Asian American Law Journal
Volume 6
Article 2
January 1999
Equity Denied: Historical and Legal Analyses in
Support of the Extension of U.S. Veterans' Benefits
to Filipino World War II Veterans
Michael A. Cabotaje
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Recommended Citation
Michael A. Cabotaje, Equity Denied: Historical and Legal Analyses in Support of the Extension of U.S. Veterans' Benefits to Filipino World
War II Veterans, 6 Asian Am. L.J. 67 (1999).
Available at: http://scholarship.law.berkeley.edu/aalj/vol6/iss1/2
Link to publisher version (DOI)
http://dx.doi.org/https://doi.org/10.15779/Z38129V
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Equity Denied: Historical and Legal
Analyses in Support of the Extension of
U.S. Veterans' Benefits to Filipino
World War II Veterans
Michael A. Cabotajet
FilipinoArmy veterans played an essentialrole in the United States' victory in the Pacific during World War II. Although their contributions to
this effort were recognized by the President and Congress, these individuals have been denied the promised right to veterans' benefits. The
author presents the historical context behind the promulgation of 38
US.C. § 107, the key legislation that denied Filipino World War II veterans their benefits. The author explains the judicialreasoningwhich held
§107 constitutional and argues that given the body of discriminatory
case law which has been developed, the denial of benefits to the Filipino
veterans is unjust and warrantsreconsideration.
INTRODUCTION
PhilippineArmy veterans are nationalsof the United States and will continue in that status until July 4, 1946. They fought, as American Nationals, under the American flag, and under the direction of our military
leaders. They fought with gallantry and courage under most difficult
conditions during the recent conflict. Their officers were commissioned
by us. Their official organization, the Army of the PhilippineCommonwealth, was taken into the Armed Forcesof the United States by executive
order of the president of the United States on July 26, 1941. That order
has never been revoked or amended
I consider it a moral obligation of the UnitedStates to look after the welfare of the PhilippineArmy veterans.
-President Harry S. Truman, February 20, 1946'
t J.D. University of California, Berkeley School of Law (Boalt Hall), 1998. Special thanks to
Professor Stephen Sugarman for his advice and suggestions throughout this project.
1. President Harry S. Truman, Statement by the President Concerning Provisions in Bill Affecting PhilippineArmy Veterans, PUB. PAPERS 124 (Feb. 20, 1946).
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[Vol. 6:67
The courage, sacrifice, and loyalty of World War II Filipino soldiers
were certainly crucial to the United States' victory in the war against the
Japanese. Called into service of the United States Armed Forces in the Far
East (USAFFE) by Military Order by President Franklin D. Roosevelt on
July 26, 1941, military forces of the Philippines fought courageously both
to defend the United States' flag and to procure the independence of their
mother country, the Philippines. These soldiers from the then-U.S. Territory undoubtedly deserve appreciation and recognition from the U.S. for
defending the ideals of democracy and liberty.
In the summer of 1996, both the House and the Senate sought to acknowledge the importance of the Philippine soldiers and civilians who
helped in the effort by unanimously approving a Concurrent resolution.
The Resolution urged the President to make a Proclamation that would
recognize and honor the Filipino veterans for their wartime service. 2 Subsequently, on October 17, 1996, President Clinton signed a Proclamation
honoring the Filipino veterans and thanking them for their contributions to
3
the fight for freedom during World War I1.
Despite this recognition and honor bestowed upon these Filipino
World War II veterans, the United States government has denied them one
important right given to everyone else who has served the United States in
the active military-namely, the right to veterans' benefits.
Today, the Filipino veterans claim that the United States government
promised them pay and benefits for their voluntary military service under
the U.S. Armed Forces and for their oath of allegiance to the Constitution
of the United States.4 Soon after the war ended, the 79th Congress,
2.
The Concurrent Resolutions by the U.S. Congress said that Filipino World War 11veterans
should be recognized and honored "for their defense of democratic ideals and their important contribution to the outcome of World War II." H.R. Con. Res. 191, 104th Cong. (1996) (enacted); See also,
S. Con. Res. 64, 104th Cong. (1996) (enacted).
3. President Clinton said in his proclamation:
During the dark days of World War II, nearly 100,000 soldiers of the Philippine Common-
wealth Army provided a ray of hope in the Pacific as they fought along side the United
States and Allied forces for 4 long years to defend and reclaim the Philippine Islands from
Japanese aggression. Thousands more Filipinos joined U.S. Armed Forces immediately after the war and served in occupational duty throughout the Pacific Theater. For their extraordinary sacrifices in defense of democracy and liberty, we owe them our undying gratitude.
Valiant Filipino soldiers fought, died, and suffered in some of the bloodiest battles of World
War II, defending beleaguered Bataan and Corregidor, and thousands of Filipino prisoners
of war endured the infamous Bataan Death March and years of captivity. Their many guerilla actions slowed the Japanese takeover of the Western Pacific region and allowed the U.S.
forces the time to build and prepare for the allied counterattack on Japan. Filipino troops
fought side-by-side with the U.S. forces to secure their island nation as the strategic base
from which the final effort to defeat Japan was launched.
Proclamationby PresidentClinton HonoringFilipino Veterans, U.S. Newswire, Oct. 18, 1996, available in LEXIS, News Groupfile Beyond Two Years.
4. Apparently, the Filipino veterans heard of these promises through news report, saying that
President Roosevelt and General Douglas MacArthur intended to repay them with the same compensation and benefits given to American men and women with whom they fought side by side in the
1999]
EXTENSION OFBENEFITS TO FILIPINO VETERANS
through the Rescission Acts of 1946, which are nowcodified in 38 U.S.C.
§ 107, took away the benefits and recognition earned by the Filipino World
War II veterans. The Rescission Acts mandated that service performed by
the Philippine military forces, while such forces were in the service of the
Armed Forces of the United States, shall not be deemed active service for
purposes of diverse veterans' benefits programs. 5 As a result, several
United States veterans' benefits-namely pension, medical, and burial
benefits-are statutorily unavailable to most Filipino World War II veterans, even though all other veterans who similarly served under the U.S.
flag enjoy the full range of benefits provided by the Veterans Administration.
Today, about 28,000 Filipino veterans have been naturalized and cur-
rently live in the United States. 6 Many of them came to this country over
the last seven years as a result of the Immigration Reform Act of 1990,
which specifically made the Filipino veterans eligible for American citizenship. 7 Looking for a better life and better opportunities in the United
States, the veterans may possibly have believed that after getting their citizenship, they would naturally get their deserved veterans' benefits. 8 They
were naively mistaken. Without these benefits, many of the Filipino veterans living in America are destitute and live in poor conditions. 9
Philippines. Informal conversations with American military commanders also led many Filipino soldiers to believe that they were promised full veterans' benefits upon completion of their services with
the U.S. military. See Interview with Vicente L. Eugenio, Filipino World War II veteran, in San Francisco, Cal. (Mar. 4, 1998). However, those who oppose the Filipino veterans' right to benefits claim
that these news accounts about promises of full U.S. veterans' benefits being made to Filipino veterans are unsubstantiated, despite the best-faith efforts of the Veterans Affairs Committee to find documentation. Bob Stump, Filipino Vets and Fairness,WASH. PoST, Jan. 28, 1998, at A17. Francisco
Ortigas, Jr., in his essay "The Filipino Veteran of the United States Army," had this to say about these
about the alleged promises: "Before the war ended, responsible Americans had promised the extension of veteran benefits to Filipino soldiers fighting under the United States Army. Those promises,
even if not legally binding on the Government of the United States, should be kept because they were
made in good faith by American officials and were likewise accepted in good faith by the Filipino
people." 93 CONG. REc. A1835, A1837 (1947) (extension of remarks of Rep. Edward J. Devitt on
"Filipino Veterans of the United States Army"). In this paper, I focus not on the alleged promises,
but rather on the issues of equity and the equal treatment of Filipino veterans.
5. See 38 U.S.C. §107(a) (1998).
6. See Gil Griffin, Warriors Still: Filipino Veterans Who Served Side-By-Side With American
Forces in World War 1I Now Battlefor Full MilitaryService Benefits, SAN DIEGO UNION-TRiB., Feb.
1, 1998, at D1. About 42,000 other Filipino World War II veterans live in the Philippines, a third of
whom have U.S. naturalization cases pending. See id. For purposes of this note, however, I will focus
mainly on the Filipino veterans in the United States.
7. Benjamin Pimentel, DreamingofHome, S.F. CHRON., Dec. 14, 1997, at ZI.
8. Griffin, supra note 6. The Filipino veterans, when Congress granted them eligibility for
American citizenship through the 1990 Immigration reform Act, came to the United States with
"starry-eyed ideas," with the hope they would be duly compensated. Many obstacles contributed to
these misguided ideas. For one thing, many of them are not highly educated and do not know how the
United States Congress or bureaucracy works. Possibly, they were given inaccurate information about
the immigration process. See id.
9. Once they came to the United States and realized that they might not get compensated for
their wartime service, their inability to comprehend the U.S. bureaucracy, added to their financial in-
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[Vol. 6:67
These veterans and their supporters believe that they have suffered a
great wrong at the hands of the United States government. In an effort to
restore the benefits that were taken away from them more than 50 years
ago by the Rescission Acts of 1946, many of the veterans have formed political organizations, such as the American Coalition of Filipino Veterans
in Washington, D.C., to educate Congress on the issues they face and to
lobby in support of the Filipino Veterans Equity Act.10
The Filipino Veterans Equity Act seeks to amend 38 U.S.C. § 107 by
making certain Filipino World War II veterans-namely, the veterans who
fought with the Philippine Commonwealth Army, the New Philippine
Scouts, and the recognized guerilla forces-and their dependents are eligible for benefits administered by the Department of Veterans Affairs (VA)
under the same conditions as U.S. veterans. Two bills are before the 105th
Congress: H.R. 836 (Filipino Veterans Equity Act of 1995), co-authored
by Representatives Benjamin Gilman (R-N-Y) and Bob Filner (D-CA), and
S. 623 (Filipino Veterans Equity Act of 1997), co-authored by Senators
Daniel Inouye (D-HI) and Daniel Akaka (D-HI).
At the time of this writing, the prospect for these bills looks bleak.
Chairman Bob Stump (R-AZ) of Veterans' Affairs thinks, among other
reasons, that the House bill costs too much. 1 The new congressional payas-you-go rule would require his committee to make up the nearly halfbillion-dollar annual cost of pensions matching those given American
servicemen. 1 2 Because the Chairman of Veterans Affairs opposes H.R.
836, the bill is stuck in committee and will likely fail. 13 The fate of the
Senate version of the Filipino Veterans Equity Act S. 623 is similar. S.
