De Jure Separate and Unequal Treatment of the People of Puerto Rico and the U.S. Territories

By Natalie Gomez-Velez
April 1, 2023

Current efforts to dismantle systemic racism in the United States are often met with the argument that legally sanctioned inequality is a thing of the past.  Yet despite progress toward formal legal equality, racism and discrimination in the United States exist not only as the effects of past laws and systems—they exist presently in current laws and systems as well.  Current U.S. law discriminates against U.S. territories and their residents with respect to citizenship status, voting rights and representation, and equal access to benefits, among other things.

This Essay examines such separate and unequal treatment using the recent case, United States v. Vaello Madero, as a springboard.  Vaello Madero shows how an elderly, disabled U.S. citizen receiving benefits from the Supplemental Security Income program can lose access to those crucial federal benefits (or have them clawed back) simply by moving from the U.S. mainland to the U.S. territory of Puerto Rico, pursuant to a federal statute.  It explains how the Supreme Court determined that, under the Territorial Clause of the U.S. Constitution, Congress had a “rational basis” for this arbitrary and discriminatory treatment.

This Essay then explains Vaello Madero as part of a broader pattern in which the Supreme Court permits and exacerbates separate and unequal treatment of U.S. territories and their residents.  The Court’s refusal to overturn the Insular Cases and their “incorporation doctrine” interpretation of the Constitution’s Territorial Clause has resulted in more than a century of harm to Puerto Rico and other U.S. territories.  This Essay provides examples of the arbitrary and absurd treatment of Puerto Rico and other U.S. territories under this doctrine, as well as its devastating impact.

This Essay then notes the Court’s persistent failure to provide necessary redress, as well as the unwillingness or inability of the legislative and executive branches to address the separate and unequal status of the U.S. territories.  These failures are due in large part to political-process problems that result from the U.S. territories’ colonial status.  It concludes by noting the need to educate the broader American public about the denial of equality, sovereignty, and self-determination of the U.S. territories as a means of fostering the political will necessary to end de jure separate and unequal treatment of the U.S. territories.