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Throughout that time, families in Puerto Rico were eligible for the Child Tax Credit (CTC), which helps nearly all families living in states, only to the extent that they had three or more children under 17. Puerto Rico has the lowest birth rate in the U.S., so this was a very small proportion of the residents of the Island. What’s more, many people were unaware of the credit. They were required to file a federal income tax return to receive the credit, and most Puerto Ricans are not required to file these returns.

Under the American Rescue Plan Act, Puerto Rico became eligible for the Child Tax Credit under the same terms as the states. This gives a credit of $3,000 for each child ages 6 to 17 and $3,600 for children under age 6.

The Supplemental Security Income (SSI) program pro- vides a guaranteed minimum income to certain vulnerable citizens who lack the means to support themselves. If they meet uniform federal eligibility criteria, recipients are enti- tled to SSI regardless of their contributions, or their State’s contributions, to the United States Treasury, which funds the program. Despite these broad eligibility criteria, today the Court holds that Congress’ decision to exclude citizen residents of Puerto Rico from this important safety-net pro- gram is consistent with the Fifth Amendment’s equal pro- tection guarantee. I disagree. In my view, there is no ra- tional basis for Congress to treat needy citizens living anywhere in the United States so differently from others. To hold otherwise, as the Court does, is irrational and anti- thetical to the very nature of the SSI program and the equal protection of citizens guaranteed by the Constitution. I re- spectfully dissent.

I

Last year, the First Circuit held that excluding Puerto Rican residents from the SSI program violates the equal protection guarantee of the Fifth Amendment.234 As recounted at the start of this Article, José Luis Vaello- Madero was born in Puerto Rico in 1954 and is hence a U.S. citizen by birth.235 He moved to New York in 1985. In June 2012, Vaello-Madero began receiving monthly SSI disability benefits, and in 2013, he moved back to Puerto Rico. When Vaello-Madero filed for his old-age Social Security bene- fits in Puerto Rico in June 2016, the federal agency informed him that it would discontinue his SSI benefits. The agency’s “Notice of Planned Action” stated that Vaello-Madero had been “outside of the U.S. for 30 days in a row or more” since August 1, 2014, because the agency “consider[ed] the U.S. to be the 50 States of the U.S., the District of Columbia, and the Northern Mar- iana Islands.”236

Roughly a year later, the federal government sued Vaello-Madero to col- lect the allegedly improper benefit payments, for a total of $28,081. An inves- tigator employed by the agency got Vaello-Madero to sign a Stipulation of Consent Judgment, which the federal government promptly filed in court. The district court then appointed counsel for Vaello-Madero who filed an answer to the complaint raising as an affirmative defense that excluding Vaello-Madero and other Puerto Rican residents from SSI benefits violated equal protection. The federal government then moved to withdraw the stipu- lation and for voluntary dismissal without prejudice. The district judge ac- cepted the withdrawal of the stipulation but denied the voluntary dismissal. On cross-motions for summary judgment, the district judge ruled in favor of Vaello-Madero. And the First Circuit affirmed, holding that excluding Puer- to Rican residents from the SSI program violates the equal protection guar- antees of the Fifth Amendment.237

There are millions of Americans on islands, near and far, that are systematically forgotten and mistreated by our government. They fight and die for our country, but have no right to vote for their Commander in Chief. They are subject to federal laws and regulations, but have no voice in their enactment. They have been characterized as “savage,” “half-civilized,” and “ignorant and lawless” in influential legal scholarship and widely-cited cases by the Supreme Court and lower courts, but continue to strive peacefully for rights and recognition in our judicial system. They endure catastrophic storms, but do not receive the assistance that is freely given to other Americans. They have been described by the Supreme Court as “alien races,” “utterly unfit for American citizenship,” and not of “a foreign country,” but “foreign to the United States in a domestic sense.” They are the over four million Americans on the islands of Puerto Rico, Guam, American Samoa, the US Virgin Islands, and the Northern Mariana Islands. They are the almost and forgotten Americans of the unincorporated territories of the United States.

In 2017, natural and human-made disasters brought the predicaments of several US territories into the national limelight. In August 2017, North Korea announced a detailed plan for a missile attack on Guam in its conflict with the United States. A few weeks later, Puerto Rico endured the onslaught of two cataclysmic Category 5 hurricanes while it was already struggling with an unprecedented bankruptcy and economic crisis. Hurricanes Irma and Maria ravaged an already crumbling island, causing billions of dollars of damage, destroying essential infrastructure, and irreparably changing the daily lives and futures of the people of Puerto Rico. Hurricane Maria alone led to nearly 3,000 casualties in Puerto Rico by 2018. The two storms also had a catastrophic impact on the US Virgin Islands, destroying much of its beautiful habitat and shutting down many of its businesses for extended periods of time.

