Judge Blocks Discrimination Against Puerto Ricans, Says Federal Government Is Engaging in “Citizenship Apartheid”

Trump, wearing a windbreaker, waves in a crowd at Muñiz air base.
President Donald Trump waves as he arrives at Muñiz Air National Guard Base on Oct. 3, 2017, in Carolina, Puerto Rico. Joe Raedle/Getty Images

Donald Trump’s appalling negligence toward Puerto Rico is one of the most deadly, disturbing, and overlooked tragedies of his presidency. After Hurricane Maria ravaged the U.S. territory in 2017, the Trump administration botched disaster relief, contributing to a humanitarian crisis that, according to researchers from George Washington University, cost nearly 3,000 lives. (Trump rejected this death toll as Democratic propaganda.) Residents had to beg for food, water, and medical care while emergency relief goods sat undistributed at ports. Five months after the storm, half a million Puerto Ricans still lacked electricity. Trump initially tried to deny the island any federal aid, then attempted to cut off funding by claiming, falsely, that officials were misusing the money. He insisted that the hurricane was not a “real catastrophe like Katrina.” Today, the White House is still working to block supplemental funds for the territory’s recovery.

Trump’s approach to the Puerto Rico catastrophe was unprecedented in its malice. But it is only the latest chapter in the federal government’s long-standing discrimination against the island, abuse that enabled the White House to ignore its suffering without fear of political consequence. Because Puerto Rico is a territory rather than a state, federal law treats its residents as second-class citizens, depriving them of full voting rights and representation in Washington, as well as equal access to health care and disability benefits. This arrangement is enabled by century-old precedents that permitted mistreatment of territories like Puerto Rico because they are “inhabited by alien races.”

On Monday, however, U.S. District Judge Gustavo Gelpí—a George W. Bush appointee—issued a shot across the bow that throws the legality of this federal abuse into question. In a fiery ruling, Gelpí accused the federal government of unconstitutionally discriminating against Puerto Ricans, violating their equal protection rights by withholding disability benefits owed to mainland residents who are from the island. Gelpí concluded that the Supreme Court’s recent marriage equality decision eroded the old, racist precedents, guaranteeing Puerto Ricans the full privileges of citizenship. His decision could mark the beginning of an earthquake in federal law—one that could finally limit the federal government’s ability to abuse the territories.

Although residents of Puerto Rico are American citizens, Congress has refused to extend the full social safety net to the island. Medicaid reimbursement, for instance, has long been capped at about $300 million a year. In the states, funds are distributed based on average per capita income. So the federal government pays a much smaller percentage of Puerto Rico’s Medicaid costs than it would if it were a state. This disparity has contributed to the island’s financial crisis, as have statutes restricting its ability to restructure debt. There are no health care exchanges in the territory, and thus no subsidies for individuals who buy insurance. And residents of the island are ineligible for Supplemental Security Income, which provides cash to indigent people who are elderly or disabled.

This last exclusion was at issue in U.S. v. Vaello-Madero. The defendant, Jose Luis Vaello-Madero, lived in New York from 1985 to 2013, receiving SSI benefits because of a disability. In 2013, he moved to Puerto Rico—which disqualified him from the program. Under a federal statute, only residents of the 50 states, the District of Columbia, and the Northern Mariana Islands (a territory) may receive SSI benefits. But the Social Security Administration did not learn of Vaello-Madero’s relocation until 2016, at which point it halted his SSI payments. It did not demand a return of the 2013–16 payments at the time.

Then, following the change in presidential administration, the agency came calling, demanding its money back. In August 2017, the federal government sued Vaello-Madero for $28,081, the money he received while living in Puerto Rico. Instead of paying, Vaello-Madero argued that the law stripping him of this money is unconstitutional. After the case landed on Gelpí’s docket, the government panicked and tried to dismiss the case—using a maneuver that would permit it to file a new suit in a different court. Gelpí rejected its request in a remarkable order questioning several precedents that permit economic discrimination against Puerto Ricans.

Gelpí wrote, “There is increased national awareness of [Puerto Rico’s] existence and political consensus against its disparate treatment.” And “as a result, federal courts could now conclude” that federal discrimination against territorial residents is constitutionally suspect. Earlier rulings rooted in “imperialist” and “outdated premises” must be “revisited” in light of recent, more enlightened decisions.

Gelpí made good on that promise Monday, concluding that United States v. Windsor—in which the Supreme Court invalidated DOMA, the federal ban on same-sex marriage—protected Vaello-Madero’s access to disability benefits. The connection between marital and territorial equality might seem tenuous. But, as Gelpí illustrates, it is quite straightforward. While the Constitution gives Congress the power to “make all needful Rules and Regulations respecting [territories],” the Supreme Court clarified in Windsor that it may never deny Americans “the equal protection of the laws … protected by the Due Process Clause of the Fifth Amendment.” And, under Windsor, a “ ‘bare congressional desire to harm a politically unpopular group cannot’ justify disparate treatment of that group.”

Just as Congress cannot disfavor gay Americans because of their sexual orientation, Gelpí wrote, it cannot single out Puerto Ricans because they live in a territory. “Classifying a group of the Nation’s poor and medically neediest United States citizens as ‘second tier’ simply because they reside in Puerto Rico,” he explained, “is by no means rational.” To the contrary, it is discriminatory animus against “a politically powerless group.” It imposes an “injury and indignity” that infringes upon “an essential part of the liberty protected by the Fifth Amendment.” This “injury” is not justified by the fact that most Puerto Ricans do not pay federal income tax; taxation status cannot excuse “a citizenship apartheid based on historical and social ethnicity within United States soil.”

“Allowing a United States citizen in Puerto Rico that is poor and disabled to be denied SSI disability payments,” Gelpí concluded, “creates an impermissible second rate citizenship akin to that premised on race and amounts to Congress switching off the Constitution.”

These are, in short, fighting words. Gelpí is essentially challenging the judiciary to consider the possibility that federal discrimination against Puerto Ricans is neither benign nor permissible, but rather a result of racist callousness that the Constitution generally prohibits. If more courts agreed, more unjust laws—like those that entrench substandard health care for the island’s residents—would be imperiled. The federal government could no longer freely single out Puerto Ricans for poor treatment.

Gelpí’s decision will be appealed, and a higher court may yet order Vaello-Madero to turn over the $28,081. A similar case is also pending in Guam; if appeals courts eventually disagree, the Supreme Court could hear this issue. It is unlikely, though not impossible, that a majority of the justices will agree with Gelpí given the Supreme Court’s imperialist view of Puerto Rico. But at a minimum, Gelpí’s ruling will force mainland judges to reckon with the “citizenship apartheid” that the federal government has created and maintained with the help of the courts. Puerto Ricans deserve better than Trump’s malevolence and Congress’ neglect. They deserve a judiciary that safeguards the rights afforded to them as American citizens.