Puerto Rico's Rights and Statehood

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Brian Lehrer: Brian Lehrer on WNYC. Let me read from a dissenting opinion written by Supreme Court Justice Sonia Sotomayor last Thursday, and see if you can figure out where in the United States she is talking about. Some of you already know. The rest of you, see if you can figure it out. "In my view, there is no rational basis for Congress to treat needy citizens living anywhere in the United States so differently from others. To hold otherwise, as the Court does, is irrational and antithetical to the very nature of the SSI Social Security Program, and the equal protection of citizens guaranteed by the Constitution. I respectfully dissent."

Justice Sotomayor was the lone dissenter in a case in which the court found that residents of Puerto Rico can legally be excluded from Supplemental Security Income Benefits, that's SSI. These are the types of disability benefits, if you don't know, that can be claimed by adults and children from households below certain income thresholds. Now, the ruling was eight to one, not just the usual left-right split.

Writing for the majority, Brett Kavanaugh noted that because Puerto Rico's tax status exempts residents of the island for most federal income, estate, and gift taxes, there's a rational basis for excluding residents of Puerto Rico from benefit programs such as SSI. Though Congress, if it decides, can still extend these benefits to the island and other US territories and possessions. Puerto Rico's governor says the only solution is statehood.

We'll talk about that case and put in and other recent news into the context of Puerto Rico's colonial territorial limbo. There may be action on that in Congress, even this week, at least in a non-binding way. We'll talk about all this with Yarimar Bonilla, Professor of Puerto Rican studies and anthropology at the City University of New York. A monthly columnist at El Nuevo Dia, and incoming director of the Center for Puerto Rican Studies at Hunter College. Professor Bonilla, glad you could come on again. Welcome back to WNYC.

Yarimar Bonilla: Hi, Brian. Thanks for having me.

Brian Lehrer: Listeners, we can take your calls about this recent Supreme Court ruling on SSI benefits in Puerto Rico, or the necessity for statehood or not, as you see it, 212-433-WNYC. Everyone's welcome to call but we especially want to hear from you if you have roots on the island, or even in Puerto Rico right now. 212-433-WNYC, 433-9692. Your question is welcome too for Professor Bonilla, 212-433-9692, or tweet @BrianLehrer.

Background, our listeners, Professor we have been following this, why did this come before the Supreme Court? Were disabled low-income Puerto Ricans getting SSI benefits before and someone wanted them off or how did the Supreme Court case come about?

Yarimar Bonilla: Well, it all started with a 67-year-old, a Puerto Rican-born man Jo Luis Vaello-Madero who was born in Puerto Rico, but was living in New York at a moment in which he suffered a stroke and qualified for SSI. He got the benefit while he was living in New York, and he had the full range of benefits.

He then had to move to Puerto Rico in 2013 to care for his wife, and he continued to receive the benefits as a direct deposit to his account. When the Social Security Administration became aware of his address change, they didn't just lower his payments, to then adjust for the fact that he was in Puerto Rico, and thus didn't qualify for the full range of benefit, they also sued him for $28,000 claiming that that's what he owed the government in excess benefits that he had received.

Brian Lehrer: Wow.

Yarimar Bonilla: Yes, it's crazy that they would spend the time and resources to sue an elderly disabled gentleman right over this. [crosstalk] Then he turned around and sued the US government for discrimination, and he was the one who brought, because of his case, the whole question of whether it's constitutional for Puerto Ricans to not have the same rights as those who reside in the 50 states. That's when it then came to a public debate, and he won in the district court.

The district court found that there was no rational basis for the exclusion, but then the US government, under the Trump administration, appealed that decision, and they took it to the Supreme Court. President Biden had said that he would remove the appeal if he won the election, but he didn't do that. It did go on to the Supreme Court, and the Supreme Court then ruled in favor of the US government.

Brian Lehrer: Oh, that's an underreported fact in the story. Biden had the power to withdraw the US government from this suit, and let the gentleman receive his SSI benefits, but he kept it going?

Yarimar Bonilla: Biden, if he withdrew the appeal, then the gentleman wouldn't have to pay the $28,000. That wouldn't mean that all Puerto Ricans would then be able to have the same level of support, but the gentleman would not have been liable for this, and then it would not have gone to the Supreme Court.

Brian Lehrer: I see. Now, this was an eight-to-one decision on the Supreme Court, which means it wasn't just the usual liberal-conservative split. Sotomayor was the only dissenter. I guess the argument is like, if we believe in no taxation without representation, then maybe no tax-funded benefits without taxation. Why wouldn't that be fair as a principle if you have an opinion?