623 has been reduced to a bill that gives the Filipino veterans only funeral
and burial expenses. 1 4 It says that the old Filipino soldiers must die first
5
before the U.S. government can repay them for their military services. 1
It is unlikely that the Filipino veterans who have fought so hard for their
benefits-both on and off the battlefield-will accept this watered-down
version of the Filipino Veterans Equity Bill.16
ability to hire attorneys and their unfamiliarity with the English language, made it even more difficult
to navigate through the immigration and benefits process. See id; see also Pimentel, supra note 7
(describing more stories of the hardships faced by individual Filipino World War II veterans).
10.
Founded in 1995, the American Coalition for Filipino Veterans is a national advocacy or-
ganization representing Filipino American veterans' groups and supportive community groups across
the United States. It is a registered lobby in Congress whose purpose is to help secure the early pas-
sage of the Filipino Veterans Equity Act, or a realistic alternative, in the U.S. Congress,
11. See Under the American Flag,WASH. POST, Dec. 23, 1997, at A22. See also Stump, supra
note 4, at A17.
12. See Under the American Flag, supranote 11.
13. See id.
14. See id.
15. See id.
16.
1998).
See Telephone Interview with Congressional Aide to Representative Bob Filner (Feb. 26,
1999]
EXTENSION OFBENEFITS TO FILIPINO VETERANS
Several veterans have also filed cases in various courts, claiming that
38 U.S.C. § 107 is an unconstitutional violation of Equal Protection. 17
The U.S. Court of Appeals in Quiban v. Veterans Administration, the
leading court case on this issue, applied the rational basis test and upheld
18
the statute.
Although their efforts in the U.S. Courts have failed and although the
Filipino Veterans Equity Bill is unlikely to pass in Congress, the old Filipino World War II veterans and their supporters continue to fight. Their
efforts are currently aimed at Congress and the President. The purpose of
this paper is to provide a legal and historical argument for the Filipino
World War II veterans to help them get their deserved veterans' benefits. I
will: (1) examine the history behind the legislation that denied the Filipino
World War II veterans their promised benefits; (2) explain the judicial reasoning that held §107 constitutional; (3) analyze the history of discriminatory judicial precedents that led to the Quiban decision; and (4) argue
that the denial of benefits to the Filipino World War II veterans is unjust,
given the little-known controversy behind the judicial precedents.
I.
HISTORICAL BACKGROUND
The benefit status of Philippine World War II veterans is entwined
with the history of United States-Philippine relations. The opinion in Quiban by the then Circuit Judge Ruth Bader Ginsberg provides a brief account of this history, from the United States' acquisition of the Philippines
from Spain in 1898 to the passage of the Rescission Act of 1946. In Subsection A, I will restate Judge Ginsberg's account 1 9 -from the United
States' acquisition of the Philippines after the Spanish-American War in
1898 to the liberation of the Philippines from Japanese occupation in
1945-but with greater detail and more background history for a fuller,
more complete illustration. My account in Subsection A, however, leaves
out some important judicial precedents that led to the singling out of the
Filipino veterans in 1946. I will discuss these earlier cases later in Section
III, where I will analyze Quiban in light of the debatable precedents. In
17. See, e.g., Quiban v. Veterans Admin., 928 F.2d 1154 (D.C. Cir. 1991); Besinga v. United
States, 14 F.3d 1356 (9th Cir. 1993); Talon v. Brown, 999 F.2d 514 (Fed. Cir. 1993); Quizon v.
United States Veterans Admin., 713 F. Supp. 449 (D.D.C. 1989); Filipino Am. Veterans and Dependents Ass'n v. United States, 391 F. Supp. 1314 (N.D. 1974); Florentino v. Brown, 7 Vet. App. 369
(1995); Rosalinas v. Brown, 5 Vet. App. 1 (1993); Dela Penav. Derwinski, 2 Vet. App. 80 (1992).
18. 928 F.2d 1154, 1161 (D.C. Cir. 1991) (holding that 38 U.S.C. § 107 did not violate equal
protection). Accord Besinga v. United States, 14 F.3d 1356, 1359-60 (9th Cir. 1994) (applying the
Quiban analysis to a Filipino veteran who, sometime after his service, became a resident and a naturalized United States citizen); Talon v. Brown, 999 F.2d 514 (Fed. Cir. 1993). I will explore these and
other cases in following sections.
19. See 928 F.2d at 1156-58 (In these pages, Judge Ginsberg outlined what she thought was the
relevant history that led up to the Rescission Act of 1946).
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Subsection B, I will discuss the Rescission Acts of 1946 which denied
certain Filipino World War II benefits that they earned during their years
of service under the United States flag.
A.
US.-PhilippineRelations, World War II, and the FilipinoRecruits
Ceded by Spain to the United States after the Spanish-American War,
the Philippine Islands became a U.S. territory with the 1899 Treaty of
Paris,2 0 which was signed on December 10, 1898. In the Treaty, the old
Spanish colonial power transferred sovereignty over the Philippines to the
21
United States in return for $20 million.
In opposition to yet another colonial regime, the Philippine-American
War broke out a few months later on February 4, 1899.22 For three years,
Filipino rebels fought the new imperial power occupying their lands, just
as they did the old Spanish colonizers. 2 3 The United States government
responded by establishing the Philippine Scouts, now called the "Old
Philippine Scouts," on September 4, 1899. The job of the Old Philippine
Scouts was to quell the Philippine rebel forces. 2 4 The Philippine Scouts
were made up of units of Filipino enlisted men led by United States Army
officers.2 5 Congress soon incorporated these troops, with an authorized
strength of 12,000, into the regular U.S. Army regiments at the outbreak of
World War 11.26 The Old Philippine Scouts have always been considered
members of the United States Army, and these roughly 12,000 veterans
have always received full United States veterans' benefits for their service
in World War 11.27
After the rebels surrendered and the Philippine-American War came
to an end, the United States was able to form a territorial government in
the Philippines.2 8 Throughout the colonial period, the United States took
a country crushed by three and a half centuries of Spanish rule and began a
civil government, organized a Philippine constabulary for law enforcement, set up a new judicial system, developed public works, improved
public health, implemented a free public, compulsory, and universal education system, and expanded general prosperity. 2 9 To the Filipinos, the
colonial period brought an understanding of civil liberty, of fair play, free
20.
21.
22.
23.
24.
30 Stat. 1754 (1899).
See TUBANGUI ET AL., THE FILIPINO NATION 109 (1982).
See id
See id.
See RICARDO TROTA JOSE, THE PHILIPPINEARMY 1935-1942, at 14 (1992).
25. See id.
26. See Besingav. United States, 14 F.3d 1356, 1359 n.6 (9th Cir. 1994); see also Act of Feb. 2,
1901, § 36, 31 Stat 748, 757-58.
27. See Quiban v. Veterans Admin., 928 F.2d 1154, 1156 (D.C. Cir. 1991).
28. The U.S. Congress authorized President William McKinley to establish a civil government
in the Islands with the Spooner Amendment on March 2, 1901. See TUBANGUI ET AL., supra note 21,
at 114.
29.
See generally id. at 114-27.
1999]
EXTENSION OFBENEFITS TO FILIPINO VETERANS
speech, and political controversy-democratic ideals unknown to many
30
Asian nations at that time.
From the beginning, the United States government intended that the
Philippines would one day become an independent nation.3 1 This intent
became manifested on August 29, 1916, by the passage of the Philippine
Autonomy Act, which granted Filipinos greater control over their domestic
affairs. 3 2 After years of discussion, Congress subsequently passed the
Philippine Independence Act of 1934. 3 3 It would not take effect in its entirety, however, until July 4, 1946, the day established in a Proclamation
signed by President Franklin D. Roosevelt as the end of the Philippine
commonwealth and the beginning of a new Philippine government. 3 4
Pending full independence, the Act authorized the Philippines to
adopt a constitution and organize a new government, which the Philippines
proceeded to do in 1935. 3 5 The new Philippine Commonwealth legislature passed its first Act that same year, the National Defense Act, which
established the Philippine Army. 3 6
Although the Philippine Independence Act gave the Philippines broad
powers over its internal affairs, the United States retained plenary and unrestricted power over the Philippines until its sovereignty over them was
formally withdrawn on July 4, 1946. 3 7 Until that date, for example, the
United States was to keep certain powers, such as control over foreign affairs and defense against external attack. 3 8 One such power that was specifically relevant to the status of the approximately 200,000 to 300,000
World War II veterans of the Philippine Army was Section 2(a)(12) of the
Act. 3 9 This section authorized the United States, before Philippine Independence, to maintain [United States] military and other reservations and
armed forces in the Philippines, and, upon order of the President, to call
30. See DAVID BERNSTEIN, THE PHILIPPINE STORY at ix-x (1947). The total picture is not as
rosy, however, as I will explain later in this paper.
31. See TUBANGUI ET AL., supra note 21, at 128. With regard to the Philippines, President William McKinley has said: "The Philippines are ours not to exploit but to develop, to civilize, to educate, to train in the science of self-government." Id.
32. See id. at 137. The preamble of the Philippine Autonomy Act stated that "the purpose of the
people of the United States is to withdraw their sovereignty over the Philippine Islands and to recognize their Independence as soon as a stable government can be established therein." Id.
33. See Pub. L. No. 73-127, § 10(a), 48 Stat. 456,463 (1934). The Philippine Independence Act
was also known as the Tydings-McDuffie Act. The Act authorized the establishment of a constitu-
tional convention to draft a Constitution, provided for independence after a ten-year commonwealth
period, during which the islands would be self-governing but still under the protection of the United
States, and the installment of an American high commissioner to represent the president of the United
States. See TUBANGUI ET. AL., supra note 21, at 143, 145.
34. See TUBANGUI ETAL., supra 21, at 146-47.
35. See id at 145.
36.
37.
See JOSE, supra note 24, at 48.
See Filipino Am. Veterans and Dependents Ass'n v. United States, 391 F. Supp. 1314, 1317
(N.D. Cal. 1974).
38. See JOSE, supra note 24, at 144.
39.
See Quiban v. Veterans Admin., 928 F.2d 1154, 1156 (D.C. Cir. 1991).
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[Vol. 6:67
into service of [United States] armed forces all military forces organized
40
by the Philippine government."
This provision in the Philippine Independence Act soon proved helpful to the U.S. By July 1941, U.S.-Japan relations grew tense after the
breakdown of negotiations in June of that year. 4 1 Japanese aggression
42
continued and spread from China to Taiwan and into South Indochina.
The United States, with an Army unprepared for war in the Pacific, felt the
43
pressure of the Japanese menace.
With the increasing likelihood of war with Imperial Japan, President
Roosevelt, as Commander-in Chief of the U.S. Army and Navy and as
authorized under Section 2(a)(12) of the Philippine Independence Act,
called the Philippine Army to U.S. service. 4 4 In his military order of July
26, 1941, Roosevelt commanded:
I hereby call and order into the service of the armed forces of the United
States for the period of the existing emergency and place under the command of a General Officer, United States Army, to be designated by the
Secretary of War from time to time all the organized military forces of the
Government of the commonwealth of the Philippines, [pirovided,that all
the Commandant of the
naval components thereof shall be placed under
45
Sixteenth Naval District, United States Navy.
