Biden Administration calls for Congressional action over court intervention on “equity” for territories

by Howard Hills

On Monday, June 7, House Natural Resources Committee Chairman Raul Grijalva issued a statement confirming his determination to focus on passage of legislation redeeming greater federal social safety net federal program equity for U.S. territories. This statement by Grijalva came in response to Biden-Harris administration announcement earlier that day of its decision to pursue an appeal in the U.S. Supreme Court seeking reversal of a federal appeals court ruling in the case of U.S. v. Vaello-Madero case.

A federal trial court and a federal appeals court ruled in favor of plaintiff Vaello-Madero, who upon moving to the territory of Puerto Rico lost eligibility he had in the state of New York for federal Supplemental Security Income (SSI) benefits. Congress has made disabled senior Americans in the states and one small Pacific island U.S. territory eligible for SSI but not Puerto Rico. With a U.S. citizen population of 3.2 million, the brief filed by the U.S. Department of Justice in the case estimates the cost of SSI for eligible residents of Puerto Rico at $23 billion over the next ten years.

The U.S. Supreme Court is being asked to decide whether ineligibility of Americans in Puerto Rico for SSI is a political question for Congress to determine under the Territorial Clause of the Constitution, which allows Congress to treat territories differently than states. Or, is eligibility for SSI benefits equal to that of citizens in the states a “fundamental right” of Americans in all of the territories, even though the Supreme Court has ruled territories do not have same rights under the Constitution as states. If upheld, the lower court ruling in Vaello-Madero ruling could be applied widely as a judicial mandate for federal social safety net parity for all U.S. territories.

Grijalva was lead signatory on a letter dated March 10 from 13 members of Congress to Attorney General Garland Merrick regarding the U.S. appeal in Vaello-Madero and similar lawsuits seeking federal court rulings favoring federal programs in territories equivalent to states. The letter asked the U.S. Department of Justice not to rely in its appeal on a line of Supreme Court territorial law rulings known as the Insular Cases, due to racism in America and the Supreme Court when the first of those territorial rulings was handed down in 1901.

However, in addition to the White House announcement of its appeals in Vaello-Madero, on June 7 the U.S. Department of Justice filed a brief in the appeal in which the Biden Administration asks the Supreme Court to decide the case consistent with the Insular Cases and Territorial Clause. This constituted a clear rejection by the U.S. Department of Justice DOJ and the Biden Administration of both the March 10 letter seeking repudiation of the Insular Cases.

The White House and Justice Department actions on June 7 also followed a May 12 hearing before Grijalva’s committee on H. Res. 279, also calling for Vaello-Madero and similar cases to be decided without reliance by the U.S. or the court on the Insular Cases. However, while taking action in court that Chairman Grijalva had hoped to prevent, the President pointedly reached out to Grijalva by also stating his Administration will propose budgetary measures to achieve federal social safety net equity for the territories.

Chairman Grijalva’s statement on June 7 accepted the President’s call for Congress not the courts to decide what the White House is now defining as the political not legal question of equity for the territories. It is clear Grijalva and his fellow supporters of the “Territorial Equity Act of 2021” announced on April 20 will take his renewed his call for equity in federal social safety net programs forward in Congress. That will include not only SSI, but the Supplemental Nutrition Assistance Program (SNAP), as well as removal of Medicare caps and other federal social safety net equity measures referred to in the WH statement.

Meanwhile, lawyers who did not bring the Vaello-Madero case are trying to benefit from its survival in the appellate courts in unrelated lawsuits. In cases focusing not on statutory equity but changes in the constitutional status of territories, the federal courts are being asked to go further and rule that the U.S. Constitution and federal law apply in the territories as in the states.

That even includes cases asking the courts to mandate equality for territories and application of the U.S. Constitution in territories as a step towards voting rights in federal elections for representation in Congress and the Electoral College. Of course, since the U.S. is a federal union of states not a confederation of states and political subdivisions like territories, fully equal federal voting rights are limited to states under Article I, Section 2 and Article II, Section 1 of the Constitution.

In the case of U.S. v. Fitisemanu, for example, lawyers seek a final federal court ruling that the birthright citizenship clause in the Fourteenth Amendment to the U.S. Constitution applies in American Samoa and other territories. That would overrule the Insular Cases and nullify federal laws adopted by Congress conferring statutory U.S. nationality and citizenship in the territories. If the Fitisemanu case were to survive appeal, like Vaello-Madero, the rulings in Fitisemanu also sooner or later – if not immediately – will apply to all the territories.

In the scenario the courts would go beyond the “fundamental rights” standard of the Insular Cases and hold that the citizenship, equal protection and due process clauses of the U.S. Constitution apply in the five current unincorporated territories in the same way as the states and territories incorporated into the union as a step toward statehood. By the same constitutional logic, the uniform federal taxation clause also would apply equally. That would mean fully equal taxation without fully equal representation, unless and until each territory either became a state of was integrated into an existing state.

The only alternative would be for Congress and the nation to decide instead that the Constitution should be amended to give the territories a status with some substitute combination of rights and duties of citizenship in lieu of statehood. Yet, that presumably still would not be fully equal to citizenship in the states, and thus perhaps not a complete solution, as we have learned from the failure of the 23rd Amendment to fully democratize the District of Columbia.

Meanwhile, the DOJ brief filed in the Vaello-Madero case cites the Insular Cases and the Territorial Clause in support of the Administration’s legal position that Congress can treat territories differently than states as long as there is a rational basis. Regardless of how the court rules in that case, this establishes a clear legal policy that draws the line for separation of powers purposes in favor of action by Congress not the courts to address statutory equity issues in federal territorial law and policy.

Howard Hills is former legal counsel on territorial status affairs in the Executive Office of the President, National Security Council and U.S. State Department Bureau of East Asian and Pacific Affairs. All content is the personal opinion of the author and not any other person, organization or entity, public or private.

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