On November 9, 2021, the U.S. Supreme Court heard arguments in U.S v. Vaello Madero (No. 20-303), a case challenging the exclusion of residents of Puerto Rico from the Social Security Administration’s Supplemental Security Income (SSI) program. Based on the questioning that took place at oral argument, a majority of the Court Justices appear prepared to uphold SSI’s restriction to only the residents of the 50 states plus the District of Columbia and the Northern Mariana Islands.
The Supreme Court appears poised to overturn the First Circuit’s decision in Vaello-Madero, 956 F.3d 12 (1st Cir. Apr. 10, 2020), which ruled that the exclusion of Puerto Rico from SSI was an equal protection violation under the due process clause of the Fifth Amendment to the U.S. Constitution. In addition to affecting an estimated 700,000 residents of Puerto Rico, the Supreme Court’s decision is expected to also impact eligibility in other territories excluded from SSI: Guam, the Virgin Islands, and American Samoa. The First Circuit case was discussed in the April 2020 issue of this newsletter.
Many had criticized the Administration’s litigation position as “disturbing” given the policy’s racist origins in the Insular Cases, a line of caselaw that sanctioned the colonial relationship of the U.S. to the territories. The Department of Justice chose to defend the case, which had been appealed under the Trump Administration, even though President Biden had campaigned against Puerto Rico’s exclusion from SSI.
Rather than withdraw the petition for certiorari, President Biden instead called on Congress to amend the Social Security Act to extend SSI eligibility to Puerto Rico. HR 2713/S. 1228, the Territorial Equity Act, would extend SSI and other benefits to Puerto Rico and other territories. Most recently, the provision in Build Back Better would have done the same. But as this newsletter went to press, Build Back Better legislation appeared to have stalled because it was not believed that it would pass the Senate.
Sotomayor expressed the most serious concerns about the policy. “Puerto Ricans are citizens, and the Constitution applies to them.” She urged the court to review the policy in the context of the history of Puerto Rico’s discriminatory treatment by the U.S. government, including the history of the Insular Cases. Experts note that the impact of SSI exclusion is especially severe given the higher rate of disability and poverty in Puerto Rico compared to U.S. states, and that there is racially disparate impact because it has a majority Latinx and Black population.
The Deputy Solicitor General responded to questions about the Insular Cases by stating that “some of the reasoning and rhetoric [in the Insular Cases ] is obviously anathema,” but that “the conclusion that parts of the Constitution wouldn’t apply to Puerto Rico doesn’t decide anything that is relevant in this case.”
Justice Brett Kavanaugh expressed the view that Vaello-Madero made “compelling policy arguments” but suggested that the solution should come from Congress. He was unconvinced that the Constitution required states and territories should always be on equal footing. He believed the territories clause of the Constitution authorizes Congress to regulate U.S. territories as it sees fit, even if those regulations “may seem anachronistic to some,” Kavanaugh said.
The Deputy Solicitor General insisted that the SSI exclusion is based on geography, not race or ethnicity. As in its briefing, the government insisted the exclusion was based on tax status, a position that Justices Sotomayor and Stephen Breyer appeared to find baseless.
The First Circuit decision had found it salient that the Mariana Islands were included in the SSI program, and that their inclusion signaled a discriminatory basis for excluding the other territories. This point appeared to be overshadowed during the Supreme Court argument by the concern that a ruling requiring all states and territories be treated similarly would result in the expansion of numerous federal benefit programs.
Counsel for Vaello-Madero attempted to distinguish SSI as unique in being an “exclusively federal program.” Justice Sotomayor made a similar point. But the ramifications the ruling could have in expanding eligibility for other federal programs appeared to be the greatest concern to the conservative members of the Court.