The Court takes up a difficult case about colonialism and democracy.
United States v. Vaello-Madero is a case about an impoverished American citizen, forced to repay a debt to the federal government that he only learned about fairly recently and that he cannot possibly afford.
It is also a case about colonialism and the legacy of the US government’s discriminatory treatment of Puerto Rico. And it is a case about the ways American democracy functions, and whether insulating that democracy from an ideological judiciary is worth allowing callous laws to remain in place.
The central figure in this case is Jose Luis Vaello-Madero, the man staring down the impossible-to-repay debt. The government says he is doomed to this fate because of a seemingly unimportant decision he made several years ago: He moved to Puerto Rico.
Supplemental Security Income (SSI) is a welfare program for many of the most vulnerable people in the nation: aged, blind, or disabled individuals who lack the means to support themselves. It is not an especially generous program — maximum annual benefits for an eligible individual are currently little more than $9,500. But, after Vaello-Madero became seriously ill in 2011 and was unable to work, SSI was his lifeline against destitution.
About a year after he started receiving SSI benefits, Vaello-Madero moved from New York to Puerto Rico so that he could be closer to family. For several years, the government continued to deposit his SSI checks in his bank account. But when Vaello-Madero filed for additional Social Security benefits in 2016, the government learned that he’d left the mainland for Puerto Rico — and Vaello-Madero learned, for the first time, that his decision to be with his family had catastrophic consequences.
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By law, SSI benefits are only available to people living in the 50 states, the District of Columbia, or the Northern Mariana Islands. Puerto Ricans are eligible for a program called Aid to the Aged, Blind, and Disabled (AABD), but this program pays only a small fraction of what Vaello-Madero received under SSI, according to his lawyers. “Puerto Rico residents receive an average monthly payment of $58” under AABD, while “under SSI an estimated 354,000 Puerto Rico residents would receive an average monthly benefit of $418” if they were eligible.
Then, a year after Vaello-Madero lost his benefits, the federal government sued him. It demanded that he repay the $28,081 in SSI benefits he’d received since he relocated.
The Justice Department’s primary argument in favor of this regime is that Congress’s decision to allocate welfare benefits in this way is none of the judiciary’s business — and that’s a much more potent argument than it may initially seem to be.
In defending the discriminatory treatment of Vaello-Madero and of similarly vulnerable Puerto Ricans, the Justice Department points to a legal rule known as the “rational basis” test — and here’s the part where Vaello-Madero becomes a difficult case. This rational basis test defines much of the relationship between an elected Congress and an unelected judiciary. It is the reason why much of the New Deal and the Great Society survived contact with the Supreme Court.
Indeed, the rational basis test is probably the single most important check on judicial power. It is not something to be cast aside lightly, especially in an era when the Supreme Court’s conservative supermajority would love to get its hands on more power.
Vaello-Madero’s lawyers argue that this is one of the rare cases where the rational basis standard, which I will explain in more detail below, should not apply. They tell a story in their brief about how Puerto Ricans were systematically denied the full rights of citizenship, and how this denial justifies giving them heightened constitutional protection.
So Vaello-Madero is a case about a very poor man who seeks only a pittance from the most powerful nation on Earth. But it asks some of the most fundamental questions that a person can ask about their nation. Does the federal government owe certain obligations to all Americans, or can it vary those based on where someone lives? And is Vaello-Madero’s suffering the price of democracy?
Vaello-Madero is not the first time the Supreme Court considered whether it is unconstitutional to deny SSI benefits to people living in Puerto Rico. In Califano v. Torres (1978), the Court rejected a similar lawsuit challenging the program’s discrimination against Puerto Rican residents.
“We deal here with a constitutional attack upon a law providing for governmental payments of monetary benefits,” the Court explained in its unsigned opinion in Torres. Such a law, the opinion continued, “is entitled to a strong presumption of constitutionality.” As long as Congress’s “judgments are rational, and not invidious, the legislature’s efforts to tackle the problems of the poor and the needy are not subject to a constitutional straitjacket.”
This judgment may seem cruel, but it is the product of one of President Franklin Roosevelt’s most hard-fought victories against a reactionary Supreme Court that actively pushed the poor and the vulnerable into desperation.
For the first third of the 20th century, and much of Roosevelt’s early years as president, the Supreme Court routinely sabotaged progressive legislation — often relying on highly dubious legal reasoning in the process. The Court struck down federal child labor laws. It invalidated minimum wage laws, stripped workers of their right to unionize, and struck down laws prohibiting employers from overworking their employees.
