Overturning Vaello Madero does not overturn insular cases – they were deemed irrelevant by the court.

As noted above, Vaello Madero is an equal-protection challenge to Puerto Rico’s exclusion from the SSI program, which provides benefits to needy people who are disabled or elderly. The government does not argue that the equal-protection guarantee does not apply in Puerto Rico. Instead, it defends Puerto Rico’s exclusion from the program on the ground that Puerto Rico is a territory and Congress has plenary power to discriminate against territories as long as it has a rational basis to do so.373 Its merits brief before the Supreme Court did not even mention the Insular Cases. 374 But Vaello Madero’s did, citing them as evidence of a history of racism against Puerto Ricans that should translate into strict scrutiny of legislation classifying on the basis of residence in Puerto Rico.375

Early in the argument, Chief Justice Roberts seemed to surprise Deputy Solicitor General Curtis Gannon by asking whether the Insular Cases have anything to do with Vaello Madero. 376 Gannon responded by explaining that the Insular Cases are not relevant because they “were about whether . . . different portions of the Constitution . . . apply differently to different territories,” whereas in Vaello Madero the government concedes that the equal-protection component of the Fifth Amendment’s Due Process Clause applies to Puerto Rico.377

Justice Gorsuch then spoke up: “Counsel, if that’s true, why—why—why shouldn’t we just admit the Insular Cases were incorrectly decided?”378 Sounding taken aback, Gannon observed that it “would not be the Court’s normal course to just say that several cases were incorrect” when Gorsuch testily interrupted him: “I’m asking for the government’s position. I’m not asking for thoughts about the Court’s normal course.” Gannon demurred again: “I don’t think we’re proceeding on a premise that’s inconsistent with the Insular Cases because—” Gorsuch interrupted again: “I think you’ve said that you’re proceeding on a premise that the Constitution applies fully and . . . without exception in—in respect to this claim, right?” To which Gannon replied: “With respect to the equal protection claim, yes. But . . . I don’t think that that’s the only thing that the . . . Insular Cases decided.” Leading Gorsuch to ask again: “What is the government’s position on the Insular Cases?” At this point, Gannon acknowledged that some of the Insular Cases’ “reasoning and rhetoric” was “obviously anathema, [and] ha[d] been for decades, if not from the outset.” But he insisted that they were irrelevant in Vaello Madero because the government agreed with Vaello Madero that the equal-protection guarantee applies to Puerto Rico.

The perplexing exchange left observers wondering whether the Court will finally overrule the Insular Cases in Vaello Madero. 379 It did not, likely because despite Justice Gorsuch’s flirtation with the possibility at oral argument, and his concurrence calling for it in some future case, Vaello Madero would have been yet another less-than-ideal vehicle for the Court to take on the doctrine of territorial incorporation.

Although the Insular Cases figured prominently in Vaello Madero’s brief, and although he is strongly critical of their racism, he did not argue that they should be overruled.380 Instead, as noted above, Vaello Madero cited them as historical evidence in support of the proposition that the Court should subject Puerto Rico’s exclusion from the SSI program to strict scrutiny.381 The argument was that the equal-protection guarantee should trigger strict scrutiny because the SSI exclusion classifies on the basis of residence in an unincorporated territory, and unincorporated territories were the direct product of the racism that explicitly motivated the Insular Cases. If not for this racist doctrine, the residents of Puerto Rico (virtually all of whom are members of an ethnic minority382) would not be subject to U.S. sovereignty and most federal laws but denied voting representation in the federal government nearly one and a quarter centuries after the United States annexed Puerto Rico—and Congress would not have the power to exclude them from the SSI program.383

For its part, although the government conceded that the equal-protection guarantee applies in Puerto Rico notwithstanding its status as an unincorporated territory, it argued that Puerto Rico’s exclusion from the SSI program triggers only rational basis review because the Territory Clause gives Congress plenary power to govern U.S. territories, whether incorporated or not, and this challenge involves a social welfare program and courts ordinarily defer to the government in allocating benefits.384