Courts are key, congressional action reinforces congress’s right to control Puerto Rico, makes inequality inevitable

But several justices aired concerns during oral argument about how such an outcome could affect other laws that treat the territory differently from states, or could change the terms of the nation’s founding document.

The justices will issue a decision before the end of the term in late June. A decision that requires the United States to include Puerto Rico residents in the program could cost an additional $23 billion over the next decade.

An attorney defending the law for the United States said Congress has the power to draw distinctions about how residents in Puerto Rico are treated under federal laws, and a clause in Article IV means “the Constitution itself recognizes this as a legitimate dividing line.”

Deputy Solicitor General Curtis Gannon said Congress based its decision about SSI benefits on policy considerations, such as the fact that Puerto Rico residents don’t pay federal income tax. He said different treatment is based on location, not on ethnicity or race, as the challengers contend.

“They are U.S. citizens, but there is no evidence here linking this exclusion to ethnicity or discrimination,” Gannon said.

Justice Elena Kagan said that theory would seem to apply equally well to any benefits programs, and if that’s the case then “the lesson going forward is Congress can do this whenever it wants.”

Kagan later asked Hermann Ferré, the attorney arguing for Puerto Rico resident Jose Luis Vaello-Madero, why that clause doesn’t settle the case by itself since it “goes pretty far towards authorizing Congress to make rules about the territories,” which may inevitably mean it can “make distinctions between the territories and other parts of the United States.”

Ferré told the justices that congressional power over territories was intended to be temporary. But he said previous Supreme Court rulings created a situation that “could potentially be abused” if Congress steps in without actually guiding the territory toward statehood or independence.

“So the court essentially blessed the possibility of territories remaining territories in an indefinite state without full participation, without a full seat at the table,” Ferré said.