May 24, 2022
United States v. Vaello-Madero, 142 S. Ct. 1539 (2022) (Kavanaugh, J.)
Response by Cori Alonso-Yoder†
Geo. Wash. L. Rev. On the Docket (Oct. Term 2021)
Slip Opinion | SCOTUSblog
United States v. Vaello Madero and the Insulation of the Insular Cases
In 2017, sixty-three-year-old Jose Luis Vaello-Madero’s world was rocked by multiple calamities. In September of that year, Hurricanes Irma and Maria devastated the U.S. territory of Puerto Rico where Vaello-Madero made his home. The storms’ toll on the island was counted in the estimated $43 billion1 in economic losses and the 3,000 deaths2 of United States citizens who lived there. Despite surviving these natural disasters, Vaello-Madero found himself simultaneously weathering a manmade legal storm.
In that same year, the U.S. Government sued Mr. Vaello-Madero to recover $28,081 (plus, attorneys’ fees, interest, and costs) it claimed he had illegally received in federal Supplemental Security Income (SSI). In the days following Hurricane Irma’s devastation of his hometown in Loiza, a Social Security Administration investigator approached Vaello-Madero and asked him to sign a Stipulation for Consent Judgment for the nearly $30,000 payable to the United States Government.3 Mr. Vaello-Madero; disabled, elderly, and whose low-income qualified him for public benefits, signed the stipulation without the benefit of legal counsel. The investigator’s visit came a year after Vaello-Madero first learned that he was ineligible to receive his monthly SSI payment because of his residence in Puerto Rico. He did not cease to be eligible based on his economic need or disabling condition. Instead, relocating from New York to Puerto Rico to be closer to his family had led to his disqualification for benefits and the beginning of a years-long legal battle.
On April 21, 2022, the Supreme Court of the United States decided against Mr. Vaello-Madero. In U.S. v. Vaello Madero, the Court ruled that Congress’s exclusion of residents of Puerto Rico from SSI eligibility does not violate the equal protection component of the Fifth Amendment’s Due Process Clause4 Justice Sotomayor authored the only dissent.5
At issue was 42 U.S.C. § 1382c(e) which limits SSI eligibility to those living in the 50 states and the District of Columbia.6 In his opinion for the Court, Justice Kavanaugh explained that Califano v. Torres7 and Harris v. Rosario8 applied rational basis review to find the federal government’s disparate treatment of U.S. citizens living in Puerto Rico constitutionally permissible. In Harris, the Court determined that the Constitution’s Territory Clause9 authorizes Congress to “treat Puerto Rico differently from States so long as there is a rational basis for its actions.”10 In the Court’s view, Congress could have rationally excluded those living in Puerto Rico from eligibility for SSI benefits as the corollary to having limited the federal tax obligations of those residing on the island.11 In finding no equal protection violation, the Court expended a mere five and a half pages to reject the unanimous conclusion of a panel of the First Circuit Court of Appeal that Congress’s SSI exclusion lacked a rational basis.12
In dissent, Justice Sotomayor adopted much of the circuit court’s reasoning with regard to the Government’s taxation argument. Pointing to the fact that SSI recipients generally earn too little to obligate them for filing of federal taxes, Sotomayor endorsed the conclusion of the First Circuit that it is “’antithetical to the entire premise of the program’ to hold that Congress can exclude citizens who can scarcely afford to pay any taxes at all on the basis that they do not pay enough taxes.”13 With regard to the taxation argument repurposed from Califano and Harris, Sotomayor also rejected the applicability of those cases. First, she explained that those cases were based on the erroneous premise that residents of Puerto Rico pay no federal taxes.14 Second, she distinguished those cases as not being “of the same precedential value as would be an opinion of this Court treating the question on the merits.”
