80\x9d\nBrown, 462 U.S. at 848 (Stevens and O\xe2\x80\x99Connor, JJ., concurring). On the\nother hand, the Court has cautioned that \xe2\x80\x9c[e]ven a neutral and consistently\napplied criterion such as use of counties as representative districts can\nfrustrate Reynolds\xe2\x80\x99 mandate of fair and effective representation if the\npopulation disparities are excessively high.\xe2\x80\x9d Id. at 845.\nThe 1980 proposed constitution similarly required a representative from\nSt. John in the USVI Senate. Id. art. V, \xc2\xa7\xc2\xa7 2, 3, in H.R. Doc. No. 96-375,\nat 7. With respect to this requirement, the Justice Department concluded:\n\xe2\x80\x9cWhether such a [one-person, one-vote] violation would ultimately occur\nwould likely turn on specific facts in existence at the time.\xe2\x80\x9d DOJ Views,\n4B Op. O.L.C. at 766. That statement remains true today. But according\nto the Attorney General of the USVI, data from the 2000 census indicate\nthat the St. John\xe2\x80\x99s senate district would involve a deviation of 53% from\nthe ideal of equal representation. USVI AG Op. at 13.\nThe USVI\xe2\x80\x99s island geography and any historic political representation\nfor St. John might help justify the inequalities between districts. See, e.g.,\nTravis v. King, 552 F. Supp. 554, 560 (D. Haw. 1982) (concluding\n\xe2\x80\x9c[b]ased on the unique geographic and economic insularity of the four\nbasic island units,\xe2\x80\x9d that the objective of providing each main island of\nHawaii \xe2\x80\x9cmeaningful representation\xe2\x80\x9d in the state legislature was \xe2\x80\x9ca rational one\xe2\x80\x9d); Burns v. Gill, 316 F. Supp. 1285, 1292, 1293, 1299 (D. Haw.\n1970) (upholding disparities between electoral districts in Hawaii based\non the \xe2\x80\x9cconclusion that if [Hawaii\xe2\x80\x99s] voters are to have functional representation in their State legislature each basic island unit must be given\n94\n\n\x0cDepartment of Justice Views on the Proposed Constitution of the U.S. Virgin Islands\n\nmeaningful recognition therein\xe2\x80\x9d). Indeed, the Revised Organic Act,\nthough permitting reapportionment \xe2\x80\x9cas provided by the laws of the Virgin Islands,\xe2\x80\x9d initially provided for separate representation of St. John in\nthe USVI Senate. 48 U.S.C. \xc2\xa7 1571(b); see generally Moolenaar v.\nTodman, 317 F. Supp. 226, 229\xe2\x80\x9330 (D.V.I. 1970) (describing historical\nenactments regarding representation in USVI Senate), rev\xe2\x80\x99d, 433 F.2d\n359 (3d Cir. 1970) (per curiam). We understand, however, that at present\nthe USVI legislature does not include a Senator elected solely by St. John\nvoters; the USVI Senate, rather, includes seven Senators from the District\nof St. Croix and seven from the District of St. Thomas/St. John, plus one\nSenator elected at large who must be a resident of St. John. See Legislative History, Legislature of the Virgin Islands, http://www.legvi.org/\nLEGVI2008/history.htm (last visited ca. Feb. 2010). Insofar as guaranteed representation for St. John is a departure from current or historic\npractice, or if disparities are simply too large to be justified by such\nhistoric practices, the USVI\xe2\x80\x99s senatorial districts under the proposed\nconstitution might be subject to an equal protection challenge. For example, the court in Travis v. King rejected a districting plan for the Hawaii\nstate senate with a 43.18% total deviation even though the state invoked\nthe need for separate representation of the state\xe2\x80\x99s island units as a justification for the disparity. 552 F. Supp. at 560, 562\xe2\x80\x9363; see also, e.g., Bd.\nof Estimate of N.Y. City, 489 U.S. at 702\xe2\x80\x9303 (concluding that \xe2\x80\x9caccommodat[ion] [of] natural and political boundaries as well as local interests\xe2\x80\x9d\nwas insufficient to justify a 78% disparity in representation of New York\nCity\xe2\x80\x99s five boroughs on a municipal board).\nBecause any challenge to USVI\xe2\x80\x99s Senate districts would be factspecific, we do not recommend specific changes to the proposed constitution to address these concerns. Indeed, we note that although the Justice\nDepartment indicated potential \xe2\x80\x9cone person one vote\xe2\x80\x9d concerns with\nrespect to the 1980 proposed constitution, see DOJ Views, 4B Op. O.L.C.\nat 766, the President did not communicate such concerns to Congress in\nhis transmittal message, see H.R. Doc. No. 96-375, at iii\xe2\x80\x93v. As in the\n1980 Justice Department memorandum, however, we would note the\npotential litigation risk posed by these provisions.