Foreign . . . in A Domestic Sense?; the Plight of The Insular Territories

I am a legal news junkie. Although my various responsibilities connected to my family, my business, my church, and as a Village Trustee often require so much of my time that I can’t possibly keep up, I try to stay “tuned-in” to what’s happening in the legal world. Whether I read the legal news, listen to legal-themed podcasts, or try and keep up with case summaries, I think it’s important, as a lawyer, to stay informed. In particular, I try to follow the news related to the decisions of the U.S. Supreme Court, as it has far reaching effects for our day to day lives.

Recently, I discovered an interesting case presented for legal argument before the U.S. Supreme Court. On November 9, 2021, the Court considered the case of U.S. v. Jose Luis Vaello-Madero, which involved a man born in Puerto Rico who had been living in New York City since 1985. He was disabled, qualifying for “Supplemental Security Income,” or “SSI.” This is a Social Security program which helps supplement the incomes of older, disabled Americans. Mr. Vaello-Madero, aged 67, began receiving the benefits in 2012 while living in New York. In 2013, he relocated back to the place of his birth, San Juan, Puerto Rico, to help care for his wife.

Mr. Vaello-Madero continued to receive SSI benefits until 2016, when he was informed that he was now ineligible because he had moved to Puerto Rico. To add insult to injury, the Social Security Administration filed suit against him, demanding he pay back over $28,000 in benefits he had received while living on the island. To Mr. Vaello-Madero, this must seem like a cruel joke. Because Mr. Vaello-Madero was born in Puerto Rico, he is automatically a U.S. Citizen. When he resided in New York, there was no question he qualified for the benefits. How could a citizen who qualifies for federal benefits lose them simply by changing his address?

This is all because of Puerto Rico’s status within the U.S. federal system. Puerto Rico is one of the “Insular” territories of the United States. Article IV, Section 3, Clause 2 of the U.S. Constitution gives Congress all authority over “territory or other property belonging to the United States.” This has been interpreted to mean that a U.S. territory not already a part of one of the 50 states is under the exclusive control of Congress, without regard to the reach of the constitutional principles that protect the rights of those who are citizens of the 50 states.

This was not always so. Prior to the 20th century, the U.S. government considered territories that were not already parts of states to have the complete protection of the Constitution. Up until the 1890s, the expectation was that all the U.S. territories then in existence at that time – Oklahoma, New Mexico, Arizona, and Alaska – were being developed to become states themselves, and indeed, they all did; Oklahoma in 1907, New Mexico and Arizona in 1912, and Alaska in 1959. But the politics of that era caused a shift in government policy. America was trying to assert itself as a great world power. The European nations the U.S. was competing with all had colonial empires. Having such an “empire” became part of American foreign policy. The U.S. tried to follow the British model. The United Kingdom was the premier world power at that time because its powerful Navy controlled the seas. U.S. leaders sought to build a comparable navy that would control the ocean. But to control the ocean, there was a need for ports around the world. So, the U.S. needed islands and seaports far from North America. But these islands and ports would not be on the path to statehood as past territories had been. These new territories were a means to an end. There was no thought to incorporate the land or people into the United States. These were merely investment property, to be used for the good of the people back home.

The first of these territories was Hawaii, annexed in 1898, which certainly fit into this “colonial empire” model. But Congress apparently was still in the established “territorial” mode, and treated Hawaii like Oklahoma or Arizona, passing legislation granting the new territory full Constitutional protection. Other new territories acquired that same year after victory in the Spanish-American war, however, did not receive the same consideration. The U.S. acquired Puerto Rico, Guam, and the Philippines as spoils of war. In 1900, the U.S. took control over the islands now known as American Samoa, and in 1917, the Virgin Islands.

The attitude of American leadership towards these new territories was condescending. President William McKinley saw America as the “great benefactor” of these “rescued peoples.” After McKinley’s assassination, his successor, Theodore Roosevelt, reveled in “the expansion of the peoples of white, European blood” into territories whose residents were “mere savages.” But it was the United States Supreme Court that created the legal framework to make this condescending attitude a legal reality.

Starting in 1901, the Court issued a series of opinions interpreting the legal status of citizens of these new territories. These decisions, known as the “Insular Cases,” would amplify Teddy Roosevelt’s mindset and make it constitutionally sacrosanct. It should be noted that the Supreme Court justices who decided the Insular Cases also decided Plessy v. Ferguson, the 1896 case which allowed “separate but equal” racial segregation. A review of some of the Insular cases shows the very same mentality towards ethnic minorities.

The first case is Downes v. Bidwell. The question presented was whether shipments moving between New York and Puerto Rico were interstate or international. The Court concluded that Puerto Rico was part of the United States. But the Court determined that a territory was either “incorporated” with the U.S., or “unincorporated.” If a territory was incorporated (like the State of New York, or the territory of Arizona), it enjoyed the full protection of the Constitution. Puerto Rico and the other new territories, however, were all unincorporated. The Court reasoned that these territories were “inhabited by alien races.” Therefore, trying to administer them “according to Anglo-Saxon principles may for a time be impossible.” Puerto Rico (and the other insular territories) were now “foreign in a domestic sense.”

In 1904, the Court defined what being “unincorporated” meant to the citizens of the insular territories. Gonzales v. Williams involved a woman born in Puerto Rico who relocated to New York. The New York authorities detained her as an “alien immigrant.” In a strange turn, the Court ruled that she was an American, but not a citizen. Basing its decision on the practices of how European empires classified their colonial subjects, the court defined her as a “noncitizen national.” In 1917, Congress passed legislation granting American citizenship to Puerto Ricans. Congress eventually granted the same rights to the other territories. However, the people of Samoa cling to the “noncitizen national” label, making them truly citizens of no country (some Samoans do not want citizenship in order to retain their cultural distinctiveness).

