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Why the Supreme Court ruling on Puerto Rico is so predictable

This is what modern-day colonialism looks like.
Image: A man carrying a Puerto Rican flag.
A protest against the referendum for Puerto Rico political status in San Juan in 2017.Ricardo Arduengo / AFP via Getty Images file

Last week, after the Supreme Court decided in an 8-1 vote that Puerto Ricans living on the island can be denied federal benefits, including disability benefits via Supplemental Security Income, my social media feeds were filled with predictable responses about how unfair and unjust the ruling was because, so went the complaints, Puerto Ricans are American citizens who deserve full rights. As a Puerto Rican journalist who has been covering my homeland for over 20 years, the latest outrage is both valid and misplaced.

The United States has never viewed Puerto Ricans in Puerto Rico as American citizens with equal rights.

The reality is the United States has never viewed Puerto Ricans in Puerto Rico as American citizens with equal rights. Instead, it has viewed them as colonial subjects. There is no other way to explain it. The United States invaded Puerto Rico in 1898 during the Spanish-American War. The island belongs to this nation, but it has never been a real part of it. Last week’s Supreme Court ruling just stated the obvious and served to remind everyone that the Constitution “affords Congress broad authority to legislate with respect to the U.S Territories.”

That means the United States can do whatever it wants to do regarding Puerto Rico, even though Puerto Ricans are American citizens.

For the situation to change, Puerto Rico’s constant identity struggle must focus on racial, social and economic justice. Well-intentioned Americans who truly want to be Puerto Rico’s allies need to embrace that reality or run the risk of being perpetuators of a failed experiment now in its 124th year.

They should direct their outrage at the United States not against the Supreme Court, which, in last week’s decision, was only following legal precedent grounded in the racist Insular Cases of the early 20th century. Those rulings set the foundation for subsequent decisions that the Constitution does not apply to everyone in the new American empire — especially not to the war booty of 1898. As Reuters reported February about those early 1900s rulings, “one Supreme Court justice at the time referred to territories ‘inhabited by alien races’ and another endorsed the notion that the United States can seize ‘an unknown island, peopled with an uncivilized race’ without conferring citizenship.”

The American Civil Liberties Union is correct when it says the Insular Cases are “unabashedly racist, firmly rooted in white supremacy, and still haunt the day-to-day lives of millions of people.” In 2021, a bipartisan resolution from the Natural Resources Committee noted the Insular Cases had fostered a “separate and unequal” relationship between the U.S and its territories.

Still, Congress does nothing.

There was, however, one positive development from Thursday’s ruling. Despite the stark ideological divide of the Supreme Court, conservative Justice Neil Gorsuch and liberal Justice Sonia Sotomayor (who is of Puerto Rican descent) agreed that the Insular Cases are the biggest impediments toward finally resolving Puerto Rico’s relationship with the U.S.

Justice Neil Gorsuch and Justice Sonia Sotomayor agreed that the Insular Cases are the biggest impediments toward finally resolving Puerto Rico’s relationship with the U.S.

“A century ago in the Insular Cases, this Court held that the federal government could rule Puerto Rico and other Territories largely without regard to the Constitution. It is past time to acknowledge the gravity of this error and admit what we know to be true: The Insular Cases have no foundation in the Constitution and rest instead on racial stereotypes. They deserve no place in our law,” Gorsuch wrote in his opinion.

Sotomayor, the only justice to dissent, wrote in that opinion: “I do agree, however, with JUSTICE GORSUCH’s view that it ‘is past time to acknowledge the gravity’ of the error of the Insular Cases.”

But the political will to end colonialism has sputtered yet again. For example, during his 2020 presidential campaign, Joe Biden promised that Puerto Ricans would get more federal benefits including SSI, but at the Supreme Court, the Biden Administration chose to defend the government’s denial of SSI benefits to Puerto Ricans who are eligible for them on the mainland but not in Puerto Rico.

In a statement last June, Biden said the Department of Justice “has a longstanding practice of defending the constitutionality of federal statutes, regardless of policy preferences.”

Rep. Nydia Velázquez, D-N.Y., who was born in Puerto Rico, noted this in a statement Friday about Biden’s position.

“This was a grave failure to do right by the people of Puerto Rico,” Velázquez said.

The focus ought to be on ending colonialism in Puerto Rico, which requires a final decision about its relationship with the United States. The decadeslong debate about whether Puerto Rico should become a state, an independent nation or something in between has gone nowhere. Part of the blame falls on the United States government, but the rest falls squarely on the island’s political parties, which sell fantasies of a final status but have no actual power to get it done.

The debate on whether Puerto Rico should become a state, an independent nation or something in between has gone nowhere

The most recent farce in Congress — where a statehood bill and a self-determination bill have lingered for over a year in committee with no compromise or action — is just the latest example of a dead-end discussion. With the midterms coming up, it is doubtful that Puerto Rico suddenly gets attention, even with a high-profile Senate race in Florida where the winning candidate will likely need central Florida’s Puerto Rican votes.

Such inaction circles back to the Insular Cases. America’s shameful past needs to be corrected, but nothing will change until the Insular Cases are permanently struck from the books.

Be outraged about that.

CORRECTION (April 27, 2022, 3:06 p.m. E.T.): A previous version of this article misstated a Supreme Court ruling in relation to a lower court. In deciding last week that Puerto Ricans on the island are not entitled to SSI benefits, the Supreme Court overturned a lower court’s decision; it did not confirm it.

(April 27, 9:45 p.m. ET): The article also misstated the news outlet cited on Supreme Court rulings from the early 1990s. It was Reuters, not The Associated Press.