If Biden breaks his promise to Puerto Ricans, only the Supreme Court can protect them.

The 3.5 million U.S. citizens living in Puerto Rico and other territories do not receive as much support from the federal government as citizens living elsewhere in the United States. This is no surprise: after all, they cannot vote for the president, have no electoral representation in Congress, and have no real autonomy. As a result, they are being duped into a range of federal programs that other communities in the United States take for granted, such as Supplemental Security Income (SSI), Medicaid, and the Supplemental Nutritional Assistance Program (SNAP), to pitch. billions of dollars. dollars per year. These inequalities – which are rooted in an uncomfortable history of systemic racism towards residents of the territories – will come to the fore over the next month as all three branches of the federal government have the option of ending this second-class treatment.

For the first time ever, the President and congressional leaders not only promised to eliminate the disparities in federal benefits that the citizens of the territories face, but also agreed to a legislative vehicle available to them in the form of the pending budget reconciliation bill. If Congress nevertheless fails to act despite this historic alignment of political stars, it should make it clear to the Supreme Court that there is the kind of failure in the political process that demands greater judicial intervention.

Continuing federal discrimination against citizens in the territories is gaining increasing national attention as the Supreme Court prepares to hear arguments next month in United States v. Vaello-Madero. November 9e, judges will consider whether to uphold two lower court decisions finding that denying SSI benefits to a U.S. citizen who moved from New York to Puerto Rico violates equal protection. The SSI program is one of the most essential social safety net programs in the country, recognizing the inherent dignity of millions of the most vulnerable low-income Americans who are elderly, blind or disabled by providing them with a basic income for help them take care of their needs. While these essential benefits are taken for granted in most U.S. communities, they are not available to otherwise eligible citizens in most U.S. territories simply because of where they live.

Last year, in the heat of the presidential campaign, then-candidate Joe Biden promised in response to a tweet announcing the Trump administration’s call to Vaello Madero to the Supreme Court that “[t]its end when I am elected president. But when pressed as president to stop defending these discriminatory laws in court, Biden blinked.

Much to the chagrin of many, Biden’s Justice Department continued to defend SSI’s denial in Puerto Rico, arguing in its brief to the Supreme Court that “the Constitution gives Congress, not the courts, the responsibility of make the appropriate changes ”. The Justice Department, however, admitted that there was “a strong political argument for increased federal assistance to needy residents of Puerto Rico.” Apparently when Biden promised “this will end” his eye was on Congress, not the courts.

Indeed, in an awkward statement released just hours before the Justice Department tabled its brief, current President Biden reiterated the political promises he made during the campaign to stress that the citizens of the territories “should be able to benefit from the services of the SSI, just like their colleagues. Americans in all 50 states and Washington DC “To back up his strong words that” there can be no second class citizens in the United States of America, “Biden called for greater parity for the ISS and d ‘other federal programs in the territories as part of its 2022 budget request to Congress.

When disenfranchised citizens in the territories are designated to be excluded from national programs that all other citizens take for granted, the Supreme Court should intervene.

It would appear that Democratic leaders in Congress are in a good position to deliver on Biden’s promise to end SSI’s denial of vulnerable citizens in U.S. territories. After all, at the heart of the proposed fiscal reconciliation package is the historic expansion of federal efforts to care for vulnerable Americans. In addition, Senator Bernie Sanders, the chief architect of the new spending plan, introduced legislation that would extend SSI to the territories and end other disparities in federal benefits for good. And the inclusion of the ISS for the territories through reconciliation receives majority support from Democratic, Republican and Independent voters.

All of this might lead you to think that when the Supreme Court resumes the pleadings in Vaello Madero November 9e, or certainly by the time he rules next year, that Biden and the Congressional Democrats may have already extended the benefits of the SSI to Puerto Rico. Unfortunately, that sounds like wishful thinking. So far, the reconciliation package pending before Congress includes literally nothing to correct disparities in SSI or other federal benefits for the citizens of the Territories. And it was before the latest revelations that the original $ 3.5 trillion plan will be drastically scaled back.

This state of affairs refers to a question that the Supreme Court should take seriously when it hears pleadings in Vaello Madero next month: Are Puerto Ricans helpless?

While lower courts have held that Congress’s denial of SSI benefits to residents of the U.S. territories does not all rational basis, José Luis Vaello Madero and many of the more than two dozen amicus briefs (including one filed by my nonprofit, Equally American) also argue that the Supreme Court should apply a stricter level of review being given that these citizens remain structurally deprived of their rights.

In what has become the most famous footnote to constitutional law, the Supreme Court wrote in 1938 that courts should provide “a more thorough judicial inquiry” when lines are drawn that arise from “prejudice against minorities. distinct and insular ”who are unable to protect themselves through the political process. In short, politically powerless groups deserve greater judicial protection. This is why the Justice Department’s argument that “the proper mechanism” to extend the benefits of the ISS to citizens of the Territories “is an action of Congress” should ring hollow for the nine judges, as well as for the 3, 5 million US citizens in the territories that have been excluded from the political process for nearly 125 years.

Increased judicial review is also justified by the fact that residents of the American territories are 98% racial or ethnic minorities. It is fundamental that the Supreme Court considers racial discrimination to be constitutionally suspect. Next month, judges are expected to consider how likely the citizens of Puerto Rico would be denied SSI benefits if their racial demographics reflected, say, Vermont or West Virginia. Indeed, the fact that the citizens of Puerto Rico continue to be victims of federal discrimination is a legacy of the overtly racist decisions of the Supreme Court in the Island cases– who in the early 1900s referred to the residents of the newly acquired island territories as “alien races” and compared them to “a fierce, savage and restless people” – something the court has yet to resolve.

The bottom line is that the pending reconciliation bill offers the president and congressional leaders the best opportunity we’ve seen in a generation to extend ISS to the citizens of the territories. And it will probably take another generation before we see this kind of opportunity again. So if Congress and Biden fail to deliver now, then the Supreme Court should take this as a clear indication that there is a fundamental dysfunction in the political process. When disenfranchised citizens in the territories are designated to be excluded from national programs that all other citizens take for granted, the Supreme Court should intervene. If this is not the case, the words “Equal Justice Under Law” inscribed on the Supreme Court of the United States will be meaningless to the citizens of the territories.

About Christian M.

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