The argument Kramer and others advance is not only normatively unpersuasive, it is also logically untenable in light of the structural Constitution and the basic premises of American constitutionalism. As we explained in Part I, the traditionalist view understands the value of counter-majoritarian checking as a political mechanism for enshrining skeptical optimism, which can be readily deduced from the Constitution’s structural design. Our constitutionalism is thus principally concerned with facilitating democracy while promoting rule of law values and protecting minorities.296 The reality is that any argument that temporary majorities or the governmental bodies that are directly accountable to those majorities are either more capable or more suitable arbiters of constitutional meaning ignores the careful framework for promoting these values that was etched into our supreme law at the constitutional convention. Our proclaimed unflagging commitment to due process of law, the existence of a supreme document ratified by super-majoritarian movement and subject to formal alteration only through a super-majoritarian process, and our provision of a politically insulated judiciary are all brightly flashing signals that our system understands the importance of speed bumps to slow majorities down. Popular constitutionalism seems to forget – or intentionally ignore – all of this. 297

Mark Tushnet’s case against judicial supremacy directly takes on Larry Alexander’s and Frederick Schauer’s defense of judicial review.298 Alexander and Schauer assert that without judicial supremacy we would have a system of interpretive anarchy on our hands.299 The role of the Supreme Court, say Alexander and Schauer, is to provide a single authoritative interpreter to which others must defer, to serve the settlement function of the law. 300 Tushnet responds that when it declares that Congress has overstepped its bounds, the Court justifies its behavior using the self-interestedness of the Congress: Congress is self-interested when it defines the scope of its own power. Members of Congress have an interest in maximizing their own power by expanding their sphere of power and responsibilities. Any decision [Congress] make[s], no matter how fully deliberated, will be shaped, and perhaps distorted, by this self-interest. 301 But this is an objection equally available to those who would question the Court’s version of judicial supremacy, because the judiciary is just as apt to act self-interestedly and expand its own power.302

He was born prematurely and without prenatal care. Emanuel Rivera Fuentes has lived his 36 years bedridden due to multiple conditions, among them cerebral palsy, severe reflux, dislocated hips, and scoliosis.

When he contracted COVID-19 several weeks ago, his family grew concerned. Days before, he had been hospitalized due to a mycoplasma infection and, with his other diagnoses, even a common cold could become complicated.

