SSI in the USVI: What Does ‘Equal Justice Under Law’ Mean for U.S. Territories?

Former Congresswoman Madeleine Bordallo, along with other current and former residents of U.S. territories, at the Supreme Court as part of Equally American's “I am José” campaign. (Photo by Chantale Wong Photography)
Former Congresswoman Madeleine Bordallo, along with other current and former residents of U.S. territories, at the Supreme Court on Tuesday as part of Equally American’s “I am José” campaign. (Photo by Chantale Wong Photography)

On Tuesday, the Supreme Court was asked to consider what four words emblazoned on the front of the court – “Equal Justice Under Law” – mean for the 3.5 million citizens living in U.S. territories.

At issue was whether the denial of Supplemental Security Income benefits to José L. Vaello-Madero based solely on his place of residence in Puerto Rico violated the Constitution’s guarantee of equal protection. Two lower courts ruled favorably for Vaello-Madero, but it was unclear after oral argument whether the Supreme Court would affirm or reverse those decisions.

“The argument was much farther ranging than I expected,” said Neil Weare, president and founder of Equally American, which advocates for equal rights for citizens in U.S. territories and filed an amicus brief in the case. “We weren’t given a lot in the way of answers on what most of the justices were thinking. It was clear that many of them were still thinking through – sometimes out loud – what they wanted to do in the case.”

The strongest voice in favor of Vaello-Madero was Justice Sonia Sotomayor, whose parents are from Puerto Rico. She explained to her colleagues that “Puerto Ricans are citizens, and the Constitution applies to them. Their needy people are being treated different than the needy people in the 50 states, the District of Columbia, and the Northern Mariana Islands.” She emphasized again later, “needy is needy, whether in Puerto Rico or in the mainland.”

Equally American President Neil Weare speaking with Attorney Hermann Ferré, who argued on behalf of Mr. Vaello Madero, after the argument (Photo by Chantale Wong Photography)
Equally American President Neil Weare, left, speaks with attorney Hermann Ferré, representing José L. Vaello-Madero, on the steps of the U.S. Supreme Court Tuesday in Washington, D.C. (Photo by Chantale Wong Photography)

“Justice Sotomayor explained in simple and plain terms why where one lives – standing alone – cannot be a basis to deny a U.S. citizen equal enjoyment of a uniform federal benefit like SSI,” Weare said.

The Insular Cases – a series of Plessy-era decisions from the turn of the last century that established a doctrine of “separate and unequal status” for residents of U.S. territories – were also a significant focus of the argument. After Deputy Solicitor General Curtis Gannon disclaimed any reliance by the government on the Insular Cases, Justice Neil Gorsuch responded, “Why shouldn’t we just admit the Insular Cases were incorrectly decided?” When Gannon declined to answer directly, Gorsuch pressed further: “From the government’s point of view, if the Insular Cases are wrong … why shouldn’t we just say what everyone knows to be true?”

In response, while Gannon stated that “some of the reasoning and rhetoric [of the Insular Cases] is obviously anathema, has been for decades, if not from the outset,” he declined the opportunity presented by Gorsuch to call on the court to overrule the Insular Cases.

Weare remarked, “We’ve been calling on the Supreme Court to overrule the Insular Cases for years, so I was pleased to hear Justice Gorsuch call out the Insular Cases so directly. It was disappointing though that even after Justice Gorsuch opened the door for the government to walk through, they refused to take that step. In effect, the Biden-Harris Justice Department is continuing to defend the Insular Cases, which is hard to square with the values they profess to adhere to.”

With the Supreme Court still closed to the public due to COVID-19, Equally American brought together supporters from several U.S. territories as part of its “I am José” campaign to listen to the arguments outside the court while holding signs demanding action by the court and Congress. Among those attending were former Guam Congresswoman Madeleine Bordallo and staff from current Guam Congressman Michael F.Q. San Nicolas, among many others.

“The big takeaway today should be that we need to continue pushing decisionmakers in D.C. to address these historic injustices, which are grounded in systemic racism,” Weare said. “Now that the case for equality has been made to the Supreme Court, we need to shift our focus to Congress, where the extension of SSI benefits to citizens in the territories has been included by House Democrats in the draft budget reconciliation bill. Getting that across the finish line will be hard work over the next few weeks, but we can’t lose focus.”

new poll released Wednesday shows that U.S. voters support expanding SSI benefits to citizens in the territories by a 45 point margin, with 69 percent supporting and only 24 percent opposing.

People from the territories whose lives have been impacted by the denial of SSI benefits are encouraged to continue sharing their stories with Equally American. So far nearly 200 people have taken the survey.

A decision in the Supreme Court case is not expected until later next year. More information on U.S. v. Vaello-Madero, including links to the transcript and audio of the oral argument, is available here. More about the “I am José” campaign is available here.