The USVI government and the V.I. Bar Association filed amicus briefs with the U.S. Supreme Court on Tuesday, asking the justices to uphold an appeals court decision that found barring residents of Puerto Rico from Supplemental Security Income payments violates the equal protection clause of the U.S. Constitution.
They join more than 20 other entities, including the American Bar Association and the American Civil Liberties Union Foundation, that have filed briefs in support of respondent José Luis Vaello-Madero, who the U.S. government has sued to recover SSI benefits it said he received illegally when he moved from New York State to Puerto Rico.
The federal SSI program provides monthly payments to adults and children with a disability or blindness who have limited income and resources and to people 65 and older without disabilities who meet financial qualifications. However, residents of Puerto Rico, the U.S. Virgin Islands and other U.S. territories, except for the Northern Mariana Islands, are barred by federal law from participating.
Vaello-Madero first began receiving SSI benefits in 2012 as a resident of New York State, which he continued to collect when he moved home to Puerto Rico in 2013 to care for his wife. However, in 2016 the Social Security Administration said it was revoking his benefits retroactively to the date he established residency on the island because he was “outside the United States.”
In 2017 the U.S. Department of Justice filed a lawsuit invoking a criminal statute against Vaello-Madero — with the threat of up to five years in jail — to recover $28,081 in SSI benefits he received while in Puerto Rico.
The Justice Department lost its case in the U.S. District Court of Puerto Rico, and again on appeal to the U.S. Court of Appeals for the First Circuit in April 2020. It then appealed to the Supreme Court, which granted review of the case in March.
The Justice Department argued in its brief before the U.S. Supreme Court in June that while Congress has the power to extend SSI benefits to U.S. citizens residing in overseas territories, not doing so does not violate the Constitution because Puerto Rico’s “unique” status benefits its residents who pay less in federal taxes and therefore can take care of their own.
In making its case, the Justice Department relied on a series of Supreme Court decisions from the turn of the last century. Known collectively as the Insular Cases, they established a legal doctrine of “separate and unequal” status for U.S. citizens of overseas territories founded on the theory that their inhabitants belonged to “uncivilized” and “alien races” who were “unfit” to handle the full rights and duties of citizenship.
Calling the second-class constitutional status of U.S. territories — which exist in legal limbo as “unincorporated” from the United States — “a legal problem with real-world consequences for more than 100,000 Virgin Islanders,” the V.I. government has called on the Supreme Court to affirm the decision of the First Circuit.
“The Supplemental Social Security (SSI) benefits at issue in this case are but one example of a century-long tradition of treating the Territories’ U.S. citizens as a separate and disfavored class. That tradition, born of the infamous ‘Insular Cases,’ is rooted not in the Constitution but in explicitly racist and colonialist nineteenth-century ideology,” the V.I. government said in its 44-page amicus brief.
“The USVI submits this brief amicus curiae to urge the Court to affirm the decision of the First Circuit, extend the full rights and privileges of citizenship to Americans residing in the Territories, and abjure the Insular Cases and their shameful legacy of second-class citizenship for a discrete group of loyal Americans based solely on where within the United States they live,” the brief said.
The legal team at Curtis, Mallet-Prevost, Colt & Mosle LLP that is representing Vaello-Madero pro bono has argued in its 63-page response to the Justice Department that the government’s justification for denying SSI benefits is not only “wildly out of touch with Puerto Rico’s political and fiscal reality, but it also fails to explain why poor and disabled Americans in Puerto Rico must carry this burden while similarly situated Americans in the most autonomous jurisdictions in our federated system, states, are not required to make this sacrifice.”
The Justice Department’s argument is specious in that SSI beneficiaries do not earn enough money to pay federal taxes, it is not a self-funded program like Social Security, and the poorest to the richest states receive support as well as the Northern Mariana Islands, which has similar tax exemptions to Puerto Rico, the lawyers said.
“While certain federal insurance programs are funded by their beneficiaries, SSI is not. It is irrelevant to SSI eligibility whether an individual resides in New York and pays federal income tax before moving to Puerto Rico (like respondent), or whether they live in Puerto Rico before moving to New York to receive SSI,” they said.
The disparity is such that Puerto Rico receives some $36 million in federal support under adult assistance programs such as Aid to the Aged, Blind and Disabled, where upwards of $2 billion would be available under SSI, raising grave equal protection concerns, Vaello-Madero’s lawyers said. “The exclusion of Puerto Rico from SSI is thus not a matter of respecting autonomy, but of arbitrary neglect.”
The same can be said of the USVI, the V.I. government argues in its brief, noting that its annual federal aid for the aged and disabled is capped at $3.5 million, of which nearly $2.9 million is taken up by the islands’ grant for the Temporary Assistance for Needy Families program, leaving only around $700,000 for payments to the needy elderly and disabled. Adding to the burden, the cap is not indexed for inflation and has remained the same since 1997.
The average payment to benefit recipients in the territory for all programs combined was just $176.07 per month in 2011, compared to around $600 a month for residents of the states, the V.I. government said in its brief. To make matters worse, “while the average household income in the USVI is significantly lower than the poorest States, the cost of living exceeds the national average by 40 to 50 %,” the V.I. government wrote in its brief.
“The cost of administering these programs also strangles the Territory’s economy,” it said. Under the current system, that burden falls on the territory which also must fund 25 percent of all benefits, whereas the federal government covers 100 percent of SSI payments to the states, the brief said.
“For some reason, the United States thinks the prevalence of ‘commonplace’ discrimination against one group of Americans is a justification in itself for its continuation. This, of course, is nonsense,” the V.I. Bar Association wrote in its brief.
Quoting from McGirt v. Oklahoma, the Bar Association wrote, “Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law. To hold otherwise would be to elevate the most brazen and longstanding injustices over the law, both rewarding wrong and failing those in the right.”
The United States has until Sept. 29 to reply to Vaello-Madero and the scores of amicus briefs. Oral argument is not yet scheduled but will likely be in December or January, according to Neil Weare, founder of Equally American, the legal nonprofit that advocates for equal rights for the 4 million Americans living in U.S. territories. The high court’s term begins in October.
The amicus briefs and more documents relating to United States v. Vaello-Madero, as well as other cases seeking territory rights, are available on the Equally American website.