Then came Balzac v. Porto Rico in 1922. Here, the Court held that the Constitution does not apply “in full” to the territories. Only the “fundamental rights” of the Constitution were in effect. But what constituted a “fundamental right” remained uncertain. The Balzac plaintiff was a newspaper editor accused of libel. Because Puerto Ricans had been granted citizenship, he argued that the right to a jury trial under the 6th Amendment was applicable. The Court said no. To this day, the right to a criminal jury trial is not applicable to local courts in Puerto Rico. The Balzac case also made it clear only “incorporated territories” were on track for statehood, and that the only way for a territory to become incorporated was by express declaration of Congress. This, of course, has never happened.

All of this laid the foundation to allow for the federal government to treat the people of the insular territories in ways that seem at best thoughtless, or at worst, downright inhumane. For example, in 1955, the U.S. Supreme Court invalidated a divorce ordinance enacted by the local legislative assembly in the Virgin Islands because the law only required residency of 6 weeks to qualify. The Court held that this was just a ploy to attract people from other jurisdictions to visit the Virgin Islands for a divorce and had nothing to do with local interests. The court found it unbelievable that Congress would have given the Virgin Island Legislative Assembly the power to do what “no state has ever attempted.” In 1980, the Supreme Court ruled that the federal government could fund programs like Medicare or Medicaid at lower rates than in the States if there was a “rational basis” for doing so. Most recently, in 2017, Puerto Rico was devastated by a series of hurricanes. But laws that restricted shipping between “incorporated” and ‘unincorporated” territories would not allow vital aid to reach the island. The hurricane damage led to more indignity, as a financial control board put in place by the Obama administration took control of the island’s economy because Puerto Rico’s government was forced to declare bankruptcy. To establish financial stability, this board cut public health benefits, closed schools, and lowered the minimum wage. Puerto Rican locals see the board as a “colonial overseer.”

This is the mindset that led to Mr. Vaello-Madero’s case regarding his SSI benefits. Apparently, Congress has determined that these types of benefits are just not available in Puerto Rico. His attorneys argued that there is no rational reason for excluding Puerto Ricans from SSI benefits, that is, to treat them differently from other citizens. And while Puerto Ricans have been excluded from SSI since its inception in 1972, Congress has provided for similar benefits under a different government program. But Mr. Vaello-Madero’s income is not low enough to qualify. His attorneys concluded their argument by saying the heart of the issue is “treating a citizen as though they are foreign” simply because they live in Puerto Rico is wrong.

I’ve gone a long way, to great lengths, to explain all this. While I am sympathetic to Mr. Vaello-Madero’s situation, I really don’t have any idea as to exactly what to do about it.

I am not advocating that Puerto Rico (or any of the other territories) be granted statehood. There is probably a laundry list of logical reasons as to why that won’t work, or at last won’t be easy. But is there any logic to determining that people who are American citizens don’t have the full protection of the Constitution? While the citizens in the insular territories can’t vote for president, does that also justify the concept that the commerce clause or equal protection doesn’t apply to them? During the oral argument in Mr. Vaello-Madero’s case, Justice Kavanaugh noted that the attorneys had made “compelling policy arguments” and suggested that the Constitution’s territorial clause may be something “people would want to change” — but he was firm in holding to the notion that this is not the role of the court. But on the other hand, under that same clause, in an instant, Congress could pass legislation that could extend constitutional protections to the citizens of the insular territories.

I am at a loss as to specific suggestions. But the one thing that strikes me is a need for deeper understanding. Through all the tumult of the last 3- or 4-years regarding race, ethnicity, and immigration, I have come to realize that I had a fundamental lack of understanding. The social unrest resulting from the George Floyd incident led to important social interchanges in my church and village communities. African American leaders shared their hearts regarding the reality of systemic racism in our country, not just from historical examples, but from their own lives. The damage done beginning with the “Jim Crow” laws of the 1870s, the pervasiveness of the oppression that was borne out of Plessy-style segregation, and the ongoing attitudes of mistrust, fear, and lingering prejudice and even hate on all sides of the racial issues that still plague us today were not just abstract concepts anymore – I was understanding the reality of it in the lives of people who were my neighbors. Racism was not some abstract left over from the past. It was a reality in the lives of many of the people I knew as friends. I am not very good at suggesting ways to fix things, but the understanding of the reality that our country has allowed a pervasive evil in the form of racism to take root and cause devastation on so many different levels has caused me to realize that we must at least realize the pervasiveness of the problem in order to begin to work together to try and fix things.

It is the same with the issues surrounding the insular territories. Just as the legacy of slavery and Plessy’s legally justified segregation was the foundation for so much that poisons our society to this day, the condescending, racist attitudes that led to the way the territories are governed is a faulty foundation. The legal principles that govern the people of the insular territories are based on the misconception that they are “aliens,” and “savages,” who need the guidance of enlightened, white, European people. Because of this, they did not deserve constitutional protection. But this is unjustifiable today. The Supreme Court’s 1857 Dred Scott decision held that blacks could not be citizens because they were descended from a “subordinate and inferior class of beings who had been subjugated by the dominant race.” Of course, the Civil War and the passage of the 15th amendment refuted that. I do not know what we as a nation can specifically do to repair the damage done by the insular cases. But I do know we cannot continue to base the legal authority for what we do in those territories on the idea that the people who live there are less than human. We need to apologize and try to figure things out from the right perspective. It may not mean that the insular territories will become states, or gain their independence, but it might allow the people who live there the rights they deserve as American citizens.