Washington D. C.- The President Joe Biden today justified his Justice Department's defense of the constitutionality of the law that allows Puerto Rico to be excluded from the Supplemental Security Income (SSI) program, while calling on Congress to amend it to include the island's residents.
For Biden, excluding Puerto Rico residents from SSI - which could have an impact of more than $1.5 billion annually to $2.5 billion annually - "is incompatible with the public policies and values" of his administration.
But he said he understands why the Attorney General's Office is maintaining its challenge to the Vaello Madero case before the U.S. Supreme Court that opens the door for islanders to benefit from SSI, arguing that it is a longstanding practice of the U.S. Department of Justice to "uphold the constitutionality of federal statutes regardless of public policy preferences.
Despite Biden's statements, on some occasions the U.S. Department of Justice has failed to uphold the constitutionality of a statute. One of the most recent cases was the Barack Obama administration's decision to stop preserving the federal law that recognized marriage as a union between two people of different sexes.
As in Vaello Madero, the Windsor case - which overturned the ban on recognizing same-sex marriage - involved a claim of equal protection of the laws, recalled Professor Carlos Ramos Gonzalez of the Inter-American University School of Law.
Carlos Gorrín Peralta, also a professor at the Inter-American Law School, said the federal government stood by the Windsor case because federal law prevented it from returning the money claimed by the plaintiff in the case.
Read what Supplemental Security Income is
The Solicitor General's Office presented tonight before the U.S. Supreme Court its first written argument under the Biden administration in the Vaello Madero case.
In the document, Acting Attorney General Elizabeth Prelogar stated that "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."
He alluded to the Sanchez Valle case, which determined that the source of power for the island's government emanates from Congress, to highlight portions of that decision that indicate that Puerto Rico and the United States "have forged a unique political relationship, built on the island's evolution into a constitutional democracy that exercises local self-government."
Since the Donald Trump administration, the U.S. government has challenged the decision of the federal First Circuit Court of Appeals, based in Boston, which ruled that excluding Puerto Rico and other territories from SSI violates the equal protection clause of the laws.
In a broader case - Peña Martinez v. U.S. Department of Health - the Biden administration took the same position as the Trump administration before the First Circuit, speaking out against extending SSI, Supplemental Nutrition Assistance Program (SNAP) and Low Income Subsidy (LIS) to residents of Puerto Rico to purchase prescription drugs through Medicare Part D.
The Trump administration's acting attorney general, Jeffrey Wall, maintained that "Congress has a legitimate interest in avoiding a unilateral fiscal relationship under which Puerto Rico shares the financial benefits, but not the financial burden of statehood, and declining to include Puerto Rico in the SSI program is a rational way to advance that interest."
The First Circuit Court of Appeals decision rejected that there could be harm to Puerto Rico's economy by giving the SSI benefit to the disabled and the poorest. Now, in its first argument, the Biden administration does not say that access to SSI endangers Puerto Rico's economy.
SSI is intended to assist people who are 65 years of age or older, who are "disabled" or blind, and who also have low or no income.
Regarding SSI, the Center for a New Economy (CNE) has calculated that the impact of this program -based on eligibility standards- could represent close to $2.58 billion annually and benefit up to 435,000 people. Pedro Pierluisi's administration considers that the impact could be between $1.5 billion and $1.8 billion.
But, in the Biden administration's argument, the Justice Department 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.
Biden calls on Congress to legislate on parity
In his 2022 budget proposal, Biden included language on May 28 expressing his support for granting parity to Puerto Rico in the Medicaid program, and calling for equal treatment for the island in SSI and SNAP.
This is the position he defended during the campaign. However, he has left it in the hands of Congress to implement these proposals, since he did not allocate funds in the budget to finance them.
With a 50-50 Senate split, it will be a tall order in the short term to get Congress to grant Puerto Rico residents access to SSI, and parity for the island in programs such as Medicaid and food assistance.
"As I have said, I believe that residents of Puerto Rico should be able to receive SSI benefits, just like their fellow Americans in the 50 states and Washington, D.C. I call on Congress to amend the Social Security Act to extend these benefits to residents of Puerto Rico. And, as I reiterated in my first budget request, I also support eliminating Medicaid funding caps for Puerto Rico and moving toward parity in SNAP so that (access to food assistance funds) is aligned with the states," Biden said in his statement today.
The U.S. president said those steps, along with his coronavirus rescue plan - which included the island's access to the dependent child tax credit and funds to expand the earned income tax credit - "will give Puerto Rico's families an equal chance to get ahead.
"As I have said before, there can be no second-class citizens in America. My administration will work with members of Congress to make the necessary legislative fixes a reality," Biden said.
The First Circuit decision - written by the late Puerto Rican Judge Juan Torruella - upheld a ruling by U.S. District Judge Gustavo Gelpí who concluded that José Luis Vaello Madero, who began receiving SSI as a New York resident, does not have to repay $28,081 that he collected at a time when his address was already in Puerto Rico.
Without a rational basis and legitimate government interest, "the exclusion of Puerto Rico residents is declared invalid," Torruella concluded then, in an opinion joined by Jeffrey Howard, presiding judge, and O. Rogeriee Thompson, which the federal judiciary seeks to overturn.
Call for action from the Island
"The important thing now is for the Supreme Court to address this issue," said Governor Pedro Pierluisi.
"If the Supreme Court, for some reason, does not favor our position - that the law is unconstitutional, that the treatment we are receiving as U.S. citizens is not correct - then the important thing is that President Biden's claim (so that) Congress (will) attend to it. We are going to do everything we have to do," said the president.
The chairman of the House Natural Resources Committee, Democrat Raúl Grijalva, said he will work with other committees to "expand access to federal programs for residents of U.S. territories, including Supplemental Security Income for residents of Puerto Rico. "It is one of my top priorities in this Congress," Grijalva said.
On the other hand, Puerto Rico House Speaker Rafael "Tatito" Hernandez Montañez said he will seek to intervene as a "friend of the court" in the Vaello Madero case, as other officials have done. "We regret that the Justice Department of the Democratic administration is continuing its discriminatory view toward Hispanic minorities by deciding to take up the Vaello Madero case," he said.
Hernández Montañez said he will lobby Congress to pass measures to give Puerto Rico residents full access to SSI, Medicaid and the food assistance program.
Meanwhile, the resident commissioner in Washington D.C., Jenniffer González, who has already intervened in the case, said on Twitter that "only statehood can bring the equality that we deserve and have demanded".
On a personal level, Biden has said that statehood is the best way to achieve equal treatment in federal programs. But, as a presidential candidate, he advocated a binding process for the federal government in which all status alternatives are represented.
As president, Biden - through his press secretary, Jen Psaki - has merely indicated that he favors a new status referendum.