Strict Scrutiny - Foreign in a Domestic Sense

Episode Date: November 5, 2021

Kate speaks with Juan Perla and Neil Weare about United States v. Vaello-Madero, which will be argued before the Supreme Court on November 9th. US citizens who are otherwise eligible for SSI benefits are denied solely because they live in Puerto Rico-- a US territory. Does this denial violate the equal protection clause of the 14th Amendment? Follow us on Instagram, Twitter, Threads, and Bluesky

Welcome to a bonus episode of Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. I am your sole host today, Kate Shaw, and I'm happy to be able to bring you today a short bonus episode on a case the court will hear on November 9th, United States versus Vallejo Madero. At issue in the case is whether Congress's denial of SSI benefits to otherwise eligible citizens on the sole basis that they live in Puerto Rico violates equal protection. So to help us break down this case and some of the broader principles it implicates, I'm really happy to be joined today by two special guests, Neil Weir and Juan Perla. Neil is a civil rights lawyer and the founder of the organization Equally American, which does really important work fighting for equal rights for Americans living in U.S. territories. His organization,

together with the ACLU and Demos and some other organizations, found an amicus brief in Vallejo Madero. Neil, welcome to the podcast. Thank you so much for joining us. Thanks so much for having us. And I'm also joined today by Juan Perla, who's an appellate associate at Curtis Malay, also importantly, a graduate of Berkeley Law School and a former student of my co-host, Melissa Murray. Melissa, so sorry, you couldn't be here to record with us. And importantly, one of the lawyers for the respondent in the case, Mr. Vallejo Madero. Juan, welcome to the podcast. So happy you could join us. Thank you for having me. So Juan, can you start by just telling us about

your client, Mr. Vallejo Madero? Sure. Mr. Vallejo Madero is a U.S. citizen from Puerto Rico, and he moved to New York several years ago. And while he was living there, he suffered a series of strokes that left him disabled and unable to support himself. At that time, he sought the assistance of a nonprofit that helped him apply for SSI and opened a bank account in New York where he was able to, once he qualified, receive the payments directly into his account. Can I interrupt you for one sec? I should have defined this, but I didn't. What are SSI benefits? So SSI is the Supplemental Security Income. It's a benefit under the Social Security Act, and it's for individuals who are disabled or aged and have very limited means to support themselves, either because they can't work and they don't have

a lot of assets. So the threshold is actually very low. I mean, these are the poorest of the poor in terms of the eligibility to qualify for SSI. Great. Thank you. Okay. So he's living in New York. He applies for these benefits. What happens then? Yes. So about a year later, he decides that he's going to move to Puerto Rico to be closer to family, as you would expect anyone struggling with a disability to do. And he continued, unbeknownst to him, his move would disqualify him from continuing to receive these benefits. But because he wasn't aware of this, he didn't report this to SSI and instead continued to receive the payments directly into his bank

account in New York. A couple of years later, fast forward, the government learns that he's still receiving SSI payments because he discloses this to a social security agent at the office, at the SSI offices in Puerto Rico when he's applying for retirement benefits. And two months later, they send him a notice saying that we are retroactively revoking your SSI benefits to zero. And, you know, you'll be getting more information from us about what that means for you. He never got anything more from the Social Security Administration, but instead the government came after him in court. And that's when they filed a lawsuit. And in the complaint, they cited two grounds for jurisdiction. One, when the government sues you in civil court.

But the other was a criminal statute that carried up to five years of imprisonment as a penalty. And with that in mind, you know, Mr. Veo Madero was unrepresented at the time. And the government met with him, an SSI agent without the presence of a lawyer, and had him sign a stipulation for consent judgment in which he would have agreed to take responsibility for unlawfully collecting these payments and then being on the hook for paying back $100 a month, basically for the rest of his life, because with his income, he couldn't have paid any more or any quicker. And at that time, the government went back to the district court, filed the stipulation for consent judgment, which all of this was happening around the same time that Puerto Rico was being hit by very massive hurricanes. You remember Hurricane Irma, you know, just completely devastated the island. The district court judge took a look at this and said, you know what, I'm going to appoint

pro bono counsel. And that's when we were able to get involved. We were able to take the case as pro bono counsel and immediately filed for a motion to withdraw the stipulation. The government accepted and agreed that that would be fine, but then responded by voluntarily moving to dismiss the complaint without prejudice. We opposed, the district court agreed, and then we moved forward with briefing. The only legal issue that the parties agreed was remaining, which was Mr. Vallemadero's defense to liability on the grounds that it would be a violation of the Fifth Amendment, his due process, his equal protection rights under the due process clause of the Fifth Amendment, to deny him the same SSI benefits that he would otherwise be entitled to on the mainland solely