In order to coordinate defense efforts and provide combined operations, Roosevelt created an umbrella military command-the United States
Army Forces in the Far East (USAFFE). 4 6 The USAFFE would consist of
all the U.S. Army units in the Philippines and all organized Philippine
47
Army units which were called into the service of the United States.
General Douglas MacArthur was called into active duty as lieutenant general and was appointed commanding general on July 26, 1941.48
After the issuance of the 1941 Military Order, U.S. leadership contemplated that all Philippine Army units which would be called to U.S.
service were to maintain their own "national integrity" with their own uniforms, pay scales, promotion lists, rations, and military laws. 4 9 However,
this understanding quickly changed with the outbreak of war, when Congress authorized $269 million to mobilize, train, equip, and pay the Philippine Army, and it gave General MacArthur authority to allocate the expenditures. 5 0 Thus, the United States, not the Philippines, became largely
40.
41.
42.
43.
44.
45.
46.
47.
48.
49.
50.
Pub. L. No. 73-127, § 2(a)(12), 48 Stat. 456,457 (1934).
See JOSE, supranote 24, at 191.
See id.
See id.
at 192.
See id.
3 C.F.R. Cum. Supp. 1307 (1941).
See JosE, supra note 24, at 192.
See id.
See id.
See id. at 193.
See Quiban v. Veterans Admin., 928 F.2d 1154, 1156 (D.C. Cir. 1991).
19991
EXTENSION OFBENEFITS TO FILIPINO VETERANS
responsible for training and mobilizing the Philippine Army. As the military campaign wore on, distinctions between the U.S. and the Philippine
51
Army forces on the battlefield began to disappear.
The United States entered the war against Japan when the Japanese
launched a surprise attack on the U.S. military base at Pearl Harbor, Hawaii, on December 7, 1941. Soon after, Japan began dropping its bombs
on the Philippines, targeting military installations, airfields, and railways. 5 2 Clark Field in Northern Luzon and Nichols Field near Manila
suffered the most damage, and American air and naval power, which were
so necessary to the defense of the Philippines, were completely wiped out
by December 12.53
The contributions of the Filipino soldiers in the period beginning with
the Japanese invasion of the Philippines cannot be overlooked. About one
hundred thirty thousand men, one hundred thousand of whom were Filipino recruits, served in the USAFFE under the command of General
Douglas MacArthur. 5 4 These Filipino soldiers fought with fierceness and
tenacity along side the American troops in the now famous battles of
Bataan and Corregidor. 5 5 After the surrender at Bataan, about seventy
thousand prisoners of war-both American and Filipino-marched 65
miles to internment camps set up by the Japanese. 5 6 On what later became known as the Bataan Death March, the prisoners were forced to suffer innumerable indignities at the hands of their Japanese captors. 5 7 The
sixty thousand prisoners who survived the Death March, about fifty-two
thousand of whom were Filipino, were imprisoned under inhuman conditions, where they suffered filth, hunger, and debilitating disease, with
casualties at the rate of 50 to 200 prisoners per day. 5 8 Finally, after losing
the battle at Corregidor, the American troops withdrew from the Philippines, leaving the U.S. Commonwealth to four long years of Japanese oc9
cupation. 5
Filipino resistance against the Japanese did not end there. During the
Japanese occupation of the Philippines, as they were awaiting the return of
the American troops, those Filipino and American soldiers fortunate
enough to escape capture, together with Filipino civilians, fought against
51.
See Besingav. United States, 14 F.3d 1356 (9th Cir. 1994).
52. See TUBANGUI ET. AL., supra note 21, at 160.
53.
54.
55.
56.
57.
See id.
See id.
See id. at 161.
See id.
Some were regularly kicked and beaten. They had little to eat or drink; they had no medical
treatment. Those who were too feeble or sick to go on were left to die where they dropped, or were
murdered. Some were even buried before they were actually dead; others were allowed to rot in the
sun. See id. at 162.
58. See id.; see also Speech by Representative Bob Filner (D-CA) before the House of Representatives introducing H.R. 836 (Mar. 6, 1997), in 143 CONG. Rac. H781.
59. See generally TUBANGUI ET AL., supra note 21, at 163-85.
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[Vol. 6:67
the occupation forces through organized bands of guerillas. 6 0 Formally
called into the service of the United States Armed Forces in 1944, the
guerilla units were led either by U.S. Army or Philippine Army command61
ers and maintained contact with MacArthur during the occupation.
Their efforts foiled the plans of the Japanese for a quick takeover of the
region and allowed the United States the needed time to prepare forces to
defeat the enemy. 6 2 The guerilla fighters undoubtedly made American reentry into the Philippines on September 21, 1944, much less costly. 6 3
Throughout the rest of the war, the Philippines remained an important
asset to the United States. The Americans were able to use the strategically-located Commonwealth of the Philippines as a base from which to
launch the final efforts to win the war. 6 4 With this base in the Pacific, less
than a year after MacArthur's return to the Philippines, Japan surrendered
to the American forces on August 15, 1945, liberating the Philippines from
four years of enemy occupation.
Two months after the Japanese surrender, Congress passed the Armed
Forces Voluntary Recruitment Act of 1945. One provision of the Act
authorized the Secretary of War, with Philippine approval, to enlist fifty
thousand Philippine Scouts, all of whom were to be citizens of the Philippines. 6 5 The responsibility of the "New Scouts" was to participate "in
the occupation of Japan and of lands now or formerly subject to Japan, and
elsewhere in the Far East." 6 6 Even though the Japanese had already surrendered and hostilities were over, the service in the New Scouts was considered wartime service for benefits purposes, at least for those enlisting
7
one year after the Act's passage. 6
Thus, four different groups of Philippine World War II veterans are at
issue: (1) the Old Philippine Scouts, (2) the Philippine Army, (3) the rec-
60. See id. at 192.
61.
See Quiban v. Veterans Admin., 928 F.2d 1154, 1157 n.5 (D.C. Cir. 1991). High-ranking
American officials realized the value of guerilla warfare and recognized them as part of the U.S. forces
in the Philippines. MacArthur himself had approved guerilla activities conducted in Northern Luzon
at the time of the Battle in Bataan, and before the fall of Corregidor, MacArthur ordered the United
States forces in the Visayas and Mindanao to resist the Japanese by means of guerilla warfare. See
TUBANGUI ET. AL., supranote 21, at 193.
62. See generallyTUBANGUI ET. AL., supra note 21, at 193-201.
63. See Quiban,928 F.2d at 1157.
64. See generally TUBANGUI ETAL., supra note 21, at 201-04. For a more detailed and pictorial
account of the wartime efforts of Philippine organized forces and individuals, see CARLOS QUIRINO,
FILIPINOS AT WAR (1987).
65.
See Quiban,928 F.2d at 1157. The outfit of the New Philippine Scouts, which was phased
out by 1950, never had more than 30,550 enlisted soldiers. See id.
66. Armed Forces Voluntary Recruitment Act of 1945, Pub. L. No. 79-190, § 14, 59 Stat. 538,
543 (1945).
67. See Quiban, 928 F.2d at 1157 n.4. As with the Philippine Army and the recognized guerillas, the status of having participated in wartime service of the United States was explicitly repealed, as
I will explain in the following section on the Rescission Acts of 1946.
EXTENSION OFBENEFITS TO FILIPINO VETERANS
1999]
ognized guerillas, and (4) the New Philippine Scouts. 6 8 As I have already
mentioned, the Old Philippine Scouts have always been considered part of
the United States Army for purposes of veterans' benefits. The other three
groups have been treated differently. Although they were similarly called
into the service under the United States flag by formal acts of Congress
and the President, their rights to veterans' benefits were terminated by the
Rescission Acts of 1946 shortly after completing wartime duties in the
U.S. Armed Forces.
B.
Veterans' Benefits and The RescissionActs of 1946
A wide range of benefits is available to those who have served their
country in the active military, naval, or air service and to their dependents,
without discrimination on the basis of race, color, national origin, gender,
handicap, or religion. 6 9 Among the benefits offered to veterans by the
Veterans Administration are: vocational rehabilitation for service-disabled
veterans, loan guaranty benefits, compensation for disabilities incurred
while on active duty, nonservice-connected pensions, VA medical care,
VA life insurance, and burial and death benefits. 7 0
The question of whether these Filipino soldiers were to be entitled to
U.S. veterans' benefits first arose soon after President's Military Order of
1941. On May 5, 1942, the Director of the Veterans Administration approved and promulgated an opinion of the Solicitor of the Veterans Administration which held that the Filipino soldiers were in "active service of
the land or naval forces of the United States" within the meaning of the
Veterans National Life Insurance Act of 1940.71 This designation of" active service" would change with the passage of the Rescission Acts of
1946.
Congress passed the two Rescission Acts shortly after the end of
World War II but before the Philippines became an independent state. The
Acts limited the range of veterans' benefits available to Filipinos who
fought for the United States as members of the Philippine Army, the recognized guerilla forces, and the New Philippine Scouts. The first of the
two Acts was the First Supplemental Surplus Appropriation Rescission Act
of 1946, the purpose of which was to reduce certain appropriations and
68. By "recognized guerillas," I refer to those who served in guerilla units that were formally
called into the services of the U.S. Armed Forces. The rosters of these guerilla units are documented
in government records. This paper does not consider the Filipino guerilla fighters who had no contact
with MacArthur during the Japanese occupation and who are not documented as part of the recognized
guerilla forces. Because they were not part of the United States Armed Forces, they should not be
eligible for U.S. veterans' benefits.
69. See VA REGIONAL OFFICE (OAKLAND, CA), DEP'T OF VETERANS AFF., A SUMMARY OF
BENEFITS 1 (1998).
70. See id.
71.
Filipino Am. Veterans and Dependents Ass'n v. U.S., 391 F. Supp. 1314, 1317-18 (1974).
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contract authorizations available for the fiscal year 1946.72 The Act appropriated $200,000,000 as pay to the Army of the Philippines. However,
Congress added a rider which conditioned the $200,000,000 payment on
the following designation-that Filipinos who served the United States in
the Philippine Army and the military forces of the recognized guerillas
shall not be considered to have been in active service, and thus would be
ineligible for the benefits normally available to all United States war veterans. 7 3 The Act made former members of the Philippine Army and
guerilla forces (and their dependents) ineligible for all nonserviceconnected United States veterans' benefits.7 4 Also, according to the Act,
although Filipino veterans of these groups may receive benefits for service-related disabilities or death, these benefits would only amount to one75
half of the total benefits their American counterparts would receive.
