Statehood for Puerto Rico: Second Class Citizenship for Puerto Ricans?

By Sebastián J. Delgado Suárez

The ruling of the controversial case between Vaello-Madero vs. The united States reveals a second-class citizenship treatment silently affecting Puerto Ricans. Is statehood the solution or a deeper policy inclusion? However, it is a major opportunity for Congress to make things right.

INTRO: US Supreme Court May End Over a Hundred Years of Unequal Citizenship in Puerto Rico

In a term that has been filled with high-profile cases concerning abortion and criminal law, an equally important case, United States v. Vaello-Madero, has received little coverage.

Last November, Puerto Rico vicariously appeared before the Court through José Luis Vaello-Madero to determine whether Congress could exclude Puerto Rico from receiving Supplemental Security Income (SSI) benefits.

Superficially, this case deals with an economic policy. At its core, however, the case concerns the treatment of American citizens from Puerto Rico as second-class citizens. Congress’s ability to treat Puerto Rico unequally, moreover, has its underpinnings in case law known as “the Insular Cases,” which belong with the discriminatory decisions in Dred Scott v. Sandford and Plessy v. Ferguson. Insular Cases deal with the application of the Constitution in the territories.

In short, the Supreme Court has said that Congress is justified in treating Puerto Rico differently based on the Territory Clause of the Constitution. Yet the Court has turned its back on the people and precedent, deciding not to apply commanding case law about the Constitution’s applicability to Puerto Rico.

Such concepts may seem abstract and impersonal, yet the final part of this article highlights particular individuals who, like Mr. Vaello-Madero, wish to enjoy the full freedoms synonymous with citizenship.

I. Territorial Tangles: Where Rights of Citizenship Are a Matter of Locality Sometimes

The odious precedents of Dred Scott and Plessy were justly overruled by Brown v. Board of Education. But the Insular Cases have remained intact through the annals of American legal history, even when subsequent cases have repudiated the central tenets of that jurisprudence.

Specifically, the tenet that the Constitution’s applicability is not dependent on the citizenry in the territory, that is, that they are American citizens, but instead that it is based on “locality.” Balzac v. Porto Rico (1922). Based on this ruling, the Court has upheld the disparate treatment of Puerto Rico as a rational exercise of Congress’s power to administer territories. In so doing, the Court has refused to apply its decision in Boumediene v. Bush (2008).

Boumediene v. Bush came during the United States’ lengthy War on Terror. The case concerned enemy combatants detained in Guantanamo Bay in Cuba. The enemy detainees in Guantanamo petitioned for habeas relief in federal courts.

Ultimately, the Court held that Congress, controlled by the Constitution, could not “switch the Constitution on or off.” Therefore, the enemy detainees were entitled to habeas relief.

But Puerto Rico was explicitly excluded from this broad affirmation of Constitutional applicability. The Court underscored Puerto Rico’s unique situation—and the permissibility of Insular Case precedent—because of Puerto Rico’s civil law traditions in contrast to Anglo-American common law.

Most bizarrely, however, the Court wrote that the Constitution need not apply “always and everywhere.” With Boumediene, the Court blocked Puerto Rico’s most significant chance at overcoming precedents set by the Insular Cases and advancing in national parity.

II. The Curious Case of Vaello-Madero

In Vaello-Madero, the Court will determine whether the exclusion of Puerto Rico from the SSI benefits violates the Equal Protection Clause of the Constitution. When Mr. Vaello-Madero moved from the mainland to Puerto Rico to care for his wife, he unknowingly became ineligible for SSI benefits. But the Federal Government did not notify him. It sued. Mr. Vaello-Madero agreed to pay the Federal Government back, but the federal trial court judge refused the payment plan, assigned counsel to Mr. Vaello-Madero, and litigation ensued.

The district court held that the Territory Clause, while expansive, “is not carte blanche for Congress to switch on and off at its convenience the fundamental constitutional rights to Due Process and Equal Protection enjoyed by a birthright United States citizen.” Thus, the exclusion of Puerto Rico from the financial benefits scheme of SSI was unconstitutional.

When the Supreme Court heard oral arguments on 9 November 2021, an air of uncertainty surrounded the Justices.

III. Fighting for President and Country, But Left without Rights

Constitutional law can seem lofty, but its on-the-ground effects remind us that it impacts real lives. Veterans are a particularly striking instance: even those who have given their all for their country suffer the consequences of the Insular Cases. Here are some cases I collected through my work as an Undergraduate Fellow at Equally American, an organization dedicated to advocating for the territories:

FIRST CASE:

Mr. Yunque [pseudonym for privacy]. Mr. Yunque served in the U.S. Navy for twelve years. He saw the Navy as the gateway to the American Dream, and his quick rise in the service confirmed those hopes. However, those hopes plundered after his time in the service when federal taxes followed him in his new role, although full rights, like the right to vote, did not catch up. Mr. Yunque said his lack of rights was like second-class citizenship. What is more, he noted, such a lack of rights for American citizens is an anachronism. Puerto Rico must “be brought to the 21st century.”

SECOND CASE:

Mr. Coquí [pseudonym for privacy]. Mr. Coqui’s entire family, starting with his father, served in the US Armed Forces. He aimed his disdain at the Insular Cases: they were an insult to his family’s sacrifices. He, too, felt that lack of rights relegated American citizens to an inferior status. At the same time, however, he stated he had hope for the younger generations to ride the wave of other social justice programs to bring parity to the territories. “I hope my grandchildren get to enjoy those rights I fought for without having to move to the mainland.”

We can only hope the Court embodies those equal protection principles exhibited in Brown v. Board of Education and strikes down the discriminatory treatment against Puerto Rico enshrined in the Insular Cases. Vaello-Madero could be the Court’s last opportunity to repudiate the anachronistic and vile decisions of the Insular Cases. If it refuses to do so, the already ample authority Congress has over the territories may turn into a creeping colonialism.