Courts are key – a decision for social security would overturn the insular cases

Justice Gorsuch too positions his concurrence to address what he sees as the need to undo the court’s earlier precedent on race. But here, unlike any of the other opinions authored in Vaello Madero, Gorsuch speaks directly to the Insular Cases. In a strongly-worded opinion, Justice Gorsuch derides the Court’s interpretation in those cases asserting that: “[they] have no foundation in the Constitution and rest instead on racial stereotypes. They deserve no place in our law.”27 Despite this strong rebuke, Gorsuch sides with the Court’s majority explaining that, “[b]ecause no party asks us to overrule the Insular Cases to resolve today’s dispute, I join the Court’s opinion. But the time has come to recognize that the Insular Cases rest on a rotten foundation.”28 While failing to protect the equal rights of Puerto Ricans to access benefits on the same terms as other U.S. citizens in this case, Gorsuch concludes that “[o]ur fellow Americans in Puerto Rico deserve no less.”29 Given the importance of Gorsuch’s arguments for overruling the Insular Cases, his assertion of what U.S. citizens in Puerto Rico “deserve” is downright confusing. In fact, he has joined the majority to assure that what Puerto Ricans deserve is less federal public assistance. Despite their different takes on the Court’s earlier racial discrimination precedents, Justices Thomas and Gorsuch share another similarity in their opinions. Neither opinion deals at all with the specifics of this case. Neither Jose Luis Vaello-Madero, nor the facts of his claim, register in either concurrence.

Taken together, the opinions in Vaello Madero combine to further insulate the Insular Cases from direct overruling while practically affirming Puerto Ricans’ second-class citizenship.30 Justice Sotomayor is the lone voice in relating the facts that make Congress’s lack of assistance through SSI cruelly irrational: 1) while only 34,224 were enrolled in Puerto Rico’s less generous Aid to the Aged, Blind, and Disabled program in 2021, “the Government Accountability Office estimates that over 300,000 Puerto Rico would have qualified for SSI”31; 2) “Puerto Rico has a disproportionately large population of seniors and people with disabilities”32; 3) “43.5% of residents of Puerto33 Rican residents [sic] lived below the poverty line – more than triple the national percentage of 12.3%”; and 4) residents of Puerto Rico do not have voting representation in Congress [so] they cannot rely on their elected representatives to remedy the punishing disparities suffered by citizen residents of Puerto Rico under Congress’ unequal treatment.”34

Meanwhile, the suffering of U.S. citizens in Puerto Rico is virtually guaranteed to continue and worsen. According to the Environmental Protection Agency (EPA), Puerto Rico is especially prone to the devastating effects of climate change in the forms of sea rise, heavy storms, and climbing temperatures.35 Regarding the human health impacts of these changes, the EPA warns of the vulnerability of Puerto Rico’s residents including particularly “the elderly, the sick, and the poor.”36 A recurrence of the devastating storms that engulfed Puerto Rico in 2017 is a practical certainty.

That the Vaello Madero majority does not rely on the Insular Cases to conclude that Congress may still legally discriminate against U.S. citizens in Puerto Rico is of little consolation. Especially to Jose Luis Vaello-Madero and the hundreds of thousands of needy U.S.-residents just like him.