Jurisprudence

Biden Made a Promise to End Discrimination Against Puerto Ricans. He’s About to Break It.

Territorial residents can’t protect themselves through the political process. The Supreme Court should take note.

A protester holds up a Puerto Rican flag at dusk.
A protester demonstrates against infrastructure failures in San Juan, Puerto Rico on October 15, 2021. RICARDO ARDUENGO/Getty Images

The 3.5 million U.S. citizens living in Puerto Rico and other territories do not get as much support from the federal government as citizens living elsewhere in the United States. That’s no surprise: After all, they cannot vote for president, lack any voting representation in Congress, and have no real autonomy. As a result, they get short-changed in a range of federal programs other communities in the United States take for granted, like Supplemental Security Income (SSI), Medicaid, and Supplemental Nutrition Assistance Program (SNAP), to the tune of billions of dollars a year. These inequalities—which are grounded in an uncomfortable history of systemic racism towards residents of the territories—will come to head over the next month as all three branches of the federal government are presented with the opportunity to bring this second-class treatment to an end.

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For the first time ever, the president and congressional leaders have not only promised to eradicate the federal benefits disparities facing citizens in the territories, but also settled on a legislative vehicle for them to deliver in the form of the pending budget reconciliation bill. If Congress nonetheless fails to act despite this historic alignment of the political stars, that should make clear to the Supreme Court that there is the kind of political process failure that demands greater judicial intervention.

Continuing federal discrimination against citizens in the territories is getting increased national attention as the Supreme Court prepares to hear argument next month in United States v. Vaello-Madero. On November 9th, the justices will consider whether to uphold two lower court decisions concluding that the denial of SSI benefits to a U.S. citizen who moved from New York to Puerto Rico violates equal protection. The SSI program is one of the country’s most essential social safety net programs, recognizing the inherent dignity of millions of the most vulnerable, low-income Americans who are aged, blind, or disabled by providing them with a basic income to help them care for their needs. While these critical benefits are taken for granted in most American communities, they are not available to otherwise eligible citizens in most U.S. territories simply because of where they happen to live.

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Last year, during the heat of the presidential campaign, then-candidate Joe Biden promised in response to a tweet announcing the Trump administration’s appeal of Vaello-Madero to the Supreme Court that “[t]his ends when I’m elected president.” But when pressed as president to stop defending these discriminatory laws in court, Biden blinked.

To the chagrin of many, the Biden Justice Department continued defending the denial of SSI in Puerto Rico, arguing in its brief to the Supreme Court that “the Constitution vests Congress, not the courts, with responsibility for making appropriate changes.” The Justice Department did, however, concede there was “a strong policy case for increasing federal aid to needy residents of Puerto Rico.” Apparently, when Biden promised “this ends,” his eye was towards Congress, not the courts.

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Indeed, in an awkward statement issued just hours before the Justice Department filed its brief, now-President Biden reiterated political promises he had made during the campaign to emphasize that citizens in the territories “should be able to receive SSI benefits, just like their fellow Americans in all 50 states and Washington D.C.” To back up his strong words that “there can be no second-class citizens in the United States of America,” Biden called for greater parity for SSI and other federal programs in the territories as part of his 2022 Budget Request to Congress.

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It would seem that Democratic leaders in Congress are well-positioned to deliver on Biden’s promise to bring and end to the denial of SSI to vulnerable citizens in U.S. territories. After all, at the core of the proposed budget reconciliation package is the historic expansion of federal efforts to care for vulnerable Americans. Furthermore, Sen. Bernie Sanders, the chief architect of the new spending plan, has introduced legislation that would extend SSI to the territories and permanently bring an end to other federal benefits disparities. And including SSI for the territories through reconciliation receives majority support from Democratic, Republican, and independent voters alike.

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All this might lead you to think that by the time the Supreme Court takes up oral argument in Vaello-Madero on November 9th, or certainly by the time it rules sometime next year, that Biden and congressional Democrats may have already extended SSI benefits to Puerto Rico. Unfortunately, that seems like wishful thinking. So far, the reconciliation package pending before Congress includes literally nothing to fix SSI or other federal benefits disparities for citizens in the territories. And that was before the latest revelations that the original $3.5 trillion dollar plan will be dramatically cut.

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This state of affairs speaks to a question that the Supreme Court should take seriously when it hears oral argument in Vaello-Madero next month: Are Puerto Ricans powerless?

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While the lower courts held that Congress’s denial of SSI benefits to residents of U.S. territories lacks any rational basis, José Luis Vaello Madero and many of the more than two dozen amicus briefs (including one filed by my nonprofit, Equally American) also argue that the Supreme Court should apply a greater level of scrutiny given that these citizens remain structurally disenfranchised.

In what has become known as the most famous footnote in constitutional law, the Supreme Court wrote in 1938 that courts should provide “a more searching judicial inquiry” when lines are drawn that spring from “prejudice against discrete and insular minorities” who are unable to protect themselves through the political process. In short, politically powerless groups deserve greater judicial protection. This is why the Justice Department’s argument that “the proper mechanism” to extend SSI benefits to citizens in the territories “is action by Congress” should ring hollow to the nine justices—just as it does to the 3.5 million U.S. citizens in the territories who have been shut out of the political process now for almost 125 years.

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Greater judicial scrutiny is also justified by the fact that residents of U.S. territories are 98 percent racial or ethnic minorities. It is foundational that the Supreme Court considers racial discrimination to be constitutionally suspect. Next month, the justices should ask themselves how likely it would be that citizens in Puerto Rico would be denied SSI benefits if their racial demographics mirrored, say, Vermont or West Virginia. Indeed, that citizens in Puerto Rico continue to face federal discrimination at all is a legacy of the Supreme Court’s blatantly racist decisions in the Insular Cases—which in the early 1900s labeled residents of newly acquired island territories “alien races” and likened them to a “fierce, savage, and restless people”—something the court has still yet to deal with.

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The bottom line is that the pending reconciliation bill offers the president and congressional leaders the best opportunity that we have seen in a generation to extend SSI to citizens in the territories. And it will likely be another generation before we see this kind of opportunity again. So if Congress and Biden fail to deliver now, then the Supreme Court should take that as a clear indication that there is a fundamental malfunction in the political process. When disenfranchised citizens in the territories are singled out to be excluded from national programs every other citizen takes for granted, the Supreme Court should intervene. If not, then the words “Equal Justice Under Law” inscribed on the U.S. Supreme Court will be devoid of any meaning to citizens in the territories.

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