The Justice Department will defend the government’s decision not to extend certain Social Security benefits to residents of Puerto Rico, in a move that civil rights groups say goes against promises Joe Biden made during the 2020 presidential campaign.
The justices will consider Tuesday whether Congress violated the Constitution’s equal protection guarantees when it extended Supplemental Security Income benefits for the elderly and disabled to the states, Washington, D.C., and the Northern Mariana Islands, but not Puerto Rico, whose residents are U.S. citizens.
The government argues in United States v. Vaello-Madero that it has rational reasons for distinguishing between the places where Congress extended SSI and Puerto Rico. The U.S. argues that Puerto Ricans don’t pay federal income taxes and extending the benefit to them would cost taxpayers as much as $2 billion per year.
Lower federal courts rejected those arguments. And so did candidate Biden, dozens of civil rights and other groups said in a letter urging the government to stop pursuing the case.
“He really created some expectations for how his administration would treat those who live in Puerto Rico differently” from the way they were treated under the Trump administration, “and it’s very dismaying that he has continued the Trump administration’s actions” in continuing to press this case before the justices, said Laura Esquivel of the Hispanic Federation, which led the effort to urge the Biden administration to change course.
But former Assistant to the Solicitor General Ilana H. Eisenstein, who is now a partner at DLA Piper, said the administration’s actions aren’t surprising. It “is very rare for the Department of Justice to decline to defend the constitutionality of a federal statute,” Eisenstein said of the Social Security Act provision at issue in Vaello-Madero.
The government sued Jose Luis Vaello-Madero to recover $28,081 in SSI benefits he received after moving from New York to Puerto Rico. Vaello-Madero argued that the statute ran afoul of the Constitution.
Groups critical of the administration’s efforts point to a September 2020 tweet Biden sent in response to news that the Trump administration had appealed Vaello-Madero to the Supreme Court.
“Time and again, the president has refused to provide Puerto Rico with much-needed resources. He’s repeatedly insulted Puerto Ricans and this latest action is another example of his disrespect for the island,” the tweet said. “This ends when I’m elected president.”
Time and again, the president has refused to provide Puerto Rico with much-needed resources. He’s repeatedly insulted Puerto Ricans and this latest action is another example of his disrespect for the island.— Joe Biden (@JoeBiden) September 7, 2020
This ends when I’m elected president. https://t.co/FitVSFl8bS
President Biden agreed in a June 7 statement that the statute “is inconsistent with my Administration’s policies and values,” adding that he believes “that Puerto Rico residents should be able to receive SSI benefits, just like their fellow Americans in all 50 states and Washington D.C.”
Nevertheless, he gave the Justice Department the green light to continue its appeal. “The Department of Justice has a longstanding practice of defending the constitutionality of federal statutes, regardless of policy preferences,” Biden said in the statement. “This practice is critical to the Department’s mission of preserving the rule of law.”
As a result, Deputy Solicitor General Curtis E. Gannon on Tuesday will urge the justices to reverse the U.S. Court of Appeals for the First Circuit, and find that Congress didn’t violate the Equal Protection Clause by refusing to extend benefits to the island territory.
Esquivel noted that the government will defend the statute without amicus support. While there were two dozen friend-of-the-court briefs siding with Vaello-Madero, “not a single one is in favor of the government’s position,” Esquivel said.
The briefs urging the justices to leave lower court rulings in place range from the American Bar Association, to disability and labor groups, to the Northern Mariana Islands, which gets SSI benefits but is excluded from other benefit programs that are available to other U.S. territories.
The administration hasn’t shied away from changing positions in Supreme Court cases when it has disagreed with the Trump administration, Esquivel said in noting these instances included cases dealing with labor unions, voting rights, and criminal sentencing.
But those cases involved how to interpret statutes rather than their constitutionality, and the policy of defending federal statutes isn’t absolute.
The Justice Department traditionally won’t defend a statute only when it’s “deemed clearly unconstitutional or where the statute raises a serious conflict between the Congress and the Executive authority,” Eisenstein said. Neither scenario is applicable in Vaello-Madero.
Notably, Biden was vice president when the Obama administration decided not to defend the constitutionality of the Defense Against Marriage Act, the statute that defined marriage as between a man and woman for all federal purposes struck down by the high court in 2013’s U.S. v. Windsor on equal protection grounds.
Eisenstein noted that in explaining its decision, then-Attorney General Eric Holder emphasized that the Justice Department’s longstanding practice of defending federal statutes “accords the respect appropriately due to a coequal branch of government.”
Nevertheless, Holder said this was “the rare case where the proper course is to forgo the defense of this statute” because the president had determined that it was unconstitutional.