Yarimar Bonilla: Well, Sonia Sotomayor argued that Puerto Ricans do pay as much taxes as any other state in the union, they pay federal payroll taxes, which is what allows them to qualify for programs such as Medicare and Social Security, but she also pointed out that SSI benefits they're not given to Puerto Rico as a place, as a territory, but to individuals, and also individuals who are extremely needy, and who don't pay federal taxes anyway. She felt that it was a cruel and that there was no real rational reason, which is the legal term for excluding them.

Brian Lehrer: Did any of the other more liberal justices issue a consenting opinion? Kavanaugh who we can have our feelings about Kavanaugh, but he wrote the majority opinion. Did Kagan or did Breyer weigh in with a supporting opinion?

Yarimar Bonilla: Well, interesting is conservative Justice Neil Gorsuch who weighed in. What he focused on was not this case, in particular, but the larger legal precedent that allows residents of the territories to be treated differently in regards to any constitutional right, which is the famous insular cases.

Those cases which were written and legalized by the same Supreme Court justices that ruled on Plessy versus Ferguson and allowed for racial segregation in the United States, they ruled on these cases, which are the rules that hold that Puerto Rico and the other territories like Samoa, Guam, the US Virgin Islands, they all belong to the United States, but are not a part of the United States and that the Constitution does not have to apply to the residents of these places, because they are deemed as members of alien races, which, of course, there isn't many others state is--

Brian Lehrer: It says alien races?

Yarimar Bonilla: It says alien races.

Brian Lehrer: Not just the territories are in a different legal status?

Yarimar Bonilla: No. What the law says that what justifies the difference in treatment is the fact that they are alien races. This was a deemed good law as recently as under the Obama administration, where the Obama administration used this law to justify denying certain rights to Samoans. This is still considered good law in 2021.

Brian Lehrer: Where is that? Tell us more about it, because it's so outrageous, and a lot of people would not have heard it previously. You're calling as insular cases is the category, and where is it written that people in US territories, not the 50 states or DC, can be excluded because they're from alien races? Where's that written?

Yarimar Bonilla: It's a series of Supreme Court decisions that were ruled upon at the time when the United States started acquiring its territories because people forget that the US has colonies engaged in colonization, and it acquired all these territories, Puerto Rico, the Philippines, et cetera, and then once they had those territories, these legal decisions had to be made of the Constitution follow the flag. Anywhere that the US planted its flag, did they have to grab all constitutional rights to the residents of those places? The Supreme Court justices of the time decided that no, that the Constitution did not follow the flag, and that there could be  places that were acquired without the idea of them being incorporated into the nation because, until then, any territories that the United States acquired like Texas, Oklahoma, Arizona, they were imagined to be on the path to statehood. They would eventually be incorporated as states.

These other territories were deemed as different because their residents were too culturally and racially distinct, according to the justices of the time, to ever be fully integrated into the US.

Brian Lehrer: Shafiq in Georgia, you're on WNYC with Yarimar Bonilla, Hunter College professor, and other things. Hi, Shafiq. Thanks for calling in.

Shafiq: Good morning. That recent piece of the conversation is ushering exactly what I'm going to speak about, in a sense. With regards to the term alien and alien races, I would take the term alien to be outside of the jurisdiction of. A lot of Taínos or Puerto Ricans consider themselves Taínos or indigenous people of the several islands of the Caribbean.

My concern and question thereof is, why isn't it that the government of Puerto Rico not asserting itself as an indigenous people where it would have the right to self-determination and autonomy, where the United States would treat it just like it may treat some of the other natives here on the continental United States, where they too also receive benefits from the federal government?

If the United States wishes to colonize a place and say to itself, "Well, there's certain specific ethnic people here that are strongly in their culture and strong in their occupation, then well, why should we colonize it? If we are going to colonize it, well, what's going to be the trade-off? What are we doing for them aside from saying it's one of our colonies?" I think the people of Puerto Rico need to stand up as indigenous people, claim their status and force the United States to treat them as how they should be treated instead of, what I feel, is almost second-class citizenship.

Brian Lehrer: Shafiq, thank you very much. Well, that raises the whole question of status and, of course, there are so many ways that Puerto Ricans might prefer the status issues to be resolved, statehood, independence, continued commonwealth status, the model that Shafiq just laid out there. What do you say to him and what new conversation, if any, has this ruling from the Supreme Court last week begun?

Yarimar Bonilla: Well, sadly it's important to reaffirm that race is a social construct and that there is no biological difference between humans of different places. However, that doesn't mean that Puerto Ricans don't have a right to claim sovereignty based on the fact of being a culturally distinct nation. I think that if a claim to sovereignty would be made, it would be made based on the cultural distinctness, particular history and the rights to self-determination that are guaranteed by the United Nations.

Of course, when cases like these comes up, the desire for decolonization, be it through sovereignty, through statehood, through reconstituting the relationship that Puerto Ricans currently have with the United States, that definitely comes to the fore. Immediately after this decision came through, there was a protest in Puerto Rico of people demanding statehood.

