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Excerpted From: Nelson Torres-Rios, Racial Barriers to Equal Protection: United States V. Vaello Madero, 49 Rutgers Law Record 102 (2022) (109 Footnotes) (Full Document)

NelsonTorresJose Luis Vaello Madero, born in Puerto Rico in 1954, is a U.S. citizen pursuant to the Jones Act of 1917. Like any American citizen, Mr. Vaello Madero is free to move between the states to Puerto Rico. In 1985, Mr. Vaello Madero moved to New York and continued to live there until 2013. During his residence in New York, Mr. Vaello Madero became incapacitated and was awarded Supplementary Social Income (SSI). In 2013, Mr. Vaello Madero relocated to Puerto Rico to care for his wife. On or about July 2016, he received notification that his SSI benefits would be discontinued retroactively to August 1, 2014, because he was “outside of the U.S. for 30 days or more”. This case demonstrates the effects of the Insular Cases, their progeny, and the federal government's perpetual discrimination against the citizens living in the territories. The legal premise of “not part of the U.S.” was originally applied in Downes v. Bidwell to justify exclusion of full constitutional protection for Puerto Rico. Current U.S. President Joe Biden decided to proceed with the appeal to the U.S. Supreme Court despite repeated efforts by Puerto Rico's delegate Jennifer Gonzalez. The specific issue before the U.S. Supreme Court in the present case is:

Whether Congress violated the equal protection component of the due process clause of the Fifth Amendment by establishing Supplemental Security Income--a program that provides benefits to needy aged, blind and disabled individuals--in the 50 states, the District of Columbia, and in the Northern Mariana Islands pursuant to a negotiated covenant, but not extending it to Puerto Rico.

[. . .]

Like the decision in Brown, over time, the courts began to reverse race-based jurisprudence in violation of equal protection. Justice Harlan's dissent in Plessy began to serve as the guiding principle for the Court: “In the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. With respect to civil rights, all citizens are equal before the law.” In a historic move, the lower courts are signaling to the high court that under proper scrutiny, the Insular Cases would not survive today. Specifically, the District Court explained that the Territorial Clause is not 'carte blanche for Congress to switch on and off at its convenience the fundamental constitutional rights to due process and equal protection’. More importantly, Congress cannot demean a U.S. citizen while in Puerto Rico with a 'stigma of inferior citizenship to that of his brethren nationwide, to do so would run afoul of the sacrosanct principle that all men are created equal under the law.’

The U.S. Supreme Court, on the basis of eroding precedent and equal protection, has the constitutional duty to affirm the lower court's decision. Justices Sotomayor, Breyer, and Gorsuch seemed willing to eradicate second class citizenship by reversing the racially motivated Insular Cases, thereby affirming the First Circuit's opinion. Justice Kagan's reference to current legislation allowing Puerto Rico to be included in SSI was perhaps the most troubling as it may justify the court's deference to Congress, allowing the court to ignore the Insular Cases and their progeny entirely. To do so, the Supreme Court would be conceding to the legal institutionalization of a class of people based on race and/or ethnicity, and the improper exercise of the Territorial Clause. The Federalist Papers outlines the duty of the court, as an arbiter, to safeguard our Constitution from majoritarian attacks, particularly when race is an issue.

American law values stare decisis as a principle that allows for predictability and consistency in similar cases. However, the Insular Cases, like Plessy, represent that precedent is not immutable. With many lower courts withdrawing judicial endorsement of race-based decisions, the U.S. Supreme Court has the opportunity to revisit the purpose of stare decisis and whether adherence to it necessarily promotes core constitutional values. As in Brown, nearly six decades later, the high court reviewed lower court decisions that signaled the need to reverse Plessy's “separate but equal” doctrine because of its violation of the Equal Protection Clause under the Fourteenth Amendment. Puerto Rico has been relegated to second class status and less deserving of constitutional protection for over 120 years because of race. Adherence to stare decisis in this case would signify that the U.S. Supreme Court is in fact, a racial barrier to equal protection. Hence, the U.S. Supreme Court acting accordingly, must affirm the First Circuit's decision in U.S. v. Vaello Madero, and reverse the Insular Cases.


On April 21, 2022, the U.S. Supreme Court once again reversed two lower court opinions that strongly denounced the Insular Cases and their progeny. Ignoring the equal protection issue of the individual citizen in this case, the Court, in an opinion authored by Justice Kavanaugh, explained that “residents of Puerto Rico are typically exempt from most federal income, gift, estate, and excise tax” but conceded that island residents do pay “Social Security, Medicare, and unemployment taxes.” The court reasoned that as a whole, Puerto Rico pays fewer taxes than residents on the mainland, and as such, it is rational for island residents to receive less benefits. Thus, the Constitution does not require Congress to extend Supplemental Security Income benefits to residents of Puerto Rico. The Court clearly ignored that SSI payments go to individual American citizens who are “persons” pursuant to the Equal Protection Clause of the federal constitution. The payments are not directed to local governments who then distribute the monies to citizens within their jurisdiction. As Justice Sotomayor, the only dissenter, explained, “SSI payments go to low income individuals who cannot afford to pay taxes.”

Justice Gorsuch, concurring with the majority, took strong aim at the premise of the Insular Cases which “have no foundation in the Constitution and rest instead on racial stereotypes. They deserve no place in our law.” Nonetheless, Justice Gorsuch agreed that it was rational for Congress to discriminate against the U.S. citizens in Puerto Rico.

The Equal Protection Clause protects against government discrimination and does not make a distinction of “persons” residing in territories or states. In the Court's muddled analysis, Mr. Jose Luis Vaello Madero, a resident of Puerto Rico, does not meet that constitutional requirement. The U.S. Supreme Court, reversing two lower court opinions, endures as the racial barrier to equal protection for the Spanish-speaking, non-Anglo, U.S. citizens of Puerto Rico.

Nelson Torres-Ríos, J.D. 2011, Rutgers Law School, is an Attorney admitted in New York, New Jersey, and the United States Supreme Court. He is also an Assistant Professor at Hostos Community College in the Bronx.

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