A U.S. First Circuit Court of Appeals three judge panel ruled on April 10 that Congress can’t deny U.S. citizens in Puerto Rico benefits equal to those provided to citizens in the states under a federal Social Security program for older disabled Americans.
The court’s ruling in U.S. v. Vaello-Madero held it was unconstitutional for Congress to confer Supplemental Income Security (SSI) benefits for U.S. citizens in a state, but then terminate those benefits when citizens determined eligible in a state relocate to Puerto Rico.
The court ruled that denial of eligibility for benefits based on residence in Puerto Rico is a violation of the 5th Amendment right to equal protection under law. The legal logic of the court’s order if upheld would in effect extend the SSI program to Puerto Rico, and presumably U.S citizens in other U.S. possessions with the same “unincorporated“ territory status.
U.S. Constitution Applies Differently in Territories
Since 1901 the U.S. Supreme Court has consistently upheld its ruling that year in Downes v. Bidwell that the fundamental principles of the U.S. Constitution apply to federal actions in unincorporated territories, but not in the same way as in states of the union.
Instead, constitutional standards apply in unincorporated territories as provided by federal territorial laws passed by Congress and federal court rulings, rather than by direct application of the Constitution.
As recently as 2016 the U.S. Supreme Court has confirmed under Downes v. Bidwell that Congress can apply federal law in Puerto Rico and four smaller unincorporated territories differently than in the states or incorporated territories.
But if Vaello-Madero is upheld that will be the first time since the high court invented unincorporated territory status in 1901 that any federal court final ruling has declared a federal territorial law unconstitutional.
In 1976 the high court declared a Puerto Rico professional licensing law an unconstitutional denial of federal equal protection rights. Other acts by territorial governments have been held unconstitutional as well.
But federal laws that would not be allowed in states have been allowed by federal courts in unincorporated territories. For example, in the 1980 case of Harris v. Rosario the U.S. Supreme Court upheld an act of Congress denying equal federal benefits to disadvantaged children in Puerto Rico.
The court’s reasoning in the 1980 Harris v. Rosario case was that historically and in the modern era U.S citizen residents in territories still do not have the same political and legal status or rights under the Constitution as citizens of the states. The court also cited lower federal revenue from the territory as a “rational basis” for lower benefits for citizens in an unincorporated territory.
Why the Vaello-Madero Case Matters
In this new case, Valleo-Madero, the Social Security Administration determined U.S. citizen Jose Luis Vaello-Madero eligible to receive (SSI) when residing in New York. When he moved to Puerto Rico his benefits continued until the Social Security Administration discovered he was resident of a territory Congress excluded from SSI.
Not only were SSI benefits terminated when his move to Puerto Rico was discovered, but Vaello-Madero was sued in the federal court by the Department of Justice to demand repayment for over $28,000 in benefits that had been given to the territorial resident. There were even menacing suggestions welfare fraud allegations could be implicated.
When Vaello-Madero finally got a pro-bono lawyer, he asserted in court that less than equal benefits to U.S. citizens in the territories was an unconstitutional denial of equal protection. Alarms must have gone off at the U.S. Department of Justice, which then tried to dismiss the case to avoid federal litigation risk.
The risk federal lawyers at DOJ sought to avoid was that the court might order SSI for all eligible U.S. citizens in Puerto Rico, and by extension any other territories also excluded from the program by Congress (i.e. Guam and U.S. Virgin Islands).
The federal court in Puerto Rico denied the U.S. motion to dismiss and ruled Vaello-Madero was entitled under the U.S. Constitution to keep his benefits the same as if in a state. The lower court result was upheld, but the three judge appellate court panel articulated its own reasoning on the facts and the law.
Unlike back in 1980 when the Harris case was decided, federal revenues from Puerto Rico are now greater than federal tax collections in several states. That’s one more reason the court ruled there is now no “rational basis” for providing less benefits to the territory in 2020.
Notwithstanding the differences between the political and legal status of states and territories, treating U.S. citizens differently without a rational basis is one definition of discrimination denying equal protection of law.
In a larger context, the ruling means the 5th Amendment equal protection clause of the Constitution in effect applies in Puerto Rico essentially as it applies in the states, at least for purposes of the SSI provisions of the Social Security Act.
This ruling that the 5th Amendment equal protection clause applies to an unincorporated territory does not extend other equal constitutional rights to unincorporated territories. It remains a legal and political reality that the U.S. Constitution applies by its own force only in the states and territories fully incorporated into the union by Congress as a step toward statehood.
But even for incorporated territories the U.S. Constitution does not permit Congress to extend full equality with citizens in a state. Most notably, the right to vote for full and equal representation in Congress and the Electoral College comes only with statehood.
The Opinion and Possible Appeal
The court’s opinion in Vaello-Madero was authored by nationally recognized jurist, Judge Juan R. Torruella, who is from Puerto Rico. Clearly, he and the other two judges saw this case as a chance to right what the court determined was wrong in how Americans in the territory have been treated by Congress, in some respects at least.
However, it is expected the U.S. will appeal, and seek either a full en banc hearing by all members of the First Circuit Court of Appeals, or petition directly to the U.S. Supreme Court.
By applying the 5th Amendment directly to federal actions in a territory, the Vaello-Madero ruling runs parallel to a recent lower trial court ruling in the Federal District Court in Utah. In the case of Fitisemanu v. U.S. the court ruled the U.S. citizenship clause of the 14th Amendment applies to the tiny territory of American Samoa, and by extension all five current unincorporated territories, including Puerto Rico.
If both rulings are upheld on appeal, it could come to pass that the citizenship clause of the 14th Amendment and 5th Amendment equal protection clause would apply directly to all the territories rather than by federal territorial statutes and court rulings. That would define the rights of citizens in the territories in virtual equivalency with citizens in the already incorporated territories and even states.
Does this “Progressive Incorporation” mean real equality, or is statehood still needed?
Direct application of the 14th and 5th amendments to the unincorporated territories by court edict sure sounds like incorporation to most territorial law experts. But does it mean the same as historical Congressionally enabled incorporation leading to statehood? Or, is it a new judicially invented form of incorporation that may or may not lead to permanent union and eventual statehood?
If so, by another court invented doctrine like the 1901 Downes v. Bidwell will we see a new political status doctrine emerge that secures some but not fully equal rights of citizenship for Americans in the last five territories? Will these territories be provided a path to full rights of citizenship possible only through statehood?
As flawed as Downes v. Bidwell may have been, the 2016 ruling in Sanchez Valle confirmed unincorporated territory doctrine still provides the ground rules for Congress and the territories to address the political question and define the terms for transition form territorial status to full democratic self-government.
For any territory that wants to retain U.S. citizenship full equality comes only with statehood. That reality finally has produced a political catharsis and majority rule in Puerto Rico favoring statehood. The court’s ruling in Vaello-Madero trigger build into a tsunami of Puerto Ricans nationwide favoring equal civil rights through incorporation leading to statehood for Puerto Rico.
For smaller territories Vaello-Madero could mean Congress would be obliged to offer equal rights possible only through integration into an existing state. If not, then separate sovereign nationhood without U.S. citizenship like the Micronesian mini-nation “free association” model is the only other fully democratic non-territorial status option.
Since there are 3.5 million U.S. citizens in Puerto Rico and 5.5 million Americans from Puerto Rican in the 50 states, denying statehood to Puerto Rico may soon become politically unsustainable. Especially given our nation’s historical commitment to integration of territories with U.S. citizen populations.
The huge Puerto Rico voting blocs in multiple swing states may be encouraged by the ruling in the Vaello-Madero case to support statehood sooner rather than later for the last large U.S. territory.