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U.S. Supreme Court
The U.S. Supreme Court is reflected in a puddle of water in Washington, D.C., on April 5, 2022.Stefani Reynolds / AFP - Getty Images

Puerto Rico, precedent, and a surprising concurrence

In its latest case allowing residents of U.S. territories to be excluded from federal benefits, Justice Neil Gorsuch, a Trump nominee, called the Court out for its role in institutional racism.


Today, I learned something about our federal law that I’ll confess to never knowing before. Under Supreme Court precedent dating back to 1901, the federal government does not have to grant the full range of constitutional rights to residents of the U.S. territories.

And also today, SCOTUS extended that line of cases, ruling that Congress was within its rights to exclude Puerto Rico residents from the Supplemental Security Income (SSI) program, even where the applicant is a U.S. citizen.

How is that possible, you ask? Well, let’s start with the basics. SSI is a federal benefits program for those with limited resources and income and who are either disabled or blind. Jose Vaello Madero is a U.S. citizen who lived in New York for nearly three decades. In 2012, he started receiving SSI after he became seriously ill, and he moved to Puerto Rico about a year later. At first, he continued to receive SSI checks. But when the Social Security Administration realized he had moved to Puerto Rico, it not only terminated his benefits but sued him to recover the nearly $30k in checks he had “illegally cashed.” Vaello Madero defended himself, in part, by arguing that under the Fifth Amendment’s equal protection clause, he could not be lawfully excluded from the SSI program. A Puerto Rico-based district court agreed, and the First Circuit affirmed.

Today’s ruling by the Supreme Court not only overturns Vaello Maduro’s victory in two lower courts; it’s also awful news for the roughly 300,000 Puerto Ricans who would otherwise qualify for SSI benefits.

Justice Sotomayor, whose parents were born in Puerto Rico, was the sole dissenter, and hers is a fiery dissent. She observes, for example, that one of the justifications for excluding residents of the territories from benefit programs is that they contribute fewer federal tax dollars. That’s perverse, Sotomayor, argues when SSI disburses benefits to those too poor to pay much, if any, federal tax. Plus, Sotomayor reasons:

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 Court’s holding today suggests that doing so would be constitutional and not a violation of the Constitution’s promise of equal protection of citizens.

She doesn’t name those “other states,” but among states that contribute the most in federal tax revenue, it’s not hard to guess her native New York was on her mind. And her dissent ends with this critique of the Court’s treatment of Puerto Ricans as contrasted with their lack of political power:

Equal treatment of citizens should not be left to the vagaries of the political process. Because residents of Puerto Rico do not have voting representation in Congress, they cannot rely on their elected representatives to remedy the punishing disparities suffered by citizen residents of Puerto Rico under Congress’ unequal treatment. The Constitution permits Congress to “make all needful Rules and Regulations” respecting the Territories. That constitutional command does not permit Congress to ignore the equally weighty constitutional command that it treat United States citizens equally. I respectfully dissent.

But notwithstanding Sotomayor’s sharp dissent, what captivated Supreme Court watchers today was Justice Gorsuch’s concurrence. Its first paragraph alone is a blistering indictment of how Supreme Court precedent institutionalizes and excuses racism:

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.  

In other words, Gorsuch admits that today’s result flows directly from a line of early 1900s cases that twisted racist tropes into a constitutional justification. (For more about the Insular Cases, this piece is a helpful, accessible overview.)

You might be asking, “Why would Gorsuch concur if, in his view, the majority’s holding rests on cases that are themselves unconstitutional and racist?” The answer — which isn’t satisfying necessarily — is a technical one, as Gorsuch explains: “Rather than ask the Court to overrule the Insular Cases, both sides in this litigation work from the shared premise that the equal protection guarantee under which Mr. Vaello Madero brings his claim is a ‘fundamental’ feature of the Constitution and thus applies in ‘unincorporated’ Territories like Puerto Rico.”

That Gorsuch acknowledged the Court’s racism so bluntly stunned many on LegalTwitter. And the irony of his concurrence as the anti-CRT movement sweeps across red states was not lost on some, like The Atlantic’s Adam Serwer, who tweeted, “Shame you can’t teach about this opinion from a Trump appointed justice in many public schools, since it identifies systemic racism in the American legal system.”

But for now, no matter how critical Gorsuch was, the reasoning of the Insular Cases remains very much alive. One potential fix, at least for Puerto Rico, would be to achieve statehood. In his statement blasting today’s ruling, Puerto Rico’s Governor Pedro Pierluisi insisted, “La unica y la mejor solucion es la Estadidad”: The only and the best solution is statehood. 

Barring that, as Reuters’s Lawrence Hurley notes, the Court might have a chance “to confront the Insular Cases [through] a soon-to-be-filed petition on whether those born in American Samoa, another U.S. territory, get full U.S. citizenship at birth.” Will the parties take an explicit whack at overruling the Insular Cases then? Watch this space.