Pretty much all of the most racist Supreme Court precedent I’m familiar with that’s still law—key modifier being “still”—concerns Puerto Rico. There’s the turn-of-the-century set, the Insular Cases, which gave Congress carte blanche to keep Puerto Rico as an unincorporated territory indefinitely. Granted, it’s debatable whether the justices intended that outcome or Congress just took advantage of the court’s failure to insert a sunset provision, which would have specified when the arrangement had to end in either statehood or independence.
Then there’s the 1978, 1980 duo of Califano v. Torres and Harris v. Rosario. By then the justices had recognized that overt racism might not be their best look, so the court issued per curiam opinions, from the court rather than individuals.
Never heard of them?
Those two cases addressed challenges to the federal policy of shortchanging Puerto Rico residents with respect to Aid to Families with Dependent Children and Supplemental Security Income. The Supreme Court decided once, then again that Congress only had to have a “rational basis” for doing so. In this legal context, a rational basis, of course, is any reasoning that a court can imagine a legislature rationally thinks holds up. It’s a very, very low standard.
In 1978, the “rational basis” arguments for discriminating against Puerto Rico were that its residents didn’t contribute enough to the Treasury, that it was too expensive to include Puerto Rico in federal programs, and that “inclusion … might seriously disrupt the Puerto Rican economy.”
Re-read that last reason. Then consider the 1980 clarification: “[G]reater benefits could disrupt the Puerto Rican economy.” The Supreme Court of the United States accepted a racist generalization about the propensity of Puerto Ricans to work and provide for their families as a rational basis for denying them the same federal benefits as stateside Americans.
The Trump administration—specifically, Secretary of Health and Human Services Alex Azar—is now attempting to use that same reasoning to defend against a new version of this challenge to a status quo that never should have been established. Filed April 13, the complaint—brought by Sixta Glays Peña Martínez—challenges Puerto Rico’s exclusion from SSI and Supplemental Nutrition Assistance Program (SNAP) benefits as well as Medicare Part D Low-Income Subsidies under the Equal Protection Clause.
The Department of Justice’s motion to dismiss, filed June 25, leans explicitly, and heavily, on the explicitly racist precedent set by the court 40 years ago. They’re not as explicit in adopting racist reasoning, but they’ve incorporated it by citing these cases—and quoting the portions that specifically uphold that rationale for discrimination against Puerto Rico.
Under Trump, the federal government’s not just still saying that it’s too expensive to uphold the Constitution when it comes to Puerto Rico—that’s not a real legal defense with respect to states, by the way—but actively repeating rhetoric that suggests racism is a rational basis for denying Puerto Rico critical federal benefits in a situation of dire need.