This week is a crucial week for the question of decolonization for Puerto Rico because there are currently two bills being considered. One is the Statehood Act, which would lead to a yes-no vote on statehood and the other one is the Puerto Rico Self-Determination Act, which would pave the way for Congress to have a status convention and a referendum on territorial alternatives.

These two bills have really divided Congress. They've divided the Democrats. The Republicans haven't really supported either one. There's been a push to have a consensus bill that combines those two and it'll be decided on this week. If that is passed, it would be the first time ever that there would be an official congressional procedure for attending to the decolonization issue for Puerto Rico.

Brian Lehrer: Well, the question of statehood, I believe, has appeared on the ballot in Puerto Rico at least six times dating back to the late 1960s. The stats that I have are that, on three different occasions, Puerto Ricans voted no in those referendums. In 2012, the results were unclear. Then in 2017 and again in 2020 voters did request statehood. If that's your understanding of the history, if I have those six votes results correct, what's changing over time?

Yarimar Bonilla: Well, I think since the explosion of the debt crisis, it's become-- and there's been a series of Supreme Court rulings, such as the one that occurred last week, that have made it really clear that Puerto Rico is a colony because really from 1952 until recently, Puerto Ricans were told that they had been decolonized, that they were not a colony or even a territory, that they were a commonwealth.

As that commonwealth status has come under scrutiny, repeatedly, we see in the Supreme Court deliberations, that that's just a euphemism for colony and that these racist laws of the insular cases are what continue to govern Puerto Rico's relationship to the United States. There is definitely a growing desire for statehood. There is also a growing questioning of the current status with the United States. There are folks who--

The statehooders, they have a slim majority in these referendum, but they don't have a supermajority. Some have said that that is what is needed for a change as radical as full incorporation into the United States.

A lot of folks feel that, in order to really decide on Puerto Rico's future, we need certain questions answered about the other options and even about statehood itself. What would be the transition if we were incorporated into statehood? Would our standard of living change? Would our access to certain federal programs change, or would we be put into special categories? Would there also be any reparations for the colonial mistreatment that we've had for years and the economic injustices that have been leveled against Puerto Rico for years?

If we were to have a different status, there's a lot of questions about whether US citizenship would extend, whether moving forward if we were in a free association model, would we continue to have citizenship if we were to be independent? Would there be reparations? Would there be a transition? I think a lot of folks, what they want is more clarity on behalf of the United States because people say that Puerto Ricans are unclear on what they want, but the United States is incredibly unclear on what it is willing to give Puerto Rico in any of the different scenarios. It really is ultimately up to the United States.

Brian Lehrer: We're talking about the Supreme Court ruling last week, an eight-to-one ruling that denied supplemental security income benefits to somebody who qualified for them when he was living on the mainland and then got disqualified from them when he moved to Puerto Rico and the larger implications and repercussions of that case, including the least politically existential status questions, statehood, continued commonwealth status, independence with Yarimar Bonilla, professor of Puerto Rican studies at Hunter College and CUNY generally.

This is WNYC FM, HD, and AM New York, WNJT FM 88.1 Trenton, WNJP 88.5 Sussex, WNJY 89.3 Netcong, and WNJO 90.3 Toms River. We are New York and New Jersey public radio and live streaming at wnyc.org. Kenny in the Bronx, you're on WNYC. Hi, Kenny.

Kenny: Hey, Brian. The Bronx and Queens loves you as always. We applaud Justice Sotomayor on being the lone person because she knows what is our history. We have suffered so much. I'm not talking about the hurricane and the economic injustice. I'm talking about all the way down to women being sterilized, cancer clusters from Vieques from years of degradation and bombing, and other things.

Our history doesn't start at 1898 and 1917. We were part of the War of 1812. We had a regiment under the Spanish flag. We've been serving this country, our country, for so many years. For us to be neglected when we have a population larger than other states, when we're discounted from the revenue and the four other territories, it's just a real injustice. A lot of us who want to retire there someday may want to-- worked our lives here on the mainland and may want to retire in Puerto Rico and we can't because of these rules that are archaic. Jones Act, all the things that are-- There's so much going on, injustice, that where  you can't-- We don't know what to do, but I would call for reparations because I think a lot of my people have suffered.

Brian Lehrer: Kenny, thank you very much. Thank you for your call. Dissenting point of view from that from Jim in the South Bronx. You're on WNYC. Hi, Jim.

Jim: Good morning, Brian. Thank you for taking my call. I want to say a couple of things. First of all, I just want to respond to this nonsense about reparations. Anyone that knows anything about colonization knows perfectly well that colonization always costs the taxpayer of a colonial country far more than it's gained. What colonization does is subsidize the profits of certain narrowly defined economic sectors and companies. If you want reparations, get it from the companies, not from the taxpayers, point one. Point two--

Brian Lehrer: We'll get a response to that from Professor Bonnier. Go ahead.

