• September 24, 2021

Exclusive: NY attorney general forms coalition to fight discrimination against Puerto Rico, other territories

 Exclusive: NY attorney general forms coalition to fight discrimination against Puerto Rico, other territories

She posted this to Twitter yesterday.


The press release included four major points raised in the brief:

  • Congress should have more than a good reason to treat one region of the country differently than another: The Supreme Court has made it clear that to treat states differently, Congress must demonstrate that the differential treatment is necessary to address a specific problem. The coalition argues that over the past century, the territories have become more tightly woven into our national fabric, and that a similar level of scrutiny should be applied to discrimination against the territories.
  • The differential treatment of U.S. territories is rooted in racism: Congress’s ability to discriminate against territories like Puerto Rico relies on the Insular Cases, a series of Supreme Court decisions from the early 1900s about the status of the territories acquired from Spain. These cases upheld the power of Congress to treat the new territories, which were formerly Spanish colonies, differently, and were based on racial biases and now-discredited theories of colonial governance. For example, in one of these cases, the Court explained that it was neither unreasonable nor unconstitutional for Congress to deprive territory residents of the right to trial by jury and described the territories as “peopled by savages.” The attorneys general argue that this troubling precedent should not be perpetuated by rubber stamping Congress’s discrimination against the nearly 3.8 million residents of U.S. territories.
  • Excluding territories from anti-poverty programs harms some of the neediest Americans: The territories suffer disproportionately high levels of poverty and would greatly benefit from participating in federal aid programs. The national poverty rate hovers around 10.5 percent, and the neediest states — Louisiana and Mississippi — have poverty rates of around 19 percent. By contrast, poverty rates in the territories range from 22.6 percent in Guam to 56 percent in American Samoa. Congress’s exclusion of the territories from certain nationwide aid programs like SSI withholds benefits where they are arguably most needed.
  • Congress irrationally includes some territories in benefits programs and excludes others: Multiple federal aid programs operate in some territories but not in others. For example, the Northern Mariana Islands is the only territory in which residents can receive SSI, but it is also the only territory excluded from Temporary Assistance for Needy Families, which provides cash assistance to low-income families with children. The Supplemental Nutrition Assistance Program (or food stamp program) operates in Guam and the U.S. Virgin Islands, but not in Puerto Rico, American Samoa, or the Northern Mariana Islands. There is no discernable pattern to Congressional decisions to extend programs to one territory but not another, and this haphazard discrimination generates unnecessary burdens for states and harms residents of the territories.

I am particularly pleased to see the question of racism raised—our history as a colonial power is steeped in it. 

The AGs are not alone in filing amicus briefs:

The Latino Justice filing stated:

Under the SSA, Congress grants certain disability benefits to persons residing in the fifty states and the District of Columbia, but deprives Puerto Ricans of those benefits on the purported basis that Puerto Rico is “outside the United States.”  This classification of Puerto Rico being “outside the United States” harkens to the Insular Cases’ notorious description of Puerto Rico as being “foreign to the United States in a domestic sense” and the Supreme Court’s resultant refusal to provide Puerto Ricans with the Constitution’s full panoply of protections.  The assumptions and rationales for the holdings in the Insular Cases are rife with racial animus and prejudice, and the cases openly refuse to provide Puerto Ricans with their constitutional rights due to “differences of race,” describing Puerto Rico as “alien territory” and Puerto Ricans as “savage” and “uncivilized.”

Although cloaked in terms of geography, the SSA’s classification of Puerto Rico impermissibly targets a discrete and politically powerless racial and ethnic minority—Puerto Ricans.  The precision targeting of Puerto Ricans in the SSA reflects a century of discrimination that Puerto Ricans have suffered under the law.  This prohibition of the provision of disability benefits to Puerto Ricans violates the Fifth Amendment’s equal protection guarantee.

For a detailed background on the case, The New Republic posted this story back in March.

On a personal level, my husband, who was a social services case manager for over 30 years in New York City, often shared with me the emotional pain faced by his clients; a majority of them were Puerto Rican who were receiving SSI, but who could not move to the island to take care of family matters because they would then lose their benefits. As you can imagine, the situation for his clients worsened after the destruction of Hurricane Maria. 

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