because he had moved to Puerto Rico. Okay, so that's just a great overview on. Thank you for that. So and just for, you know, listeners for whom this won't be familiar, the Equal Protection Clause in the Constitution actually appears in the 14th Amendment, which just extends to states, not to the federal government. But as Juan just alluded to, the Fifth Amendment's Due Process Clause has been understood to contain an equal protection component, which entitles individuals raising constitutional claims against the federal government, just as they could against the state government to make arguments that sound in equal protection principles. And it sounds like

that's the argument that Mr. Vallejo Madero is making. So maybe I could ask you, Neil, to zoom out a little bit. So it sounds like the scheme that Juan is describing clearly and on its face treats U.S. citizens living in Puerto Rico differently from U.S. citizens living in the mainland United States for purposes of this SSI program. How does the government defend doing that? And are there other ways in which the federal government treats individuals in Puerto Rico and other territories differently from the way it treats individuals living in the mainland United States? Yeah, the United States def defenses to why Congress denies SSI benefits strictly on the basis of place of residency really don't come across very strongly in their briefing.

One argument they make is this idea that residents of the territories have a different, a unique tax structure. But of course, someone receiving SSI benefits makes too little income to be paying federal income tax in the first place. In the lower courts, none of the reasons that the United States argued to justify this denial were accepted with the district court judge and a unanimous panel on the First Circuit ruling that there was no rational basis for denying SSI benefits in the territories based simply on place of residency. And this is a part of a broader framework where the United States Congress has kind of a grab bag of rights applying in different territories. So if you live in the U.S. territory of the Northern Mariana Islands, you actually are eligible for SSI benefits. If you live in Guam, which is just a few hundred miles south of the Northern Mariana Islands, you're suddenly not eligible. Some territories are eligible for food stamp SNAP benefits. Others aren't.

The federal government also discriminates in programs like Medicaid, providing block grants and caps on these federal programs rather than providing aid on the same basis as they would in the states. And there's never been given a good reason for this, which is, I think, why the United States has so far struggled in court to find judges that agree with them. Okay, so that's really helpful. And you mentioned rational basis. So Juan, so, you know, as Neil just alluded to, you were successful, right, in the district court and in the Court of Appeals. And in both instances, the lower courts found that the right way to scrutinize this distinction that the law draws was just rational basis review, but that the government couldn't even satisfy this deferential type of review, rational basis. You know, the government pointed, as it this deferential type of review rational basis. You know, the government pointed, as it points in its briefs before the Supreme Court, to this, you know, basically tax-based rationale that federal tax law treats residents of territories

differently from other Americans, and that justifies the deferential treatment with respect to this benefits program. But that just didn't fly. So maybe we'll get to the sort of type of scrutiny in the Supreme Court question in a minute. But just in the lower courts, did you urge the court to use a higher standard of review? Was that rejected or did the courts just find, you know, we don't even need to get there because these justifications are so bad they fail even rational basis review? Yes, we did press the issue of strict and heightened scrutiny in the lower courts. And the district court accepted that that might very well be the standard that should be applied. But nevertheless, as you said, concluded that even if you look at it at the most deferential standard of rational basis review, there just was no rational basis to exclude Puerto Rico

residents from the program. And the circuit court took a different approach. It considered itself to be bound by one of the key decisions that we're attacking here, the key precedent that we're attacking, the Harris decision in which the Supreme Court indicated that you could treat the territories differently so long as there was a rational basis. And the First Circuit panel said, well, we think we're bound by that, so we're going to apply rational basis review and agreed with the district court that there just was no rational basis that had been advanced and that they couldn't conceive of any that would justify this irrational and arbitrary exclusion. So the federal government is unsuccessful in the district court and the court of appeals. Was there a question as to whether they would seek review in the Supreme Court at all? And, you know, was there an effort? I remember, obviously, when President Biden issued a

statement that generated some press explaining that the Department of Justice was going to continue to press this argument in the Supreme Court, but that as a policy matter, his administration disagreed with the differential treatment. What's the backstory of that statement? And, you know, what, to the extent that you can reveal these things, what kinds of, you know, kind of advocacy efforts were you involved with to keep this out of the Supreme Court altogether, if in fact you were trying to, or maybe this was something you wanted to take to the Supreme Court, thinking that you actually had a good chance of getting a receptive audience because the arguments were just so strong? Well, we definitely think that this is worthwhile for the Supreme Court to take up. I think that the decisions that are on the books, not only the insular cases, but also the more recent, the Califano v. Gautier-Torres and Harris v. Rosario, those SSI and welfare benefit type cases.