Jim: It's been studied for 100 years. For 100 years, it's been known that colonization costs taxpayers a lot and that the profits go to narrow sectors that profit from. Get it from them, leave this alone. Secondly, I just find it very disturbing that this idea that-- we all want a cake and eat it too.

If you're not paying into the federal coffers to support a certain program, it is a little [unintelligible 00:21:19] why you might think you might have entitlement to benefits from that program. I definitely believe in social welfare. I definitely believe in progressive taxation. I definitely believe in activist government, but we all have to pay. We should pay according to our means, and then what we get out of the programs.

This idea that you should get something that you pay little or less for, that's just very difficult for me to understand. I'd like any response you would have to have to that. I'd be interested in hearing it. Thank you.

Brian Lehrer: Jim, one response, if I understood Professor Bonilla'a earlier answer correctly, is that people in Puerto Rico, while they don't pay most federal income taxes, they do pay the payroll taxes, which are specifically the social security and Medicare taxes. SSI is a branch of social security. Why should that qualify, in this case, in your opinion?

Jim: This is the first time I've heard the details of the case. That is interesting and, definitely, is worth thinking about. My initial reaction is that someone who is paying into the system on the same basis as all the rest of us should get the same basis based on what he or she pays into it. That's what I expect and expect anyone else to do so also. That is a little strange to me.

That does need to be reviewed if that is indeed the case. This idea that the taxpayer of the United States owes something for colonization when the taxpayers pay for everything anyway, that's absurd. Get it from the people who profited from it and it's not the taxpayers.

Brian Lehrer: Jim, thank you for your call. Professor Bonilla.

Yarimar Bonilla: Fascinating reflections. I'm curious how there's this separation between corporations and taxpayers as if corporations shouldn't pay taxes. Maybe that's a place to start. I think the process of reparations is one also of finding accountability and of precisely asking the question, who has benefited from Puerto Rico's relationship to the United States? The government has benefited in some ways. For example, they use the island of Vieques as a military experimental ground for warfare and left Vieques completely contaminated after they left.

That is certainly a side of them in which the government has benefited and should pay back and should clean up the damage that was caused there. It is also important to audit Puerto Rico's debt in order to, again, understand who has benefited from Puerto Rico's relationship to the United States. It's Puerto Rico's relationship to the United States which placed it in the position to incur into so much debt in a way that was managed and for the benefit of Wall Street.

Those are all important things to take into account in terms of people putting in what they take out. That's a larger question of governance, and we live in a society where we've assumed that there is some redistribution. SSI is a perfect example of that, where it is a supplement that goes precisely to the absolute most needy who do need that extra assistance from the state that should be financed by taxpayers, including corporations.

Brian Lehrer: Why don't Puerto Ricans as US citizens have to pay most federal income taxes, different from the payroll taxes and several of the other taxes, since that was the basis of the Supreme Court ruling?

Yarimar Bonilla: Well, there is this idea of no taxation without representation. Part of why Puerto Ricans don't pay more federal taxes is because they're not fully incorporated into the United States. Some politicians that support statehood in Puerto Rico have said that they are willing to pay federal taxes, that this is not something that they necessarily desire. They want their full rights and duties.

However, they note that, because of our economic crisis, we have a disproportionate amount of people under the poverty line who, even if we were a full state with the full tax responsibilities, would not have to pay federal income taxes. The other side of this tax coin is that so many of US citizens, citizens of the 50 states, are moving to Puerto Rico to dodge taxes.

There's a lot of people in Puerto Rico who want to put an end to those loopholes, not just for Puerto Ricans, but also for those moving here. We want the folks moving here to pay taxes, to pay taxes to the federal government and to the local Puerto Rican government. Because the way that it is happening is, like the previous caller said, Puerto Ricans who live in the United States can't retire in Puerto Rico because they'll lose their social security benefits, they'll lose their SSI benefits.

Puerto Ricans in the island, especially those who have special needs, those parents of children with disabilities, et cetera, they're being forced to migrate to be able to get the federal programs that they should have access to here. It is really just wealthy folks from the United States who are then benefiting from these tax loopholes here because they benefit from being outside of this tax benefit system.

Brian Lehrer: Puerto Rico, still in colonial territorial limbo as exemplified in the latest case by the Supreme court ruling last week. We'll see what happens in Congress this week with that consensus bill on status or the procedure toward potentially changing the status that they may pass at least in the house of representatives. We thank Yarimar Bonilla, professor of Puerto Rican studies in anthropology at the City University of New York, a monthly columnist at El Nuevo Día, an incoming director of the Center for Puerto Rican Studies at Hunter College. Always good to have you, professor. Thanks a lot.

Yarimar Bonilla: Thank you.

 

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