The First Supplemental Surplus Appropriation Rescission Act is currently
76
codified at 38 U.S.C. § 107(a).
The Second Supplemental Surplus Appropriation Rescission Act of
1946 placed similar limitations upon veterans' benefits available to mem-
bers of the New Philippine Scouts. 7 7 This Act has been codified in 38
78
U.S.C. § 107(b).
72. See Pub. L. No. 79-301, 60 Stat. 14 (1946).
73. See id.
74. See id.
75. See id.
76. 38 U.S.C. § 107(a) states that:
Service before July 1, 1946, in the organized military forces of the Government of the
Commonwealth of the Philippines, while such forces were in the service of the Armed forces
of the United States pursuant to the military order of the President dated July 26, 1941, including among such military forces organized guerilla forces under commanders appointed,
designated, or subsequently recognized by the Commander in Chief, Southwest Pacific
Area, or other competent authority in the Army of the United States, shall not be deemed to
have been active military, naval, or air service for the purposes of any law of the United
States conferring rights, privileges, or benefits upon any person by reason of the service of
such person or the service of any other person in the Armed Forces, [except (1) benefits
from contracts of National Service Life Insurance entered into before February 18, 1946; (2)
payments to persons missing in action or prisoners of war under chapter ten of title 37; and
(3) service-connected disability, death, and burial benefits under chapters 11, 13 (except
section 1312(a)), and 23 of chapter 1 of title 38.l Payments under such chapters shall be
made at the rate of $0.50 for each dollar authorized, and where annual income is a factor in
entitlement to benefits, the dollar limitations in the law specifying such annual income shall
apply at a rate of $0.50 for each dollar.
Id.
77. See Pub. L. No. 79-391, 60 Stat. 223 (1946).
78. 38 U.S.C. § 107(b) states that:
Service in the Philippine Scouts under section 14 of the Armed Forces Voluntary Recruitment Act of 1945 shall not be deemed to have been active military, naval, or air service for
the purposes of any of the laws administered by the Secretary [except (1) certain contracts of
National Life Insurance and (2) service-connected disability, death, and burial benefits under
chapters 11, 13 (except section 1312(a)), and 23 of chapter 1 of title 38.] Payments under
such chapters shall be made at the rate of $0.50 for each dollar authorized, and where annual
income is a factor in entitlement to benefits, the dollar limitations in the law specifying such
annual income shall apply at a rate of $0.50 for each dollar.
1999]
EXTENSION OFBENEFITS TO FILIPINO VETERANS
While Filipino veterans who were enlisted as members of the Old
Philippine Scouts receive full U.S. benefits at the full rate, members of the
Philippine Army, the New Philippine Scouts, and recognized guerillas receive only service connected disability compensation, Contract National
Service Life Insurance, and hospital and outpatient treatment for serviceconnected disabilities. These are paid at only half the rates for American
veterans however. They do not receive nonservice-connected disability or
death pensions, vocational rehabilitation and education, and VA medical
care.79
President Harry S. Truman approved the first appropriation on February 18, 1946, but took an exception to the legislative rider attached to the
$200,000,000 item for the pay of the Philippine Army, stating:
The effect of this rider is to bar Philippine Army veterans from all benefits under the G.I. Bill of Rights with the exception of disability and death
benefits which are to be made payable on the basis of one peso for every
dollar of eligible benefits. I realize, however, that certain practical difficulties exist in applying the G.I. Bill of Rights to the Philippines.
However, the passage and approval of this legislation do not release the
United States from its moral obligation to provide for the heroic Philippine veterans who sacrificed so much for the common cause during the
war. 8 0
President Truman's statement demonstrates that even the Executive
Office of the United States believed the Rescission Acts were unfair to the
Filipino veterans. Yet Truman's words did not ring strong enough. 8 1 Today, however, the Filipino World War II veterans are still fighting to regain the benefits denied them by this legislation. Specifically, they seek
the following benefits: service-connected disability compensation at the
79. See VA REGIONAL OFFICE (OAKLAND, CA), DEP'T OF VETERANS AFF., VETERANS BENEFITS
IN THE PHILIPPINES 1 (1984) (chart); CONG. BUDGET OFF., COST ESTIMATE: THE FILIPINO VETERANS
EQUITY ACT OF 1995, H.R. 836 at 1-4 (1997). Apparently, the reason the Filipino veterans would be
paid only at half the rate of American veterans is because Congress took into account the lower cost
and standard of living in the Philippines, as well as the inflationary consequences of granting these
benefits at the full rate. See Quiban v. Veterans Admin., 928 F.2d 1154, 1161 (D.C. Cir. 1991). In
addition, these Filipino World War II veterans may be eligible for benefits from the Philippine government. Currently available to them are: disability pension of 1,000 to 1,700 pesos ($35-$60)/month;
death pension for surviving spouse of 1,000 pesos/month; burial assistance of 10,000 pesos ($352);
old age pension beginning at age 65, with a first payment of 50,000 pesos ($1,760) and subsequent
payments of 2,500 pesos ($88)/month. HOUSE COMM. ON VETERANS' AFF., 105TH CONG., 1ST SESS.,
A BILL TO INCREASE VETERANS' BENEFITS FOR FILIPINO VETERANS H.R. 836, 7 (Comm. Print 1997).
Compared with United States benefits, however, Philippine payments seem meager. See Quiban, 928
F.2d 1158 n.9.
80. See PUB. PAPERS, supra note 1.
81. President Truman's disapproval of the rider did effectuate some change, albeit minimal.
Since 1946, all three branches of the U.S. government have tried to mitigate the effects of the Rescission Acts of 1946. Their efforts again manifest the U.S. government's recognition of the inequitable
results of the legislation.
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8 3 burial benefits, 8 4
full rate, 8 2 nonservice-connected pension benefits,
85
and VA medical care.
II.
WHO IS A VETERAN?: THE UNEQUAL TREATMENT OF FILIPINO SOLDIERS
A.
Veteran Status ofFilipinoSoldiers
A "veteran," for purposes of eligibility for VA benefits, is one who
served the United States on full-time duty in the active military, naval, or
air service. 8 6 There are no set standards for what actually constitutes
"active military service." 8 7
The notes to 38 U.S.C. §106, which codified Title IV of the G.I. Bill
Improvement Act of 1977, provide some guidance. 8 8 In determining
whether one has completed "active military service," the Secretary of Defense may take into consideration the extent to which (A) such group received military training and acquired a military capability or the service
performed by such group was critical to the success of a military mission,
03) the members of such group were subject to military justice, discipline,
and control, (C) the members of such group were permitted to resign, (D)
the members of such group were susceptible to assignment for duty in a
combat zone, and (E) the members of such group had reasonable expecta89
tions that their service would be considered to be active military service.
Although Congress' factors are limited in application, relevant only to
those who have served in wartime civilian employment or contractual
82. The VA pays compensation if a veteran is disabled by injury or disease incurred in or aggravated by active service in the line of duty. Payments are based on the degree of disability. See VA
REGIONAL OFFICE (OAKLAND, CA), DEP'T OF VETERANS AFF., supra note 69, at 7.
83. The VA gives pension benefits to veterans who have served at least 90 or more days on active duty in the armed forces with I day beginning or ending during a period of war, who are 100%
disabled and are unable to maintain substantially gainful employment, and whose income is less than
the applicable limit in the law. See id.
84. Veterans who receive disability compensation or a pension are eligible for a plot and burial
benefit, a headstone or marker, and a flag. See id. at 12.
85. Veterans with service-connected disabilities and veterans with incomes below certain
thresholds qualify for priority medical care. See id. at 8.
86. See 38 U.S.C. § 101(2), (21), (24).
87. See Schumacher v. Aldridge, 665 F. Supp. 41, 52-53 (1987).
88. Pub. L. No. 95-202, 91 Stat. 1449 (1977). It seems as if the G.I. Improvement Act of 1977
does not apply to the Filipino Veterans at issue in this paper. It applies only to groups which rendered
services to the United States Armed Forces in a capacity considered civilian employment or contractual service, such as the Women's Air Forces Service Pilots, a group of Federal civilian employees
attached to the United States Army Air Force during World War II. See id.; see also Schumacher,665
F. Supp. at 43. Apparently, it does not supersede the Rescission Acts.
89. The Secretary of Defense has adopted regulations implementing these factors. See 32
C.F.R. Part 47 (1986). However, when adopting Congress' suggested criteria into its enforceable
regulations, the Secretary made no changes or supplementations, thereby leaving no guidance as to
how to apply, consider, or weigh the "vague and undefined" criteria. See 665 F. Supp. at 53 (applying the criteria to merchant seamen in World War II).
1999]
EXTENSION OFBENEFITS TO FILIPINO VETERANS
services 9 0 and not with regard to the Filipino veterans, these factors could
be applied for analogous purposes to the case of the Filipino veterans, who
were themselves called to service in the U.S. Armed Forces during World
War II. An application of these factors show that the Filipino soldiers may
clearly be classified as veterans who had served active duty in the U.S.
military.
The first factor involves military training and capability. Not only
were United States officers largely responsible for training the Philippine
Army after it had been called into U.S. service, but the U.S. was also responsible for the costs of training and mobilization. 9 1 For example, after
the outbreak of war, Congress allotted $269 million dollars to mobilize,
train, and equip the Philippine forces and gave General MacArthur the
freedom to allocate expenditures as he saw fit.9 2
Similarly, compensation for the Filipino soldiers lay under the powers
of the U.S. government. The Philippine government was initially responsible for paying the Philippine Army for its services, but after April, 1941,
the United States War Department had assumed this responsibility. 9 3 The
Department even had the authority to set the pay scale for these soldiers.
The War Department set the par scale at the original level established by
the Philippine Commonwealth, which was less than the rate of pay for
regular United States enlistees. 9 4 Congress also played a role in setting
the pay scales for its Filipino servicemen. For example, a bill to equalize
the pay of all personnel in the United States Army, the Navy, and the
Philippine Scouts, and the Philippine Commonwealth Army, passed in the
Senate in March, 1942, although it never passed the House of Representa5
tives. 9
The U.S. government could even overrule pay scales established by
the Philippine Commonwealth government. Although the Philippine
Commonwealth government did, without American opposition, raise
Philippine Army pay scales to conform with that of the Old Philippine
Scouts, 9 6 after American reentry into the Philippines in 1944, the War
Department rebuffed another Philippine attempt to raise the pay to U.S.
servicemen's level. 9 7 In sum, the U.S. government assumed responsibility
for paying the Philippine soldiers after it called them to active service.
The amount of control and responsibility the U.S. had for the Philippine
90.
91.
See G.I. Bill Improvement Act of 1977, § 401(a), 38 U.S.C. § 106 note.
See Quiban v. Veterans Admin., 928 F. 2d 1154, 1156 (D.C. Cir. 1991).
92. Seeid.at1157.
93.
