This article originally appeared in USA Today.
By Karl A. Racine and Leevin T. Camacho
What do American citizens living in Puerto Rico, Guam, the U.S. Virgin Islands, the Northern Mariana Islands and American Samoa all have in common? They lack equal access to federal social safety net programs, like Supplemental Security Income and food stamps that lift families and children out of poverty.
By now, you’re thinking that there must be a good explanation for why 3.5 million American citizens – 98% of whom are ethnic minorities – are excluded from these benefits.
The exclusion of the territories – and in some cases Washington, D.C., – from federal assistance is directly linked to racist and discredited theories about colonial governance that remain the law of the land. In the early 1900s, the Supreme Court ruled that new territories coming into the union would not be afforded the same constitutional protections as the states in a series of decisions known as the "Insular Cases."
In the Supreme Court’s own words, the newly acquired island territories were not governed by “Anglo-Saxon principles” and their islands were inhabited by “alien races” and “savages.”
One can brush aside those racist caricatures as historical relics, however, the underlying rationale has tangible impacts today. Americans who live in certain territories are ineligible for Social Security Supplemental Income (SSI), Temporary Assistance for Needy Families (TANF), the Supplemental Nutrition Assistance Program (SNAP) and more. Congress’ haphazard exclusion of the territories from national aid programs is permitted by the Insular Cases, which remain the law of the land.
Righting a wrong
Thankfully, there is a chance to right this wrong. The issue of equal access to federal benefits is coming before the Supreme Court this week in a little-discussed case called United States v. Vaello-Madero. For attorneys general like us – who represent jurisdictions that are denied equal footing as states – the case offers a real opportunity to confront our past and move forward on civil rights and racial justice.
For starters, the exclusion of the territories from these programs exacerbates poverty. To put territory poverty rates into perspective, the national poverty rate hovers around 11.4%. At the state level, the poverty rates of the neediest states – Louisiana and Mississippi – are around 19%, according to the U.S. Census Bureau Dashboard.
However, nearly 23% of Guamanians live in poverty, according to the 2019 Guam Statistical Yearbook. And in Puerto Rico and American Samoa, the poverty rates are 43.5% and nearly 60%, respectively. Clearly, there is a real need for these programs, yet the Americans who need them the most are excluded.
And to make matters worse, there is no discernible pattern to which territories can receive which benefit. For example, the Northern Mariana Islands is the only territory where residents can receive SSI, and it is also the only territory where they are excluded from TANF. The SNAP operates in Guam, but not Puerto Rico, American Samoa or the Northern Mariana Islands.
It’s almost as if Congress drew names out of a hat to determine which territory received which program.
Struggle for justice
Not only is this bad public policy, it also perpetuates corrosive and racist ideas about citizens in the territories. Therefore, it is incumbent on all Americans to not just recognize this – but do something about it. Because justice for Americans in the territories is critical to the struggle for racial justice nationwide.
This is why we co-led an amicus brief in the Vaello case with 16 other state and territory attorneys general arguing that Congress’ discriminatory actions against the territories should be treated with suspicion – the same way courts view actions by Congress that discriminate against certain states. And frankly, all Americans should view this with suspicion – because denying Americans equal constitutional protections does not comport with our fundamental values.
Justice Thurgood Marshall spoke to these values in a 1980 dissenting opinion relating to the Insular Cases when he wrote, “While some early opinions of this Court suggested that various protections of the Constitution do not apply to Puerto Rico, the present validity of those decisions is questionable.”
And now the Supreme Court finally has the chance to do right by our fellow Americans. Because citizens of the territories are just that – citizens of the United States of America.
Therefore, their struggles must be included in the broader fight for racial justice. Not just because of the practical need for federal relief, but also because every American is deserving of equal protection under our laws.
And if Congress will not protect their constitutional rights, then the Supreme Court must do so.
Karl A. Racine is the attorney general for Washington, D.C. Leevin T. Camacho is the attorney general for Guam.