Justice Gorsuch asks if insular cases are wrong while deciding SSI exclusion for Puerto Rican citizen

In a Supreme Court case United States v. Vaello-Madero (oral argument), the U.S. government is seeking to exclude Puerto Rican citizens in the federal program that provides supplemental income for poor, disabled, and elderly Americans. At the same time, it is urging the U.S. Supreme Court to leave intact the infamous insular cases, which have been much criticized as being racially discriminatory in denying full constitutional protections to territory residents.

In the case, Jose Vaello-Madero was receiving Supplemental Security Income (SSI) benefits while he was living in New York. But he lost those benefits when he returned to Puerto Rico to be closer to his family, where he and his ailing wife now live under a government-provided tarp. The federal government demanded repayment of $28,000 that it had continued to pay until he applied for an increase and his new residence was listed.

During oral argument (transcript), Justice Robert asked: “Do the Insular Cases have anything to do with this litigation?”  The Deputy Solicitor General (SG) replied no, because those cases were about whether different parts of the Constitution applied differently to different territories. Here everyone agreed that the equal protection component of the Fifth Amendment applies to Puerto Rico. The SG noted that the last time the court referred to the Insular Cases, it declined to extend those cases and dismissed a request to overrule them and their “progeny.” Justice Gorusch then asked for the government’s position on the Insular Cases. When the SG responded that said some of the reasoning and rhetoric is “anathema” but reiterated they are not at issue in this particular case. Justice Gorsuch then asked:

Counsel, if that’s true, why shouldn’t we just admit the Insular Cases were incorrectly decided?

Vaelo-Madero’s counsel, Hermann Ferre, said in his reading of the insular cases Congress’  authority to make rules for the territories was intended to be temporary while territories were in “pupilage” and organizing themselves for statehood. But instead, the Insular Cases “created circumstances in which that temporary period became indefinite,” he said.

Apart from Congressional authority, the case turns on questions of Equal Protection and more specifically the standard of review that ought to apply. Defending rational review, the SG said the SSI statute draws distinctions based on geography, not race or ethnicity. Sotomayor refuted his interpretation and sought heightened review, stating: “Puerto Ricans are Puerto Ricans. They’re Hispanic, and they are routinely denied a political voice. They’re powerless politically. All you have to do is listen to some of the rhetoric about Puerto Rico and you know there has been discrimination.”

More analysis of the case appears on the National Law Journal and on Scotusblog. 

MHC