Equal Protection Does Not Mean Equal SSI Benefits for Puerto Rico Residents, Says Supreme Court
Legal Sidebari
Equal Protection Does Not Mean Equal SSI
Benefits for Puerto Rico Residents, Says
Supreme Court
April 28, 2022
On April 21, 2022, the U.S. Supreme Court decided United States v. Vaello-Madero, a case asking
whether the equal protection guarantee in the U.S. Constitution’s Fifth Amendment requires Congress to
provide the same federal benefits (specifically, Supplemental Security Income [SSI] benefits for the aged,
blind, and disabled) to Puerto Rico residents as to residents of the 50 states. In a ruling that reaffirmed
Congress’s constitutional authority to treat territorial residents differently as long as it has a rational basis
for doing so, the Supreme Court determined that the Fifth Amendment does not require Congress to
extend SSI benefits to Puerto Rico residents. The Supreme Court’s decision reversed the determinations
of both lower courts. This Sidebar discusses the legal arguments advanced before the Supreme Court
before analyzing considerations for Congress.
Background
Facts of the Case
While living in New York, José Luis Vaello-Madero became eligible for, and began receiving, SSI
disability benefits. He later moved to Puerto Rico, where he continued to receive SSI payments. By law, a
person must be a resident of the United States to be eligible for SSI benefits. For purposes of the relevant
statute, Congress defined “United States” to mean the 50 states and the District of Columbia. Congress
extended SSI eligibility to residents of the Northern Mariana Islands in 1976 but has not done so for
Puerto Rico or other U.S. territories. Accordingly, the Social Security Administration sued Vaello-Madero
to recover the payments he received while living in Puerto Rico. In response, Vaello-Madero argued that
excluding Puerto Rico residents from SSI eligibility was unconstitutional—specifically, that it violated his
constitutional right to equal protection under the law.
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Constitutional Provisions
Under the Territory Clause in Article IV of the U.S. Constitution, Congress is empowered to “make all
needful Rules and Regulations respecting the Territory . . . belonging to the United States,” a phrase
interpreted to give Congress broad authority over nonstate entities such as Puerto Rico. Like all of its
legislative powers, however, Congress’s territorial authority is bound by the other provisions of the
Constitution, including the Fifth Amendment.
The Constitution’s Fifth Amendment does not contain the words “equal protection,” but the Supreme
Court has held that the Fifth Amendment’s Due Process Clause imposes on the federal government the
equal protection obligations that states have under the Fourteenth Amendment’s Equal Protection Clause.
Equal protection, the Court has said, “is essentially a direction that all persons similarly situated should be
treated alike,” unless the government is entitled to treat them differently. Statutes that create certain
classifications—differentiating between people based on characteristics like race or sex—or that burden
fundamental rights must meet higher levels of scrutiny to survive constitutional challenges. Statutory
classifications that do not receive heightened scrutiny are generally valid if they have a “rational basis,”
meaning that a court will generally uphold the challenged legislation if it is reasonably related to a
legitimate government purpose.
Case Law
Two previous Supreme Court cases applied the rational-basis standard of review to evaluate challenges to
legislation that treated Puerto Rico differently from the 50 states. Califano v. Torres (1978) involved a
claim that the SSI program unconstitutionally burdened the fundamental right to travel because it
disadvantaged people who moved from the mainland to Puerto Rico. The Torres court footnoted in its
summary reversal that at least three rationales were offered to justify Puerto Rico’s exclusion from the
SSI program, implying that they were “rational and not invidious”:
1. Puerto Rico’s “unique tax status”;
2. the “extremely great” cost of including Puerto Rico in the SSI program; and
3. the risk that the SSI program “might seriously disrupt” Puerto Rico’s economy.
Although Torres appeared to subject the SSI program’s validity to rational-basis review, it did not
squarely address an equal protection challenge.
Unlike Torres, Harris v. Rosario (1980) involved a Fifth Amendment equal protection challenge similar to
that raised in Vaello-Madero. In Rosario, recipients of a different federal benefit program argued that
lower reimbursement levels in Puerto Rico relative to the 50 states violated the Fifth Amendment’s equal
protection guarantee. Applying the rational-basis standard, the Rosario court recited the same three
rationales identified in Torres, accepting them as sufficient to justify different treatment for Puerto Rico
residents for that program.
Case History
The U.S. District Court for the District of Puerto Rico first heard Vaello-Madero’s equal protection
challenge to the SSI program. In 2019, that court found that excluding Puerto Rico residents failed the
rational-basis test, holding that classifying a group of the country’s “medically neediest” citizens as
“second tier” because they live in Puerto Rico “is by no means rational.” The United States appealed that
decision to the U.S. Court of Appeals for the First Circuit.
The First Circuit agreed that the rational-basis test should apply. However, because the Torres court did
not base its decision on equal protection grounds, and the Rosario court did not consider the SSI program,
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those decisions, in the First Circuit’s view, did not control the outcome of Vaello-Madero’s case. The First
Circuit explained that both Torres and Rosario were summary dispositions, decided without the benefit of
briefing or oral argument in the Supreme Court, and thus had less precedential value. Thus, rather than
treating those cases as determinative, the First Circuit performed its own assessment of the rational basis
for the U.S. government’s exclusion of Puerto Rico residents from the SSI program.
