• The San Juan Daily Star

US v Vaello: The Supreme Court switches off the Constitution

By Gregorio Igartúa

The United States Supreme Court continues to discriminate against American citizens residing in Puerto Rico.

That is, the justices switch “on and off” the applicability of the U.S. Constitution on a case-by-case basis. The latest contradictory holding is the opinion in US v Vaello, denying Supplementary Insurance Income (SSI) to Puerto Rico residents under the veil of the territorial clause, the Insular Cases of 1901, and under the false representation that we don’t pay federal taxes. Discrimination, ignorance, and/or a combination of both? The court went as far as disposing that Congress can treat us differently at will in adopting policies for Puerto Rico. Acquired rights over 124 years were and can be ignored. In short, we can be treated as if we are illegal aliens.

Such legal disparity came not alone from the judiciary. Consider that in the executive branch, President Biden supported SSI implementation to Puerto Rico in a press conference, while his subordinate employee, U.S. Attorney General Merrick Garland, litigated against it.

Coincidence, lack of respect to the boss, or an under-the-table agreement by both to allow the secretary to do what he did. Consider that the high court said it was up to Congress to legislate extending SSI to American citizens residing in Puerto Rico. Consequently, the ball now is in the hands of the president to propose legislation to Congress to support its approval, and in Congress to follow with amending the law for applicability of SSI to Puerto Rico. Gov. Pedro Pierluisi Urrutia and Resident Commissioner Jenniffer González Colón, carry the burden too.

The Harris case was cited as a rational basis of support in Vaello, under the veil that we don’t pay federal taxes. We do, with government without consent of the governed. Legal? (See U.S. Const. Amend. XV). More than $4 billion are paid annually, more than some states (taxation without representation?).

For estate taxes, American citizens in states have a $12 million exemption, not allowed in Puerto Rico. Those residents with assets outside Puerto Rico pay thousands in federal estate taxes. For a $1 million property owned in a state, the tax on the estate is about $375,000. When Puerto Rico becomes a state, about 60% of the population will not pay federal taxes.

One of the justices, Neil Gorsuch, said the Insular Cases should be revoked, but that no one requested it. Wrong, I requested it to the court in my amicus brief. Notwithstanding, Gorsuch wrote an excellent concurring opinion in support of revoking the Insular Cases. On the other hand, the Insular Cases suggest criteria that can overcome their 124-year discriminatory interpretation. In Downes, just three years after Puerto Rico was acquired from Spain, the court said it was an unincorporated territory. Correct. In 1901 the island was not yet as assimilated to be like a state. But the court said it could be incorporated once Congress determined we could be part of the American family. Granted American citizenship in 1917, are we not part of the American family? In addition, after 124 years, we have more than the requirements established in the Northwest Ordinance of 1791, necessary for territories to become states (see Consejo de Salud Playa de Ponce by J. Gelpi – 2008).

Finally, in the case of US v PR Police Department, the U.S. Department of Justice (DOJ) argued that the Equal Protection Clause applies in Puerto Rico to guarantee our civil rights, and including those of Dominican ancestry. (U.S. Constitution Amendment XIX). Can the DOJ support the equal protection clause in one case and simultaneously use the territorial clause to deny us equal treatment in another case? Ignorance, discrimination, or a combination of both? Of course NOT, but that is exactly how the U.S. DOJ has been litigating for cases related to Puerto Rico.

Similarly, the Supreme Court, with the exception of Associate Justice Sonia Sotomayor, who dissented in Vaello with a brilliant opinion. Ironically, the former director of the DOJ’s Civil Rights Division who litigated the case of the Police Dept. -- Tom Perez, the son of Dominican immigrants -- was later the chairman of the National Democratic Party.

Consider also that the state of the law in the territories, within the context of the U.S. Constitution, is not the same. Puerto Rico is the only incorporated de facto territory, the only one with the minimum population geographically required to vote in federal elections, and the only one with its own Constitution as states have.

The judicial opinion of the Supreme Court in Vaello may not be as important for those with no social or Christian values. It also may be funny for some politicians in Puerto Rico. Ironically, for those who don’t dare to identify themselves as supporting independence while not daring to renounce American citizenship.

In the meantime, the Supreme Court in Washington, D.C. continues to switch the U.S. Constitution “on and off” at will for cases related to Puerto Rico, with flagrant disregard of our American citizenship rights. Notwithstanding the windmills the U.S. Supreme Court justices, or the U.S. attorney general, see in the path to disposing of cases from Puerto Rico, there is no reason in the unreason (M. Cervantes, “Don Quixote”). We will prevail.

Gregorio Igartúa is an attorney with a practice in San Juan.

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