The Supreme Court announced its ruling in United States vs. Vaello-Madero on April 21. This opinion reverses the ruling of the Court of Appeals and the District Court that the exclusion of the territory of Puerto Rico from Supplemental Security Income (SSI) benefits violates the equal protection component of the Due Process Clause of the Fifth Amendment. . The opinion was 8 to 1, with Justices Clarence Thomas and Neil Gorsuch agreeing, and Justice Sonia Sotomayor dissenting.

For the vast majority of Americans, this opinion has little relevance to their daily lives. Among so many issues and difficulties that affect the Republic, the claim of Puerto Ricans for equal protection of the law is lost in the shuffling of legal jargon and political convenience. At its most fundamental level, the case is not about Supplemental Social Security benefits, but rather political disenfranchisement.

For American citizens residing in the territories, this opinion ratifies their separate and unequal treatment by the United States government. This discriminatory practice, in turn, is judicially confirmed by the Insular Cases and its doctrine of territorial non-incorporation, developed at the beginning of the 20th century. This doctrine justifies the selective application of the Constitution to US citizens living in the territories.

It is noteworthy that the Supreme Court opinion, written by Justice Brett Kavanaugh, studiously seems to avoid using the word “unincorporated”, or even referring to the Insular Cases, when referring to the territory of Puerto Rico. Instead, the opinion makes an aseptic legal analysis of equal protection under the Due Process Clause of the Fifth Amendment, justifying the rationale for Congress not to extend Supplemental Security Income (SSI) benefits to Puerto Rico, under the precedents of Califano vs Torres(1978) and Harris vs. Rosario(1980).

One can only guess if the Supreme Court majority will be as respectful of precedent in the future when it comes to Roe vs. Wade(1973) and Casey against planned parenthood(1992). Political consideration undoubtedly plays a central role in determining when precedent controls and when it does not. In this context, it is difficult to take at face value the recent public statements made by some members of the court alleging that their decisions are not politically motivated.

If test of systematic racism in the United States it is certainly found in the continued institutional application of the Insular Cases, which created and promotes to this day the distinction between fundamental and non-fundamental constitutional rights applied to a classification of citizens based on nationality and ethnicity. as proclaimed in Downes vs. Bidwell(1901) and Balzac vs. Puerto Rico (1922) this doctrine is a judicial extension of the reasoning of Plessy vs. Ferguson (1896), and the separate but equal doctrine.

Thomas’s concurring opinion is a Sunday walk through the equal protection reading in the due process clause, without addressing the lack of originality of the unincorporated doctrine of the Insular Cases. The hermeneutical inconsistency is evident.

Not much better is Sotomayor’s dissenting opinion, which consists of a strict analysis of the reasonableness test for equal protection claims, not to mention the Insular Cases doctrine.

Only Gorsuch’s concurring opinion acknowledges and condemns the elephant in the room.

If Congress decides to treat the territory of Puerto Rico differently from a state or an incorporated territory (the uninhabited Palmyra Atoll in the Pacific Ocean is the only one that currently fits this classification), the court will adjourn. This has been the same position adopted by the court in recent years in Commonwealth of Puerto Rico v. Sanchez Valle (2016) Puerto Rico vs. Franklin California (2016) and Puerto Rico Financial Oversight and Management Board v Aurelius Managementand now Vaello Madero.

It is not unreasonable to conclude that the Supreme Court appears to have adopted an institutional stance of noninterference with Congress in matters related to the exercise of its plenary powers over the territories under Article IV, Section 3 of the Constitution. Unfortunately, the court does not recognize their complicity in creating and maintaining the constitutional framework that allows for the exclusion of US citizens from the full protection of their constitutional rights.

Indeed, the implicit invitation at the end of Kavanaugh’s opinion is that it is up to Congress to address the issue of Supplemental Security Income benefits and any other legislation related to the territories. In other words, the issue of the territories in general, and of Puerto Rico in particular, is a political issue that must be addressed by the political powers of the State.

At the time of this writing, two opposing bills on the political status of Puerto Rico are before the House Committee on Natural Resources, the Puerto Rico-Self-Determination Law (HR 2070) and the Puerto Rico Statehood Admission Act (HR 1522). HR 2070 aims to convene a State Assembly in Puerto Rico. As written, this bill has serious constitutional deficiencies, as detailed in the committee hearings held on April Y June 2021. HR 1522 proposes statehood plebiscite. This bill also has certain provisions that could be improved. since there are whitout deal On the Democrats’ side on how to reconcile the two bills, Natural Resources Committee Chairman Raul Grijalva (D-Ariz.) should reconsider bringing both bills to a committee vote before the term ends. At least then we will know where the committee members stand before the midterms. It seems that this is exactly what they are trying to avoid.

Unfortunately, given the current array of political forces in the House, all signs point to the eventual legislative death of both bills.

Meanwhile, in the executive branch, the Biden administration keeps talking out of both sides of its mouth, promising equal treatment for Puerto Rico, while defending continuation of unincorporated territory. It would seem that the Biden administration would prefer to keep Puerto Ricans as supplicants rather than full voting citizens.

All roads, judicial, legislative and executive, point to a continuous territorial limbo.

Andrés L. Córdova is a professor of law at the Interamerican University of Puerto Rico, where he teaches courses on contracts and property. He is also an occasional columnist on legal and political issues for the Spanish newspaper El Vocero de Puerto Rico.



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