\n\n95\n\n\x0c34 Op. O.L.C. 73 (2010)\n\nF. Territorial Waters, Marine Resources,\nand Submerged Lands\nArticle XII, Section 2, concerning \xe2\x80\x9cPreservation of Natural Resources,\xe2\x80\x9d\nstates:\nThe Government shall have the power to manage, control and develop the natural and marine resources comprising of submerged lands,\ninlets, and cays; to reserve to itself all such rights to internal waters\nbetween the individual islands, claim sovereignty over its interisland waters to the effect that the territorial waters shall extend 12\nnautical miles from each island coast up to the international boundaries. This is an alienable right of the people of the Virgin Islands of\nthe U.S. and shall be safeguarded.\nProposed Const. art. XII, \xc2\xa7 2.\nThe intended meaning and effect of this provision are not entirely clear.\nTo the extent that its reference to a claim of \xe2\x80\x9csovereignty\xe2\x80\x9d over coastal\nwaters is intended to derogate from the sovereignty of the United States\nover those waters, it is inconsistent with federal law and should be removed. See Proclamation No. 5928, 54 Fed. Reg. 777 (Jan. 9, 1989)\n(proclamation of U.S. territorial sea). In addition, by statute, the United\nStates has, subject to certain exceptions, conveyed to the USVI its right,\ntitle, and interest in submerged lands and mineral rights in those submerged lands out to three miles. 48 U.S.C. \xc2\xa7\xc2\xa7 1705, 1706 (2006); see\nalso, e.g., Proclamation No. 7399, 66 Fed. Reg. 7364 (Jan. 22, 2001)\n(proclamation of Virgin Islands Coral Reef National Monument). Any\nassertion of USVI control over submerged lands and mineral rights beyond those federal statutory limits would be inconsistent with federal law\nand should be removed. Federal law also reserves to the United States\nexclusive management rights over fisheries within the \xe2\x80\x9cexclusive economic zone.\xe2\x80\x9d 16 U.S.C. \xc2\xa7 1811(a) (2006). Again, the proposed constitution\nmust be made consistent with this federal statutory mandate. While the\nfinal sentence of Article XII, Section 2 acknowledges that the rights it\naddresses are alienable, we recommend modifying this language to make\nclearer that these matters are subject to Congress\xe2\x80\x99s plenary control.\n\n96\n\n\x0cDepartment of Justice Views on the Proposed Constitution of the U.S. Virgin Islands\n\nG. Bill of Rights Provisions\nAs required by the Enabling Act, the proposed constitution includes a\nbill of rights. Proposed Const. art. I; Enabling Act \xc2\xa7 2(b)(3). Consistent\nwith the supremacy of federal law, we understand these provisions as not\npurporting to constrain the federal government or federal law but as\nconstraining only the USVI local government that would be established\nby this constitution and local laws.\nIn its memorandum on the 1980 proposed constitution, the Department\nof Justice observed that some provisions of the bill of rights and related\nsections in that constitution were not \xe2\x80\x9cdrafted with adequate clarity and\nprecision\xe2\x80\x9d and might therefore \xe2\x80\x9cresult in litigation that could burden or\ncurtail effective local government.\xe2\x80\x9d DOJ Views, 4B Op. O.L.C. at 761.\nThe same could be said of a number of provisions in the current proposed\nconstitution. For example, the current proposed constitution, like its 1980\npredecessor, includes protections of unclear scope for the \xe2\x80\x9cdignity of the\nhuman being,\xe2\x80\x9d the \xe2\x80\x9cright to a reasonable expectation of privacy,\xe2\x80\x9d and the\n\xe2\x80\x9cright to examine any public document and to observe the deliberation of\nany agency of government.\xe2\x80\x9d Proposed Const. art. I, \xc2\xa7\xc2\xa7 1, 3, 4. The constitution also prohibits \xe2\x80\x9cemployment of children\xe2\x80\x9d in certain occupations\nwithout specifying the maximum age of a \xe2\x80\x9cchild,\xe2\x80\x9d id. art. I, \xc2\xa7 11(e); see\nalso id. art. XII, \xc2\xa7 1 (indicating that \xe2\x80\x9c[t]he Government shall establish\nlaws to govern the employment of children under the age of fifteen\xe2\x80\x9d); and\nit fails to specify whether many of the rights it establishes apply only to\ngovernment actors or also to intrusions by private parties, see DOJ Views,\n4B Op. O.L.C. at 761\xe2\x80\x9363.\nIn 1980, the President declined to recommend changes to address such\nconcerns. He observed:\nI believe there are some provisions in the constitution that will require interpretation by the courts. . . . However, I do not feel it is appropriate for me to question the wisdom of entrusting the interpretation of these provisions to the courts. This is a matter for serious\ndiscussion by the people of the Virgin Islands, for this document\nshould truly be one of their own making.