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The Supreme Court Case That Lays Bare Puerto Ricans’ “Second-Class Citizenship”

Why are residents of the island commonwealth denied certain federal benefits that are given to U.S. citizens nearly everywhere else? The justices have decided to take up that question.

A man carries a Puerto Rican flag during a protest in San Juan

In 2013, Jose Luis Vaello-Madero moved back to Puerto Rico. He had lived and worked in New York since 1985. His wife had already moved back to the island for medical reasons; now he would join her there to help take care of her. By then, he had developed health problems as well. And so, like millions of other Americans, he sought and received benefits under the Supplemental Security Income program that his taxes had helped fund over the years.

If Vaello-Madero had moved to a remote cabin in Alaska or bought a houseboat in Florida, he would have been able to continue collecting SSI without a problem. But Congress had only authorized the SSI program in the 50 states, the District of Columbia, and the Northern Mariana Islands. When the Social Security Administration learned, three years later, that Vaello-Madero was still receiving payments inside Puerto Rico, it stopped disbursing them. Then the agency sued him to recover the $28,081 he had already received.

Now the Supreme Court will decide if he—and the commonwealth in which he now lives—were unjustly denied access to the program by Congress. The justices agreed on Monday to hear the case at the urging of the Justice Department. If it rules in favor of Vaello-Madero, it could open up multiple nationwide benefits programs to the island’s three million residents, who are citizens of the United States. If the court sides with the Justice Department, however, the court could also take the opportunity to further entrench the colonial-era rulings that keep Puerto Ricans in what the commonwealth described to the court as a “second-class citizenship not supported in the Constitution.”

The case, United States v. Vaello-Madero, first made its way to a federal district court in Puerto Rico, where the judge sided with Vaello-Madero. Congress, Judge Gustavo Gelpí wrote in his 2019 ruling, “cannot demean and brand said United States citizen while in Puerto Rico with a stigma of inferior citizenship to that of his brethren nationwide.” The Justice Department appealed the decision to the First Circuit Court of Appeals. A three-judge panel quibbled with Gelpí’s reasoning but ultimately ruled that Congress had violated the equal-protection guarantees of the Fifth Amendment’s Due Process Clause by excluding U.S. citizens in Puerto Rico.

“While we respect the legislature’s authority to make even unwise decisions to purportedly protect the fiscal integrity of SSI and the federal government itself, the Fifth Amendment does not permit the arbitrary treatment of individuals who would otherwise qualify for SSI but for their residency in Puerto Rico,” Judge Juan Torruella wrote for the panel in 2020. “Even under rational basis review, the cost of including Puerto Rico’s elderly, disabled, and blind in SSI cannot by itself justify their exclusion.”

In its briefs for the Supreme Court, the Justice Department cited two precedents to support its position. First, in the 1978 case Califano v. Torres, the Supreme Court rejected an SSI claim by a Puerto Rico resident who had argued the denial violated his right to travel. Then, in the 1980 case Harris v. Rosario, the court overturned a lower-court ruling that held Puerto Rico’s exclusion from the predecessor program to Temporary Assistance for Needy Families did not violate the Fifth Amendment’s Due Process Clause. Taken together, the two rulings strongly suggest that Congress could exclude U.S. citizens in Puerto Rico from the SSI program without violating the Constitution.

Vaello-Madero pointed out that those two decisions came without full arguments or briefings, and therefore hold less precedential weight. But he also attacked the deeper line of cases that led to them. “The legal foundation upon which Califano and Harris are built is not good law,” his lawyers told the court. “Those cases attributed Congress’s power to discriminate against Puerto Rico to the island’s territorial status under the Insular Cases—a much-criticized line of cases that are long overdue to be overruled.” The Insular Cases, in a nutshell, are a series of rulings where the Supreme Court held the Constitution does not fully apply to territories acquired by the U.S. during the Spanish-American War.

In those rulings, the Supreme Court distinguished Puerto Rico from other then-territories like Arizona, New Mexico, and Oklahoma by saying the latter were on the path to eventual statehood, while territories like Puerto Rico and Guam were not. Racism played an unambiguous factor in the distinction. In Dawnes v. Bidwell, the first of the Insular Cases, the Supreme Court described Puerto Rico and other newfound colonial possessions as “inhabited by alien races, differing from us in religion, customs, laws, methods of taxation, and modes of thought,” where “the administration of government and justice, according to Anglo-Saxon principles, may for a time be impossible.”

