The Supreme Court is in the midst of deciding whether the U.S. Dept. of Justice is in the right when they defend the decision by Congress to exclude Puerto Rico (and other U.S. Territories) from SSI, Supplemental Security Income, financial assistance awarded to people who are needy, elderly, and who have disabilities.
The Social Security Administration sent three years’ worth of SSI payments to a Puerto Rico resident who had received these benefits as a resident of New York. Realizing their error, they sued the man for repayment of over $28,000 they had paid to him.
This suit allowed the courts to examine the question of whether it was acceptable to exclude residents of Puerto Rico from benefits for which they would be eligible if they lived in a State.
The District of Columbia, the States of Connecticut, Delaware, Hawaii, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, and Virginia (“Amici States”), and the Territories of Guam and the Commonwealth of the Northern Mariana Islands (“Amici Territories”) submitted a “friend of the court” brief in support of the respondent.
Friends of the Court
“Amicus curiae,” plural “amici curiae,” means “friend of the court.” A friend of the court brief allows someone who is not involved directly in the case to present an argument for or against a case. They must show that they have a good reason for involving themselves in the case, and can then provide information or arguments on one side or the other.
More than a dozen friends of the court briefs have been filed in this case. The ACLU, the American Association of Retired Persons, Jenniffer Gonzalez-Colon (the Resident Commissioner for Puerto Rico), and the Puerto Rico Senate are among those who have filed these documents.
The district, territories, and 15 States filed their brief with the assumption that Congress could, if they are allowed to discriminate against Puerto Rico, do the same thing to States.
States could be next
“The United States argues that Congress has the power to discriminate not just against the territories—but also against states (or, as the United States puts it, ‘regions’ or ‘geographi[es]’)—with only a rational basis for doing so,” the brief says.
“Congress’s exclusion of the territories from certain nationwide aid programs like SSI is not rational,” they continue. “For one, there is little pattern or sense to how Congress decides which federal programs will apply in which territories. And the haphazardness has consequences: it burdens states as well as the territories.”
The brief also argues that it is wrong to single out the territories for this treatment.
“In the meantime, it withholds effective solutions from where they are, arguably, needed most. SSI and other federal benefits programs are very effective at sustaining, feeding, and treating those in need. The territories suffer staggering levels of poverty—higher than even the most poverty- stricken states. Given the important role these programs can play in alleviating poverty, the disproportionate need for such intervention in the territories, and the negative externalities of the current haphazard system, Congress should not be permitted to exclude the territories without good reason.”
Unique tax status
Congress argued that Puerto Rico’s “unique tax status” — that is, the fact that residents of Puerto Rico do not pay federal income tax — was a good reason for excluding the Island from SSI coverage.
“Puerto Rico’s ‘unique tax status’ is by no means an immutable characteristic; it is entirely the product of Congress’s prior discrimination against the territory,” the brief responds. “Under any level of scrutiny…Congress should not be entitled to point to a distinguishing characteristic of its own creation as the justification for further discrimination.”
The brief also points out that no recipient of SSI ever pays income tax; an individual living in a State cannot receive these benefits if he or she earns enough money to pay income tax.
The brief goes on to say that the source of Congress’s power to distinguish between Puerto Rico and the States comes from a suspicious source.
“The Court should also view the present issue with suspicion because the doctrinal source of Congress’s power to discriminate against the territories originated in notions of racial superiority.”
The Insular Cases, which made it possible for Congress to do this, were, as the brief says, quoting Judge Torruella, “strongly influenced by racially motivated biases and by colonial governance theories.”
The Insular Cases allow Congress to treat Puerto Rico differently from States — but only if there is a “rational basis” for doing so. The brief argues that Congress did not have a rational basis for excluding Puerto Rico from SSI.
“SSI is not the only program that operates in some territories but not others. And yet there is no discernible pattern to Congress’s decision to extend a nationwide aid program to one territory but not another. This haphazard discrimination against territories generates unnecessary costs, even for states, and fails to extend federal aid to some of the neediest Americans,” the brief continues. “In other words, even if the Court employs rational-basis review, there is nothing rational about Congress’s exercise of power here.”
The brief goes on to discuss a number of examples, including the ways in which States are affected by the confusing inequities between territories and States. For example, they note that States routinely provide information for recipients of benefits to help them understand how their benefits might change if they travel or move to another part of the United States. In the case of Puerto Rico, government websites actually provide contradictory information even within a single State.
The brief concludes, “This Court should affirm the judgment of the court of appeals.”