Puerto Rico’s ‘Insular Cases’

By David Howard King

January 21, 2022

Puerto Rico’s ‘Insular Cases’


By David Howard King

The case of a disabled Puerto Rican man who was sued by the United States government to get back money paid to him in SSI benefits could impact how millions of residents of US-owned territories are treated under the Constitution. The man’s troubles began when  he moved back to Puerto Rico to take care of his ailing wife —  no longer qualifying for benefits, according to the federal government.

For Court of Appeals Judge Jenny Rivera, who was a speaker at the New York State Bar Association’s Annual Meeting on Friday, it’s also a very personal case.

Rivera revealed that her mother was, in fact, a Puerto Rican immigrant who utilized SSI after suffering from debilitating arthritis from years of working in Manhattan’s garment district.

“If she had moved to the island of Puerto Rico, we would not have had that benefit. I would not have been able to have the life I had,” Rivera said during a program that was part of the Constance Baker Motley Symposium and Diversity Awards.

“These are not inconsequential decisions; they are forever shaping people’s lives and to think cases that said ‘You are not like us. You are just to0 alien’ will be the basis for denying someone the future ability to live in the country when they’ve given so much is completely antithetical to the democratic process,” Rivera said.

So what are the cases she’s referring to? Rivera explained that the “Insular Cases” are a series of U.S. Supreme Court decisions that dealt with the status of territories acquired by America following the Spanish-American War. Rivera explained that the now-derided decisions established justification for American colonialism and claimed that the citizens of these territories were “alien races with differing customs and religions” and that “the way they think is so unlike us, we cannot imagine them being a part of” our nation.

Mirna M. Santiago, founder of Girls Rule the Law and co-chair of NYSBA’s Committee on Diversity, Equity and Inclusion, served as moderator for the panel titled “What do the Insular Cases, Voter Suppression Efforts and the Anti-CRT Movement Have in Common?” She explained that the inspiration for the panel came from the push for voting rights in conjunction with a renewed debate over statehood for Puerto Rico, coming at a time when Conservative media and some localities are up in arms over Critical Race Theory.

Questioned about the consequences of the Senate’s failure to pass voting rights legislation this week, Senate Minority Leader Mitch McConnell told reporters, “African-American voters are voting in just as high a percentage as Americans.” His answer to a journalist’s question about the concerns of voters of color spurred outrage from many who felt the Senator was referring to Black Americans as less than White Americans. That concept of “real” American vs. “less than” is one that is very much in play in the debate over the United States’ treatment of Puerto Rico and other territories and was at the center of the panel discussion.

Natalie M. Gomez-Velez, professor of law at CUNY School of Law, detailed how one case pending before the Supreme Court could overturn the Insular Cases and require the United States to treat residents of U.S. territories equally under the Constitution.

The case that is so personal to Rivera, United State v. Vaello-Madero, stems from the legal saga of Jose Luis Vaello-Madero, a Puerto Rican born citizen who started receiving SSI benefits in New York while suffering from a debilitating illness. Vaello-Madero returned to Puerto Rico to care for his ill wife. He continued receiving benefits for several years until SSI discovered he was living in Puerto Rico, the federal government canceled his benefits and the U.S. filed suit to recover the funds. Vaello-Madero’s lawyer asserted that denying his client benefits solely because he lives in Puerto Rico violated the 5th Amendment of the Constitution, and a District Court agreed.

The First Circuit extended the benefits and found that the government’s argument that it should not pay SSI to residents of Puerto Rico invalid because Puerto Rico contributes billions of dollars in taxes annually. Gomez-Velez noted that Puerto Rico pays more taxes annually than “at least six states in the U.S.”

The judge also rejected the government’s argument that including Puerto Ricans in SSI was cost prohibitive because fiscal consideration are not applicable when an entire segment of a beneficiary class is excluded.

With the case now in front of the U.S. Supreme Court, the government’s lawyers are trying to separate their arguments from the flawed and derided Insular Cases, Gomez-Velez said. During oral arguments, Justice Neil Gorsuch asked, “Why should we just not admit the Insular Cases were improperly decided?” while Justice Sonya Sotomayor scrutinized the government’s tax-based argument saying, “I don’t understand what the different relationship with Puerto Rico has to do with this program because there’s no cost to the government. The money’s going directly to the people, not to the government.”

Gomez-Velez said that the pushback against Critical Race Theory, McConnell’s comment about “Americans” and the Insular Cases are all connected because America is still dealing in a very real way with a history and government that was fueled by a view that some people are  less than others.

“I do think that certainly this is the most obvious example of denying an entire people federal voting rights,” said Rivera.

Rivera continued that the DOJ’s response that the Vaello-Madero case should not be decided as one of the Insular Cases but on the issue of taxes is “basically saying you can buy the vote and, as far as I know, that is a federal crime. That is not the argument DOJ is making here but if we follow through to the logical conclusion with the disparate treatment of the people of Puerto Rico, we’re saying they are not worthy of the vote and that in many senses is not so far afield from the way people of color are treated all over.”

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