It's time to revisit them. And we're certainly pleased that the Supreme Court, you know, did not decide to summarily reverse the decision below as the government had asked and instead is hearing these on plenary review. And as far as the back and forth as to, you know, wanting to take the case out of the supreme court altogether and just leave the first circuit decision standing i wasn't privy to a lot of what that was all about but i think that there might have been a concern that this court may not be as receptive to the arguments or perhaps that it isn't worthwhile to keep resisting them

and certainly those are all worthwhile views. But to us, it really came down to our client and making sure that our client was able to vindicate his rights to the fullest extent possible. Neil, maybe I'll bring you in here just in terms of the organization engages in advocacy across a lot of different fronts and a lot of different institutions. So what's happening while you're trying to get the executive know, the executive branch and maybe Congress as well to take up this question? Obviously, this is whatever the constitutional permissibility of this differential treatment is. Certainly, the government could choose not to treat Puerto Rico residents differently. So have you been sort of working to change that treatment independently of this case? Yeah. So going back to President Biden,

one of the things that brought this up was during the presidential campaign, he responded to a tweet about the Department of Justice's decision to appeal the case to the Supreme Court saying this ends when I am president. So he had made a promise on the campaign trail that sounded like he would not continue defending these discriminatory laws. When push came to shove, his administration decided to continue the defense of these laws, issuing the same day that they filed their opening brief a kind of strange statement, a very uncommon statement saying that while we will continue defending these laws in court, we believe that the policies behind them

are flawed, unjust, and that there can be no second-class citizens in the United States. And so that really has, you know, this case has generated a conversation between all three branches where Congress is now considering extending these benefits, these SSI benefits to residents of the territories, and in fact has included them in the current draft of the Build Back Better Act. So this is an important conversation that all three branches of the federal government are having, and that's really going to come to a head at oral argument and in the weeks that follow as Congress considers these issues. Okay, so maybe now let's pivot to the briefs and the case pending before the Supreme Court.

So to start with the federal government, the government continues to take the position that rational basis is the way to review this classification. And it relies really heavily on these two just summary reversals, right, from like the late 70s, early 80s. What do those cases actually stand for? And sort of, can you talk a little bit about, you know, there is obviously a deep kind of stare decisis current in this case, right? The federal government seems to be saying there isn't sufficient reason to revisit those decisions. I'm putting that in air quotes because they're like not reasoned decisions. And, you know, you get the sense that there are these larger kind of stare decisis concerns somewhat animating the Department of Justice in pressing this view that, you know, no, no, you don't need to disturb these prior cases. What are those cases properly understood to stand for?

And then maybe we could pivot to your brief, which argues that no, strict scrutiny is actually the right way to scrutinize this law, not rational basis. That's right. So the two cases, as I mentioned before, are Califano Vigotia Torres and Harris Rosario. And Califano was a right to travel case. There was a equal protection challenge at the district court level, but it wasn't pressed all the way up to the Supreme Court. So in that case, the Supreme Court took the appeal directly from the District Court decision, and it decided to summarily reverse the District Court on the issue of the right to travel. And basically saying, in a sort of convoluted analysis that seems to misunderstand the program, that the plaintiff in that case couldn't expect to receive,

he lived in Connecticut before, a Connecticut benefit when he moved to Puerto Rico and that that was not encapsulated in the doctrine of the right to travel, assuming that the right to travel applied to Puerto Rico because it's a state. So that case is a bit confusing because SSI, which was the program at issue in that case, is not a Connecticut program. It's a federal program. So it raises different considerations. More tellingly, the court dropped a footnote basically saying, you know, there was an equal protection challenge. We think that this passes a rational basis review because Puerto Rico doesn't contribute to the federal treasury. It would be too costly to extend the program to them, and it would potentially disrupt their local economy if we did so. And then it cited for the proposition that Congress can treat Puerto Rico differently the insular cases and the insular cases holding called the incorporation doctrine, which basically says that Puerto Rico is, quote unquote, not a part of the United States. Then fast forward a few years, and we get to Harris v. Rosario,

where it was a different program, a state block program, also welfare benefits, but not directly from the government to the individual. And that was an equal protection challenge. And basically there, again, in a summary reversal directly from the district court opinion, the court said, you know, we kind of looked at this in Califano and we agree that these three justifications that we advanced in Califano apply here. And so we're not going to make any kind of changes. And in that decision, they cite the territories clause for the proposition that you can discriminate against the territories so long as there is a rational basis. And those are the two decisions that have basically provided the summary decisions issued without oral argument advances as having this sort of weighty precedential value, which is dubious just on its own because they were so thinly reasoned and also kind of incoherently reasoned. And we, of course, are arguing that that's just not even that should not even be the beginning point for this analysis.

