The Unequal Treatment of Puerto Rico

In early March 2022, Puerto Ricans commemorated the 105th anniversary of their American citizenship. By passing the Jones-Shafroth Act in 1917, Congress extended American citizenship to all Puerto Ricans. At the time, Congress granted American citizenship to Puerto Ricans with the goal of forging ties between Puerto Rico and the United States. Fast forward 105 years and that intention now looks like a fulfilled prophecy. Puerto Rico is closely linked politically, economically, and culturally to the United States, to the point where the island resembles a state more than it does a sovereign jurisdiction. However, despite the good intentions and time passed since the Jones-Shafroth Act, Puerto Ricans still suffer extensive discrimination by the United States government and are treated as second-class citizens when they reside in Puerto Rico.

An example of this continued discrimination is the exclusion of Puerto Rican residents from the Supplemental Security Income (SSI) program. Since the program’s inception in 1972, residents of Puerto Rico have not been eligible. The constitutionality of this exclusion was challenged in United States v. Vaello-Madero (2021). José Luis Vaello-Madero was a New York resident who was eligible for the program and had received SSI assistance since 2012. In 2013, he decided to relocate to Puerto Rico. He continued to receive his SSI benefits until 2016, when he was notified that he was ineligible to continue receiving the benefits because he now resided in Puerto Rico. Immediately after, the Social Security Administration halted SSI payments and the United States pursued civil action against Luis to retroactively collect all the payments he had received while in Puerto Rico. In response, Vaello-Madero “argued that the exclusion of Puerto Rico from SSI violates the equal protection guarantees of the Fifth Amendment Due Process Clause.”¹ This case is the latest in a series of examples of the United States government’s continued discrimination toward Puerto Ricans. By excluding those who live in Puerto Rico from SSI payments, Congress unconstitutionally discriminates against the American citizens who reside in Puerto Rico, not because of geographical or tax-related considerations, but because of socio-economic and political indicators. This discrimination violates the equal protection component of the due process clause of the Fifth Amendment (as Vaello-Madero argued) and relegates the American citizens who live in Puerto Rico to second-class citizens.

When Congress enacted the SSI program in 1972, its stated purpose was to establish “a national program to provide supplemental security income to individuals who have attained age 65 or are blind or disabled.”² In other words, SSI is a need-based program to help individuals who fulfill certain physical or age requirements. A citizen’s age or physical condition does not change regardless of whether they live in Montana, Iowa, New York, or Puerto Rico. By excluding those who choose to reside in Puerto Rico, the United States government is actively discriminating against them. The fact is that the residents of Puerto Rico are overwhelmingly ethnic Puerto Ricans, a minority group within the United States who have suffered over a century of unequal treatment. The other reality is that Puerto Rico, officially a territory of the United States, has no real power in Congress since its sole elected representative cannot cast a vote. When considering these factors along with the history of Puerto Rico’s relationship with the United States, the most logical conclusion is that Congress is actively discriminating against Puerto Ricans. This violates the equal protection component of the due process clause of the Fifth Amendment and represents an injustice that the Supreme Court failed to address in their recent decision rescinding the ruling of the First Circuit of Appeals that agreed with Vaello-Madero.

In its brief, the U.S. government provided four main legal arguments to justify its discrimination against Puerto Ricans.³ The first argument is that according to Supreme Court precedent, the government can legally discriminate based on geographic region. It is true that the the program is only discriminating against people who live in Puerto Rico. However, due to the reasons discussed in the previous paragraph, their exclusion constitutes “prejudice against discrete and insular minorities,” which according to Supreme Court precedent from United States v. Carolene Products Company (1938) should call for heightened judicial scrutiny.⁴ This heightened scrutiny should find that this exclusion was designed to target Puerto Ricans as a class of citizens due to the nature of their powerless political relationship with the United States. This would be a violation of the equal protection component of the due process clause of the Fifth Amendment.

Second, the government argues that because Puerto Rico does not pay the same federal taxes as states do, Puerto Rican residents can be excluded from programs like the SSI. This argument is misleading because Puerto Ricans still pay taxes, even if this may not be at the same rate as most states. Various states pay different proportions of taxes in relation to the benefits they receive; however, citizens in all states are equally eligible for the same SSI benefits. There is no reason why this discrepancy should only impact Puerto Rico’s eligibility for the program. Additionally, and most importantly, as Justice Breyer noted in the oral arguments of US v. Vaello-Madero, the target beneficiaries of this program, who are primarily lower-income, likely do not pay federal taxes anyway, regardless of which state or territory they reside in.

The U.S. government’s third argument is that the territorial clause of the Constitution gives the government the right to “make all needful rules and regulations respecting the territory or other property belonging to the United States.”⁵ While this Constitutional clause does give the government the ability to enact different rules for territories, it does not grant Congress the ability to actively discriminate against American citizens just because they happen to live in a territory.

The government’s fourth argument is its desire to promote the autonomy of Puerto Rico. While this argument could hold some weight if it was true, it directly contradicts the actions taken by the United States Congress in recent years. In June 2016, Congress passed the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA), which created an oversight board with almost absolute power to override any fiscal decision made by the elected Puerto Rican government. With this bill, Congress practically rescinded the autonomy of Puerto Rico’s government in many regards because they believed it would be in Puerto Rico’s long-term financial interests. The United States government now states that it wants to promote Puerto Rico’s autonomy but this is only because the alternate option would entail spending more money on Puerto Rican residents. This is another example of the United States government trying to find legal cover for their pattern of discrimination against Puerto Rico on certain matters like the SSI.

The U.S. government’s arguments clearly do not justify its discrimination against Puerto Ricans in the SSI program. Their exclusion is the latest in a pattern of the U.S. marginalizing Puerto Ricans from programs and benefits that they are rightfully entitled to as American citizens thus creating a second-tier citizenship for them. As the late First Circuit judge Juan R. Torruella said, “the status of inequality imposed on Puerto Rico from the first moments of U.S. sovereignty has not changed one iota irrespective of the U.S. citizenship granted by the Jones Act and the establishment of a so-called Commonwealth of Puerto Rico.”⁶ The exclusion of Puerto Rico from the SSI program cannot be legally justified; the arguments given to justify it are excuses for failing to treat the American citizens living in Puerto Rico equally. It is well overdue for this injustice to be fixed so Puerto Ricans can enjoy all of the rights and benefits of their American citizenship. It is a sad reality that while the United States’ Constitution was ratified in order to “form a more perfect Union, establish Justice…promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity,” the 3.5 million American citizens who live in Puerto Rico continue to be excluded from this promise.⁷

References

¹ “United States v. Vaello-Madero.” LII / Legal Information Institute, November 5, 2021. https://www.law.cornell.edu/supct/cert/20-303.

² 42 U.S. Code § 1381.

³ United States v. Vaello-Madero. LII / Legal Information Institute, November 5, 2021. https://www.law.cornell.edu/supct/cert/20-303.

⁴ United States v. Carolene Products Company, 304 U.S. 144 (1938)

⁵ U.S. Const. art. IV, § 3.

⁶ Torruella, Juan R. 2017. “To Be or Not to Be: Puerto Ricans and Their Illusory U.S. Citizenship.” Centro Journal 29 (1): 108.

⁷ U.S. Const. preamble