What U.S. v. Vaello-Madero and the Insular Cases Can Teach About Anti-Critical Race Theory Campaigns
Critical Race Theory (CRT) has contributed to a meaningful understanding of how U.S. history and law have engendered systemic racism. As Kimberlé Crenshaw explains, “Critical race theory explores how racial inequality was historically structured into the fabric of the republic, reinforced by law, insulated by the founding Constitution and embedded into the infrastructure of American society.” CRT has served as an analytical tool to examine current structural inequality as a means to help improve equity and contribute to the constitutional task of forming a “more perfect union.”
However, as recent multiple incidents of race-based discrimination have caused many in the U.S. to wrestle with systemic racism through anti-racism education and training, a fierce backlash has emerged. This backlash includes spurious attacks on CRT and other anti-racism work and calls for banning it in public schools, universities and workplaces. Recent politically funded attacks on CRT seek to prohibit teaching about systemic racism, racial subordination and/or inequity in the U.S. For example, a federal “Stop CRT Act” bill would prohibit promoting any “race-based theory,” including that “any race is inherently superior or inferior to any other race” among other restrictions. According to Education Week, “Since January 2021, 33 states have introduced bills or taken other steps that would restrict teaching critical race theory or limit how teachers can discuss racism and sexism.” Such efforts are continuing in 2022. For example, on Jan. 11, 2022, Florida’s Republican governor called for a law that would allow parents to sue school districts that teach critical race theory. On Jan. 17, 2022, his first day in office, Republican Governor Glenn Younkin of Virginia issued an executive order banning “inherently divisive concepts” including CRT. This coordinated effort seeks to prohibit teaching or discussing the United States’ history of subordination based on race, gender, ethnicity, among other markers. Its aim is to foster a notion that official U.S. discrimination either never existed or is irrelevant “history” whose existence and current manifestations should be ignored.
But sadly, laws based on racism and inequality are not only vestiges of the past that impact current society. Discriminatory laws still exist in current U.S. law and have significant current implications that all Americans should learn about. On Nov. 9, 2021, the U.S. Supreme Court heard arguments in a case that exemplifies the current impacts of existing discriminatory laws that draw legal distinctions based on racist doctrine in what are known as the “Insular Cases.” The case, U.S. v. Vaello-Madero, provides a stark example of current discriminatory impacts of the Insular Cases and the Supreme Court’s failure to overturn them.
Put simply, the Insular Cases deny the equal humanity of residents of Puerto Rico and other “unincorporated” territories based on racist classifications of those residents. As noted in the amicus brief filed by LatinoJusticePRLDEF, the Insular Cases describe inhabitants of Puerto Rico and other unincorporated territories as “savage tribes” and “alien races” whose incorporation as full and equal citizens would create “grave questions . . . from differences of race, habits, laws, and customs of the people.” There is no mistaking the stark racist rationale behind the second-class status of the unincorporated territories that has led to the arbitrary and unequal treatment of their residents – notwithstanding their status as U.S. citizens. In addition to their racist basis, the Insular Cases are at the core of a U.S. “colonies problem” that must be addressed if U.S. constitutional commitments to equality and justice are to be met.
The question for the Court is whether aged, blind and disabled citizens eligible for Supplemental Security Income (SSI) who are excluded solely because they live in Puerto Rico (a U.S. territory that has been held without federal voting power for more than 120 years) are denied equal protection under the U.S. Constitution’s Fifth Amendment.
The facts show a blatant denial of equal protection. Vaello-Madero is a U.S. citizen. While living in New York, he suffered a serious illness that left him unable to work. He was eligible, applied for and began receiving SSI benefits. A year later, he returned to Puerto Rico to be closer to family. He continued to receive SSI. About three years later, the Social Security Administration notified Vaello-Madero that it was revoking his benefits retroactive to when he established residency in Puerto Rico – again, a U.S. territory – because he was allegedly “outside the United States.” Worse yet, the U.S. government sued Vaello-Madero to recover $28,081 in alleged SSI overpayments. Vaello-Madero, after being appointed an attorney, fought back. He asserted that denying SSI to eligible U.S. citizens solely because they reside in Puerto Rico violated equal protection under the Fifth Amendment to the U.S. Constitution.
