Biden Signals the End of Territorial Inequality

By Gretchen Sierra-Zorita

Earlier this fall, Joe Biden announced his Plan for Puerto Rico, making him the first presidential candidate to include in his platform a priority list for a U.S. territory. Most Puerto Ricans focused on Biden’s position on the island’s political status — he supports a fair and binding process of self-determination and personally favors statehood.

What did not receive as much attention was Biden’s far-reaching proposal to end unequal treatment of Puerto Rico in key federal programs — Medicaid, Medicare, Supplemental Nutrition Assistance Programs (SNAP) and Supplemental Security Income (SSI), a benefits program for low income people who are 65 or older, blind and/or disabled.

Correcting disparities in SSI and SNAP would put approximately $2.8 billion each year directly in the pockets of the most vulnerable citizens living in Puerto Rico. Correcting Medicaid and Medicare would bring billions more to Puerto Rico, where federal health care expenditures per capita are about one-third of what is spent on the 50 states. It would also allow the Puerto Rican government to redirect its limited resources to pay for essential services cut back under the austerity measures imposed by the Financial Management and Oversight Board.

Standing alone, this policy is a game-changer for Puerto Rico. Yet Biden appears to take it a step further, stating in a recent tweet that as president he would end the Trump administration’s refusal “to provide Puerto Rico with much needed resources.” Though terse, in context this tweet could signal actions far beyond anything Puerto Ricans have received from any U.S. administration — a potential break with the adversarial positions the U.S. government takes in court whenever the American citizens of the territories seek equal treatment under the law.

Time and again, the president has refused to provide Puerto Rico with much-needed resources. He’s repeatedly insulted Puerto Ricans and this latest action is another example of his disrespect for the island.

This ends when I’m elected president. https://t.co/FitVSFl8bS

— Joe Biden (@JoeBiden) September 7, 2020

Here’s the background. Biden was responding to the Trump administration’s petition for the U.S. Supreme Court to summarily reverse a historic First Circuit ruling (U.S. v. Vaello Madero) holding that excluding Puerto Ricans from receiving SSI benefits violates the Constitution’s guarantee of equal protection. The basis for the First Circuit’s decision — that the government has no rational basis for treating Puerto Ricans differently from other U.S. citizens — has consequences far beyond the availability of SSI benefits.

SSI is just one of many federal programs that Puerto Ricans and other territorial residents are excluded from in whole or in part. The exclusions are not uniform. SSI is currently available in the 50 states, the District of Columbia and the Northern Mariana Islands — but not Puerto Rico or the other territories. Depending on the program, all or some of the territories — Puerto Rico, Guam, U.S. Virgin Islands, Northern Mariana Islands and American Samoa — are left out. This patchwork of federal programs is the manifestation of a policy of racial discrimination whose foundation was laid 119 years ago by the U.S. Supreme Court.

The Insular Cases, one of the most deep-rooted causes of systematic racism in the United States, are unknown to most Americans. These cases raised constitutional questions over how Congress could govern islands acquired in the Spanish-American War of 1898 during a period of American expansionism, including Puerto Rico and Guam. In a series of early-1900s opinions, the Supreme Court established that the U.S. Constitution does not apply in full to U.S. territories, and that residents of these territories are not on the path to full political participation in the United States.

The Justices who decided the Insular Cases were largely the same who ruled in Plessy v. Ferguson in 1896 — the infamous case upholding the constitutionality of racial segregation laws in public facilities under the principle of “separate but equal.” These decisions reflected the racial prejudices of the day. Take for example, the U.S. Supreme Court opinion in Downes v. Bidwell: “if the conquered [Puerto Ricans] are a fierce, savage, and restless people, [the United States] may, according to the degree of their indocility, govern them with a tighter rein, so as to curb their ‘impetuosity, and to keep them under subjection.'”

Despite the outright discriminatory language in the Insular Cases, every Democratic and Republican administration until now has fought to uphold them and the right of Congress to do with the territories as it pleases. The government’s standard argument has always been that the territories are not treated the same because they do not pay federal income taxes. This position is misleading and should be irrelevant for programs targeted to low-income persons. Puerto Rico’s contributions include federal income taxes by residents of Puerto Rico on income from sources outside Puerto Rico, federal income taxes by all federal employees in Puerto Rico, and Social Security, Medicare and Unemployment Compensation taxes by all residents of Puerto Rico.

In its measured and neutrally reasoned opinion, the First Circuit rejected this government position, explaining that from 1998 until 2006, when Puerto Rico was hit by its present economic recession, Puerto Ricans paid more than $4 billion annually in federal taxes. This amount is higher than what was paid by Vermont, Wyoming, South Dakota, North Dakota, Montana and Alaska. Even today, when the island has yet to recover from Hurricane Maria and ongoing earthquakes, Puerto Ricans continue to pay well over $3 billion in federal taxes annually.

Affirming the First Circuit’s decision would likely pave the way for other federal lawsuits in the pipeline seeking equal access for U.S. citizens in the territories not only to SSI, but also SNAP and the Medicare Part D Low-Income Subsidy program. Together these programs total approximately $5.3 billion in additional benefits, or approximately 5 percent of Puerto Rico’s GNP.

Ultimately, changes wrought by the federal courts will need to be implemented by government agencies and may require congressional legislation. But Biden’s pithy tweet may mean that he is willing to break with 119 years of outdated colonial jurisprudence and finally redress the separate and unequal treatment of the 3.6 million American citizens of the territories.

Gretchen Sierra-Zorita is a board member of Equally American, a nonprofit organization that advocates for equality and civil rights in the U.S. territories. She heads the consulting firm Polivox787.

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