In Califano, the question dealt with whether SSI ineligibility for residents of Puerto infringed a constitutional right to travel15 while Harris looked at an equal protection challenge to limitations on block grants to Puerto Rico under a separate benefits program.16 By contrast, the SSI program and constitutional claim at issue here combine to demonstrate that there is no rational reason to exclude U.S. citizens based on their location in the United States from a program that “establishes a direct relationship between the recipient and the Federal Government.”17 On this point, Sotomayor applied the framing presented in an amicus brief advanced by several public benefits scholars, including myself.18 Unlike other federal public benefits programs, which allocate grants for state-to-state administration, SSI applies a uniform national criteria and direct disbursement of payments from the federal government to individual recipients.19 Thus, in creating this nationalized program, Congress “displaced the States”20 deemphasizing the importance of individual localities federal tax contributions to the overall benefit level and federal eligibility. Justice Sotomayor points to the uniformity of the program across the states, despite some states’ lesser contributions in federal taxes.21 That Congress extended SSI eligibility to the Northern Mariana Islands, another territory that is largely exempt from paying federal taxes, undermines the rationale of the argument tying benefits to taxation.22
Despite their opposing results, both the Vaello Madero majority and dissenting opinions are rather straightforward. The majority’s view is that the Califano–Harris precedent on Congress’s constitutional authority to legislate for the territory applies in equal force to Vaello-Madero’s claim. The dissent argues the number of ways how excluding needy U.S. citizens within the United States is irrational given SSI’s legislative purpose. Casting a long shadow over both of these positions is the meaning of the Court’s precedent in a line of decision known as the Insular Cases.23
Those early twentieth century cases empowered Congress to limit the application of the Constitution in Puerto Rico and other overseas territories controlled by the U.S. Government. While neither the majority nor the dissent explicitly reference this precedent, the majority does recognize that “for various historical and policy reasons,” the U.S. Congress has created special legislation for the residents of Puerto Rico. The Insular Cases cases operate from overtly race-based premises to justify a less rigorous application of constitutional protections in the U.S. territories. As observed by the Court’s 1901 decision in Downes v. Bidwell, “[i]f those possessions are inhabited by alien races, differing from us in religion, customs, laws, methods of taxation, and modes of thought, the administration of government and justice according to Anglo-Saxon principles may for a time be impossible.”24 More than 120 years later, this reasoning has yet to be overturned.
While the Vaello Madero majority did not raise the racial implications of continuing to treat U.S. citizens in the territories differently from others, neither did Justice Sotomayor’ dissent. Yet the relevance of race in this decision is represented, albeit through very different approaches, by its two concurrences. Justice Thomas does indeed see the importance of challenging the court’s line of cases dealing with race; but he does so by calling into question more than sixty years of the court’s Fifth Amendment racial discrimination jurisprudence. “While [his] conclusions remain tentative,” Justice Thomas suggests that the Court’s power to prevent the Federal Government’s race-based discrimination emits not from the Due Process Clause of the Fifth Amendment, but instead from the Citizenship Clause of the Fourteenth Amendment.25 To support this assertion, Justice Thomas systematically dismantles the Court’s decision in Bolling v. Sharpe. Bolling is a civil rights era school desegregation case surrounding the federally-administered District of Columbia public schools that the Court decided on the same day as Brown v. Board of Education. Bolling and Brown stand for the repudiation of the Court’s earlier doctrine of “separate but equal” on both the state and federal levels. Thomas’s unraveling of decades of precedent on the federal government’s constitutional responsibility not to discriminate has been described as “chaotic.”26 Yet, in his concurrence Thomas does at least nod to the racial discrimination context in which Vaello Madero arises. This is particularly apparent given the majority’s total lack of engagement on those points.
