In an 8-1 decision issued April 21, 2022, the Supreme Court ruled in U.S. v. Vaello Madero that the exclusion of residents of Puerto Rico from the Supplemental Security Income (SSI) program does not violate the United States Constitution. Civil rights groups are condemning the decision as perpetuating the wrongful treatment of the residents of Puerto Rico as less than full citizens of the U.S., and as “undergirded by precedents that compound wrongs and historical practices that should have been rejected long ago.” A lone dissent by Justice Sonia Sotomayor described the majority decision as “especially cruel given those citizens’ dire need for aid.”
Currently, SSI is only available to residents of the United States, which, for purposes of SSI, is defined by statute as including only the 50 states, the District of Columbia, and the Northern Mariana Islands. Other U.S. territories are not included.
The majority opinion, written by Justice Brett Kavanaugh, applied the rational basis test to find it permissible to treat residents of the territories differently than if they lived in a state because of the different tax status applicable to territories, an outcome authorized by the Territories Clause of the Constitution. In particular, “the fact that residents of Puerto Rico are typically exempt from most federal income, gift, estate, and excise taxes – supplies a rational basis for likewise distinguishing residents of Puerto Rico from residents of the States for purposes of [SSI].” The majority, particularly at oral argument, expressed a concern that permitting SSI in the territories would open the floodgates for eligibility to other federal benefits.
As the lone dissenter, Justice Sonia Sotomayor found this reasoning insufficient, even under the deferential standard of rational basis. As had been considered by the lower courts, “SSI recipients are, by definition, low-income individuals who cannot afford to pay taxes.” Moreover, SSI is a uniquely “‘national program’ that is operated and administered uniformly, without regard to State of residence.” Because of that, it would be irrational to tie an individual’s entitlement to SSI to that individual’s place of residency. The dissent declined to address whether the policy should have been subject to heightened scrutiny.
Justice Sotomayor also found the majority’s concern about “far reaching consequences” with respect to other programs inapposite:
In fact, it is the Court’s holding that might have dramatic repercussions. If Congress can exclude citizens from safety net programs on the ground that they reside in jurisdictions that do not pay sufficient taxes, Congress could exclude needy residents of Vermont, Wyoming, South Dakota, North Dakota, Montana, and Alaska from benefits programs on the basis that residents of those States pay less into the Federal Treasury than residents of other States.
The dissent also noted how tax status had not precluded eligibility for SSI in the Northern Mariana Islands. The First Circuit’s decision that had found Puerto Rico’s exclusion unconstitutional focused on this point, but the point was largely absent from the arguments in the Supreme Court.
In a noteworthy concurrence, Justice Neil Gorusch forcefully rebuked the Insular Cases, a line of case law that sanctioned the colonial relationship of the U.S. to the territories, and that determined the full scope of the Constitution did not apply. Describing the cases as “shameful,” based on “ugly racial stereotypes,” and with no basis in the text of the original Constitution, Justice Gorsuch called for the Insular Cases to be overturned in the future. In a footnote, Justice Sotomayor agreed.
Some of the amicus briefs had called for the overturning the Insular Cases. However, the parties themselves did not ask this specifically and took the position that doing so was not necessary to resolve the dispute. Had the request been before the Court, Justice Gorsuch would not have joined the majority:
Because no party asks us to overrule the Insular Cases to resolve today’s dispute, I join the Court’s opinion. But the time has come to recognize that the Insular Cases rest on a rotten foundation. And I hope the day comes soon when the Court squarely overrules them.
The majority’s conclusion acknowledged that the President supported, as a matter of policy, the expansion of SSI to the territories. But as noted by Justice Sotomayor, the political process has been insufficient. Efforts to expand SSI have stalled, and the lack of voting representation in Congress hinders the ability of Puerto Rico’s elected representatives to advance the rights of its citizens.
The briefs filed in the case were discussed in the July 2021 and October 2021 issues of this newsletter. Oral argument was discussed in the January 2022 issue.