See Filipino Am. Veterans and Dependents Ass'n v. United States, 391 F. Supp. 1314, 1318
(N.D. Cal. 1974).
94. See id.
95.
See Besingav. United States, 14 F.3d 1356, 1358 n.5 (9th Cir. 1994).
96. See id at 1358.
97. See id. at 1358-59.
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soldiers evidences the fact that the U.S. absorbed the Filipino soldiers into
its military forces for active duty in the Pacific war.
The second and third factors involve the degree of military discipline
and control and the freedom to resign from service. Although the Philippine Army units were subject to the military laws of the Philippine Commonwealth, 9 8 they also owed allegiance to the United States by law, because the Commonwealth was still a United States Territory. When the
Filipino soldiers were called into service by military order of the President
of the United States, they could not have refused to comply; the order was
obligatory on them. 9 9 If they committed acts inimical to the interests of
America, they were liable for prosecution for treason against the United
States. 10 0 Thus, the fact that the Filipino soldiers were subject to American discipline also points to their "active duty" status.
Furthermore, the Filipino soldiers were susceptible to assignment for
duty in a combat zone, the fourth factor that shows "active military"
status. The Philippine Army faced Japanese soldiers at the beaches most
susceptible to Japanese invasion. 1 0 1 The North and South Luzon Forces
were given as their main missions to prevent hostile landings in their respective areas. 1 0 2 "In case of a successful enemy landing," the orders
read, "destroy the landed force. There will be no withdrawal from beach
defense positions. They will be held at all costs." 103 These and the other
Filipino soldiers, who later fought courageously at Bataan and Corregidor,
had the dangerous and almost impossible task of defending the Philippine
Island Commonwealth. They were certainly susceptible for assignment for
duty in a combat zone.
Finally, it is entirely reasonable that the Philippine soldiers would expect that their service would be considered active duty. Immediately after
Roosevelt issued his military order on July 26, 1941, the Philippine soldiers were made to understand they were a part of the American forces.
When the Philippine Army Air Force was ceremonially inducted into the
service of the United States on August 15, 1941, the Filipino men listened
to a reading of Roosevelt's call to service; they took an oath to "bear true
98. See JOSE, supra note 24, at 193.
99. The President's order had the force and effect of a Federal statute declaring the Filipino soldiers members of the American armed forces, and that was equivalent to enlistment en masse. See 93
CONG. REc. A2940, A2941 (1947) (extension of remarks of Rep. Gordon L. McDonough on the veteran status of Filipino soldiers and the denial of benefits under the First Rescission Act of 1946).
100. See 93 CONG. REC. A1835, 1836 (1947) (extension of remarks of Rep. Edward J.Devitt on
"Filipino Veterans of the United States Army").
101.
The Philippine forces were placed all along the coasts of the different islands of the Philip-
pines-from the Lingayen Gulf (the most obvious invasion beach) in the Northern part of the main
island of Luzon down to the Visayas Islands and the island of Mindanao (which were almost impossible to defend due to the immense coastlines of these islands) in the Southern part of the Philippines,
See JOSE, supra note 24, at 211.
102. See id.
103. Id.
1999]
EXTENSION OFBENEFITS TO FILIPINO VETERANS
faith and allegiance to the United States of America," and they were then
presented by their acting chief to General MacArthur, who welcomed them
into U.S. service. 1 0 4 Moreover, throughout the military campaign, they
answered to and trained under American officers, fought along side
American troops, and fulfilled American military orders. It would not be
unreasonable for the Filipino soldiers to expect that they were under active
military service of the United States.
Hence, given the application of the above factors, the Filipino soldiers
should have properly been classified as veterans who served the U.S. under
active duty. 38 U.S.C. § 107 should not have denied them this status.
B. Veteran Status of OtherNon-Citizen Soldiers
Although members of the Philippine military forces who fought in the
service of the United States were denied veteran status, other groups of
Allied veterans who fought side by side with U.S. forces have been treated
more favorably. Thus, the Filipino veterans were unduly discriminated
against by the U.S. government, because they cannot receive the benefits
promised to them and given to other groups.
For example, some groups of non-citizen discharged members of allied forces during World War II have been granted VA benefits by Congress in 1946 through an extension of the World War Veterans Act, which
is codified in 38 U.S.C. § 109(a). Under this statute, the Department of
Veterans Affairs will furnish to these discharged members of the allied
forces, upon request of the allied governments, various benefits, such as
medical treatment, prosthetic appliances, and educational benefits, as
authorized by those nations' laws. 1 0 5 However, the benefits would be
provided subject, first, to the reimbursement of expenses from the allied
government concerned, and second, to the condition that the allied government reciprocated by furnishing benefits to American veterans who live
06
in the allied country. 1
Following World War II, a total of 47 countries were considered to be
allied with the United States, meeting the initial condition of § 109(a).
Although the Philippines was considered one of these 47 allied countries,
it did not have a reciprocal service agreement with the United States. Only
countries with reciprocal service agreements with the United States were
07
eligible to receive benefits under §109(a). 1
However, the 94th Congress subsequently decided that some groups
of non-citizen soldiers could get VA benefits even though their countries
did not comply with § 109(a). In 1976, Congress passed a bill that gave
special treatment to veterans from the Polish and Czechoslovakian armed
104.
105.
106.
See id.
at 196.
See38 U.S.C. § 109(a)(1998).
See id.; see also S.REp. NO. 94-694, at 3 (1976).
107. See S. REP. NO. 94-694, at 4-5 (1976).
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forces by granting them certain hospital and medical benefits if they have
been citizens of the U.S. for at least ten years. 10 8 In granting them these
benefits, Congress noted these veterans' "undiminished gallantry and determination to fight on for victory in the common cause in spite of all adversities." 109 The Senate report that favored the bill supported its recommendation with the fact that, without this law, these veterans would be
ineligible for the VA benefits because their former countries had not entered into the § 109(a) reciprocal agreements with the United States. 1 10
Moreover, there seemed to be an urgency for the passage of the bill in light
of an expressed policy of d6tente and the recent travel of the President to
Poland. 1 11
Ironically, opposition to the bill came from the Veterans Administration. The VA argued that the law singled out the Czechoslovakian and
Polish veterans and excluded others, thereby discriminating among allied
veterans. 1 12
Congress' treatment of the Czechoslovakian and Polish veterans is inconsistent with the discrimination suffered by the Filipino veterans. No
doubt both the Central European soldiers and their Filipino counterparts
played important roles in their respective battlegrounds during World War
II. Indeed, Congress has acknowledged both their accomplishments.
Moreover, the Filipino veterans were in a similar predicament as the Polish
and Czechoslovakian forces at the end of World War II. Although the end
of World War II brought independence and democracy to the Pacific nation, the Philippines still faced economic challenges and hardships as a result of the war. These economic difficulties probably restricted the Philippine government's ability to enter the reciprocal agreements with the
United States and thus made Filipino veterans ineligible for VA benefits
under § 109(a). Thus, because they faced similar obstacles, the Filipino
veterans, at least those who have become United States citizens, should at
least have been considered for treatment equal to that of the Czechoslovakian and Polish forces.
An argument may be made that the Filipino veterans should be considered for more favorable treatment than the Czechoslovakian and Polish
veterans. The Filipino veterans differed from the Czechoslovakian and
108.
See Pub. L. No. 94-491,90 Stat. 2363 (1976) (codified at 38 U.S.C. § 109(a)(1998)).
109.
S. REP. No. 94-694, at 6 (1976). Congress also took into account that these soldiers were
exiled from their countries; upon the cessation of World War II, they refused to return to their Communist-controlled countries and instead emigrated to the United States.
110. See id. at6-7.
111. See id. It should also be noted that strong political forces contributed to the passage of the
bill. Among the supporters were the Polish American Congress, the Polish Legion of American Veterans, the Polish Army Veterans Association, District 31 of the United Steelworkers of America, and
many elected officials of the Senate, the House of Representatives, and State and local governments.
See id. at 6.
112.
Seeid. atlO-13.
1999]
EXTENSION OFBENEFITS TO FILIPINO VETERANS
Polish forces in that they fought as U.S. Nationals. The Czechoslovakian
and Polish veterans fought as Czechoslovakian and Polish citizens, but
have been singled out to receive benefits the Filipino soldiers were denied.
Nevertheless, Congress felt the need to specifically single out the Filipino
soldiers and explicitly deny them "active military service" status and thus
also deny them the right to veterans' benefits. The U.S. courts, as I will
explain below, have found a rational basis for this disparate and unequal
treatment.
III.
APPLICATION OF CONSTITUTIONAL LAW
A.
Equal ProtectionAnalysis
Many Filipino veterans have filed cases before United States courts,
claiming that 38 U.S.C. § 107 is unconstitutional because it conflicts with
the Fifth Amendment's guarantee of equal protection. 1 1 3 Specifically,
they claimed that Congress drew a distinction between the Filipino soldiers-the Philippine Army, the recognized guerillas, and the New Philippine Scouts-and the United States service members.
The courts have used an equal protection analysis to address the differing treatment of the two classes. According to the Rational Basis test,
"legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest." 114 However, if the classification is made on the basis of race, nationality, or alienage, the court must use the strict scrutiny test. Under this
test, the statute will be sustained only if it is suitably tailored to serve a
compelling state interest. 1 15 The Filipino World War II veterans, as
plaintiffs in these cases, have claimed that Section 107 should be subject to
a strict or heightened scrutiny equal protection analysis because it discriminates against them on the basis of race, nationality, or alienage.
Normally, strict or heightened scrutiny would be in order. 38 U.S.C.
§ 107 singles out the members of the Philippine Army, the recognized
guerillas, and the New Philippine Scouts, based on the fact that they are
Filipino. At the time of the war, they were U.S. nationals and thus deserved equal treatment to their fellow American soldiers who fought the
same battles in defense of the same United States flag. The distinction
Congress drew in discriminating against the Filipino veterans is especially
apparent, given that other non-citizen groups, as described above, were
113. The Constitution's equal protection clause is contained in the Fourteenth Amendment,
which governs action by the states. The Supreme Court has held, however, that a similar constraint,
governing federal action, is implicit in the due process clause of the Fifth Amendment. See Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2 (1975).
114. City of Clebume, Texas v. Cleburne Living Center, 473 U.S. 432,440 (1985).
115. See id.
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entitled to benefits that the Filipino veterans are not able to receive.
Hence, strict or heightened scrutiny should have been applied.
To the contrary, the Courts have used a rational basis standard in de1 16 is
termining the constitutionality of 38 U.S.C. § 107. Harrisv. Rosario
the controlling authority on the standard of review. In Harris v. Rosario,
the Supreme Court reversed a lower court decision that had used a heightened review standard to strike down the statute that limited Aid to Families
with Dependent Children (AFDC) payments to residents of Puerto Rico.