Justice Gorsuch too positions his concurrence to address what he sees as the need to undo the court’s earlier precedent on race. But here, unlike any of the other opinions authored in Vaello Madero, Gorsuch speaks directly to the Insular Cases. In a strongly-worded opinion, Justice Gorsuch derides the Court’s interpretation in those cases asserting that: “[they] have no foundation in the Constitution and rest instead on racial stereotypes. They deserve no place in our law.”27 Despite this strong rebuke, Gorsuch sides with the Court’s majority explaining that, “[b]ecause no party asks us to overrule the Insular Cases to resolve today’s dispute, I join the Court’s opinion. But the time has come to recognize that the Insular Cases rest on a rotten foundation.”28 While failing to protect the equal rights of Puerto Ricans to access benefits on the same terms as other U.S. citizens in this case, Gorsuch concludes that “[o]ur fellow Americans in Puerto Rico deserve no less.”29 Given the importance of Gorsuch’s arguments for overruling the Insular Cases, his assertion of what U.S. citizens in Puerto Rico “deserve” is downright confusing. In fact, he has joined the majority to assure that what Puerto Ricans deserve is less federal public assistance. Despite their different takes on the Court’s earlier racial discrimination precedents, Justices Thomas and Gorsuch share another similarity in their opinions. Neither opinion deals at all with the specifics of this case. Neither Jose Luis Vaello-Madero, nor the facts of his claim, register in either concurrence.
Taken together, the opinions in Vaello Madero combine to further insulate the Insular Cases from direct overruling while practically affirming Puerto Ricans’ second-class citizenship.30 Justice Sotomayor is the lone voice in relating the facts that make Congress’s lack of assistance through SSI cruelly irrational: 1) while only 34,224 were enrolled in Puerto Rico’s less generous Aid to the Aged, Blind, and Disabled program in 2021, “the Government Accountability Office estimates that over 300,000 Puerto Rico would have qualified for SSI”31; 2) “Puerto Rico has a disproportionately large population of seniors and people with disabilities”32; 3) “43.5% of residents of Puerto33 Rican residents [sic] lived below the poverty line – more than triple the national percentage of 12.3%”; and 4) residents of Puerto Rico do not have voting representation in Congress [so] they cannot rely on their elected representatives to remedy the punishing disparities suffered by citizen residents of Puerto Rico under Congress’ unequal treatment.”34
Meanwhile, the suffering of U.S. citizens in Puerto Rico is virtually guaranteed to continue and worsen. According to the Environmental Protection Agency (EPA), Puerto Rico is especially prone to the devastating effects of climate change in the forms of sea rise, heavy storms, and climbing temperatures.35 Regarding the human health impacts of these changes, the EPA warns of the vulnerability of Puerto Rico’s residents including particularly “the elderly, the sick, and the poor.”36 A recurrence of the devastating storms that engulfed Puerto Rico in 2017 is a practical certainty.
That the Vaello Madero majority does not rely on the Insular Cases to conclude that Congress may still legally discriminate against U.S. citizens in Puerto Rico is of little consolation. Especially to Jose Luis Vaello-Madero and the hundreds of thousands of needy U.S.-residents just like him.
† Ana Corina “Cori” Alonso-Yoder is a Visiting Assistant Professor of Law at Howard University School of Law and one of thirty-seven public benefits scholars to submit a brief in support of Jose Luis Vaello-Madero as amicus curiae in United States v. Vaello Madero.
1 Jorge L. Ortiz, Hurricane Maria’s economic impact on Puerto Rico: At least $43 billion, possibly as high as $159 billion, USA Today (Dec. 4, 2018), https://www.usatoday.com/story/news/2018/12/04/hurricane-maria-economic-impact-puerto-rico/2209231002/.
2 Sheri Fink, Puerto Rico: How Do We Know 3,000 People Died as a Result of Hurricane Maria?, N.Y. Times (June 2, 2018), https://www.nytimes.com/2018/06/02/us/puerto-rico-death-tolls.html.
3 Brief for the Respondent at 18, U.S. v. Vaello Madero, No. 20-303, slip op. (U.S. Apr. 21, 2022).
4 No. 20-303, slip op. (U.S. Apr. 21, 2022).
5 Id. (Sotomayor, J., dissenting)
6 See PL 94-241 (Mar. 24, 1976) (section 502(a)(1) created as part of the Covenant to establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States later extended SSI eligibility for residents of that territory).
