Constitutionalists react to federal claim that it can deny the benefit to territories that did not "voluntarily" join the U.S. nation
sunday, january 17, 2021 - 11:40 p.m.
By Alex Figueroa Cancel https://www.elnuevodia.com/noticias/tribunales/notas/crudo-argumento-del-gobierno-de-estados-unidos-para-excluir-del-ssi-a-puerto-rico-y-guam/
The federal government stepped up its defense in Supplemental Security Income (SSI) cases by asserting that it can deny those benefits in territories - such as Puerto Rico - that did not "voluntarily" "enter" the United States through "negotiation.
In an allusion that harkens back to the military past of the late 19th century, the U.S. government made this argument in appealing a federal court decision in Guam. In its argument, the federal government defended its power to approve SSI to residents of the Northern Mariana Islands and exclude those of other territories.
"Unlike any other territory, the CNMI (Northern Mariana Islands) entered the United States voluntarily, and on terms negotiated and set forth in the Compact through which the CNMI secured the extension of the SSI program for its residents," he said.
Guam and Puerto Rico were among the territories retained by the United States after the Spanish-Cuban-American War of 1898.
Meanwhile, the Northern Mariana Islands remained under the control of Germany, which lost them in World War I, and Japan occupied them for almost 20 years, until the United States invaded them in World War II. At the end of that war, they were placed under a United Nations (UN) trusteeship.
In the 1970s, after a 21-month negotiation, the residents of the Northern Mariana Islands voted to remain under U.S. jurisdiction.
In December 2018, a Guam resident with various health conditions sued the federal government for preventing her from accessing SSI.
The federal court in Guam ruled in his favor, declaring the exclusion unconstitutional for failing to satisfy the equal protection clause, citing a similar decision in Puerto Rico, in the case of José Luis Vaello Madero, which is now awaiting review by the U.S. Supreme Court.
Some federal government arguments raised in Puerto Rico and elsewhere were also rejected by the Guam court, regarding the fiscal impact on the United States of extending SSI to a territory where most residents do not pay federal taxes.
The Guam court recalled that in the Northern Mariana Islands residents also do not pay federal taxes. It also noted that the economy of that territory has not been affected by the availability of SSI, as the federal government has alleged would be the case in Puerto Rico and Guam.
Then, the other argument repeated by the federal government has been its discretionary power to deny the benefit on a rational basis. It has insisted that the Territorial Clause allows Congress to treat territories differently.
Reaction from professors
After two district courts and the First Circuit Court of Appeals in Boston rejected that there is rational basis when a territory already has SSI, last December 28 the federal government lifted the argument of "voluntary" entry for the Northern Mariana Islands in contrast to the other territories.
"It is ironic or crude because (the federal government) maintained for decades that territoriality, that is, the Commonwealth (Commonwealth of Puerto Rico), was by 'our' decision through 'mutual consent'. (The case of) Sánchez Valle and (the PROMESA law) have shown that it was a hoax," said Carlos Ramos, professor of constitutional law at the Interamerican University.
He added that, "therefore, to say that the Marianas voluntarily negotiated benefits but Puerto Rico could not, borders on legal cruelty".
"Now it turns out that the lack of 'voluntariness' in 1952 was only our responsibility? They should have been even more crude to help decolonize (saying that): 'in the case of Puerto Rico we were able to 'cheat' the UN but with the Marianas it was more difficult because the background and international-legal history was different. For each territorial dependency we have an imperial/cheating recipe defined according to our needs," Ramos pointed out.
For his part, University of Puerto Rico constitutional law professor Carlos Díaz Olivo called the federal government's argument "irrational" because the other territories have not had the option of entering into a similar negotiation "voluntarily".
"In the case of Sanchez Valle, it was ruled out that there was a pact that was said to have existed in 1952 and that the relationship remained practically unchanged in Puerto Rico since they invaded (in 1898). So, it is curious that they say that they 'voluntarily' achieved it, but it is that 'voluntarily' the other territories have not allowed us to negotiate anything," said Diaz Olivo.
"To me, that seems to demonstrate more than anything else the irrationality of the distinction (with the Northern Mariana Islands)," he added. "They say the distinction rests on a rational basis. The distinction is irrational, because that possibility has not existed."
Díaz Olivo also indicated that the rational basis put forward by the federal government, based on the fact that the extension of SSI would affect Puerto Rico's economy, "does not take into account that the economic reality is subject to a bankruptcy process that is federally controlled".
"If the people in Puerto Rico can't receive that aid from the federal government, it's up to the territory to take care of those needs, but the territory is broke. How is that going to be? The aid is not for the PR government. It is for the citizen. The one to whom the irrationality is being established is the citizen, not the state," he affirmed.
The federal government's defense argument has been sustained throughout the administration of President Donald Trump, who leaves office on January 20.
During the campaign, the now President-elect Joe Biden released a plan for "renewal and for "renewal and respect for Puerto Rico," in which he indicated that he would "provide supplemental income security benefits."
Noting that the current administration has appealed Vaello Madero's ruling, "Biden will ensure that Puerto Rico residents have access to these benefits."