By El Nuevo Día - With arguments that go to the root of Puerto Rico's colonial situation, the U.S. Supreme Court today, Monday, received arguments against the discriminatory treatment of the island's residents for their exclusion from Supplemental Security Income (SSI).
"At bottom, the SSI exclusion is what it appears to be: the distinction of a politically powerless and historically mistreated minority to receive second-class treatment that belies their status as equal Americans," noted Hermánn Ferré, Esq. in a motion as counsel for Luis Vaello Madero.
This is the response filed today in the federal Supreme Court to a petition filed by President Joe Biden's administration to reverse court decisions that declared unconstitutional the SSI exclusion for living in Puerto Rico.
The federal government sued Vaello Madero in 2017 to repay the $28,000 he received during the years he received SSI after he moved from New York to Puerto Rico.
During his campaign, Biden promised that he would seek the inclusion of Puerto Rico residents in SSI, but in June he reported that he would continue the litigation started by the Donald Trump administration.
The motion filed today in Vaello Madero's defense presents compelling arguments that dismantle the federal government's attempts to keep people with disabilities and indigent people living in Puerto Rico off SSI.
It indicates that "for the first time in this litigation" the federal government "argues that, because of Puerto Rico's 'unique' status and 'incomparable' relationship with the United States, Congress may discriminate against the island's residents, without regard to the greater protection normally afforded to politically powerless groups that have experienced a history of discrimination. It does not."
He argued that far from justifying a rational basis review, Puerto Rico's "unique" status compels a more thorough judicial investigation of national welfare benefit laws that discriminate against its residents.
The motion states that "that 'unique' status is the result of being the possession of, but not being part of, the 'United States'".
"Neither foreign nor national. Neither free nor equal. It is a reminder that Puerto Rico is not fully included in the American family and, therefore, its people may be treated as 'second-class citizens,' " he added, using Biden's own words.
"This 'incomparable' relationship is also what creates the condition of political impotence with no end in sight. It is what allows Congress to extend and repeal federal tax provisions at will, while subjecting Puerto Rico's neediest residents to a poverty level that is below the national minimum, and then pointing to that poverty as the basis for withholding national economic support," he added.
He also stressed that when Congress created the ISS law it was not relying on the Territorial Clause power, which "allows" it to legislate differently for the territories, but as a "national legislator," so it cannot treat a minority differently.
He also pointed out that legislation targeting a geographic region violates equal protection when residents there are impermissibly subjected to unequal treatment.
He stressed that the exclusion is "arbitrary and irrational" because it fails to meet the intent of the law to treat disabled and indigent citizens uniformly.
In addition, the motion rejects the federal government's assertion that it would be a unilateral benefit for Puerto Rico residents because they allegedly do not contribute federal taxes.
The attorney recalled that beneficiaries will never pay federal taxes, no matter where they live, because they are indigent or their conditions do not allow them to generate income. He also reminded the Supreme Court justices that SSI does not take into account how much each state contributes to the Treasury when determining the benefit each program participant will receive.
Ferré also noted that "Puerto Rico contributes substantial amounts to the general Treasury, often exceeding the net contributions made by states.
On the other hand, he argues that "Congress cannot give a pittance to a small subset of an excluded class," in reference to the fact that Puerto Rico receives $36 million annually for participants in another program, known as "Assistance for the Elderly, Blind or Disabled," while SSI would provide almost $2 billion each year.
He also pointed out that in going to the federal Supreme Court, the U.S. government argued for the first time that the exclusion is intended to promote "local autonomy," suggesting that the Puerto Rican government could establish its own benefit program for that population.
"The notion that Congress intended to grant greater autonomy to Puerto Rico by denying SSI to its residents is particularly implausible in light of (the Promesa Act)," Ferré argued.
"Given the (Fiscal Oversight) Board's mandate to reduce government spending, it is unlikely to authorize a major new program intended to replace unavailable federal SSI benefits, even if it had popular support," the attorney added, recalling that eligible residents of the U.S. territory of the Northern Mariana Islands receive SSI.
The attorney noted that "this case is not about equality between territories or between states and territories, but about equal treatment of U.S. citizens under a national program."
The motion asked the federal Supreme Court to overturn two decades-old cases that upheld the SSI exclusion based on racist justifications stemming from the U.S. Supreme Court's so-called "Insular Cases" in the early 1900s.
They posited that the island's inhabitants belong to "uncivilized" and "alien" races that are "unfit" to handle all the rights and duties of U.S. citizenship.
In this regard, Ferré recalled that the same federal Supreme Court justices at that time were the ones who gave way to racial segregation in the United States with the "separate but equal" doctrine.
Although decades later other federal Supreme Court justices eliminated that doctrine, "the same racist doctrine of the unincorporated territory persists to this day".
"If a historical practice of illegal discrimination could be self-justifying or allowed to persist because change might be too uncomfortable, then (the case of) Plessy (imposing racial segregation) would still be good law," he said.
The U.S. government will have until September 29, 2021 to respond to this motion. A date for oral arguments has not yet been set.
The law firm of Curtis, Mallet-Prevost, Colt & Mosle, of which Ferré is a partner, has been involved in the Insular Cases since attorney W.F. Kingsbury Curtis was involved in customs tax litigation in 1901.
"This case means so much to so many Puerto Ricans on and off the island, as well as to residents of other U.S. territories who are routinely subject to less favorable treatment under national welfare laws compared to their fellow Americans on the mainland," Ferré said in written remarks.
"Curtis is honored to file this historic equal protection challenge on behalf of Mr. Vaello Madero," he said.