Meanwhile, a series of cases involving Roosevelt’s efforts to take the United States off the gold standard threatened to cause such widespread economic disruption — if the government had lost these cases, private debt would have increased by as much as 69 percent, and most of the railroads that the country relied on to ship goods could have gone bankrupt — that Roosevelt prepared a speech announcing that the government would not obey the decision.
In the end, the Court blinked. Roosevelt’s undelivered speech was filed away in an archive, and the Court reversed course on many of its anti-worker decisions. It even upheld a New Deal law protecting workers’ right to organize.
The culmination of the Court’s turn toward restraint was United States v. Carolene Products (1938), which held that, with a handful of important exceptions, economic legislation “is not to be pronounced unconstitutional unless in the light of the facts made known or generally assumed it is of such a character as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators.”
This is the “rational basis” test that forms the core of the DOJ’s argument in Vaello-Madero. It establishes that nearly all policy questions are none of the judiciary’s business and that the courts should be especially reluctant to strike down legislation touching on fiscal and economic policy.
This doctrine emerged not as an excuse to uphold cruel policies but as a safeguard against cruelty and overreach by judges. Especially as the Court became dominated by Roosevelt’s own appointees, its members wanted to prevent a repeat of the early 20th-century decisions harming workers and undercutting Roosevelt’s efforts to lift the nation out of the Great Depression. And so the Court decided to check itself.
In the decades that followed the Court’s decision to take its foot off the neck of democracy, the United States became the richest and most powerful nation in the world. But democracy also comes at a price, for a democratically elected legislature can enact laws that favor some groups and disfavor others. They can, for example, vote to deny an economic safety net to people in Puerto Rico.
Although Carolene Products held that Courts should begin every constitutional case with a presumption in favor of democracy, deferring to elected legislatures in nearly all cases, it did lay out a few exceptions to this rule. If a law violates a “specific prohibition of the Constitution,” such as the right to free speech or the right to be free from unreasonable searches and seizures, then it should still be struck down. So too should laws that undermine democracy itself, such as voter suppression laws or partisan gerrymanders (although the Roberts Court has largely abandoned this pro-democracy prong of Carolene Products).
Additionally, Carolene Products said that laws rooted in “prejudice against discrete and insular minorities” are also constitutionally suspect and should ordinarily be struck down. Such laws, the Court explained, are suspect because they tend “to curtail the operation of those political processes ordinarily to be relied upon to protect minorities.” If a minority group is transformed into a legal underclass, like African Americans in the Jim Crow South, then they are unlikely to wield enough political power to lobby for the repeal of laws that disfavor them.
This last prong of the Carolene Products framework forms the bulk of Vaello-Madero’s legal argument.
The Constitution forbids the government from denying “any person within its jurisdiction the equal protection of the laws.” As the Court explained in City of Cleburne v. Cleburne Living Center (1985), this Equal Protection Clause primarily protects groups that have “experienced a `history of purposeful unequal treatment’ or been subjected to unique disabilities on the basis of stereo-typed characteristics not truly indicative of their abilities.” Thus, courts view discrimination on the basis of characteristics like race and gender with great skepticism, because racial minorities and women have historically faced the kind of unequal treatment described in Cleburne. Before former President Donald Trump remade the Supreme Court, the Court also hinted that discrimination on the basis of sexual orientation is also the kind of “unequal treatment” disfavored by Cleburne.
Vaello-Madero’s lawyers spend the lion’s share of his brief arguing that people residing in Puerto Rico have also experienced a “history of purposeful unequal treatment” and been subject to discrimination rooted in racial stereotypes. Although Puerto Rico became a United States territory in 1898, the federal government has historically treated it as “outside the United States,” Vaello-Madero’s brief explains, and even held that certain constitutional rights do not apply in Puerto Rico.
Puerto Rico, the Philippines, and Guam were all annexed by the United States as part of the Spanish-American War, and this annexation produced a political crisis in the minds of the racist leaders who still dominated American politics and the legal profession in the late 19th century. Many American elites, including members of Congress, presidents, and Supreme Court justices, viewed the people of these new territories as too alien from American culture and too unfamiliar with our system to be subject to the same laws or afforded many constitutional rights.
These sentiments culminated in a group of Supreme Court decisions known as the “Insular Cases,” which divided the United States’ territorial possessions into two categories. Residents of “incorporated” territories enjoyed full constitutional rights, and incorporated territories were often understood to be on a path to statehood. “Unincorporated” territories, meanwhile, were deemed too foreign in character to enjoy the full blessings of the Constitution.