Walter Mignolo’s (2000a; 2011) work offers useful metaphors2 that explain[s] the difficulties of working pedagogically with the violences of modernity (see also Andreotti, 2012). One of these metaphors implies that modernity [has] is commonly defined in relation to a bright, shiny side associated with concepts such as seamless progress, industrialization, democracy, secularization, humanism, linear time, scientific reasoning, and nation-states, amongst others. These concepts, in turn, depend on subjectivities deeply invested in: the notion of universal reason and history; teleological, logocentric, dialectical, and anthropocentric thinking; the objectification and commodification of ‘nature’; and the Cartesian self. Modernity’s ‘shine’ is articulated in ways that hide its shadow, or the fact that the very existence of the shiny side requires the imposition of systematic violence on others. This violence can be articulated through what Quijano (2000) calls coloniality. Coloniality can be understood as a system that defines the organization and dissemination of epistemic, [and] material, and aesthetic resources in ways that reproduce modernity’s imperial project. In other words, coloniality represents the spaciality (expansionist control of lands), ontoepistemic racism (elimination and subjugation of difference) and geopolitics of knowledge production (epistemic violence) that are constitutive of modernity (Maldonado-Torres, 2007). Mignolo (2000b) therefore argues that modernity’s shadow of coloniality is both the hidden face of modernity (for those enchanted by its ‘shine’) and the condition of its possibility (p. 772). The link between deep investments in modernity and the role that these investments play in the systemic production of violence must therefore be denied (foreclosed) for those who want to continue believing themselves to be good, altruistic people progressing towards a homogeneous future of rational, consensual harmony. Thus, the project of modernity depends both on the fact of its violent shadow and on the foreclosure of this fact. This foreclosure is reproduced by the ‘ontoepistemological’ modern grammar (Silva, 2013, p. 50). This modern grammar is rooted in taken-for-granted metaphysical principles and supports deep investments in the ‘shine’ of progress, autonomy, innocence, and engineered futures (Ahenakew, Andreotti, Cooper & Hireme, 2014). For those enchanted with modernity’s shine, the shadow is interpreted as a lack of modernity and as something that can be fixed with more modernity. Hence, when exposed to critiques that implicate modernity’s shine in the creation of its shadow, those enchanted with the shine tend to resist and deny their complicity in harm. The pedagogical challenge is also formidable given the interdependence of the various violent social relations that constitute modernity’s shadow. Grosfoguel (2012) captures many of these in his description of a “Modern/Colonial Capitalist/Patriarchal Western-centric/Christian- centric World-System” (p. 82). Many other scholars have examined how nation-states in North America are made possible through Indigenous genocide and dispossession, Black slavery and subjection, as well as exploited labour, ecocide, white supremacist and heteropatriarchal immigration policies, compulsory heterosexuality, gendered violence, and war and imperialism abroad (Alexander, 2005; Coulthard, 2014; King, 2013; Lawrence & Dua, 2005; Sharma & Wright, 2008; Smith, 2006; Spade, 2011; Tuck & Yang, 2012; Walcott, 2011; Walia, 2013; Wilderson, 2010; Wynter, 2003). The cumulative effect of these and other violences has been what Wynter (2003) described as the overrepresentation of the White, bourgeois, male, who rationalizes his dominion over those he deems to be irrational, affectable, and inferior[.] (Silva, 2007). Thus, with the advent and continued maintenance of the modern/colonial system, Othered ways of knowing and being are “disavowed (displaced, negated, and engulfed)” (Silva, 2009, p. 42). For Alfred (2004), colonialism is therefore “a total relation of power”, and must be understood in “consideration of how we as Indigenous peoples have lost the freedom to exist as Indigenous peoples in almost every single sphere of our existence” (p. 91). Meanwhile, Alexander (2005) emphasizes the ways “colonization has produced fragmentation and dismemberment at both the material and psychic levels” (p. 281). While we do not mean to suggest that the modern grammar is [not] totalizing in the sense that it forestalls resistance, we emphasize that [but] it affects nearly all realms of life for those inhabiting both its shine and its shadow. Discussing modernity’s violence with those whose existence and imaginaries have been framed by modernity is therefore a challenging task both in terms of intelligibility and in terms of affective resistance. This is exacerbated in neoliberal educational contexts driven by the desires of educational consumers to feel good, to look good and to be affirmed as ‘doing good’ (see Andreotti, 2014a). Social cartography is one approach that has allowed us to begin these challenging conversations with audiences that have varied investments in modernity’s “shine.”

A recent Supreme Court decision denying certain Social Security benefits to U.S. citizens in Puerto Rico “rubs salt into the collective wound” of those citizens by reminding them (again) of their lo;wer status in American society, writes Ediberto Román, professor of law at Florida International University College of Law, and Ernesto Sagás, ethnic studies professor at Colorado State University.

Colonialism, an issue that rarely occupies the minds of most Americans, has once again reared its ugly head with the April 21 (8-1) U.S. Supreme Court decision in the United States v. Vaello Madero. The court—following the nativist and xenophobic decisions of more than a century ago—upheld the federal government’s exclusion of Puerto Rico from a Social Security benefits program, which will stop more than $2 billion a year from flowing to U.S. citizens living on the Island.

It is rare that policymakers, analysts, and academics agree. But there is an emerging consensus in the world of foreign policy: threats to the stability of the current international order are rising. The norms, values, laws, and institutions that have undergirded the international system and governed relationships between nations are being gradually dismantled. The most discussed sources of this pressure are the ascent of China and other non-Western countries, Russia’s assertive foreign policy, and the diffusion of power from traditional nation-states to nonstate actors, such as nongovernmental organizations, multinational corporations, and technology-empowered individuals. Largely missing from these discussions, however, is the specter of widespread democratic decline. Rising challenges to democratic governance across the globe are a major strain on the international system, but they receive far less attention in discussions of the shifting world order.

In the 70 years since the end of World War II, the United States has fostered a global order dominated by states that are liberal, capitalist, and democratic. The United States has promoted the spread of democracy to strengthen global norms and rules that constitute the foundation of our current international system. However, despite the steady rise of democracy since the end of the Cold War, over the last 10 years we have seen dramatic reversals in respect for democratic principles across the globe. A 2015 Freedom House report stated that the “acceptance of democracy as the world’s dominant form of government—and of an international system built on democratic ideals—is under greater threat than at any point in the last 25 years.”