That's a great description. And so, but, you know, even if you were sort of writing on a blank slate, so taking those cases out of the picture for a moment, there is this kind of first principles question of how a law that discriminates against residents of Puerto Rico should be scrutinized under the Constitution, right, under equal protection principles. And so, and I think your brief makes a really powerful argument. Maybe I'll, one, I'll ask you and then Neil bring you in too, because you make the argument also in your amicus brief. Why should this law be subject to strict scrutiny? We should look at this fresh. And if you do, you realize that this notion that you can treat what are known as so-called

unincorporated territories, those territories that the Insular Cases said were foreign in a domestic sense. They were not part of the United States because of the race and ancestry of the people who lived there. I mean, they weren't mincing words. It was very explicit, both the congressional actions that were being reviewed by the court in the Insular Cases, like the Foraker Act, which was, again, premised on the notion that the people that lived in Puerto Rico were uncivilized, savage races, alien races. And then this notion continues to find its way into Congress's legislations with respect to Puerto Rico. And in this case in particular, the Social Security Act defines Puerto Rico as being, quote unquote, outside the United States, treating it like a foreign country. And that's the basis upon which Congress decided to exclude residents of Puerto

Rico from SSI. So we think that the link in terms of a pattern of discrimination and the basis upon which Congress decided to exclude the territories can be traced directly. There's a straight line back to the insular cases, textually in the statute, as well as just this notion that Puerto Rico is foreign somehow. I'm just going to add one thing on the insular cases. And, you know, it's just these cases are decided by a court that shares a lot of membership with like the Plessy versus Ferguson court, right? And yet while Plessy is obviously decisively repudiated, the Insular cases remain a part of our body of law. And as you just described, they are the underpinning of,

even though the federal government, if I'm not mistaken, disavows the actual holdings of the Insular cases in its briefing in this case, it fully relies on the two cases you just described that themselves rely on the logic of the Insular cases, as does the legislation, right, at issue, you know, in this case and in the other cases. And so, you know, it's a living, breathing part of our law. And that, I think, is just an important fact that people may not even be aware of. And that is just important to drive home. That's exactly right. And, you know, the government is very careful not to completely reject the insular cases in their briefing here. They just

basically say that they don't apply, that we shouldn't concern ourselves with the insular cases because those deal with what provisions of the Constitution apply, not with whether equal protection should be applied to the territories. The other point that we make is that historically, territories were supposed to be held temporarily on the path to statehood. So the fact that the residents of the territories can't vote constitutionally was only a temporary issue that would be resolved by them eventually being granted statehood and then voting as citizens of states. But because of the insular cases, that path to statehood has been broken and territories are now held indefinitely without any real clear path towards independence or statehood has been broken and territories are now held indefinitely without

any real clear path towards independence or statehood. They're just in this indefinite state of political powerlessness in which they have no political role through federal voting to affect the laws that govern them. So maybe that's a good point to pivot to, Neil. Frame this in strict scrutiny terms. Why do you argue and what is the argument that strict scrutiny actually should apply here? Yeah, as every law student knows, the famousalle Madero, who lives in an insular territory and does not have voting representation in the Congress that enacts the rules he must follow. And so this is a paradigmatic example of political powerlessness that the court has often looked to in granting a greater scrutiny to federal laws that discriminate

against politically marginalized groups. And that certainly constitutes those living in the territories. In addition, on top of that political powerlessness, and perhaps these things are related, the residents of the territories, 98% of them are racial or ethnic minorities. So in addition to all of the racist language in the Insular cases and many of the statutes of that time, you have a situation today where these benefits are only being denied to a group of people who are overwhelmingly people of color, speak different languages. And again, that's an area where the courts have exercised greater

scrutiny. Going back to the Insler cases, it is interesting what the United States has done here. I mean, they've said the Insler cases are not relevant to the issues here. The members of Congress wrote a letter calling on DOJ to go further and actually affirmatively disavow them to say, even if you think they're not relevant here, couldn't you say they should not be extended or that they should not be part of our law today? You would have a hard time thinking, you know, if you looked at other cases like Korematsu, would the Department of Justice said, oh, Korematsu is not relevant here, but then not said anything about the merits of the approach that the court took in Korematsu? And this, again, is just another example of how marginalized citizens in the territory are that the U.S. Department of Justice, led by Attorney General Garland under a Biden-Harris administration won't even say anything against the Insler cases.

