Applying strict scrutiny here would be unconstitutional.

However, other Justices evidently had difficulty accepting the proposition that a geographical classification, whatever its sordid history, should receive strict scrutiny. Justice Thomas, for example, wanted to know what analysis Vaello Madero’s lawyer, Hermann Ferré, would apply to the case of “someone who is of Italian descent [and] has lived in New York City all his life and decides” to move to Puerto Rico, thereby losing his eligibility for SSI benefits.387 Ferré replied that upon moving to Puerto Rico, such a person would instantly be in the same politically powerless position as any other resident of Puerto Rico,388 which is, of course, true: anyone who establishes residence in Puerto Rico loses voting representation in the federal government regardless of their race, ethnicity, or anything else about them. But Thomas seemed unconvinced. “So you are transferring the relationship with Puerto Rico to the individual who happens to reside in Puerto Rico?” he asked.389 When Ferré answered in the affirmative, Thomas pressed him: “Do you have any [cases] where we have transferred the treatment of a state to an individual?”390 Ferré did not because there aren’t any.

Even so, the analogy to discrete and insular minorities has intuitive appeal. Residents of unincorporated territories are politically powerless with respect to the federal government, and the vast majority of them arguably share all of the features that define discrete and insular minorities. These include a history of discrimination against them (in this case, based on race and ethnicity—again, it was because the people of these territories were perceived as nonwhite that the Court invented the unincorporated territory in the first place); the immutability of shared traits giving rise to such discrimination (where immutability, a contested concept to be sure, refers to traits that members of the minority either cannot or should not have to change and that have been assigned a subordinating social meaning—all of which can be said about residence in an unincorporated territory); and the arbitrariness of the classifications affecting them (where arbitrariness refers to the moral irrelevance of the traits targeted by such classifications, which instead serve the purpose of reinforcing status hierarchies—as the category of the unincorporated territory surely does). Indeed, well before Vaello Madero, there existed scholarship powerfully arguing that classifications based on residence in an unincorporated territory should receive strict scrutiny.391

Still, Justice Thomas has a point. It is difficult to explain why a category that can be joined and abandoned at will by someone who otherwise does not belong to any discrete and insular minority should constitute a classification that triggers strict scrutiny. Moreover, even acknowledging the racist roots of the doctrine of territorial incorporation, the Italian person who moves to Puerto Rico becomes politically powerless because she now lives in a territory—not because she now lives in an unincorporated territory. While it is undeniable that Puerto Ricans are Hispanic, have suffered a history of discrimination based on their ethnicity, and are politically powerless, it is also undeniable that Congress has always had the power to treat residents of territories differently. “That’s why Respondent was able to get these benefits while he was living in New York” was how Gannon put it.392 What he meant was that discrimination against residents of a territory is grounded in a distinction drawn by the Constitution itself, which, ipso facto, cannot be suspect.