January 6, 2021 marked a dark and fearful day for global democracy, when the United States faced a coup attempt upon its Capitol. This siege not only struck the oldest existing democracy in the world, but also dealt a blow to the pro-democracy movement, both within the United States and around the world. Authoritarianism is on the rise around the world and pro-democracy supporters and activists no longer view the United States as an ideal system of government for freedom and opportunity. With a new administration working to unite America and rectify the previous administration’s alienation of America’s allies and embrace of its enemies, the world faces the question: Should the United States of America play a role in ensuring democracy outside its borders? In this annotation, I will argue that the United States should have a role in ensuring global democracy, but must take measures to internally stabilize its own democracy and rectify its international alliances and reputation in order for America’s influence in promoting democracy to be effective and valuable.

The remainder of this annotation proceeds as follows: Section II will detail the global decline of democracy over the past two decades and the rapid rise of authoritarianism. Section III will discuss the erosion of American democracy and how that erosion has diminished the country’s role in ensuring global democracy and further allowed authoritarianism to flourish. Finally, Section IV will argue that America remains an important actor in promoting global democracy and should play a role in ensuring its survival and growth around the world. However, Section IV will suggest that the only way for the United States to be an effective, respected, and legitimate international proponent of global democracy is by implementing domestic laws, policies, and actions to stabilize and improve its own democracy, repairing international relationships, and recommitting to the international ideals of its democratic allies abroad.

The Court holds that our prior decisions in Califano v. Torres, 435 U. S. 1 (1978) (per curiam), and Harris v. Ro- sario, 446 U. S. 651 (1980) (per curiam), require acceptance of this rationale. Ante, at 4–5. It is true that both Califano and Harris relied on Puerto Rico’s tax status to justify the unequal treatment of its residents. See Califano, 435 U. S., at 5, n. 7; Harris, 446 U. S., at 652. Neither case, however, stood for the principle that Puerto Rico’s tax status could justify any and all unequal treatment of its residents, and neither addressed the claims at issue here. Califano re- solved a claim under the right to travel, while Harris de- cided a challenge to the unequal distribution of block grants to the States and Puerto Rico under a separate benefits pro- gram. Those cases do not preclude an equal protection chal- lenge to a uniform, federalized, direct-to-individual poverty reduction program like SSI. Moreover, as summary dispo- sitions, Califano and Harris are not “of the same preceden- tial value as would be an opinion of this Court treating the question on the merits.” Edelman v. Jordan, 415 U. S. 651, 671 (1974). And both Califano and Harris rested on the mistaken premise that residents of Puerto Rico do not con- tribute at all to the Federal Treasury. Califano, 435 U. S., at 5, n. 7; Harris, 446 U. S., at 652. Here, the United States concedes that “residents of Puerto Rico make some contri- butions to the federal treasury.” Brief for United States 19 (emphasis deleted).

Moreover, the Court overlooks the fact that SSI estab- lishes a direct relationship between the recipient and the Federal Government. The Federal Government develops uniform eligibility criteria, recipients apply for assistance directly to the Federal Government, and the Federal Gov- ernment disperses funds directly and uniformly to recipi- ents without regard to where they reside. Indeed, when it created SSI, Congress replaced existing programs that dif- fered between States as well as between States and Terri- tories and that involved States and Territories in adminis- tering the programs. Under the current system, the jurisdiction in which an SSI recipient resides has no bear- ing at all on the purposes or requirements of the SSI pro- gram. For this reason alone, it is irrational to tie an indi- vidual’s entitlement to SSI to that individua’s place of residency.

Disaster colonialism within/across Puerto Rican institutions

Puerto Rican families often share stories of the ‘big storm’. In our time, it is Hurricane María, but in the past, it was San Ciriaco, San Felipe II, San Cipriano II, Betsy or Hugo (Rodríguez, 1997). Yet despite their reoccurrence, the history of Caribbean hurricanes remains poorly documented beyond meteorological studies or examinations of the resilience of flora and fauna (Schwartz, 2005: 390). Hurricanes have continuously aided in destabilizing societies across the Caribbean, making it a ripe zone for ongoing colonization. Barnet (2010: 4) called this ‘una cultura del disastre y la Resistencia’ or ‘a culture of disaster and resistance’. To illustrate how hurricanes factor into Puerto Rican culture, a historic Plena expresses the place hurricanes hold in the popular imagination (Carrero Morales, 2013):

Climate disaster preparations in Puerto Rico, including efforts to mitigate damage and planning for effective responses, are increasingly important as hurricanes become more frequent and more destructive. After Hurricane Maria, U.S. federal agencies and Puerto Rican local authorities attempted to build an anticipatory response capacity to increase climate resilience on the island but did not provide adequate resources. Investments in sustainable infrastructure can help the most vulnerable communities, particularly in the southern part of Puerto Rico. The Biden administration has pledged to support Puerto Rico in recovering from Fiona’s impact and in building resilience against future tropical storms. Successful investments in resilience building, however, should also address the persistent social, economic, and political insecurities within Puerto Rico that contribute to the severity of the impacts of weather events.

