United States v. Vaello Madero, which the Supreme Court decided on Thursday, is a heartbreaking case. It asks whether many of the poorest and most vulnerable Americans can be cut off by their own government simply because they live in the wrong part of the United States.
But Vaello Madero is also a case about democracy, and whether democratic governments can enact policies that are needlessly cruel. In an 8-1 decision joined by every justice but Justice Sonia Sotomayor, the Court effectively answered that question in the affirmative.
The case involves Jose Luis Vaello Madero, an American citizen who is very poor. After Vaello Madero became seriously ill in 2011, he started receiving benefits under a federal program called Supplemental Security Income (SSI), which provides financial assistance to aged, blind, or disabled individuals who lack the means to support themselves.
About a year after he started receiving benefits, Vaello Madero moved from New York to Puerto Rico so that he could be closer to his family, and the government continued to deposit his SSI benefits into his bank account for a few years after that. In 2016, however, Vaello Madero filed for additional Social Security benefits, and the federal government learned for the first time that he’d relocated to Puerto Rico.
This seemingly innocent decision had terrible consequences for Vaello Madero because, by law, SSI benefits are only available to residents of the 50 states, the District of Columbia, or the Northern Mariana Islands. Puerto Ricans are eligible for a different program, known as Aid to the Aged, Blind, and Disabled (AABD), but the benefits under AABD are far smaller than the benefits available under SSI.
As Sotomayor notes in dissent, far fewer people are eligible for AABD benefits than would receive SSI benefits if SSI were available in Puerto Rico. And “Puerto Rico residents enrolled in AABD in 2021 received an average of $82 per month, compared to the $574 per month that the average SSI recipient received in Fiscal Year 2020.”
Worse, the government didn’t simply cut off Vaello Madero’s SSI benefits. In 2017, it sued him for over $28,000, claiming that he must pay back the SSI benefits he received while living in Puerto Rico.
And yet, in Vaello Madero, every justice but one joined an opinion, by Justice Brett Kavanaugh, holding that Congress could discriminate against Puerto Rican residents when deciding who is eligible for federal benefits.
Under existing law, Vaello Madero was correctly decided. It’s rooted in a longstanding legal rule, known as the “rational basis” test, which provides that courts should typically defer to the policy decisions made by elected branches, especially when those decisions involve economic policy. This rational basis test is one of the most hard fought progressive victories of the Franklin Roosevelt administration, because it ensured that the Supreme Court would stop sabotaging New Deal programs.
But, as Vaello Madero shows, this sort of judicial deference can be a double-edged sword.
Rational basis, briefly explained
The rational basis test was a liberal democratic response to early twentieth century Supreme Court decisions that sabotaged progressive legislation, often relying on highly dubious legal reasoning to do so. In the first third of the twentieth century, the Court struck down federal child labor laws, invalidated minimum wage laws, stripped workers of their right to unionize, and struck down laws prohibiting employers from overworking their employees — among many other things.
After the Court started striking down New Deal programs, Roosevelt went to war with the Court’s conservative majority— at one point threatening to add additional seats to the Supreme Court in order to dilute the conservative justices’ votes. Eventually, conservative Justice Owen Roberts broke with his four most right-wing colleagues and started voting with more liberal justices to dismantle the doctrines the Court had used to strike down things like child labor laws.
The culmination of this turn towards judicial restraint was United States v. Carolene Products (1938), which established that, with some important exceptions, legislation — and especially economic legislation — “is not to be pronounced unconstitutional unless in the light of the facts made known or generally assumed it is of such a character as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators.”
Basically, under this rational basis test, courts will uphold nearly all legislation so long as the government is able to articulate some rational reason why it should exist. Kavanaugh’s opinion in Vaello Madero holds that Congress’s decision not to provide SSI benefits to Puerto Rican residents clears the very low bar set by the rational basis test.
As Kavanaugh notes, “residents of Puerto Rico are typically exempt from most federal income, gift, estate, and excise taxes,” but they do pay “Social Security, Medicare, and unemployment taxes.” Meanwhile, on the benefits side, residents of Puerto Rico are eligible for some federal benefits — including Medicare, Social Security, and unemployment benefits — but not others.
Given that residents of Puerto Rico, as a whole, pay fewer taxes than residents of the mainland, Kavanaugh concludes that it is rational for those same residents to receive fewer benefits.
As a policy matter, this argument isn’t especially convincing. As Sotomayor writes in dissent, SSI is not a program for the territory of Puerto Rico, it is a program for individual Americans. And, because SSI is a program for the poor, “SSI recipients pay few if any taxes at all,” regardless of where they live. If Vaello Madero moved back to New York, it is unlikely that he would pay any federal income taxes, but he would nonetheless be eligible for SSI.
But the rational basis test does not care if a federal policy is actually a good idea — the whole point of this test is to get judges out of the business of second-guessing Congress’s policy choices. And so, if you accept that the New Deal Court was correct to stop sabotaging Roosevelt’s policies, it’s difficult to argue persuasively that the current Court may override Congress’s approach to Puerto Rico.
The Constitution only forbids certain kinds of discrimination
Vaello Madero’s strongest legal argument is that there are exceptions to the rational basis rule. As the Supreme Court held in City of Cleburne v. Cleburne Living Center (1985), one important exception is that the Constitution typically forbids discrimination against groups that have “experienced a `history of purposeful unequal treatment’ or been subjected to unique disabilities on the basis of stereo-typed characteristics not truly indicative of their abilities.”
In their brief, Vaello Madero’s lawyers argue that Puerto Ricans have historically faced such discrimination.
Indeed, if Congress had excluded all people of Puerto Rican descent from receiving SSI benefits, that law would be unconstitutional — discrimination on the basis of race or ethnicity is almost never allowed. But that’s not what this law does. As the government argued in its brief, the Constitution’s anti-discrimination protections have historically been understood to prevent “unequal treatment of classes of persons, not unequal treatment of regions.”
Federal law excludes all people who live in Puerto Rico, regardless of their race or ethnic background. And if someone from Puerto Rico moves to the mainland — as Vaello Madero did when he lived in New York — they are eligible for SSI benefits.
That said, there is at least one very high profile example of the Court forbidding “unequal treatment of regions,” and it occurred in a case that many civil rights advocates view as one of the worst decisions of the modern era.
In Shelby County v. Holder (2013), the Court struck down a provision of the Voting Rights Act which requires states with a history of racist election practices to “preclear” any new election rules with officials in Washington, DC, before those new rules could take effect. The Court’s Republican majority determined in Shelby County that Congress generally cannot treat different states differently.
Shelby County is wrong for many reasons, but one of those reasons is that the Court seemed to abandon the deferential rational basis test in order to strike down a voting rights law. Congress undoubtedly had a rational reason for treating states with a history of Jim Crow-like practices differently than states which have historically respected the right to vote.
Shelby County, and not Vaello Madero, was a departure from the ordinary rule that courts should be reluctant to second-guess Congress’s policy decisions. Again, the decision in Vaello Madero is consistent with decades of Supreme Court decisions calling for judicial restraint.
But that restraint becomes a partisan weapon if it is applied selectively. The biggest problem with Vaello Madero isn’t its recognition that achieving the broad goal of allowing democratically elected legislatures to govern sometimes means upholding unjust laws.
The problem is that, if the Court was willing to make an exception to its longstanding rules in order to restrict the right to vote, why wasn’t it willing to do so in order to help impoverished Puerto Ricans?