7 435 U.S. 1 (1978).
8 446 U.S. 651 (1980).
9 U.S. Const. art. IV § 3, cl. 2 (“The Congress shall have power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States…”).
10 Harris, at 651-652.
11 No. 20-303, slip op. at 5.
12 956 F.3d 12 (1st Cir. 2020). In granting summary judgment for Mr. Vaello-Madero, the District Court for the District of Puerto Rico likewise found that Congress did not have a rational basis for denying SSI benefits to residents of Puerto Rico and even went as far to suggest that the denial of benefits created a “de facto classification based on Hispanic origin” that should be subject to a higher level of constitutional scrutiny. Vaello Madero, 356 F. Supp. 3d at 211.
13 No. 20-303, slip op., Sotomayor, J., dissenting at 8 (quoting 956 F. 3d, at 27).
14 Id. at 7 (citing Califano, 435 U.S. at 5, n.7; Harris, 446 U.S., at 652).
15 435 U.S. 1 (1978).
16 446 U.S. 651 (1980).
17 No. 20-303, slip op., Sotomayor, J., dissenting at 7.
18 Id. See also Brief for Public Benefits Scholars as Amici Curiae in Support of Respondent, U.S. v. Vaello Madero, No. 20-303, slip op. (Apr. 21, 2022).
19 See id. Brief for Public Benefits Scholars at 28 (citing Robert M. Ball, Soc. Sec. Admin., Legislative History: 1972 Social Security Amendments, https://tinyurl.com/5eknszd6 (last visited May 11, 2022)).
20 See No. 20-303, slip op., Sotomayor, J., dissenting at 2 (citing Schweiker v. Gray Panthers, 453 U.S. 34, 38 (1981)).
[21] Id. at 9. Justice Sotomayor points out that the needy residents of Vermont, Wyoming, South Dakota, North Dakota, Montana, and Alaska remain eligible on equal terms to other U.S. residents, despite their lower levels of federal tax payment.
22 Id.
23 See Downes v. Bidwell, 182 U.S. 244 (1901); Dorr v. United States, 195 U.S. 138 (1904); Balzac v. Porto Rico, 258 U.S. 298 (1922).
24 Downes at 287.
25 No. 20-303, slip op., Thomas, J., concurring at 6.
26 Mark Joseph Stern, Clarence Thomas’ Jurisprudence Is Only Getting More Chaotic, Slate (Apr. 22, 2022), https://slate.com/news-and-politics/2022/04/clarence-thomas-equal-protection-citizenship-constitutional-rights.html.
27 No. 20-303, slip op., Gorsuch, J., concurring at 1.
28 Id. at 10.
29 Id. (emphasis added)
30 See Ediberto Roman & Ernesto Sagas, SCOTUS Declares U.S. Citizens in Puerto Rico Inferior, Bloomberg L. (May 2, 2022), https://news.bloomberglaw.com/us-law-week/scotus-declares-u-s-citizens-in-puerto-rico-inferior.
31 No. 20-303, slip op., Sotomayor, J., dissenting at 3.
32 Id. at 10 (citing Brief for AARP et al. in Support of Respondent as Amici Curiae at 8-10).
33 Id. (citing C. Benson, American Community Survey Briefs, Poverty: 2018 and 2019, p.5 (Sept. 2020), https://www.census.gov/content/dam/Census/library/publications/2020/acs/acsbr20-04.pdf).
34 Id.
35 U.S. Envtl. Protection Agency, What Climate Change Means for Puerto Rico (Aug. 2016), https://19january2017snapshot.epa.gov/sites/production/files/2016-09/documents/climate-change-pr.pdf.
36 Id.
Recommended Citation
Cori Alonso-Yoder, Response, United States v. Vaello Madero and the Insulation of the Insular Cases, Geo. Wash. L. Rev. On the Docket (May 24, 2022), https://www.gwlr.org/united-states-v-…he-insular-cases/.