The government’s proffered rationales before the First Circuit aligned with the first two noted in Torres
(the United States declined to rely on Torres’s third rationale). First, regarding Puerto Rico’s unique tax
status, the First Circuit pointed out that the Court’s analysis in Torres seemed to erroneously believe that
Puerto Rico did not contribute to the federal treasury when in fact, as an entity, it does so in amounts
higher than several other states. Although many individual Puerto Rico residents do not pay federal
income taxes, the SSI program’s income limitations mean that most qualified recipients in the 50 states
also do not pay federal income taxes. Second, regarding the cost to include Puerto Rico in the SSI
program, the First Circuit posited that cost-savings alone cannot justify exclusion of one group over
another similarly situated group; Congress must still have a separate rational basis for choosing which
group to exclude. Ultimately, the First Circuit concluded it could find “no set of facts … establishing a
rational basis for the exclusion of Puerto Rico residents from SSI coverage.”
The U.S. Supreme Court Decision in Vaello-Madero
Majority Opinion
The U.S. Supreme Court reversed the First Circuit’s decision in an 8-1 opinion written by Justice Brett
Kavanaugh. Torres and Rosario, wrote the Court, “dictate the result here.” The rational-basis test applies,
and Puerto Rico’s tax status, in the Court’s view, supplies a rational basis for disparate treatment. To
decide otherwise, the Court cautioned, could mean that all federal benefits must be extended to Puerto
Rico, which in turn could mean that federal taxes should also be applied to Puerto Rico on the same basis
as the 50 states. The Court addressed no other rationale for Puerto Rico’s exclusion from the SSI
program. The Court specified, however, that its decision “should not be read to imply that Congress may
exclude residents of individual States from benefits programs.”
Concurrences
Justice Clarence Thomas wrote a separate concurrence declaring that he is no longer convinced that the
Fifth Amendment supports an equal protection doctrine coextensive with the Fourteenth Amendment’s
protections. Based on his review of the Court’s Fifth Amendment jurisprudence, he contended that there
was “limited support” for an equal protection guarantee. Though cautioning that his “conclusions remain
tentative,” Justice Thomas advanced a theory that the Fourteenth Amendment’s Citizenship Clause may
be an alternative source for a prohibition on racial discrimination by the federal government, “at least
with respect to civil rights.”
Justice Neil Gorsuch also wrote a separate concurrence calling for the Court to overrule a line of cases
known as the Insular Cases. The Insular Cases developed a judicial distinction between “incorporated”
territories, where the U.S. Constitution applies in full, and “unincorporated” territories, where only
“fundamental” provisions apply. That distinction, Justice Gorsuch opined, may have had support “in
academic work of the period, ugly racial stereotypes, and the theories of social Darwinists,” but not in the
Constitution’s language “or its original understanding.” Because both parties in Vaello-Madero acceded
that the Fifth Amendment’s equal protection guarantee was “fundamental” and applied in Puerto Rico,
overruling the Insular Cases was unnecessary to resolve Vaello-Madero’s case. However, Justice Gorsuch
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urged the Court to recognize “that the Insular Cases rest on a rotten foundation” and overrule them in an
appropriate future case.
Dissent
Justice Sonia Sotomayor dissented. In her view, “there is no rational basis for Congress to treat needy
citizens living anywhere in the United States so differently from others.” Justice Sotomayor reiterated
several of the First Circuit’s observations: that Torres and Rosario were summary dispositions; that those
cases misstated Puerto Rico’s contributions to the federal treasury; and that SSI recipients generally do
not pay federal taxes, making it untenable to rely on Puerto Rico residents’ nonpayment of individual
federal taxes as a rationale for exclusion from the SSI program. Justice Sotomayor would have found the
Puerto Rico residents’ exclusion from the SSI program “irrational and antithetical to the very nature of the
SSI program and the equal protection of citizens guaranteed by the Constitution.”
Considerations for Congress
The Supreme Court’s Vaello-Madero decision clarifies that Torres and Rosario are binding precedent, and
that congressional actions treating Puerto Rico or other territories differently from the 50 states are
generally subject to deferential rational-basis review. Under Vaello-Madero, Puerto Rico’s unique tax
status sufficiently justifies Congress’s decision to provide different levels of federal benefits to Puerto
Rico residents. Because the Court’s acceptance of Puerto Rico’s tax status as a rational basis for exclusion
from the SSI program did not rely on the SSI program’s specific features or operations, it appears that this
tax-status rationale could justify differential treatment for a range of other federal benefit programs. To
the extent Congress agrees with this outcome, Congress could consider express references to this rationale
in future federal benefits legislation.
Congress could decide to alter the specific exclusion Vaello-Madero highlighted in the SSI program.
Puerto Rico’s Resident Commissioner, for example, introduced H.R. 537, the Supplemental Security
Income Equality Act, in the 117th Congress. This bill would amend the Social Security Act to include
Puerto Rico, the U.S. Virgin Islands, Guam, and American Samoa as part of the “United States” when
determining SSI eligibility. The bill would also eliminate certain limits on other federal programs’ funding
to the territories.
To the extent there is legislative interest, Congress could also address differential treatment between U.S.
territories and the 50 states in other contexts. For example, in the 117th Congress, H.R. 1825 and S. 3778,
both titled Territories Medicare Prescription Drug Assistance Equity Act of 2022, would make
beneficiaries who reside in Puerto Rico and other U.S. territories eligible for certain Medicare subsidies
for which they are currently ineligible.
Author Information
Mainon A. Schwartz
Legislative Attorney
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