Statehood Loses at the Supreme Court (Analysis of Vaello Madero Case)

Read on how most of the US Supreme Court ruled once again that Congress has great flexibility to do whatever it wants with Puerto Rico.

          The United States Supreme Court issued today its decision in the Vaello Madero case on whether Supplemental Social Security Benefits are extensible to Puerto Rico. You can download the decision here. We do not go into great detail explaining what the case was about. There are many other articles about that out there and the decision itself explains it. This is our analysis at BUDPR:

          Justice Kavanaugh's majority opinion decides that the Equal Protection Clause of the Fifth Amendment to the US Constitution does not require "Congress to make Supplemental Security Income benefits available to residents of Puerto Rico to the same extent that Congress makes those benefits available to residents of the States." The majority opinion emphasizes that Congress may as a matter of policy extend programs such as SSI to Puerto Rico. However as a matter of constitutional law Congress is not required to do that.

          Justice Thomas uses his concurring opinion to argue that a case like this would be better analyzed under the equal protection clause of the 14th, not the 5th amendment. It is not really about PR. An example of how Puerto Rico's struggles get a second place at a Supreme Court concurring opinion which just uses the moment to make arguments about internal US law about the meaning of citizenship. 

          Justice Gorsuch concurring opinion is well intentioned but dangerous. He states that the parties did not ask to overrule the insular cases, and so he concurs in the result, but makes dangerous statements like referring to Puerto Ricans as "our fellow Americans" thus pretending this is a purely legal question based only on domestic legal US concerns and not even mentioning the right to self-determination, the right to decolonization of international law, or even what Puerto Ricans would want. This follows the frequently problematic liberal script (even though he was nominated by a Republican President) where Puerto Ricans are reduced to persons without a will that of course, want to be brought into the fold of the amazing American experience. Being well-intentioned does not mean one is right. Justice Gorsuch's decision has holes in its legal reasoning as the finding that benefits did not have to extend to Puerto Rico could have been very well based on the text of the territorial clause, which will be in the Constitution even if the Insular Cases are overruled. 
          Finally Justice Sotomayor dissented because she believes it is not rational for Congress to discriminate against needy citizens based on where they live, because it goes against the nature of the program and against equal protection under the US Constitution. Justice Sotomayor believes excluding PR from these benefits is not justified by the two arguments that it is a rational decision: 1) that lower benefits can be given because PR has a different tax status that makes a reduced contribution to the US Treasury, because by definition SSI benefits make a reduced contribution to the Treasury and because the relationship is one between recipients and the government where the local authorities do not intervene; and 2) the argument that this would have large consequences that were not anticipated in terms of increasing costs, which she states is not supported by the evidence of there being other programs as far-reaching as SSI (stating for example that SNAP is administered by local governments which would justify rationally a distinction by jurisdiction of residence). She ties this to the possibility of Congress reducing benefits in federal programs in the states for residents of states that do not contribute as much to the US Treasury.
          Gorsuch and Sotomayor's opinions, incorrectly and possibly giving a hint of what they would rule if given a chance, refer to Puerto Rico as if it already were a part of the United States, either explicitly or in that they refuse to use the same analytical tools and legal figures different than those they would use for states, essentially stripping the territorial clause of any meaning. This is done even though by the Supreme Court's case law, and conduct, especially here where it is clear it is a territory, it has been ruled that Puerto Rico is not a part of the US. Although Gorsuch uses the word colonies, severely lacking in all the opinions is an analysis of the empire. That Puerto Rico is part of the US Empire does not automatically mean it is part of the US, nor does it mean that Puerto Ricans should want to be part of the US or want to become a state. It is worrisome that these two justices, whose opinions certainly show a commendable preoccupation with the well-being of neediest persons, do not seize the opportunity to point out the flaws of the American system of empire, and how they are ill suited as a court to decide the fate of Puerto Rico (because they are a colonial court) and because they are not in the position of Congress which would be the one to negotiate any change in status that necessitated the consent of the US (like statehood or free association), knowing that independence is a right and requires no consent from Congress.
          Something to keep in mind is that for those who support true self-determination, sovereignty and independence this is a win, as it underscores the possibility of having a discussion among grown ups with Congress and the United States where rational decisions can be taken by both countries, after negotiations, on transitional periods and other things we would like to take care of to achieve freedom for Puerto Rico. Having flexibility and not being constrained by judicial interpretations of constitutional provisions that were written over a century even before the 1898 invasion, and now well over two-hundred years ago, is positive for the flexibility needed to achieve a free prosperous Puerto Rico where the US is not trying to impose its will.