(Puerto Rico, like the Philippines, became a U.S. possession through the
1898 Treaty of Paris.) In invalidating the statute, the Supreme Court relied
upon Congress' "[1]arge" 117 powers under the Territory Clause of the
Constitution, which authorizes Congress to "make all needful Rules and
Regulations respecting the Territory... belonging to the United
States." 118 The Court concluded that Congress "may treat [Territories]
differently from States so long as there is a rational basis." 119 Whether
there is a disproportionate impact on race or national origin is not an issue
20
when the Territory Clause holds sway. 1
Thus, in Rosario, all the Court needed to find to uphold the constitutionality of the challenged statute was a rational basis. And this it did, relying on its prior opinion in Califano v. Torres.12 1 The Supreme Court in
Torres held that Congress could constitutionally deny to persons who became residents of Puerto Rico Supplemental Security Income (SSI) benefits authorized for residents of the States and the District of Columbia.
The Torres Court found a rational basis for excluding residents of Puerto
Rico from AFDC and SSI benefits because: (1) Puerto Rican residents do
not contribute to the federal treasury, and thus do not help defray the costs
of the SSI program; (2) the costs of including Puerto Rico "would be extremely great-an estimated $300 million per year"; (3) inclusion of
Puerto Ricans in the SSI program "might seriously disrupt the Puerto Rican economy," presumably because the SSI benefits would be too high
compared to the local cost or standard of living, and thus might create inflationary pressures. 12 2 The Court in Rosario used the same rationale in
forming a rational basis for limiting AFDC payments to Puerto Rican resi3
dents. 1 2
The Court in Quiban v. Veterans Administration has similarly held
that the statute that excludes Filipino soldiers from veterans' benefits is
rationally based and is therefore constitutional. Since the Philippines was
116.
117.
118.
119.
120.
121.
122.
123.
446 U.S. 651 (1980).
Downes v. Bidwell, 182 U.S. 244,283 (1901).
U.S. CONsT. art. IV, § 3, cl. 2.
Besinga v. United States, 14 F.3d 1356, 1360 (1994) (quoting Rosario, 446 U.S. at 651-52).
See Quiban, 928 F.2d at 1159.
435 U.S. 1 (1978).
Quiban,928 F.2d at 1159 (quoting Torres, 435 U.S. at 5 n.7).
See Rosario,446 U.S. at 652.
1999]
EXTENSION OF BENEFITS TO FILIPINO VETERANS
a U.S. Territory at the time Congress enacted the two Rescission Acts in
1946, Congress was free to draw the lines regarding the Filipino veterans
as long as it had any rational basis. The Courts did, in fact, find a rational
basis using the factors that were dispositive in Torres. First, according to
the Quiban Court, United States taxes had never been imposed on the
Philippines; hence, although once subject to United States rule, the Philippines had never contributed to the funding of United States veterans' benefits.124 Second, in contrast to the $240 million estimated annual cost of
AFDC benefits in Rosario, the cost of granting full veterans' benefits to
veterans of the Philippine Army would approach $2 billion annually, for a
substantial period of time. 12 5 Third, extending the full range of benefits
offered by the Veterans Administration to all Philippine veterans of World
War II and their families might seriously disrupt the Philippine economy. 12 6 With these factors, the Courts have found that the distinction
Congress drew between members of the Philippine Army, the recognized
guerillas, and the New Philippine Scouts, on the one hand, and United
States services members, on the other, survives rational basis review.
In addition, the Quiban Court found a rational basis for the line Congress drew between the Old Philippine Scouts, on the one hand, and the
Philippine Army, the New Scouts, and the recognized guerillas, on the
other. First, the Court asserted that Congress could reasonably consider
the Old Philippine Scouts more integrally a part of the United States armed
forces. 12 7 The Old Scouts were originally commanded by U.S. Army officers and paid by the U.S. War Department. 1 2 8 They were formally incorporated into the U.S. Army in 1901 and were used by the U.S. to quell
the Philippine rebellion. 12 9 In contrast, the Philippine Army was created
by the legislation of the Philippine Commonwealth government, after
Congress had set a timetable for Philippine independence. 13 0 The New
Philippine Scouts were established just before Philippine independence,
with a view toward both U.S. occupation in the Far East and toward the
force's role as part of the new Philippine Army. 13 1 With this reasoning,
the Court held that Congress' decision to grant only the Old Scouts full
U.S. veterans' benefits was reasonable.
124. See Quiban, 928 F.2d at 1161.
125. See id. Regarding H.R. 836 (the Filipino Veterans Equity Act of 1995), the Congressional
Budget Office estimates that enacting the bill would increase direct spending by about $517 million in
1998 and by $4.9 billion over the 1998-2002 period. CONG. BUOGEr OFF., supranote 79, at 1.
126. See Quiban, 928 F.2d at 1161. This third factor, coincidentally, was also the reason the War
Department in 1944 opposed equalizing the service pay of Philippine Army soldiers to that of U.S.
soldiers. See id.
127. See Quiban,928 F.2d at 1163.
128. See id. at 1162.
129. See id.
130. See id.
131. See id. at 1162-63.
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Critiqueof Quiban
Quiban v. Veterans Administration is one of many cases which follow
the century old principle that, pursuant to the Territory Clause of the Constitution, Congress has ultimate and plenary power over U.S. Territories.
Admittedly, the Quiban decision is consistent with Supreme Court cases
that date as far back as 1880, when the Supreme Court said that "[a]ll territory within the jurisdiction of the United States not included in any State
must necessarily be governed by or under the authority of Congress" under the Territory Clause. 13 2 The law of the Territory Clause is part of the
Constitution and is thus not an issue in this paper. However, Congress'
application of the Territory Clause in a string of decisions known as the
Insular Cases is debatable. As I explain below, the Insular Cases improperly used the Territory Clause to subject groups of people to treatment inconsistent with justice and fairness. Thus, the Quiban Court should have
been more wary in basing its ruling on the unstable foundation provided by
the Insular Cases.
1.
The Insular Casesand Their Progeny
As I suggested before, Judge Ruth Bader Ginsberg failed to consider
some important background history when she applied the rational basis test
to the Filipino veterans' benefits issue. She did not consider the controversial series of cases which led up to the reasoning in Harris v. Rosario
and Califano v. Torres, both of which recognized Congress' broad authority to enact laws affecting U.S. Territories. This case history dates back to
the American acquisition of the Philippines with the 1898 Treaty of Paris.
When Spain relinquished its claims of sovereignty over the Philippines, Puerto Rico, and Guam to the United States through the 1899 Treaty
of Paris, the McKinley administration was forced to deal with the country's new empire. A new debate began over the issue of imperialism and
the nature of America's relationship to its newly acquired territories. 13 3
The new U.S. possessions were unlike the western territories which eventually achieved statehood. These new island territories were inhabited by
people radically different from Americans-they had different cultures,
languages, and traditions, and they were geographically remote from the
United States. 134 With these obvious differences, could these new lands
truly be considered a part of the United States? Could America legitimately govern the inhabitants of these remote islands even though the islands were not destined for statehood? Were these people to be given all
132. National Bank v. County of Yankton, 101 U.S. 129, 133 (1879).
133. See JAMES E. KERR, THE INSULAR CASES: THE ROLE OF THE JUDICIARY IN AMERICAN
ExPANSIoNIsM 14-16 (1982).
134. See id. at 15.
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EXTENSION OF BENEFITS TO FILIPINO VETERANS
89
the rights and protections of U.S. citizenship under the Constitution? In
short, does "the Constitution follow the flag" ?
The Supreme Court answered these questions with the Insular Cases
and their progeny. The "Insular Cases" refers primarily to a series of
cases submitted to the Court in 1900 and decided on May 27, 1901.135
Constituting the strongest declaration of Congress' power over its territories, 13 6 the Insular Cases addressed the question of whether the U.S. Constitution applied to America's newly acquired island territories. The influence of the Insular Cases and their progeny would extend from the
development of the Philippine-American colonial relationship to today's
post-World War II treatment of Filipino veterans. A complete in-depth
discussion of the Insular Cases is beyond the scope of this work; however,
the principles that arose from these century-old, yet controversial, cases as
well as the political atmosphere which surrounded these decisions are important when analyzing the topic of this paper.
The most important of the Insular Cases is Downes v. Bidwell.1 3 7
The Downes case tested the constitutionality of the Foraker Act, which
imposed duties upon goods imported to the United States from Puerto
Rico. Downes, the importer, claimed that the Foraker Act violated the
Uniformity clause of the Constitution, which provides that "all duties, imposts, and excises shall be uniform throughout the United States." 138 The
Supreme Court held that Congress was free to treat goods from Puerto
Rico differently than those of the States because the Uniformity clause did
not apply to the territories. 13 9 Essentially, the court held that the Constitution does not apply in full force to U.S. Territories.
Justice White's concurrence in Downes v. Bidwell spawned the century-old Territorial Incorporation Doctrine, 14 0 which Chief Justice Taft's
opinion in Balzac v. Porto Rico1 4 1 later declared the settled law of the
court. According to the Territorial Incorporation Doctrine, all actions of
Congress, including those over the U.S. Territories, are subject to the re-
135. See DeLimav. Bidwell, 182 U.S. 1 (1901); Downes v. Bidwell, 182 U.S. 244 (1901); Goetz
v. United States, 182 U.S. 221 (1901); Dooley v. United States, 182 U.S. 222 (1901); Armstrong v.
United States, 182 U.S. 243 (1901); Huus v. New York & Porto Rico S.S. Co., 182 U.S. 392 (1901). A
complete discussion of the Insular Cases is beyond the scope of this work.
136. See Jon M. Van Dyke, The Evolving Legal Relationships Between the UnitedStates and its
Affiliated US.-FlagIslands, 14 U. HAW. L. REv. 445,455 (1992).
137. 182 U.S. 244(1901).
138. U.S. CONST. art I, § 8, cl. 1.
139. See 182 U.S. at 287.
140. See id. at 287-344.
141. 258 U.S. 298, 305 (1922). Note: From 1898 to 1932, the United States government officially referred to Puerto Rico as "Porto Rico." This misspelling came from the English version of the
Treaty of Paris, supra note 20. On May 17, 1932, Congress changed the Island's name back to Puerto
Rico. Gabriel A. Terrasa, The United States,PuertoRico, and the TerritorialIncorporationDoctrine:
Reaching a Century ofConstitutionalAuthoritarianism,31 J. MARSHALL L. REV. 55, 56 n.9 (1997).