To understand how this quasi-colonial status sets Puerto Rico—and the American citizens who live there—apart from the rest of the country, look no further than the Justice Department’s explanation to the court of what would happen if the First Circuit’s ruling survived. “Congress has enacted a wide range of statutes that treat Puerto Rico and other Territories differently than the States for purposes of federal funding,” the department noted in one brief, citing the Supplemental Nutrition Assistance Program, TANF, Medicare, Medicaid, the Coronavirus Relief Fund, and the School Lunch Program. In another filing, the Justice Department warned that Puerto Rico would receive between $1.8 and $2.4 billion in SSI benefits alone over the next 10 years. “Congress has a legitimate interest in limiting government expenditures, and excluding Puerto Rico from SSI is a rational means of advancing that interest,” the department added.

Puerto Rico, in its own brief for the court, noted the perverseness of justifying its exclusion for tax reasons. The SSI program is generally used by beneficiaries who are elderly, disabled, and often unable to work. “Thus, the SSI program benefits individuals who do not pay federal income taxes because their income is too low,” the commonwealth told the court. “Moreover, the beneficiaries of SSI do not pay federal taxes, regardless of the state they reside in.” What’s more, Puerto Rico also pointed out that even noncitizens can qualify for SSI benefits “from which the U.S. citizens of Puerto Rico are excluded.” To make matters worse, the Justice Department freely admitted that the predecessor program to SSI, which Congress kept intact for Puerto Rico after the other states and territories had switched over to SSI, “covers fewer people and provides a lower level of benefits than SSI would have done had it been available in Puerto Rico.”

Some of the Justice Department’s arguments were awkward at best. While discussing the factors laid out in Rosario, the department suggested at one point that extending SSI benefits—which are designed to help the elderly and people with disabilities—to Puerto Rico could destabilize its economy by removing people from the workforce. “Congress has a legitimate interest in avoiding economic disruption in Puerto Rico, including by maintaining the stability of the labor supply in Puerto Rico, and Congress could rationally conclude that treating Puerto Rico differently than the States for purposes of SSI (and other benefits programs) advances that interest,” the department claimed in its brief for the court.

“The government’s theory is that it is rational to deny these benefits because people in Puerto Rico, more so than elsewhere, will not work if governmental benefits are available,” Vaello-Madero replied in his own brief. He noted that Thurgood Marshall had criticized the “troubling overtones” of this argument in his dissent in Rosario at the time. And he hypothesized that the Justice Department’s “reluctance to lean directly on this theory before the First Circuit seems to be a recognition that this contention is irrational (and perhaps invidious).”

The Justice Department had initially asked the Supreme Court to take up the case under the Trump administration. Since President Joe Biden took office, however, DOJ officials have reversed course in other high-profile cases already before the court. Jenniffer Gonzalez-Colon, who represents Puerto Rico in Congress as a nonvoting delegate, sent a letter to Biden and top DOJ officials on January 20 urging them to withdraw the request for Supreme Court review. But the department took no steps to reverse its course before today, and now it’s in the justices’ hands.

“Of all the disparities that Americans living in the territories face, none is as shocking to the conscience as the disparity in the assistance available to the most vulnerable citizens, people who under no circumstance can support themselves,” Gonzalez-Colon wrote in the letter. “An American living under the poverty line in the states, the District of Columbia, or the Northern Mariana Islands is no more needy, vulnerable or deserving of assistance than an American living under the poverty line in the territories.”

Whether the court will side with Puerto Rico is unclear. In recent cases, the justices have generally been uncomfortable with the island’s unusual status but also unwilling to make significant changes to it. Whether the Biden administration will change tack in the case once Merrick Garland is confirmed as attorney general later this month also remains to be seen. What is more foreseeable, however, is that some Americans will continue to be treated and governed differently simply for living on land acquired in the Spanish-American War and not one of the other conflicts that shaped the modern U.S.