Originally published in El Nuevo Día.
U.S. District Court Judge William G. Young of the District of Massachusetts will hear arguments today for and against declaring unconstitutional, on summary judgment, the restrictions imposed by the U.S. Congress on the application in Puerto Rico of the Supplemental Security Income (SSI), Supplemental Nutrition Assistance Program (SNAP) and Medicare Part D. The judge will also hear arguments for and against declaring unconstitutional, on summary judgment, the restrictions imposed by the U.S. Congress on the application in Puerto Rico of the Supplemental Security Income (SSI), Supplemental Nutrition Assistance Program (SNAP) and Medicare Part D programs.
The ten plaintiffs base their claim on the constitutional right to equal protection of the laws which, they allege, the federal government violates when it discriminates against them by denying them benefits that other U.S. jurisdictions would obtain.
It is a sort of sequel to the lawsuit known as Harris v. Rosario that was resolved in 1980 when the U.S. Supreme Court declared that the federal government could discriminate in programs against residents of Puerto Rico as long as there is a "rational basis" for such a decision. The plaintiffs now allege that the reasons given by the government are not rational, but purely discriminatory. The federal Department of Justice, on the other hand, claims that the legal scenario has not changed and that the "rational basis" for the unequal treatment continues to exist.
Judge Young, however, denied the U.S. government's motion to dismiss the lawsuit.
Recently, a panel of judges of the First Federal Circuit Court of Appeals in Boston agreed with a ruling by federal judge Gustavo Gelpí that established that, under the constitutional right of equal protection under the laws, the U.S. government could not take away SSI from citizen José Vaello Madera simply because he moved from New York to Puerto Rico, a jurisdiction not covered by the program's organic law. The U.S. Department of Justice has not announced whether it will appeal the determination to the U.S. Supreme Court.
The case against Vaello Madera offers a favorable context for the judicial extension of benefits to Puerto Rico, said José Fernández Bjerg, a retired banker and philanthropist who founded the organization US Citizens For Equal Protection, which advocates for the equity of Puerto Rico residents in federal programs for individuals. This organization is funding the plaintiffs' lawsuit.
The intention of Fernandez Bjerg, and those accompanying him in the initiative, is to systematically challenge the unequal treatment of Puerto Rico's residents as an alternative to alleviate poverty and improve the overall economy.
"In these three programs (SSI, SNAP and Medicare), if they apply it here as in other states, it could bring $6 billion into the economy and it would be recurring money," Fernandez Bjerg said.
According to the Census Community Survey, by 2018 in Puerto Rico, about 43% of people lived with incomes below the poverty level. That's more than twice as many as the poorest U.S. state, Mississippi, at 19.8%.
The "rational basis" endorsed by the U.S. Supreme Court in 1980 (Harris v. Rosario) centered on the idea that Puerto Rico residents do not pay federal income taxes, that it would be highly costly to equalize Puerto Rico with other states, and that granting these benefits would disrupt the Puerto Rican economy.
"And that is not true. Nothing more than, between 1999 and 2014, Puerto Rico paid $4.2 billion (on average) annually in federal contributions," said Fernández Bjerg citing reports from the U.S. Internal Revenue Service. Likewise, he called absurd the idea that an increase in what the government invests in Puerto Rico would negatively affect the economy. Nor is it an economic burden that the U.S. cannot handle at a time when trillions of dollars are being spent on incentives to mitigate the impact of the COVID-19 pandemic.
SSI has not been extended to Puerto Rico since its conception. Puerto Rico also does not participate in SNAP. Instead, the U.S. government established the Nutritional Assistance Program (NAP), which provides fewer benefits and has a limit on the funds distributed to help feed the most disadvantaged families.
For their part, the plaintiffs question why the island does not extend Medicare Part D, which establishes a federal incentive for low-income individuals to purchase a health plan. Instead, the U.S. government provided a series of funds to finance part of the Vital health program (formerly known as Mi Salud) that ran out in 2017. Subsequent congressional appropriations to defray the cost of the state's Salud program have emerged in the aftermath of the catastrophe caused by Hurricane Maria and the economic tightness with which the state government is managing.
The case is supported by organizations such as Espacios Abiertos, Yale Law School, the Association of Industrialists and the Chamber of Marketing, Industry and Food Distribution (MIDA).
"The main objective of everything is to challenge this series of programs - there are about 18 to 20 programs - that discriminate against Puerto Rico," said attorney José González Irizarry.
Fernández Bjerg, who has dedicated much of his wealth to fighting poverty and providing educational opportunities to Puerto Rico residents with the Kinesis Foundation, said the initiative does not seek to advance partisan agendas or political status options.
"That has been my fear all along (that it will be interpreted as a partisan or ideological agenda). I don't belong to any party. This is not about colors. These are benefits for the poor, whether they are statist, popular or any ideology. Many of these programs we had decades ago, but they were taken away and that contributed to the tremendous decline in the economy," said Fernandez Bjerg.
He mentioned, for example, that the nutritional assistance program received by the island's poor residents was similar to other states. However, Congress changed the program to establish a cap on what it distributes to the most disadvantaged in Puerto Rico.