please the court my chief of the united states and i'd like to reserve three minutes for rebuttal yes the district court ignored controlling president to invalidate a federal statute that limits eligibility for supplemental security income benefits in c step yet they are different questions the court noted in colorado that of course congress may treat the territories different than congress treats the states that's what the territories clause provides the insular cases are not relevant because they just answer the question of whether a particular right extends of its own force to the residents of a territory but as  irrelevant because those cases go soley to the question of whether a particular right asserted by an individual here or the defendant extends to that defendant and may be asserted by the defendant there has never been any dispute in this litigation or in any other litigation that the no your honor you know it's possible that the insular cases may have said something of that sort but that principle has been reaffirmed by the supreme court multiple times including most recently in its decision in science by a no your honor all the supreme court know setting aside whatever the insular cases that it is black letter law that under the territories clause congress has constitutional authority to make different rules regarding the governance of the territories than it does with respect to the governance of the  you know that holding you know or you know what the ins loki's is actually stand for which is whether the due process guarantees of the constitution extend to puerto rico neither of those has any bearing on this case the only question in this case is whether applying you ordinary equal protection principles under ordinary rational basis review in the same way that rational basis review would be applied in any of the states or in the district of columbia this statute was rational and  respect to the nd part of your honor's question as to how equal protection operates you know all we're saying is that the way supreme court thinks about you know equal protection challenges to social benefits legislation is the same here in puerto rico as it is in any of the fifty states and the district of columbia the supreme court says social benefits legislation a subject soley to rational basis review and you know there might be some reason to go beyond rational basis review in certain instances but as to those you know none of those factors are present here and moreover we know that equal protection principles you know require a rational basis when you know arguments of the sort that defendant is advancing here are advanced and the reason we know that is you know  despise for some sort of impermissible animus whether racial or otherwise then of course the standard of review would be higher but the problem for a defendant i think for example just to take you know or hypothesis is say you know if it were eight racial classification then of course strict scrutiny would apply if it were you know for example a gender based sex based classification he's a lesser standard would apply but the fact remains that no evidence has been helpful in real survivor of the court confronted a question whether the mann act was constitutional on equal protection ground as applied to individuals in puerto rico the court held that when presented with the following equal protection claim one predicated on the different treatment of conduct a calling occurring only within puerto rico from that occurs within one of the fifty states that supreme court precedent requires applying rational basis review as opposed to heightened scrutiny like oh no  were handed down by the supreme court a very long time ago certainly well your honor the question is not what the supreme court might have said a very long time ago in the insular cases the question when evalu clearly he's saying that the language from those earlier cases which are still on the books which talk about alien races in different cultures and not incorporating them into mainstream deserve to be treated differently and if that is still on the books there is this recognition in act a slot that the that the looking at their citizens of puerto rico it's different court has applied the disparate impact vs discriminatory purpose inquiry requires evidence that is far more substantial than the fact that a very long time ago the supreme court handed down certain decisions and then an entirely separate branch of the united states government namely congress many decades later had a class kishen based on geographic residency and you know one further i think helpful point to emphasize your honor is that  particular classification here really truly is geographical and the reason we know that is because the defendant used to live in new york and while defendant lived in new york defendant was able to receive the s s i benefits in question it wasn't until defendant moved to puerto rico that the benefits or rather that his eligibility for the benefits lapsed and so it can't have anything to do with anything except the source of where the individual is the unique tax status of the residents of puerto rico so then as now the residents of puerto rico did not and still do not pay federal income tax on income earned within puerto rico into the treasury's general fun that doesn't seem like the best reading of what the supreme court held and the reason is because the supreme court's cases don't talk in terms of rational bases plural the supreme court's cases talk only in terms of the rational basis singular and here you know the fact that the supreme court may have had several alternative reasons several alternative bases for up holding the challenge statute does not mean that the government needs to prevail as to every single one of those bases the only question is whether the court can come up anna and the last of that they are you it doesn't your honor and the reason is because under rational basis review the government is not required to draw lines with exact mathematical precision that might be an issue if the standard review supreme court has already held that it is and nd of all in applying rational basis review courts do not look to you know the facts on the ground with the level of detail that your honors are positing in truth you know if you look at california and again in harris your honor the supreme court makes no mention of statistics at all and that's because as the supreme court emphasized in f c c versus beach communications a legislative choice may be based on rational speculation that's unsupported by evidence or empirical data so that's the reason i'm answering your honour's questions in the way that i am you know not because you know i doubt the accuracy of these statistics that