Miami resident Elisardo Vazquez, 67, waves a Puerto Rican flag during a protest. (Daniel A. Varela/Miami Herald via AP)

Puerto Rico, Justice Brett Kavanaugh blandly explained in a recent opinion, “became a U.S. Territory in 1898 in the wake of the Spanish-American War.” From his tone, the island might be a kitten that wandered in from the cold and nestled happily behind the national stove while no one was looking.

That is the wrong way to think about Puerto Rico—whose status as an American “commonwealth,” and, more important, the status of its population of U.S. citizens, were at issue in United States v. Vaello Madero, a case decided by the Supreme Court last week. Vaello Madero asked whether American citizens have a lesser right to federal disability payments simply because they live in Puerto Rico—even if, as in this case, they have lived on the mainland U.S. for almost 30 years. The Court’s answer was no: Jose Luis Vaello Madero was not entitled to the benefits he had received since moving back to Puerto Rico, Kavanaugh wrote, and had to pay them back right away. 

A couple of things are remarkable about this result. First is the fact that six justices of the Court treated the question concerning the somewhat shadowy “rights” of the Commonwealth of Puerto Rico and not the constitutionally far more important Fifth Amendment equal protection rights of Vaello Madero himself. (The seventh, the ever-helpful Justice Clarence Thomas, wrote separately to suggest that he’s not so sure anybody has equal protection rights against the federal government and that, though nobody asked him, he thinks it might be a good idea if the Court overturned its case forbidding school segregation in the District of Columbia.) 

The majority opinion relies on precedent holding that, though Puerto Rico is part of the U.S., Congress doesn’t have to treat it as a real part of the nation. Among other things, Puerto Ricans don’t pay federal income tax—and that apparently makes the difference, even in this case, involving the rights of a citizen who lived on the mainland, paying taxes like every other resident, for nearly three decades. 

First of all, Puerto Rico didn’t just wander in from the storm on little cat’s feet: The U.S. stole it. As the war with Spain broke out in the spring of 1898, future President Theodore Roosevelt, embarking for Cuba with the “Rough Riders,” wrote to his friend, Senator Henry Cabot Lodge, “Do not make peace until we get P[ue]rto Rico.”

The U.S. did “get” Puerto Rico, and the far larger Philippine Islands, as the spoils of war later that same year. The transfer of sovereignty from Spain to the U.S. took place without so much as a nod to the people of the islands themselves. Unlike the people of Cuba, Puerto Ricans had not revolted against Spain—quite the contrary, they had been granted home rule in 1897 and had duly elected a government headed by local nationalist Luis Muñoz Rivera. 

That government lasted eight days before a detachment of U.S. Marines landed in San Juan, seized the island, and made it a U.S. colony. The chronology suggests that the reason the Theodore Roosevelts and Cabot Lodges wanted Puerto Rico and the Philippines was possession envy. The European powers had begun to divide Africa, creating possessions whose wealth they could steal. Why should the U.S. be left out of this bully imperial game? 

Powerful voices warned that the plunge into empire would not end well for a nation that described itself as a self-government democratic republic created by colonies throwing off the yoke of imperialism. As the fate of the former Spanish possessions teetered in the balance, Carl Schurz enunciated the danger in a speech at the University of Chicago in 1898. The German-born Schurz was a true American icon—a legendary freedom fighter in his native Germany, a founder of the Republican Party once he took refuge in the antebellum U.S., Abraham Lincoln’s ambassador to Spain, Union general during the Civil War, a major influence in the drafting of the Fourteenth Amendment, U.S. senator from Missouri, and, finally, secretary of interior under President Rutherford B. Hayes. At 69, this honored elder warned an audience in Chicago that “a democracy cannot so deny its faith as to the vital conditions of its being—it cannot long play the king over subject populations without creating within itself ways of thinking and habits of action most dangerous to its own vitality.” Other prominent Americans, including former President Grover Cleveland, lent their voices to the anti-imperial cause, but the people weren’t listening. After the treaty with Spain, the nation plunged into its first savage colonial war, this one against independence fighters in the Philippines; meanwhile, almost absent-mindedly, the U.S. took over peaceful Puerto Rico. 

In Charleston, New Orleans, and other southern cities where racial segregation by law was just being clamped into place, white elites took note of this national choice. The historian C. Vann Woodward explained in his classic The Strange Career of Jim Crow

As America took up the White Man’s Burden, she took up at the same time many Southern attitudes about race. “If the stronger and cleverer race,” said the editor of the Atlantic Monthly, “is free to impose its will on ‘new caught, sullen peoples’ on the other side of the globe, why not in South Carolina and Mississippi?”

After the die of empire was cast, a different problem emerged, one that vexes the law to this day: The Constitution has no “empire clause” that empowers the government to snatch colonies or govern them. (As far back as 1803, President Thomas Jefferson had concluded that the Constitution did not empower Congress even to acquire foreign territories peacefully; he discreetly kept this conclusion to himself and pushed through the Louisiana Purchase nonetheless.)

