It was a busy day at the Supreme Court yesterday. You probably logged on expecting to read about the Cassirer case, and I’ll try to get a post up about it next week. But over time, I have covered some of the First Circuit’s Puerto Rico status cases, so I wanted to comment on US v. Vaello Madero, an 8-1 opinion yesterday by Justice Kavanaugh.

The question in the case was whether under the Equal Protection Clause, Congress had to make Supplemental Security Income benefits available to Puerto Ricans. SSI is. the federal government’s program for low-income senior citizens. The plaintiff, Jose Vaello Madero, prevailed in the First Circuit, but the Supreme Court reversed. The gist of the decision was that under the Territory Clause, which gives Congress the power to make “all needful Rules and Regulations respecting the Territory … belonging to the United States,” Congress has the power to treat territories such as Puerto Rico differently than it treats states, as long as it has a rational basis for doing so. Because Congress taxes Puerto Rico differently than it taxes the states—Puerto Ricans do not pay federal income, gift, estate, or excise tax, for example—it was rational, the Court held, to treat Puerto Rico differently on the other side of the balance sheet.

Justice Gorsuch had an interesting concurrence, in which he sharply criticized the Insular Cases, the early twentieth-century cases that laid the foundation for the current approach to Congressional power over US territories. He rightly pointed out that at the time they were decided, the Insular Cases were the product of a colonialist mindset that would hardly be acceptable today. I think Justice Gorsuch is right as a matter of history, but I think it’s important to note the path to Puerto Rican statehood, which would solve the issue of disparate treatment. For many years, Puerto Rico seemed unable to decide what it wanted for its own political future. In a 2020 plebiscite, a majority voted in favor of statehood, though turnout was not great. A statehood bill has been introduced in Congress. The Republican Party seems to be the problem at this point. In a repeat of our antebellum history, when the parties treated territories seeking statehood as political footballs in the wider dispute between North and South over slavery, the Republicans seem unwilling to allow the bill to advance because Puerto Rico would most likely vote Democratic.

If Congress proves unable to respond to the vote in favor of statehood, then I think Justice Gorsuch’s concurrence will have real bite. Time will tell.