The inequitable denial, revocation and clawing back of Vaello-Madero’s SSI benefits is based on classifications in the Insular Cases that mark Puerto Rico and other U.S. territories as “foreign in a domestic sense.” If that phrase sounds like it makes no sense, that is because it doesn’t. It is the product of a twisted logic intent on maintaining the subordination certain U.S. territories because of blatantly racist assumptions about their people. For example, in Downes v. Bidwell, 182 U.S. 244 (1901), the most prominent of the Insular Cases, Justice Henry Billings Brown, the author of Plessy v. Ferguson’s long discarded racist ‘‘separate but equal’’ doctrine, wrote that the U.S. overseas territories were ‘‘inhabited by alien races, differing from us in religion, customs, . . . and modes of thought,’’ making it impossible to govern ‘‘according to Anglo-Saxon principles.’’
The U.S. is currently reckoning with indisputable evidence of the harms of systemic racism in the wake of police killings of George Floyd, Breonna Taylor and so many other unarmed Black, Latinx and marginalized people. Further evidence of stark inequality based on race, ethnicity and class revealed by the COVID-19 pandemic make the need to address inequality based on race, ethnicity, gender and nationality all the more urgent. What is needed is fact-based education about the roots of today’s inequality and the structures that exacerbate it as part of an honest effort to foster greater equality in law and society. This is exactly the opposite of what the “Stop CRT” political campaigns seek. There is a compelling need to address the present implications of the United States’ long history of subordination based on race, ethnicity, gender, and class. More imperative yet is the need to rid U.S. law of the current racist doctrine embodied in the Insular Cases.
To catalyze needed changes in the law, honest, fact-based education is critical. There must be a broader understanding that “legal” racial subordination is not just a matter of history. As regards U.S. territories and their approximately four million inhabitants, it is current law. This must change. As U.S. House Natural Resources Committee Chair Raúl M. Grijalva (D-Ariz.) and other representatives spelled out in H.Res. 279, the Insular Cases “are contrary to our Nation’s most basic constitutional and democratic principles, and should be rejected as having no place in United States constitutional law.”
The New York State Bar Association is taking important steps to raise awareness about this legal anachronism and the need to change it. On June 17, 2021, NYSBA co-hosted with the Virgin Islands Bar Association a CLE Program entitled “America Has a Colonies Problem: Constitutional Rights and U.S. Territories.” The program examined the constitutional and legal history of U.S. territories and the Insular Cases, as well as current legal issues facing U.S. territories in the U.S. Supreme Court and Congress. NYSBA hosted a follow-up program in December 2021, and its Diversity Committee hosted a CLE program, “What Do the Insular Cases, Voter Suppression Efforts and the Anti-CRT Movement Have in Common?,” as part of NYSBA’s Annual Meeting. These important events help educate lawyers across New York State and beyond about the Insular Cases and their harmful historical and current effects on people across the U.S. territories.
It is well past time that the Insular Cases, the basis for unequal treatment of Valleo-Madero and the people of the U.S. territories, are overturned and their rationales soundly repudiated. Lawyers play an important role in addressing systemic inequality. This includes understanding past and current de jure inequities and their continuing implications as CRT helps teach. It calls for educating ourselves and others about historical and current inequality and advocating for the constitutional promise of equal justice under law.
Natalie Gomez-Velez is a professor of law at the City University of New York School of Law, where she teaches courses in public institutions/administrative law and constitutional structures, among others. Professor Gomez-Velez’s scholarship focuses on public education, public law and governance, and judicial diversity. She is the 2022 Chair of the Association of American Law Schools (AALS) Education Law Section and serves on the New York City Bar Education Law Committee. Professor Gomez-Velez also engages in legal commentary, including articles in Jurist and several recent television appearances on PIX11 News in New York City.