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The Insular Cases: It’s Time to Turn the Page

March 14, 2022, 8:01 AM

Puerto Ricans are U.S. citizens, but they are only entitled to all the benefits and rights of citizenship as long as they don’t live in their homeland.

This is due, in great part, to U.S. Supreme Court decisions from the early 20th century known as the Insular Cases , which declared residents of so-called “unincorporated territories” unworthy of the same constitutional rights and benefits as citizens of the states and the District of Columbia. The Insular Cases said these people were unworthy of rights because they were “alien races” and “savage tribes.”

In the words of late Judge Juan Torruella, chief judge of the U.S. Court of Appeals for the First Circuit, these cases “authorized the colonial regime created by Congress, which allowed the United States to continue its administration and exploitation of the territories acquired from Spain after the Spanish-American War of 1898.” Torruella explained that these cases contravene the U.S. Constitution.

Federal courts continue to lean on and misapply the Insular Cases to deny residents of U.S. territories constitutional rights and protections such as citizenship and equal benefits. Inexplicably, the Biden administration has refused to repudiate the Insular Cases and continues to rely on them to deny Puerto Ricans and others benefits necessary for their survival.

The Insular Cases Have Been Widely Criticized

The racist Insular Cases have been widely criticized. In U.S v. Vaello-Madero, currently before the Supreme Court, numerous advocacy organizations, attorneys general, labor groups, states and territories, professional associations, public benefits scholars, and others filed over 20 amicus briefs supporting José Luis Vaello-Madero, a disabled Puerto Rican man who received Supplemental Security Income (SSI) while living in New York. The federal government brought the case after Vaello-Madero moved back to Puerto Rico, suing for $28,000 in overpayments and cutting of his disability payments.

The SSI program is a national benefit for the aged, blind, and disabled. However, it is only available for residents of the 50 states, D.C., and the Northern Mariana Islands, with residents of all other territories excluded. The program currently provides monthly payments of $841 to individuals and $1,261 for a couple.

Government Admits Insular Cases Are Derogatory

At oral arguments in Vaello-Madero, the Justice Department, pressed to articulate the government’s position on the Insular Cases, acknowledged that “some of the reasoning and rhetoric there is obviously anathema, has been for decades, if not from the outset.”

This view is shared by the U.S. House of Representatives, which passed a resolution denouncing the Insular Cases as “contrary to the text and history” of the U.S. Constitution and resting on “racial views and stereotypes from the era of Plessy v. Ferguson that have long been rejected.”

In Plessy, the Supreme Court justified racial segregation giving rise to the “separate but equal” doctrine that was struck down almost 60 years later in Brown v. Board of Education. It is appalling that the Biden administration continues to rely on judicial precedent set by mainly by the same court that decided Plessy, establishing the abominable Jim Crow regime.

How Do the Insular Cases Affect Real People?

One of the tragic consequences of keeping the Insular Cases on the books is its direct impact on sustaining poverty, particularly among the disabled.

For instance, Vaello-Madero involves the denial of SSI benefits to residents of Puerto Rico. By denying poor and disabled residents of Puerto Rico SSI payment over the basic benefit of approximately $64 under Puerto Rico’s Aid to the Aged, Blind, and Disabled program (AABD), the U.S. government continues to keep Puerto Rico poor.

According to statistics from the Center on Budget and Policy Priorities, nearly one in every six residents, or 15.1% of its population of approximately 3 million residents, is disabled, compared to 8.6% of the U.S. population. In addition, nearly half of Puerto Rico’s residents live in poverty.

If more than 1.3 million Puerto Ricans are poor, and about 450,000 are disabled, denying federal benefits to residents of Puerto Rico is a travesty of justice.

As the U.S. District Court of Puerto Rico ruled in Peña Martínez v. HHS, “it is unconstitutional to deny” otherwise “eligible individuals, Supplemental Security Income (SSI), Supplemental Nutrition Assistance Program (SNAP), and Medicare Part D Low-Income Subsidy (LIS) benefits solely due to their residency in Puerto Rico.”

Unbelievably, the Biden administration is currently appealing this case in the First Circuit.

Outcry Against Insular Cases Cannot Be Ignored

In November 2021, numerous organizations joined the Hispanic Federation in asking President Biden to withdraw the government’s appeal in Vaello-Madero as well as Peña Martínez and to stop relying on the Insular Cases in litigation. Early this year, various prominent civil and human rights organizations joined the American Civil Liberties Union calling on the DOJ to “make clear that the Insular Cases and the racism they represent are no longer sanctioned by the federal government.”

The Biden administration should withdraw all appeals related to the Insular Cases and publicly condemn them in accordance with his pronouncement that “Puerto Ricans are American citizens and … are entitled to and deserve the same support … as every citizen.”

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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Author Information

Lía Fiol-Matta is senior counsel for LatinoJustice PRLDEF where her work focuses on economic justice and issues related to Puerto Rico. She is part of a team that filed an amicus brief in support of extending SSI benefits to residents of Puerto Rico in U.S. v. Vaello-Madero.