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strictions of the Constitution. 1 4 2 Because every function of the United
States government is derived from the Constitution, the Constitution is
everywhere and always in potential. 14 3 Thus, the Constitution always
follows the U.S. flag. The relevant question in the case of territories, however, was "not whether the Constitution is operative, for that is selfevident, but whether the [Constitutional] provision relied on is applicable." 144
Also according to this Doctrine, areas under the sovereignty of the
United States that are not States fall into two categories: incorporated and
unincorporated. Incorporatedterritories are those for which the treaty of
acquisition had specifically provided for incorporation into the Union for
eventual statehood; for these incorporated territories, the Constitution applies in full. 1 4 5 Included in the unincorporatedgroup are those areas that
are not intended for statehood, which at the time of the Insular Cases included only the Philippines, Guam, and Puerto Rico, all of which were annexed as a result of the Spanish-American War. 14 6 In legislating for these
unincorporated territories, Congress was limited only by "restrictions so
fundamental [in] nature that they cannot be transgressed, although not expressed in so many words in the Constitution." 147
As an unincorporated U.S. territory, the Philippines was no less immune from the effects of the Territorial Incorporation Doctrine than Puerto
Rico, the territory at issue in most of the cases. Hence, the full effect of
the Insular Cases with regard to the Philippine Commonwealth was to declare that (1) Congress had general and plenary power over the Philippine
Commonwealth, but (2) these powers were limited by certain fundamental
14 8
rights of the territorial inhabitants.
The progeny of the Insular Cases, about a dozen cases which the Supreme Court subsequently decided over the next twenty years, would define which categories of rights were sufficiently "fundamental" with regard to the Philippines and the new U.S. Territories. Dorr v. United
States14 9 was the first of these cases to apply Justice White's Territorial
Incorporation Doctrine. The issue in Dorrwas whether the right to trial by
jury would be extended to the Philippines in the absence of any Congressional directive. The Court reasoned that the right to jury trial did not apply to the Philippines due to the fact that the islands had not been made a
part of the United States by congressional action. Thus, there was no con142. See JUAN R. TORRUELLA, THE SUPREME COURT AND PUERTO Rico: THE DOCTRINE OF
SEPARATE AND UNEQUAL 54 (1985).
143. See KERR, supra note 133, at 81.
144. Downes, 182 U.S. at 292.
145. See id. at291-92, 299, 317.
146. See TORRUELLA, supra note 142, at 55.
147. Downes, 182 U.S. at 291.
148. See Van Dyke, supranote 136, at 459.
149. 195 U.S. 138 (1904).
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EXTENSION OFBENEFITS TO FILIPINO VETERANS
stitutional provision which required Congress to provide a system of laws
including the right to trial by jury. 1 5 0 Later, using the doctrines of the Insular Cases, the Supreme Court also held that the Sixth Amendment right
to cross-examination and confrontation 1 5 1 and the right to a grand jury indictment 1 5 2 were similarly inapplicable to the U.S.'s Philippine territory.
The Insular Cases impacted the territory of Puerto Rico as well. Although Puerto Ricans have been granted U.S. citizenship, 15 3 they are not
able to enjoy the Sixth Amendment right to a jury trial, 1 5 4 and they are
unable to participate in U.S. presidential elections. 15 5 Nevertheless, in its
generous discretion, the Supreme Court has extended to Puerto Rico the
protections of the Due Process Clause of either the Fifth or Fourteenth
Amendment, 1 5 6 the equal protection guarantee of either the Fifth or the
Fourteenth Amendment, 1 5 7 and the Fourth Amendment right against un15 8
reasonable searches and seizures.
The effects of the Insular Cases continued into the 1970s with Califano v. Torres and Harris v. Rosario, which I have already explained
above; to reiterate, because of Puerto Rico's mere territory status and because of the Territorial Incorporation Doctrine of the Insular Cases, the
Supreme Court required only a rational basis standard of review and upheld the discriminatory treatment. 1 5 9 Thus, an equal protection analysis
of a statute that discriminates against residents of U.S. territories would
require a lower standard than if the discrimination were against residents
of the fifty States.
This brings us back full circle to the Filipino World War II veterans,
the Rescission Acts of 1946, and Quiban v. Veterans Administration, a direct descendant of the Insular Cases. Applying the doctrines to the Philippines, we can see that Congress was deemed to have general and plenary
authority to legislate for the Philippines under the Territory Clause. Congress also had some amount of leeway in granting or denying "nonfundamental" constitutional rights to the Philippines because the Island
150.
151.
See id.at 149.
See Dowdell v. United States, 221 U.S. 325, 332 (1911).
152.
See Ocampo v. United States, 234 U.S. 91,98 (1914).
153.
After almost 20 years of United States allegiance, Congress granted residents of Puerto Rico
United States citizenship through the Jones Act, 39 Stat. 951 (1917). However, this citizenship was
clouded by legalistic "ifs," "ands," "buts," and footnotes. See TORRUELLA, supra note 142, at 93.
154. See Balzac v. Puerto Rico, 258 U.S. 298, 313 (1922) (holding that Puerto Rico remained an
unincorporated territory, even after the Jones Act granted Puerto Ricans U.S. citizenship). Although
the Supreme Court held that the Sixth Amendment right to trial by jury was not a fundamental right
available to U.S. territories like the Philippines and Puerto Rico, the Court later held that the right was
fundamental when applied to the States via the Fourteenth Amendment. See Duncan v. Louisiana,
391 U.S. 145, 149-50 n.14 (1968).
155.
156.
157.
158.
159.
See Iguartua de la Rosa v. United States, 32 F.3d 8 (Ist Cir. 1994).
See Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 668-69 n.5 (1974).
See Examining Board v. Flores de Otero, 426 U.S. 572, 599-601 (1976).
See Torres v. Puerto Rico, 422 U.S. 465, 471 (1979).
See supra notes 116-123 and accompanying text.
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territory was unincorporated. Finally, Congress would have been allowed
some amount of deference when legislating for the colonial Philippines,
even if the legislation discriminated against Filipinos. Given this background and the doctrine of stare decisis, it may have seemed reasonable
for the 79th Congress to enact the Rescission Acts of 1946, and it may
have seemed justifiable for the U.S. Court of Appeals to uphold the constitutionality of 38 U.S.C. § 107 in Quiban. However, I argue that these
are untenable conclusions given the controversy that surrounded the Insular Cases and their progeny.
2.
Problemswith Basing Quiban on the Insular Cases
The U.S. Court of Appeals in Quiban should not have relied on such
controversial and outdated doctrines as those embodied in the Insular
Cases and their progeny. Apart from the fact that Justice White's original
formulation of the Territorial Incorporation Doctrine lacked analysis of
precedents or any theoretical discussion, 1 6 0 the Territorial Incorporation
Doctrine and its application are debatable. The idea that Congress has
complete and ultimate rule over U.S. Territories may have seemed appropriate in 1901, at a time of America's expansionist euphoria. Today, however, with a different political atmosphere, with changing social attitudes,
and with a modem view of the Constitutional guarantees for the protection
of life, liberty, and property, the Territorial Incorporation Doctrine must
not be expanded or used any further. Unfortunately, however, the Quiban
Court allowed the injustice that began with the Insular Cases to continue.
The continued use of the Territorial Incorporation Doctrine in recent
cases like Harris v. Rosario and Quiban v. Veterans Administration perpetuates the discriminatory attitudes that spawned the Doctrine in 1901.
Debates in the scholarly literature and in the chambers of the United States
Congress reflect these discriminatory attitudes which permeated the political atmosphere of the early 20th century.
The academic debate over the status of territories, which took place in
articles in the Harvard Law Review between December 1898 and November 1899,161 influenced decision-making in higher government circles162
160. See KERR, supra note 133, at 82.
161. See, e.g., Carman F. Randolph, ConstitutionalAspects of Annexation, 12 HARM. L. REv. 291
(1898); Charles C. Langdell, The Status of Our New Territories, 12 HARv. L. REv. 365 (1899);
Simeon E. Baldwin, The ConstitutionalQuestions Incident to the Acquisition and Government by the
United States ofisland Territory, 12 HARV. L. RF-v. 393 (1899); Bradley Thayer, Our New Possessions, 12 HARV. L. REV. 404 (1899); Abbott L. Lowell, The Status of our New Possessions-A Third
View, 13 HARV. L. REV. 155 (1899). Randolph and Baldwin contended that the Constitution applied
of its own force to the newly acquired lands and prohibited holding territory in an indefinite colonial
status. Langdell and Thayer believed in unrestricted Congressional power and the right to rule as a
colonial potency. Lowell argued that the incorporation of territory in the Union is a matter solely for
the legislative or treaty making authorities, that the Constitution applied to those territories that were
annexed, and that only fundamental parts of the Constitution applied to territories which were not to
achieve Statehood. Lowell's view became the Doctrine of Territorial Incorporation. See TORRUELLA,
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EXTENSION OFBENEFITS TO FILIPINO VETERANS
and were the precursors to the various theories echoed by Congress and the
Supreme Court in the Insular Cases. 1 6 3 The authors of the articles, perhaps with the exception of one, shared a common view: Filipinos were not
worthy of American citizenship. 1 6 4 For example, one author, Judge
Simeon E. Baldwin, wrote of the inferior capabilities of the Filipino people:
Our Constitution was made by a civilized and educated people. It provides guarantees of personal security which seem ill adapted to the conditions of society that prevail in many parts of our new possessions. To
give the half-civilized Moros of the Philippines, or the ignorant and lawless brigands that infest Puerto Rico, or even the ordinary Filipino of Manila, the benefit of such immunities... would.., be a serious obstacle to
65
the maintenance there of an efficient government. 1
Carman F. Randolph, with similar racial animus, warned that, if granted
citizenship, the Filipinos "could be induced to come here in sufficient
numbers to lower the rate of wages in any part of the country [or] they may
gain residence in any state, and cannot be refused the suffrage therein on
account of 'race, color, or previous condition of servitude."' 166
Racist sentiments against Filipinos similarly clouded the debates in
Washington. In the Senate, Senator Bate of Tennessee characterized the
Filipino people as "physically weaklings of low stature, with black skin,
closely curling hair, flat noses, thick lips, and large, clumsy feet." 167
With regard to the Filipino people, he cautioned: "Let us beware of those
mongrels in the East, with breath of pestilence and touch of leprosy. Do
not let them become a part of us with their idolatry, poligamous creeds,
and harem habits." 168 In the House, too, these views were apparent.
Representative Thomas Spight of Mississippi emphasized the foreignness
of the Filipino people:
How different the case of the Philippine Islands [from Puerto Ricans, who
are mainly of Caucasian blood, who appreciate the benefits of civilization, and are desirous of becoming part of America,] .... The inhabitants
are wholly of different races of people from ours-Asiatics, Malays, negroes and mixed blood. They have nothing in common with us and centuries cannot assimilate them.... They can never be clothed with the
supra note 142, at 30.
162. See KERR, supra note 133, at 28.
163. See TORRUELLA, supra note 142, at 25.
164. See Terrasa, supra note 141, at 61 n.34. The authors of the Harvard review articles also believed Puerto Ricans were unworthy of citizenship. Id. Although both groups deserve equal attention,
because the topic of this paper is about Filipino veterans, I will focus instead only on the Philippines
and the Filipino people.