They'll just simply say they aren't relevant, but not actually disavow them and not actually say, you know, they should be overturned given the proper opportunity, but essentially continuing to put their stamp of approval on them. And that's pretty disturbing. Yeah, I'm reminded of on the podcast, we've mentioned a couple of times that Jessica Mendez Colbert, who was one of the lawyers in the case about the structure of the Puerto Rico Oversight Board a couple of terms ago, both in her briefing and explicitly in front of the court in the oral argument, said this court should overturn the insular cases. So they've had the opportunity. Obviously, they did not do that in that case. I do wonder whether the federal government,

what they'll say if pressed on that question in the oral argument, and you can't just say not relevant if they're really pinned down at it. I don't know what the position will be. Is there, I guess, in your estimation, a real chance that the court will take this opportunity? I mean, I think either your brief may flag this or maybe your piece in slate, but that there's this real tension between sort of originalism and commitment to retaining the Insular cases. Is this an opportunity for the court to kind of resolve that tension? Yeah, I think the court should take whatever opportunity they have to put the Insler cases. Is this an opportunity for the court to kind of resolve that tension? Yeah, I think the court should take whatever opportunity they have to put the Insler cases in the dustbin of history alongside Plessy and other cases that have been overruled. As you suggest, they've been very hesitant to do so, and that itself is problematic. So whether or not they

will probe there here, I guess we'll find out at oral argument. But regardless what the Supreme Court says, you know, the criticism is going to continue to amplify in legal academia. You know, Yale Law Journal, Columbia Law are having special issues on the insert cases in the territories. You know, scholars have repudiated this kind of continued reliance on the insert cases, filed amicus briefs in support of them. And so there's a big push for the court to act here. And I think ultimately it's going to be a question of when, not if, but we're going to have to continue fighting that battle until the justices really fix their own mistake. It's the Insler cases and the doctrine of territorial incorporation, like the separate and equal doctrine of Plessy. These are judge-created doctrines.

They're found nowhere in the Constitution, completely contrary to the text and history of the Constitution itself. The Constitution is an anti-colonial document, not one that embraces American colonialism. And so that's going to be, whether it's discussed at the oral argument or not, it's certainly going to be in the background of the case. And however, the Supreme Court decides it and whatever actions Congress takes in the coming weeks and months. So one, I want to give you the last word on this. What will you be looking for? What do you hope that the justices will most take away from the argument that you're presenting? And what would sort of an ideal outcome in this case in terms of the scrutiny?

Obviously, you know, you want a win for your client. But there are obviously like really big constitutional principles and stakes here, in addition to the very concrete stakes for Mr. Valle Madero. So what ideally does an outcome in this case look like for you? I think what would be very meaningful is if the court is willing to engage with the history behind this kind of disparate treatment of the territories, to not just look at the current state of affairs or even at the state of affairs in 1972 when the SSI amendments were passed and enacted, but to really take a closer look and say, okay, how did we get here? And what does that mean constitutionally for us?

What does that mean for this case? I think that would be meaningful. Of course, we would be thrilled if the court agreed with us on strict and heightened scrutiny. We think we've provided the substance and the path to get there if the court wanted to go down that route. We also think that there is a narrower path for the court to affirm the First Circuit on rational basis review if they take that route. So if they do, again, I think it would be a significant win if they say we're taking this case because we thought we wanted to lay out a new framework for how to look at these issues. We don't think Califano and Harris are very helpful. So here's how to do the analysis. In this case, rational basis doesn't apply. But leave open explicitly the possibility that strict or heightened scrutiny could be applicable in some future case

with respect to another law. Either of those paths, obviously, would be great to have in this case. Great. All right. So I think we'll leave it there. So Juan Perla and Neil Weir, thank you guys so much for joining us and shedding a ton of light on a really important case. And best of luck with the argument. Thank you. That's all for this bonus episode. Thanks so much to Neil Weir and Juan Perla for making time to join us on a busy week. Thanks to our great producer, Melody Rowell, to Eddie Cooper for our music, and to all of you for listening. If you'd like to learn how to become a GLOW subscriber, please go to www.glow.fm

forward slash strict scrutiny. We'll see you next time.