Colonialism, an issue that rarely occupies the minds of most Americans, has once again reared its ugly head with the April 21 (8-1) U.S. Supreme Court decision in the United States v. Vaello Madero. The court—following the nativist and xenophobic decisions of more than a century ago—upheld the federal government’s exclusion of Puerto Rico from a Social Security benefits program, which will stop more than $2 billion a year from flowing to U.S. citizens living on the Island.
The justices found the Constitution’s Equal Protection Clause doesn’t require equal treatment for U.S. citizens living in the territory; a perverse conclusion because the text of the Equal Protection Clause specifically prohibits the government from treating U.S. citizens in an unequal fashion: the government shall not “deny to any person within its jurisdiction the equal protection of the laws.”
Yet, the court upheld the exclusion of U.S. citizens in Puerto Rico from the Supplemental Security Income program covering needy people who are blind, otherwise disabled, or elderly. This SSI program is a safety-net program that provides cash assistance to older, disabled, or blind Americans who have very low incomes. Congress has excluded residents of Puerto Rico and three other U.S. colonies from the program.
Perverse and Inconsistent Logic
Writing for the court, Justice Brett Kavanaugh said Congress can constitutionally treat Puerto Rico differently than the 50 U.S. states in some circumstances. Using perverse logic inconsistent with the very text of the Constitution, Kavanaugh justified his reasoning by asserting giving these U.S. citizens equal treatment, which would provide them access to billions of dollars of aid, could also result in taxing these citizens.
Because residents of Puerto Rico are not subject to federal income tax, that state of affairs is often used to justify denying them billions of dollars of aid—avoiding the vexing Boston Tea Party paradox of taxation without representation. In Puerto Rico’s case, there is no representation, no aid programs because of the illusory gift of no taxation.
The irony is that Kavanaugh justified unequal treatment by using verbiage like that of the demeaning Manifest Destiny of the 19th century, which was in fact the basis of the Insular Cases of over a century ago.
Justice Neil Gorsuch was not having any of Kavanaugh’s sophistry. In his concurring opinion, Gorsuch called for the court to overturn the Insular Cases, which upheld the unequal treatment of U.S. citizens living in the territory.
The Insular Cases were a series of decisions from the early 1900s that deprived residents of U.S. territories from having full constitutional rights and were based on racist and xenophobic rhetoric. These decisions justified unequal treatment using bigoted language such as the territories being “inhabited by alien races” who shouldn’t be governed “according to Anglo-Saxon principles.”
Second-Class U.S. Citizens, Again
The over three million residents of the U.S territory that is Puerto Rico are without question U.S. citizens. By using overtly bigoted cases of over a hundred years ago, the court issued another slap in the face to those that reside in the territory.
After over a century of colonial neglect, an unpayable debt, Hurricane Maria, and the overall decline in public services that affect the islanders’ quality of life, this decision rubs salt into the collective wound of the U.S. citizens living in Puerto Rico by reminding them (again) of their lower status in American society. As Gorsuch aptly observed, the “flaws in the Insular Cases are as fundamental as they are shameful.”
Essentially, the court’s newest endorsement of colonialism confirms that the federal government can discriminate against U.S. citizens based solely on where they live, and in Puerto Rico’s case, it is hard to forget that they live in the largest and oldest colony of the U.S. The fact that Puerto Ricans are often Spanish-speaking Latinos, a people of color, and the island is poorer than Mississippi, only adds to the colonial nature of their relationship with Uncle Sam.
Whether Puerto Ricans ultimately decide to become a state of the Union or seek independence, the current colonial status is untenable and most embarrassing.
The U.S. government should be ashamed that after more than 100 years of control over the island, Puerto Ricans remain second-class citizens vis-à-vis their fellow citizens on the mainland. Gorsuch said it best in his concurring opinion: the “time has come to recognize that the Insular Cases rest on a rotten foundation.”
U.S. citizens in Puerto Rico deserve nothing less than we live up to the ethos of equality embedded in our Constitution.
This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
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Ediberto Román is a law professor and nationally acclaimed constitutional law, immigration, and critical race theory scholar at Florida International University in Miami. He has published dozens of articles, essays, book chapters, and books on post-colonial discourse and constitutional law.
Ernesto Sagás is professor of ethnic studies at Colorado State University. He has a Ph.D. in political science from University of Florida with a concentration in Latin American studies. His areas of expertise include race/ethnicity/identity and politics in Latin America and the Caribbean, transnational politics, and Latinx politics.