165. Baldwin, supranote 161, at415.
166. Randolph, supra note 161, at 309-10.
167. 33 CONG. REc. 2875 (1900).
168. Id.
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rights of American citizenship nor their territory admitted as a State of the
16 9
American Union.
In turn, these views would greatly influence the outcome of the Insular Cases, which, to a large extent, "have come to be viewed in a more pluralistic society as representative of a blatant racism that denied Puerto Ricans and Filipinos citizenship on undisguised racist grounds." 170 In my
argument, I am not suggesting that all scholars, statesmen, or Supreme
Court Justices at that time, or today for that matter, held racist attitudes
toward the Filipino people. I am merely suggesting this seemingly widespread sentiment in the early 1900s, as evidenced by the Congressmen and
scholars at that time, would inevitably play a role in determining the applicability of the United States Constitution to the Filipino people. Because
of the questionable background and political atmosphere that shaped the
Insular Cases, the current judiciary should proceed with caution when using them as authority. To rely on them for their doctrines may perpetuate
the injustice that seemingly racist institutions of the past have already imposed on the peoples of the U.S. territories. Thus, the U.S. Court of Appeals should have been more aware of these discriminatory attitudes when
it denied the Filipino veterans equal treatment by upholding 38 U.S.C. §
107.
Furthermore, the general idea of allowing Congress to impose unfavorable and unequal treatment to the inhabitants of U.S. Territories, specifically the Philippines in 1946, seems to undermine the ideals of our
Constitution. The Territory Clause, without question, gives Congress
power and control over its Territories, but Congress cannot use this power
to discriminate and to deny the Territories the rights all Americans hold
dear as fundamental. To the contrary, the Territorial Incorporation Doctrine allowed Congress to pick and choose what rights were applicable to
the Philippines, and allowed Congress to deny equal protection to the Filipino people.
This view against the Territorial Incorporation Doctrine is not new.
Dissenting in Dorr v. United States, Justice Harlan believed the right to a
jury trial was fundamental in nature and thus should have been applied to
the Philippines. 1 7 1 He also criticized the disparate treatment given the
Philippines by denying them this fundamental right:
169. 33 CONG. REC. 2162 (1900).
170. WINFRED LEE THOMPSON, THE INTRODUCTION OF THE AMERICAN LAW INTHE PHILIPPINES
AND PUERTO RICO 1898-1905, at 105 (1989). Thompson seems to excuse "admittedly [racist]" Supreme Court opinions in the Insular Cases. Thompson asserts that one cannot expect the statesmen of
that era to speak in a context suitable to the political and social views of today: "To today's reader,
the freely expressed concern about the absorption of an alien race and an alien culture may seem unbecoming in ajustice of the Supreme Court. To the members of the Supreme Court in 1900 it was a
legitimate public concern they felt no hesitation to discuss."
171. 195 U.S. 138, 154-55 (1904) (Harlan, J., dissenting).
1999]
EXTENSION OFBENEFITS TO FILIPINO VETERANS
95
[T]he court in effect adjudges that the Philippine Islands are not part of
the 'land,' within the meaning of the Constitution, although they are governed by the sovereign authority of the United States, and although their
inhabitants are subject in all respects to its jurisdiction,--as much so as
are the people of the states of the Union. No power exists in the judiciary
to suspend the operation of the Constitution in any territory governed, as
2
to its affairs and people, by authority of the United States. 17
The same argument can be applied to the case of the World War II
Filipino veterans. At the time Congress passed the Rescission Acts, the
Philippines was still a U.S. Territory. The United States retained complete
and absolute dominion over the Philippines until its sovereignty was formally withdrawn on July 4, 1946.173 But until then, the allegiance of the
Filipino people became due to the United States, and they became entitled
to its protection. 1 7 4 Until then, the Philippines were within the exclusive
jurisdiction of the United States government, with complete power of legislation in Congress over them. 1 7 5 Until then, the United States Supreme
Court was the court of last resort on questions of Philippine statutory construction. 17 6 Until then, Filipinos were subject to criminal punishment
under the authority of the United States. 1 7 7 And until then, the President
of the United States retained the power to call all Filipino men into military service under the flag of the United States. 1 7 8 Thus, it seems that, for
most purposes, the Philippines was certainly part of the "land" of the
United States, as it was under the complete control of the United States.
Hence, it seems irrational that the Philippines would be excluded
from all the protections under the Constitution which governed it. Under
the Territorial Incorporation Doctrine, which loomed onerously over the
172. Id. at 155.
173. Filipino Am. Veterans and Dependents Ass'n v. United States, 319 F. Supp. 1314, 1317
(N.D. Cal. 1974).
174. See Fourteen Diamond Rings v. United States, 183 U.S. 176, 179 (1901). Decided in the
same year as the original Insular Cases, the Supreme Court in FourteenDiamond Rings held that the
Philippines was domestic territory for customs purposes. In effect, the Supreme Court decisions show
that territories like Puerto Rico and the Philippines are to be domestic within the meaning of tariff and
customs laws, see DeLima v. Bidwell, 182 U.S. 1 (1901) and Fourteen Diamond Rings v. U.S., 183
U.S. 176 (1901), yet not a part of the United States within the meaning of the Constitution, see
Downes v. Bidwell, 182 U.S. 222 (1901).
175. See Yu Cong Eng v. Trinidad, 271 U.S. 500, 522 (1926).
176. See id. In Yu Cong Eng, the U.S. Supreme Court struck down a Philippine statute that prohibited keeping account books in any language except English, Spanish, or the local dialect. The
Court extended an equal protection analysis because the Philippine statute discriminated against Chinese merchants who knew only the Chinese language, thus preventing them from carrying on their
business. Although an appropriate decision, Yu Cong Eng, in light of the Insular Cases, shows that the
U.S. was willing to be upright and just when correcting Philippine violations of fundamental Constitutional rights; yet,when the U.S. itself was the violator, it was held to a lesser standard of review.
177. See Dorr v. United States, 195 U.S. 138, 155 (1904) (Harlan, J., dissenting) (stating that a
Filipino who commits the crime of murder in the Philippine Islands may be hung by the sovereign
authority of the United States.)
178. See supra notes 37-40 and accompanying text.
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opinions in cases like Quiban, the Philippines as a colony under the U.S.'s
"tyrannical regime" could not enjoy the basic principles of government by
consent and equal protection of the laws. 1 7 9 With this lack of Constitutional protection, the Filipino World War II veterans lay vulnerable to
Congress' discriminatory treatment, and there was no available recourse
when they were denied their right to receive U.S. veterans' benefits.
IV.
CONCLUSION
38 U.S.C. § 107 today stands firmly against the efforts of the Filipino
World War II veterans who are fighting for equity and equality. This is
possible in part because 38 U.S.C. § 107 is bolstered by the Territorial Incorporation Doctrine of the Insular Cases and their progeny. These Supreme Court decisions held that because Congress may govern the residents of United States Territories, it has the power to deny Constitutional
rights to these same territorial residents, subject only to a rational basis
standard. These decisions, however, were based on outdated attitudes that
stem from the beginning of this century-beliefs that residents of these territories were unworthy of U.S. citizenship and that they were unfit to take
advantage of the Constitutional protections that are afforded all U.S. citizens.
38 U.S.C. § 107 also stands strong because the United States government seems to be unaware of these past cases which allowed the discriminatory and unjust treatment of residents of U.S. Territories like the Philippines. The opposition to the Filipino Veterans Equity Act give other
reasons for continuing the denial of benefits to Filipino veterans of World
War II. One current argument against the bill suggests that the Filipino
soldiers, in the end, fought for their own, soon-to-be independent Philippine nation. As Congressman Stump has said: "I do not believe that simply serving under U.S. command meets the test of swearing allegiance to
the Constitution of the United States." 180 The opposition also claims that
the government of the Philippines ultimately bears the responsibility for its
veterans. The bill is too expensive for the United States to carry the burden of paying for it.
The opposition fails to recognize, however, that as residents of a
United States territory, the Filipino soldiers and their island home were
under the ultimate control of the United States, and under the Territory
Clause, the Philippines was at the mercy of Congress. With this control
structure, the United States had the power to call the Philippine forces to
U.S. service in World War II. The U.S. had the power to organize the
Philippine forces, to train them for combat, and to control the pay scales of
179.
180.
Terrasa, supranote 141, at238.
Stump, supranote 4, at A17.
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EXTENSION OFBENEFITS TO FILIPINO VETERANS
the Filipino soldiers. The U.S. had the authority to direct the Filipino soldiers in combat. The U.S. had the power to enforce its military laws on the
Filipino soldiers. And the U.S. had the power to deny the soldiers benefits
for their service under the U.S. flag.
Today's opposition also does not realize the extent to which Congress, with the support of the Supreme Court decisions in the Insular
Cases, has used this legitimate power for illegitimate purposes-to deprive
the people of the U.S. Territories of their Constitutional rights. The right
at issue here is the right of equal protection of the laws against discriminatory treatment. Because of the Territorial Incorporation Doctrine of the
Insular Cases, Congress is held to a more lenient standard with regard to
legislation against Territories.
The members of Congress must keep this history in mind when deciding whether or not to support the Filipino Veterans Equity Act. Congress' plenary and unbridled power over the U.S. Territories cannot continue today. It is inconsistent with the ideals of government by consent
and equal protection of the laws-ideals which provide the foundation of
our Constitution. Thus, instead of concentrating on budget concerns, Congress should instead focus on correcting the wrong and injustice it inflicted
on the Filipino veterans back in 1946 and grant the veterans their right to
equal treatment. By doing so, they can take part in ending a century of
injustice that began with the Territory Incorporation Doctrine of the Insular Cases.
AUTHOR'S UPDATE:
Unfortunately, the Filipino World War 11 veterans' fight forfull US.
veterans' benefits has not yet resulted in an honorable, satisfactorysolution. However, their relentless determination has been rewardedwith the
chance to testify at the House Veterans Affairs Committee Oversight
Hearings on July 22, 1998. Despite testimony from the supporters of the
veterans' bill at the hearing, Committee Chairman Bob Stump remained
firm in denyingfull veterans' benefits to the Filipinosoldiers.
The hearing before the Veterans Affairs Committee did not lead to the
passage of the Filipino Veterans Equity Act in the 10 5 th Congress. However, the fact that Congress was willing to listen to the voices of the Filipino veterans showed that their efforts were not totallyfutile. The hearing
will hopefully lead to future negotiations on alternative solutions that will
give equitable treatment to the Filipino soldiers who served under the
UnitedStatesflag during World War 1I.
This author hopes that this work will help the Filipino veterans as
they continue their fight to resolve this 52-year old injustice before the
1 0 6 th Congress.