In the early 20th century, Puerto Rico’s status was decided in what are now collectively called the Insular Cases; the U.S. Supreme Court opined that, because Puerto Ricans are—well—not our sort, dear, if you know what I mean—the Constitution would apply on the island just as far as Congress wanted it to, and no further. As Justice Henry Billings Brown (also the author of the infamous “separate but equal” decision, Plessy v. Ferguson) wrote in a case called Downes v. Bidwell, 

the result of a successful war … may bring about conditions which would render the annexation of distant possessions desirable. If those possessions are inhabited by alien races, differing from us in religion, customs, laws, methods of taxation, and modes of thought, the administration of government and justice, according to Anglo-Saxon principles, may for a time be impossible … We decline to hold that there is anything in the Constitution to forbid such action.

On April 21, the Court held that Brown’s “for a time” has stretched over 120 years. Jose Luis Vaello Madero is an American citizen, born in Puerto Rico in 1954, and he moved to New York in 1985. In 2011, still on the mainland, he became ill and disabled and qualified for payments under Supplemental Security Income (SSI)—a federal program designed to help indigent aged, blind, and disabled people pay for food, clothing, and shelter they otherwise could not afford. His monthly payment was more than $700. 

In 2012, Vaello Madero moved back to Puerto Rico because, he says, he wanted to be close to his family and care for his wife, also in ill health. On his 62nd birthday, he applied for Social Security payments, in addition to his SSI, at the Social Security Office in Carolina, Puerto Rico. Officials told him that he did not qualify for SSI because he had moved home; the payments would cease, and he must repay the full $28,801 he had received since returning to the island. 

Vaello Madero was entirely eligible when he signed up for SSI. He didn’t know that moving back to Puerto Rico would render him ineligible. Why would he think it would? SSI is a national program, and Puerto Rico is in the United States. Isn’t it? You might very well think so, but it turns out that in the statutes establishing SSI, Congress actually decided that Puerto Rico was—hey presto!—not in the United States for the very particular purposes of this very specific program. (The Northern Mariana Islands, alone among U.S. possessions, is in the United States; go figure.)

In 2017, the government sued Vaello Madero for repayment with interest and attorney fees. He responded that the exclusion of persons living in Puerto Rico from SSI violated the Fifth Amendment’s requirement of equal protection. He won in federal district court and then before the First Circuit. 

Not so fast, said the Supreme Court majority in Kavanaugh’s opinion. Previous cases state that Congress can treat Puerto Rico differently from the rest of the United States as long as it has a “rational basis” for doing so. Kavanaugh found that “rational basis” in “Puerto Rico’s tax status—in particular, the fact that residents of Puerto Rico are typically exempt from most federal income, gift, estate, and excise taxes.”

For whatever reason, the majority does not even nod to a central fact: This case is not about treating the Commonwealth of Puerto Rico—its legislature, its courts, its tax system, or any other feature of the commonwealth as a commonwealth—differently from governments of states; it’s about treating an individual American citizen—one who lived on the mainland for nearly 20 years, working and paying taxes—as different from other citizens. Equal protection, correctly understood, does not protect governments. It protects “persons” in the United States (which, whatever the SSI statute says, really, really is—pinkie swear, you could look it up!—part of the United States). 

Justice Sonia Sotomayor, the lone dissenter in Vaello Madero (and the only justice in the Court’s history of Puerto Rican descent), pointed out that SSI is not a state-by-state block grant program that varies by location and is administered by state governments. Instead, it is a national, uniform system to help poorer Americans who can’t help themselves; SSI payments go, “by definition, [to] low-income individuals who cannot afford to pay taxes.” Treating some eligible Americans differently because people who live near them don’t pay taxes not only raises equal protection concerns, but it also undermines one of the program’s aims. And she added a rather arch suggestion: 

If Congress can exclude citizens from safety-net programs on the ground that they reside in jurisdictions that do not pay sufficient taxes, Congress could exclude needy residents of Vermont, Wyoming, South Dakota, North Dakota, Montana, and Alaska from benefits programs on the basis that residents of those States pay less into the Federal Treasury than residents of other States.

She’s right as a matter of law, and the government had agreed with that analysis at oral argument. It will never happen, of course, because those freeloading states have votes in Congress and the Electoral College. Puerto Rico does not, and that leaves its people vulnerable to almost any mistreatment Congress cares to dish out. This unjust situation is skewered in a separate concurrence by Justice Neil Gorsuch, which scorches the Insular Cases in language even tougher than Sotomayor’s in dissent. “The Insular Cases have no foundation in the Constitution and rest instead on racial stereotypes. They deserve no place in our law.” Gorsuch was concurring with the majority, he wrote, only because “no party asks us to overrule the Insular Cases to resolve today’s dispute.” 

The language invites a challenge soon, and if it comes, Puerto Rico apparently has two votes among the justices already. That’s two more than the nearly 3 million people of Puerto Rico have at present. 

In the long-gone days of 2020, Democrats dreamed of making Puerto Rico a state, which by all rights it should have been long ago. Now, like voting rights legislation and Supreme Court reform, that dream has melted. Congress, however, could fix the specific statutory injustice that tripped up Jose Luis Vaello Madero, and other discriminations against Puerto Rican residents, tomorrow. 

It won’t.

Garrett Epps

Follow Garrett on Twitter @ProfEpps. Garrett Epps is legal affairs editor of the Washington Monthly. He has taught constitutional law at American University, the University of Baltimore, Boston College, Duke, and the University of Oregon. He is the author of American Epic: Reading the U.S. Constitution.