Lía Fiol-Matta
Earlier this year, the Supreme Court delivered a strong blow to Puerto Rico by ruling that its neediest residents are not eligible for Supplemental Security Insurance (SSI). U.S. v. Vaello Madero challenged the exclusion of otherwise eligible residents of Puerto Rico from receiving SSI, a national benefit for needy aged, blind, and disabled individuals. Jose Luis Vaello Madero, a disabled U.S. citizen, received SSI while living in New York and continued getting payments after relocating to Puerto Rico in 2013.
A few years later, the Social Security Administration revoked Vaello Madero’s benefits retroactively to the date he became a resident of Puerto Rico because he was considered to be living outside the United States. The government sued Vaello Madero seeking to recover over $28,000 in alleged overpayments. Vaello Madero disputed the liability, asserting that denying SSI to eligible citizens because they live in Puerto Rico violated the Equal Protection Clause of the Fifth Amendment.
By an 8-1 majority, the Supreme Court reversed two lower court decisions that had agreed that excluding otherwise eligible residents of Puerto Rico from SSI is “irrational and arbitrary” and thus violated equal protection principles in the Fifth Amendment. The Court rejected the view that Congress must extend SSI to residents of Puerto Rico as it does to residents of the States, holding that the Territory Clause gives Congress the right to make that determination (“The Congress shall have the power to … make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States”). The Court found no equal protection violation, accepting the government’s argument that Puerto Rico residents’ exemption from some federal taxes provided a rational basis–i.e., any “legitimate” reason–for denying payments to otherwise qualified poor, disabled, and elderly individuals.
The Court’s sole dissenter, Justice Sonia Sotomayor, pointed to the injustice of such a ruling, as several states contribute even less taxes than Puerto Rico to the federal coffers yet are not excluded from SSI benefits, namely, Vermont, Wyoming, South Dakota, North Dakota, Montana, and Alaska. Sotomayor described the Court’s decision as “irrational and antithetical to the very nature of the SSI program and the equal protection of citizens guaranteed by the Constitution.”
An estimated 436,000 people in Puerto Rico could potentially qualify for SSI if not for Congress’ discriminatory treatment. The program was designed specifically to assist those “who have little to no income” with their basic needs. The program is aimed for those who cannot work and, therefore, do not pay federal income taxes. To deny poor, elderly, and disabled residents of Puerto Rico, many of them children, such an important federal benefit under the Court’s contradictory reasoning leads to a tragic, senseless result.
A large reason why the territories are treated unequally when it comes to constitutional protections is the reliance on what are known as the Insular Cases, a series of Supreme Court decisions spanning from 1901 to 1922 that describe residents of the territories as “alien races” and “savage tribes,” and in which the Court essentially invented the “territorial incorporation doctrine,” under which the territories are only guaranteed “fundamental” constitutional rights. These are rights specifically identified in the Bill of Rights of the Constitution or that have been found to exist under due process and the Supreme Court has recognized as requiring a high level of protection from government intrusion. The determination to deny SSI benefits to Vaello Madero and to the residents of Puerto Rico directly paralleled Justice Byron White’s concurring opinion in Downes v. Bidwell, which provided the basis for the territorial incorporation doctrine, establishing that Puerto Rico “was foreign to the United States in a domestic sense.”
The Social Security Act (SSA) deprives individuals residing “outside the United States” for more than thirty consecutive days from receiving benefits under the SSI program. The federal Social Security website defines the term “United States” to mean “the 50 States and the District of Columbia.” This classification reflects the double constitutional standard created in the Insular Cases that justifies providing a lower level of constitutional protection to Puerto Ricans and residents of United States territories. The territorial incorporation doctrine, a framework with no constitutional basis that continuously treats residents of U.S. territories as second-class citizens, is obsolete and useless.
In Vaello Madero, Justices Neil Gorsuch and Sotomayor both expressed hope that the Court will stop relying on the “misguided framework” of the Insular Cases when interpreting the Constitution and deciding what rights apply to the territories. Despite voting with the majority, Gorsuch affirmed in a concurring opinion that “[t]he Insular Cases have no foundation in the Constitution and rest instead on racial stereotypes. They deserve no place in our law.”
Sotomayor, in her strong dissent, denounced the decision as “especially cruel” because Puerto Rico has a disproportionately large number of people who are elderly and/or disabled and 43.5 percent of residents live below the poverty line. In her words, “there is no rational basis for Congress to treat needy citizens living anywhere in the United States so differently from others.”
It’s time the Insular Cases and the territorial incorporation doctrine become a relic of the past. For now, that seems unlikely. A case that could have achieved such a laudable outcome was, unfortunately, recently denied review by the Supreme Court, without any dissents to the denial. The petitioners were Utah residents born in the U.S. territory of American Samoa who argued that Congress’ classification of American Samoan residents as U.S. “nationals” as opposed to citizens violated the citizenship clause of the Fourteenth Amendment. Plaintiffs prevailed at the District Court, yet the Tenth Circuit of Appeals reversed that decision, in part because of the discriminatory framework of the Insular Cases. For that reason, one of the questions presented in Fitisemanu v. U.S. that the Court declined to address was whether the Insular Cases should be overruled.
Another case pending at the Supreme Court also asks the Court to overrule the Insular Cases. Federación de Maestros de Puerto Rico v. Financial Oversight and Management Board (FOMB) was filed on behalf of several teachers’ associations against the FOMB, the fiscal board created and imposed on Puerto Rico in 2016 by the Obama Administration. These associations are disputing the Board’s amendment of teacher retirement plans (including eligibility requirements) as part of the FOMB’ statutory mandate to create a plan of adjustment to resolve Puerto Rico’s debt. The petitioners describe this as an impermissible power to affirmatively legislate on the Board’s part. We will see if the Court takes up this case.
The effects of the Vaello Madero decision are devastating. It is abominable for the United States to discriminate with respect to federal benefits against the neediest of its own citizens. Civil rights advocates will continue fighting for the Insular Cases to be overruled, for legislation to be passed supporting parity in federal benefits to residents of the territories, and to ensure that Puerto Ricans in the archipelago are treated as equal citizens, with the respect and dignity they deserve.
Lía Fiol-Matta is a Senior Counsel at LatinoJustice PRLDEF where she focuses mostly on legal issues related to her native Puerto Rico. Lía also has an extensive background in union-side labor law and is a proud alumna of CUNY School of Law (’03).