Q1: Why is the devastation so severe?

Armando Perez and his 81-year-old mother survived Hurricane Maria when it hit Puerto Rico in 2017. Five years later, they just witnessed Hurricane Fiona, a categorically less intense storm, but one that disrupted their lives nonetheless.

Perez's mother, Carmen, has advanced Parkinson's disease and dementia and has been bedridden since June. The two live together in the town of Dorado. Perez bathes and feeds his mother and changes her diapers.

In short, the economic downturn in Puerto Rico has been exacerbated by natural disasters. Many of the island’s residents need government assistance. Even as Americans, Puerto Rican residents are excluded from federal programs created for Americans in need: Supplemental Security Income (SSI), SNAP, and Medicare Part D Low-Income Subsidy (LIS).

On April 10, 2020, the First Circuit held that the categorical exclusion of otherwise eligible Puerto Rican residents from SSI violated the Equal Protection Clause of the Fifth Amendment, finding eligibility based on the differentiation in status not to be rationally related to a legitimate government interest. 17 The ruling in Vaello-Madero guided much of the District Court of Puerto Rico’s analysis in Martínez, which looked not only at Puerto Rico’s access to SSI, but also its access to SNAP and Medicare Part DLIS benefits.18 In Peña-Martínez, the Court held it was unconstitutional discrimination to deny eligible residents of Puerto Rico access to SSI, SNAP, and LIS benefits solely due to their residency in Puerto Rico.19 The District Court declared, “[T]o be blunt, the federal government discriminates against Americans who live in Puerto Rico.”20 While both decisions are major victories for Puerto Rican residents, the U.S. government’s appeals in Vaello-Madero and Peña-Martínez are pending before the U.S. Supreme Court and the First Circuit, respectively.

Puerto Rico continues to be ravaged by a sustained recession.

Annual economic growth fell by roughly 12.5 percent overall between 2004 and 2020, while Puerto Rico’s population shrunk by more than 16 percent. It has also struggled under a large public debt in recent years, totaling about $70 billion—or 68 percent of gross domestic product (GDP)—in 2020. Puerto Rico’s downward spiral has been compounded by natural disasters, government mismanagement and corruption, and the COVID-19 pandemic.

It’ s a common place that human society can survive and develop only in a lasting real peace. Without peace countries cannot develop. Although since 1945 there has been no world war, but

• numerous local wars took place,

Supplemental Security Income (SSI) improves financial security for more than 4.3 million people with disabilities and over a million people over age 65, all of whom meet strict limits on income and assets. The maximum SSI benefit for 2020 is just $783 per month, well below the federal poverty line, but even this extremely modest benefit helps senior citizens and people with disabilities to maintain housing, purchase food, and meet other basic needs.

However, the SSI program is only available to people living in the 50 states, District of Columbia, and the Northern Mariana Islands. People living in Puerto Rico, the US Virgin Islands, and Guam have different programs, but funding for them is more limited and they are not available for children. American Samoa has neither SSI nor these other block-granted programs.

Puerto Rico residents don’t have the same access to federal assistance programs as people in the mainland United States. For instance, key nutrition assistance and health coverage programs exist in limited form in Puerto Rico, providing substantially lesser benefits and services than in the rest of the country due to funding constraints. Moreover, Puerto Rico has yet to recover from a recession that began in 2006, as well as two devastating hurricanes, a historic bankruptcy, powerful earthquakes, and the COVID-19 health and economic crises. As a result, Puerto Rico’s poverty rate of 43.5 percent far exceeds the 10.5 percent average for the 50 states and the District of Columbia.

Puerto Rico’s unequal access to federal programs is particularly harmful given the island’s high disability rate. Nearly 1 in 6 Puerto Rican residents (15.1 percent) are disabled, according to the Census Bureau, compared to 8.6 percent of the general U.S. population. This follows the pattern in the states, where disability benefit receipt tends to be higher among populations that are less educated, older, and have fewer immigrants. Moreover, the factors contributing to Puerto Rico’s high poverty rate have disproportionately affected the disabled community. Nearly half of the island’s disabled residents live in poverty — twice the U.S. average.

Puerto Ricans on the island and in Congress criticized a U.S. Supreme Court ruling Thursday that found it's constitutional to deny federal benefits to aging and disabled U.S. citizens living in Puerto Rico, though they can access benefits if they relocate to the mainland.

Justice Brett Kavanaugh, who wrote the decision, said that “just as not every federal tax extends to residents of Puerto Rico, so too not every federal benefits program extends to residents of Puerto Rico.”