Experts point out that, in its argument before the U.S. Supreme Court, the federal Department of Justice alludes to the factors that must be considered in evaluating a territory's relationship with the United States.
Washington D.C. - By asking the U.S. Supreme Court to give deference to Congress in deciding whether Puerto Rico residents should have access to the Supplemental Security Income (SSI) program, the administration of Joe Biden seeks to preserve the power of the political branches to decide public policy on the island, according to experts.
Although President Biden advocates for the Congress extend SSI to Puerto Rico, his federal Justice Department argued Monday night that it is constitutional to treat territories differently, among themselves and vis-à-vis the states, and to limit the federal programs to which they have access, since they are not required to pay the same federal contributions and in the case of the island -without ever mentioning the Promesa law-, it has "fiscal autonomy".
The written submission of the argument of the Solicitor General's office in the Vaello Madero case before the U.S. Supreme Court was so in tune with President Biden's position that the document filed by the Justice Department cited the press release in which the White House tenant advocated - some eight hours earlier - that Congress extend SSI to Puerto Rico and justified defending the constitutionality of the law that excludes Puerto Rico residents from that program.
In general, the Biden administration has sought, like the administration of Donald Trumpthe U.S. Supreme Court not to alter the power of Congress to regulate its territories - as defined by the territorial clause of the Constitution - even though it considers it politically unfair that SSI has not been extended to the island.
By referring to "fiscal autonomy" and federal contributions that are not in effect in Puerto Rico, "they want to put the angle that this arrangement breaks in Puerto Rico's favor," said Carlos Diaz Olivoa professor at the University of Puerto Rico (UPR) School of Law.
But Diaz Olivo pointed out that they are saying this "while they are coordinating with the Group of 7 on tax arrangements that would undermine" once again the fiscal autonomy of the island, which the written argument of Biden's Justice Department defends and the Promesa law is in force.
Before the U.S. Supreme Court, the U.S. Department of Justice - in a process that began under the Trump administration - is seeking to overturn a decision by the federal First Circuit Court of Appeals that found that excluding Puerto Rico from SSI is unconstitutional for violating the equal protection clause of the laws.
"Congress could rationally conclude that residents of Puerto Rico should participate in programs that help fund (such as Social Security, Medicare and unemployment benefits), but not in programs that generally do not help fund (such as SSI)...Congress could rationally conclude that a jurisdiction that makes a reduced contribution to the federal Treasury should receive a reduced share of the benefits funded by that treasury," stated the document headed by Acting Solicitor General Elizabeth Prelogar, who was a legal officer for Justice Ruth Bader Ginsburg, who died in 2020.
The Biden administration maintained that interpreting the equal protection clause of the laws to "require Congress to give territories the same treatment as states" will alter the U.S. legislature's responsibility "when to admit a territory into the Union and thus provide the benefits associated with statehood."
Factors to consider
To the professor Carlos Ramos González - a constitutional scholar at the Inter-American University School of Law, found it very significant that in asking for deference from Congress, the Biden administration established not only a list of federal taxes from which Puerto Rico is excluded, such as income taxes on citizens and corporations, but also the criteria that should prevail in deciding the treatment of the territories.
"In deciding which federal laws and programs to extend to a territory, Congress may consider factors such as what kind of relationship the territory has with the United States, how much fiscal and governmental autonomy it exercises, how close its ties to the United States should be, what its economic and social conditions are, and whether the territory can move toward statehood or independence over time," the argument from the Attorney General's office stated.
The document highlights that the United States signed a "covenant" with the Northern Mariana Islands by which that territory has access to SSI, without alluding to the existence of that type of agreement with Puerto Rico, Ramos Gonzalez said. The federal Justice filing highlights the island's self-government by citing the Sánchez Valle case, in which the U.S. Supreme Court determined that for purposes of the constitutional clause that prohibits double exposure to criminal charges, Puerto Rico's source of power resides in Congress.
In technical terms, Ramos González stressed that the Biden administration, in asking the Supreme Court to uphold the traditional scrutiny that congressional actions on Puerto Rico must have a rational basis without invoking the equal protection of the laws, is seeking to avoid imposing a rigidity on the exercise of the territories clause that would lead to claims that would prevent better tax treatment than that available to the states.
"When they talk about rational scrutiny they mean giving deference to Congress. At the same time they take a cold look at the power of Congress over the territories. They are not embarrassed that Congress retains that power," added Professor Ramos Gonzalez.
While indicating that public policy on the territories should be left to Congress, the Biden administration also affirmed that the decision of the federal legislature is that Puerto Rico, instead of SSI, should have access to the Aid to the Aged, Blind and Disabled (AABD) program.
Through this program, a beneficiary only receives one-sixth of the payment that SSI would offer. It is estimated that SSI would benefit between 300,000 and 430,000 people on the island. Under AABD, only 39,000 people are assisted.
The Department of Justice indicated that the cost of implementing SSI in Puerto Rico could fluctuate, according to Social Security, between $1.8 billion and $2.5 billion annually, or about $23 billion over a decade.
The Biden administration's argument even stresses that Congress' criteria may include the need to save money.
Diaz Olivo said that, at the end of the day, the Biden administration's analysis is another defense of the territorial clause of the Constitution, which allows Congress to treat Congress as "property". It does not seem to him that the problem for the Democrats is the cost of the island's access to more federal programs.
"They look at the territory as real estate" even though the case is about a Puerto Rican U.S. citizen, José Luis Vaello Madero, who began receiving SSI as a resident of a state, and whom the federal government wants to charge $28,000 that he obtained already as a Puerto Rican domiciliary, Díaz Olivo said, stating that "control over human beings cannot be examined in that way."