At least some of the justices who heard these cases were quite open about their racism. Justice Henry Billings Brown, best known as the author of the pro-segregation decision Plessy v. Ferguson (1896), wrote that the United States’ acquisition of Puerto Rico raised “grave questions” about the “differences of race, habits, laws, and customs of the people” of this island from the people of the mainland. And that these questions justified denying Puerto Ricans “the rights to citizenship, to suffrage, and to the particular methods of procedure pointed out in the Constitution which are peculiar to Anglo-Saxon jurisprudence.”
Although Congress made Puerto Ricans US citizens in 1917, the Court embraced Brown’s view of the Puerto Rican people five years later, in Balzac v. Porto Rico [sic]. Written by Chief Justice William Howard Taft, a former US president and colonial governor of the Philippines, Balzac held that Puerto Ricans were not protected by the constitutional right to a jury trial because “the jury system postulates a conscious duty of participation in the machinery of justice which it is hard for people not brought up in fundamentally popular government at once to acquire.”
In so holding, Taft distinguished Puerto Rico from the incorporated territory of Alaska. Alaska, he claimed, “was an enormous territory, very sparsely settled and offering opportunity for immigration and settlement by American citizens,” and thus it “involved none of the difficulties which incorporation of the Philippines and Porto Rico presents.” Alaska, in other words, was sufficiently empty that it could be filled up with white settlers who would bring with them American sensibilities. But the people already living in Puerto Rico were simply too alien to be afforded full constitutional rights.
Vaello-Madero’s brief draws a straight line from these decisions treating Puerto Ricans as legally inferior to other Americans, to Congress’s decision to exclude people living in Puerto Rico from SSI benefits. And it also makes another, closely related, argument that is firmly grounded in Carolene Products. “Because of Puerto Rico’s ‘unique’ status and ‘unparalleled’ relationship with the United States” — it is an island of United States citizens with no representation in the federal government — “Congress can discriminate against the island’s residents without regard to the heightened protection ordinarily afforded to politically powerless groups that have experienced a history of discrimination.”
Puerto Ricans, Vaello-Madero argues, are the very sort of people that the Equal Protection Clause protects. They’ve experienced a history of purposeful discrimination, been subject to racial stereotypes, and have little recourse to the political process. It’s an elegant argument, rooted in longstanding legal doctrines.
The government’s strongest argument against Vaello-Madero is that, while residents of Puerto Rico bear some resemblance to other groups that have been afforded special protection under the Constitution, it is not a perfect fit. The Equal Protection Clause, the DOJ notes, prohibits the government from denying equal rights “to any person.” It has been ordinarily understood to prevent “unequal treatment of classes of persons, not unequal treatment of regions.”
SSI’s exclusion for people living in Puerto Rico does not disable people of Puerto Rican descent from receiving SSI benefits. Vaello-Madero received those benefits when he lived on the mainland. Similarly, a white Nebraskan who moves to Puerto Rico would also be ineligible for SSI.
A similar concern animated the Court’s decision in Torres, the 1978 decision denying SSI benefits to people in Puerto Rico. A court decision requiring equal benefits for all Americans, regardless of where they live, “would apply with equal force to any benefits a State might provide for its residents, and would require a State to continue to pay those benefits indefinitely to any persons who had once resided there.”
And there’s also good reason why liberals and leftists should recoil from a court decision requiring the same legal rules to be applied to every American, regardless of where they live. The Court’s decision in Shelby County v. Holder (2013), which struck down a provision of the Voting Rights Act imposing special obligations on states with a history of racist election practices, was rooted in similar concerns that the rules in one part of the country should be the same as the rules in other parts.
Similarly, Democrats in Congress appear likely to pass legislation permitting poor people in states that refused the Affordable Care Act’s Medicaid expansion to receive cost-free insurance through a different government program. But that means that a poor person in, say, Florida, would receive different federal benefits than a poor person, in say, Virginia. Such a regime could be vulnerable if the Court determines that geographic discrimination can violate the Constitution.
It’s easy to see, in other words, how a conservative Supreme Court could wield a legal doctrine requiring geographic equality to do considerable violence to progressive legislation.
Carolene Products’ core insight is that an unelected judiciary should not be trusted with too much power. We saw, in the Court’s early-20th-century decisions, how democracy can spin off its axis if the courts are too powerful. The rational basis test exists to prevent that from happening again.
Ultimately, the correct answer to the Vaello-Madero comes down to an extraordinarily difficult question. Mr. Vaello-Madero is the victim of a terrible injustice. The question is whether, if a conservative Supreme Court steps in to cure that injustice, it can be trusted not to seize even more power in the process.
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