\nH.R. Doc. No. 96-375, at v. Because the same could be said of unclear\nprovisions in the bill of rights and related sections of the current proposed\nconstitution, we do not address such provisions in detail or recommend\n97\n\n\x0c34 Op. O.L.C. 73 (2010)\n\nparticular changes, but simply note the potential for uncertainty and\nlitigation.\nH. Repeal of Organic Statute Provisions\nWe also note that because federal law is superior to territorial enactments and may preempt contrary provisions of territorial law, Congress\nmay need to repeal certain provisions of the USVI\xe2\x80\x99s organic statutes to\nenable this proposed constitution to operate, assuming it is approved by\nCongress and the USVI voters. Cf. DOJ Views, 4B Op. O.L.C. at 771\n(noting that a provision of the 1980 proposed constitution repealing laws,\nexecutive orders, and regulations inconsistent with the proposed constitution would be invalid if applied to \xe2\x80\x9cmatters over which the Federal Government retained jurisdiction\xe2\x80\x9d); H.R. Doc. No. 96-375, at v (noting that\nthis transitional provision of the 1980 constitution \xe2\x80\x9ccould exceed the\nauthority of the Constitutional Convention if it is read to affect Federal\nlaw\xe2\x80\x9d). Some federal regulations and executive orders may also need to be\nrevised or revoked. The legislative history of the Enabling Act contemplates the submission by the President of a list of provisions requiring\nrepeal \xe2\x80\x9cas a part of his comments on the constitution.\xe2\x80\x9d S. Rep. No. 941033, at 4. In 1980 the President, however, did not transmit such a list as\npart of his comments on the 1980 proposed constitution, but rather \xe2\x80\x9cindicated that [he] [would] submit the list in a timely manner to enable the\nCongress to effect the repeals prior to the effective date of the constitution.\xe2\x80\x9d S. Rep. No. 97-66, at 4.\nI. Effect of Congressional Action or Inaction\non the Proposed Constitution\nFinally, the Enabling Act, as noted, provides that a proposed USVI\nconstitution \xe2\x80\x9cshall be deemed to have been approved\xe2\x80\x9d if Congress takes\nno action on it within sixty legislative days after its submission by the\nPresident. Enabling Act \xc2\xa7 5. In 1978, Congress took no action on the\nproposed USVI constitution, which was then submitted to the USVI\nvoters pursuant to the Enabling Act. See DOJ Views, 4B Op. O.L.C. at\n760 & n.1, 772. In contrast, Congress expressly approved, by joint resolution, a modified version of the 1980 proposed constitution \xe2\x80\x9cfor submission to the people of the Virgin Islands in accordance with the provisions of\xe2\x80\x9d the Enabling Act. Pub. L. No. 97-21, 95 Stat. at 105.\n98\n\n\x0cDepartment of Justice Views on the Proposed Constitution of the U.S. Virgin Islands\n\nAs the Justice Department\xe2\x80\x99s 1980 memorandum explained, congressional inaction does not satisfy the constitutional requirements of bicameralism and presentment for valid federal legislation and therefore \xe2\x80\x9ccannot\nhave any legal effect, except as . . . the occurrence of a condition which\npermits the submission of the constitution to the qualified electors of the\nVirgin Islands.\xe2\x80\x9d DOJ Views, 4B Op. O.L.C. at 772. Such inaction therefore \xe2\x80\x9cwould not have any curative effect on the defects of the constitution.\xe2\x80\x9d Id. In fact, even formal approval of the proposed constitution need\nnot be construed as federal endorsement of any constitutionally defective\nor otherwise invalid provisions. Upon signing the joint resolution approving the revised 1980 proposed constitution, President Reagan observed:\n\xe2\x80\x9cThis legislation approves referring the constitution to the voters of the\nVirgin Islands for referendum. It does not represent a Federal endorsement of the constitution\xe2\x80\x99s substantive provisions.\xe2\x80\x9d Statement on Signing\nat 617. The legislative history indicates that Congress shared the same\nview. See S. Rep. No. 97-66, at 5 (expressing \xe2\x80\x9cno opinion on the advisability or merits of any provisions in the proposed constitution\xe2\x80\x9d); H.R.\nRep. No. 97-25, at 3 (expressing \xe2\x80\x9cno opinion on the merits\xe2\x80\x9d of certain\npotentially invalid provisions because the committee \xe2\x80\x9cbelieve[d] that this\nis a matter to be considered by the voters, or perhaps, at some future time,\nby the courts\xe2\x80\x9d).\nRONALD WEICH\nAssistant Attorney General\nOffice of Legislative Affairs\n\n99\n\n\x0c'