your honor is positing but instead because those statistics are not relevant to how the you're referring to department of agriculture versus merino so that he's only underscores why we're right for two reasons st of all merino demonstrates that you know with respect to these ideas of animist perhaps with necessitating a higher standard of the supreme court only underscores that rational basis is appropriate now marino does say that mere cost savings cannot justify treatment under that higher standard of review but that holding has nothing to do with this case which is  under the standard of review that was applied in marino but instead under a rational basis review and in rational basis cost savings are indeed one of the factors that the supreme court relied upon in california and then again in harris and those just to underscore the point your honor are even more true now than they were back then i think the number that california cited was about three hundred million dollars and now the cost of extending the program to puerto rico would be something like one  yes and so you know the supreme court in colophon zero said in the supreme court and harris reaffirmed that that too would supply a rational basis and so if the court were to rely on that rationale with government certainly would have no objection the only reason we're focusing on rationales one dollar and two dollars is because taken individually or indeed collectively they underscore that congress has a tremendous amount of discretion to draw lines when they draw that discretion from the rational because if you look at the supreme court's relevant it is relevant your honor only to demonstrate that congress has the constitutional authority to treat the territories differently and congress can legislate with respect to the states but if i can direct your honor's attention to the supreme court's decision in jefferson versus hackney this is that for a six us five hundred and thirty five in the particular quote i'm about to read it was in my brief yes and so the case holds that so long as its judgments are rational and not invidious the legislature's efforts to tackle the problems of the poor and the needy are not subject to a constitutional straitjacket and jefferson further notes that congress has wide latitude to create classifications that allocate non contractual benefits under a social welfare program so the particular rule that we are asking the court to apply here does not derive from anything that is particular to puerto rico's unique status under the united states constitution it instead derives from very clearly established principles of equal protection but the supreme court has applied in a number of different contexts let me ask you about i want to go back to that geographic distinction you can you should or can limit that just to income tax i'm getting back to judge terrain as you know that this is one geographical location the the assertion is that it sends more money to the general treasury than six dollars others actions so why do we then focus on income tax which we we know the caliph did and we think that the arguments were made that i'm trying to understand i don't understand the question ok your hon that congress would have wanted you know again sketching very generally as it has latitude to do under the jefferson standard right just to say very easily that if there is an income tax exemption an income tax makes up you know a significant chunk of the general fund we can just legislate with respect to whether the income tax percent exception is present or not and maybe you know it may help the court to talk about the other part of the social security act and that's of course the title too so you know that the contrast between the two programs and how they're applied to puerto rico just emphasizes again how you know correct the supreme court's decision was so you know title two is an insurance program and you are eligible for title two benefits if you have paid a certain amount in payroll taxes now in puerto rico of course as i'm sure your honour's know residents of puerto rico must pay these payroll taxes and in consequence congress very rationally said you know we will allow these residents to access title to benefits and i think  that even individual such as defendants still do receive title to benefits those are still disbursed to puerto rico that stands in significant contrast to what congress was doing in the part of the statute that is relevant here the supplemental security income benefits  der title sixteen of the social security act those are not insurance based they don't turn on whether you have paid money in or out as an individual those are just benefits for persons with disabilities who meet certain income and resource thresh and so the fact that you know when there is you know or congress could reasonably think rationally think that there is tighter connection between what the individual is paying in and what the individuals paying out benefits are dispersed but when there is a much looser connection between what the individuals or the residents of a particular territory or place are paying in and water being taken out that maybe those benefits shouldn't extend to the residents of that territory no problem your honor i would like to reserve three minutes for impoverished individuals on the grounds that they reside outside the the united states the government initiated this lawsuit to recover payments made from my client which it claims was improperly paid because mr valma that i was living here in puerto rico individuals are eligible for s s i if they have a qualifying disability making them unable to work have a sufficiently low income and do not live in a us territory in the us argues it is permissible to exclude puerto rico residents from the program because the federal government is given wide latitude when it comes to economic legislation and in any event the exclusion is rational because according to the federal government what rico has a unique tax status but nothing in the s s i program ties the eligibility of benefits to any provision of the internal revenue code and indeed eligibility for the program otherwise entirely excludes consideration of payment of federal tax or history of payment of federal tax mr violet out of all filed for the program after living for many years in new york where residents do pay federal income tax and in any event congress could decide tomorrow that federal income tax should be fully extended to puerto rico and we would still have puerto rico's exclusion from the s s i program on the government's we we believe that color found no specifically addressed the right to travel so under the court's discussion of summary dispositions in in the in the h s s case in which it was