Excerpted From: Gabriel Prats Bayonet, Vaello-Madero: Putting on Hold Equal Rights for Territorial Citizens, 56 Revista Juridica Universidad Interamericana de Puerto Rico 39 (Agosto-Mayo, 2021-2022) (159 Footnotes) (Full Document Requested)


us territories mapThe United States of America, like many of the great world powers that have existed or still endure, has to contend with a cornucopia of domestic issues, some more complex than others. Racial inequality, the nuances of an immigration policy, and the extent to which the Constitution protects its citizens remain as thorny issues with significant consequences for the quality of life of all American citizens. However, no issue seems more misunderstood and ignored than that of the circumstances millions of U.S. citizens have to live with in the country's unincorporated territories -Puerto Rico, Guam, the U.S. Virgin Islands, American Sãmoa, and the Commonwealth of the Northern Mariana Islands. While considered by some as unparalleled vacation spots, for the many residents in the unincorporated territories, life is anything but a tropical paradise. A higher cost of living, a democratic void for its inability to participate in national elections, the arbitrary exclusion of federal government programs, and a lack of fiscal autonomy: all of these scenarios are part of the list of the inequalities that for more than a century have plagued the territories.

After the Spanish-American War ended in 1898, the subsequent establishment of the unincorporated territories of Guam, Puerto Rico and the Philippines had a profound effect on constitutional law and policy outside the contiguous forty-eight states of the Union. For the first time in its history, the U.S. had received a war bounty of islands located in strategic geographic locations, allowing it to exert its sphere of influence over the areas it encompassed. However, the rights of the residents living on these islands were in a state of limbo. The political scene of the era was imbued with an imperialist vision that sought expansion of U.S. influence and access to foreign markets via military action. Racial tension remained ripe a few decades after the end of the Civil War. Consequently, from the beginning, the rights of territorial residents were subjugated to the will of Congress. Also, the early Supreme Court rulings regarding the extension of constitutional rights to the newly-acquired territories laid the foundation for a continued and uncertain path that has haunted subsequent jurisprudence on the subject to this day. These series of decisions, known as the Insular Cases, will provide the backdrop for this article and illustrate how, with the passage of time, the Supreme Court has defined the contours of federalism when interpreting territorial law.

For over a hundred years, the jurisprudence of the Insular Cases stood firm on the status of the so-called “unincorporated” U.S. territories. Every subsequent case that delved into the constitutional rights of territorial residents was brushed aside by the existing precedent. However, in 2016, the U.S. Supreme Court decided Puerto Rico v. Sánchez-Valle, the first case in decades to reach the Court regarding the constitutional rights of U.S. citizens living in the territories. Fast track to 2022, the Supreme Court has decided three more cases regarding the territories. While all cases have been related to the Commonwealth of Puerto Rico, the recent attention these issues have received from the Court is unorthodox to say the least. This article seeks to illustrate and understand why the Supreme Court has taken this stance.

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While this article mainly engages with the effects of the Vaello-Madero case on territorial law and policy, it should be noted that the doctrines from the Insular Cases exist for a reason. For example, the doctrine of express incorporation had the effect that Congress could decide that the Internal Revenue Code does not apply to the Commonwealth of Puerto Rico, thus granting the island fiscal autonomy that the states do not have. Yet, this economic policy is on the borderline of dispute for the Commonwealth's political status, and this article does not intend to cross that barrier. In essence, there is no denying the Insular Cases brought with them egregious racial language towards the inhabitants of the territories, but the overall fundamental doctrines should be studied for their overall legal effects, not the demeaning remarks that accompany them.

This does not, by any means, imply that the language used in the Insular Cases should be forgotten or pushed aside. For cases involving equal protection, it is a persuasive source for the historical mistreatment the judiciary undertook against the inhabitants of the territories during the early phases of the 20 century. But the modern approach should center around the contemporary judicial standards of the Fourteenth Amendment and the rights it guarantees vis-à-vis the power the Territorial Clause grants Congress upon the territories.

As the First Circuit noted, the equal protection question posed by the Vaello-Madero case brings forth the issue of legislative intent, given that the welfare programs at issue are designed for individuals who rely upon those benefits to have the means to sustain themselves. Yet, “equal protection has generally not been a promising avenue for Americans to attack federal welfare programs, whether or not they live in the territories.” The reason lies in that neither poverty nor territorial residency is considered as a suspect classification. Nevertheless, the exclusion of territorial residents from these types of programs has produced thoughtful observations on the district court level.

For example, in Peña Martínez v. Azar, a case arguing that the exclusion of Puerto Ricans from SSI, SNAP and Medicare Part D subsidies violated equal protection under the Fifth Amendment, the district court noted that “[t]he federal safety net is flimsier and more porous in Puerto Rico than in the rest of the nation.”

Recently, Congress has been more proactive towards the territories on issues concerning funding for food, medical and disability assistance, due to the territorial governments' financial and climate struggles. The extension of the Pandemic Unemployment Assistance (PUA) program and the American Rescue Plan to the territories during the pandemic is a classic case in point.

However, having to pin one's hopes and dreams for equal treatment upon a catalyst of undesirable circumstances seems anathema to the fundamental values of life, liberty and the pursuit of happiness so profoundly rooted in the American legal system. What good is hope for equality when it remains linked to an avoidable humanitarian crisis due to either financial instabilities or natural disasters? Equal treatment and protection of the laws under the Constitution should not be a matter of territorial Ragnarök, wherefrom disaster a new and better world emerges. Instead, as the fiduciary responsible for constructing just and sensible laws that benefit the American people, Congress must make a greater effort to provide equality for U.S. citizens who happen to be territorial residents. Otherwise, outdated and unfair laws that adversely affect these citizens will continue to be subject to change by judicial fiat.

As Justice Harlan once stated in dissent:

[A] constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.

The author is a third year law school student from the Inter American School of Law.