Supreme Court leaves Puerto Rico in territorial limbo

For the American citizens residing in the territories, this opinion ratifies their separate and unequal treatment by the government of the United States. This discriminatory practice, in turn, is judicially upheld by the Insular Cases and its doctrine of territorial non-incorporation, developed at the turn of the 20century. This doctrine justifies the selective application of the Constitution to American citizens living in the territories.

It is noteworthy that the Supreme Court’s opinion, authored by Justice Brett Kavanaugh, studiously seems to avoid using the word “unincorporated,” or even make reference to the Insular Cases, when it refers to the territory of Puerto Rico. Instead, the opinion makes an aseptic legal analysis of the equal protection under the Fifth Amendment’s Due Process Clause, justifying the rational basis for Congress to not extend to Puerto Rico Supplemental Security Income benefits (SSI), under the precedents of Califano v. Torres(1978) and Harris v. Rosario(1980).

One can only guess if the majority of the Supreme Court will be as deferential to precedent in the future when it comes to Roe v. Wade(1973) and Casey v. Planned Parenthood(1992). Political consideration no doubt plays a central role in determining when precedent controls and when it does not. In this context, it is difficult to take at face value the recent public statements made by some members of the court claiming their decisions are not politically motivated. 

If proof of systematic racism in the United States is to be found it is certainly in the continued  institutional application of the Insular Cases, which created and promotes to this day the distinction between fundamental and non-fundamental constitutional rights as applied to a classification of citizens based on nationality and ethnicity. As espoused in Downes v Bidwell(1901) and Balzac v. Porto Rico (1922) this doctrine is a judicial extension of the reasoning of Plessy v. Ferguson (1896), and the doctrine of separate but equal.

Thomas concurring opinion is a Sunday drive through the equal protection reading into the due process clause, failing to address the unoriginality of the unincorporated doctrine of the Insular Cases. The hermeneutical incoherence is evident.

Sotomayor’s dissenting opinion is not much better, consisting of a strict analysis of the rationality test for equal protection claims, with no mention of the Insular Cases doctrine.

Only Gorsuch’s concurring opinion recognizes and condemns the elephant in the room.

If Congress decides to treat the territory of Puerto Rico differently from a state or an incorporated territory (the uninhabited Palmyra Atoll in the Pacific Ocean being the only one fitting this classification today) the court will defer. This has been the same  stance taken by the court in recent years in Commonwealth of Puerto Rico v. Sanchez Valle (2016) Puerto Rico v. Franklin California (2016)and Financial Oversight and Management Board for Puerto Rico v Aurelius Management, and now Vaello-Madero.

It is not unreasonable to conclude that the Supreme Court appears to have adopted an institutional stance of non-interference with Congress on issues regarding its exercise of its plenary powers over the territories under Article IV, Section 3 of the Constitution. Sadly, the court fails to acknowledge its complicity in the creation and upholding of the constitutional scaffolding that allows for the exclusion of American citizens from the full protection of their constitutional rights. 

In fact, the implied invitation at the end of Kavanaugh’s opinion is that it is for Congress to address the question of Supplemental Security Income benefits and any other legislation concerning the territories. In other word, the matter of the territories in general, and of Puerto Rico specifically, is a political question to be addressed by the political branches of government.

As of this writing two opposing bills regarding Puerto Rico’s political status sit in the Natural Resources Committee of the House, the Puerto Rico-Self Determination Act (HR 2070) and the Puerto Rico Statehood Admission Act (HR 1522).  HR 2070 aims at convening a Status Assembly in Puerto Rico. As drafted, this bill has serious constitutional shortcomings, as was detailed in the committee hearings held on April and June of 2021. HR 1522 proposes a plebiscite on statehood. This bill also has certain provisions that could be improved. Since there is no agreement on the Democrats side on how to reconcile both bills, Natural Resources Committee Chairman Raúl Grijalva (D-Ariz.) should reconsider bringing both bills to a committee vote before the end of the term. At least then we will know where the committee members stand before the midterm election. It appears this is exactly what they are trying to avoid.

Unfortunately, given the current array of political forces in the House, all indications point to the eventual legislative death of both bills.

Meanwhile, in the executive branch, the Biden administration continues to talk from both sides of its mouth, promising equal treatment for Puerto Rico, while defending the continuation of the unincorporated territory. It would appear that the Biden administration would rather keep Puerto Ricans as supplicants instead of as full voting citizens.

All roads — judicial, legislative and executive — point to continued territorial limbo.  

Andrés L. Córdova is a law professor at Inter American University of Puerto Rico, where he teaches contracts and property courses. He is also an occasional columnist on legal and political issues at the Spanish daily El Vocero de Puerto Rico.