confronted with baker the court indicated that the supreme court a summary disposition disposition of the supreme court should be looked at on the precise issues presented and necessarily decided by those actions so that would be  it's early on yes with without prejudice to be able to recommit that's the case in an event a straight of proceeding and yes that was the reason you are correct because we expected that we would be back in federal court on the constitutional issue now disparate treatment of a specific group that has been historically discriminated against should automatically result in heightened scrutiny and here of course we note the obvious that puerto rico's population is ninety nine percent hispanic and has experienced a long history of discrimination and the s s i programs exclusion is targeted at a politically powerless group and discriminatory purpose can be inferred from of the relevant facts including that the law bears more heavily on the historically disadvantaged group under the government's view congress has plenary power over puerto rico period according to the govern the government congress is permitted to include or exclude puerto rico residents from federal programs at its full discretion with only rational basis review and the government of course is relying on california and harris these cases stan cannot stand for the proposition that any disparate treatment of puerto rico or its residents can be subject only to rational basis review if that were the case even disparate treatment clearly based in part on racial would be subject only to rational basis review so long as alternately cast in geographic terms that treatment would also be defensible under the same tax based pretext that the government is advancing here geography cannot simply whitewash discrimination in this way when he goes territorial status cannot circumvent an inquiry into why its residents are treated less favorably than other americans and in any case as  as i indicated there are these cases are not dispositive of the issues here as as i indicated the california case addressed specifically an individual's right to travel and harris addressed a block grant program so neither analyze whether denying individual benefits could survive an equal protection challenge where the exclusion was based on racial animus and political powerlessness excluding puerto rico is not even rationally related to a legitimate government and here this program is meant to assist the most needy not to avoid the most needy depending on where they reside so if we look at the justifications offered by the government st that puerto rico residents do not contribute to the public treasury this constitutional inquiry about the s s i exclusion should not hinge on unrelated provisions of the federal code that can readily be altered and to which the statute itself makes no reference way i've noted it's just false this notion that puerto rico residents do not pay federal taxes they do pay federal tax including import taxes commodity taxes payroll taxes and income tax on money earned outside puerto rico and others and of course residents who derive their income from sources outside the island and who are federal employees including members of the armed forces do pay federal income the thing is that congress did not base the eligibility requirement on payment of tax at all so only tax only the two in this instance the look at what the territorial tax status is is is the only puerto rico is the only jurisdiction in the territories or the only jurisdictions in which that that analysis was done there was no analysis to determine the tax status of any other jurisdiction or whether jurisdictions were not contributors i'm to the general treasury right now i'm trying to figure out if it was rational to do that and try to get some help on you know tell me some cases to read well it could be rational to do that but we think that in this instance because the effect is on a on a group that has been historically discriminated against and a group that is politically powerless we think that and that requires than a more searching inquiry if it but i understand that part of your argument but you're not suggesting that you need me and i'm rational basis  correct you're honest and in fact that's why we say it's entirely false because what rico does contribute to the public treasury separate status specifically on residents of the territory we think that's that's i mean there's a concrete controversy here in which the government is seeking repayment of amounts that were paid i mean to my client that the other thing that i'll note is that significant portions of the of the populations in the states of course do not pay federal income tax so as the tax policy center has noted in two thousand and eighteen over forty four percent of all u s residents pay no federal income taxes so the idea that participation in the program should be dependent on whether neighbors in puerto rico have paid federal income tax versus other jurisdictions again we think is is improper disadvantage towards residents of puerto rico and the government also argues that the cost of including puerto rico would be too great in this argument does not pass a rational basis review because the amount the government has quantif an extra one dollar to one billion eight hundred million dollars in a fifty five billion dollars program would would basically mean an incremental two and three quarter percent an increase of funding to the program in order rico and certainly then doesn't justify the exclusion of a historically disadvantage and politically powerless group if congress were concerned about the cost of the program the solution would be to reduce offered in the past that that including puerto rico might disrupt the puerto rican economy this basis of course cannot seriously be considered and the government doesn't even try considering that puerto rico's economy is disrupted disrupted by his disparate treatment in federal programs and disrupted by federal laws the congress and acts without rico's participation and of course disrupted through the inability of puerto rico residents generally to engage in the political process at the national level the government contends that congress was acting under the territorial clause but what needful rule or regulation was it an act in regarding governance california and harris the supreme court simply assumed that congress was acting under the territorial clause but congress was of course not acting under the territorial clause what it inactive the s s i program it was based on political or suspect classifications that must be addressed here here congress was clearly acting for the nation as a whole when it inactive the program this is a national program intended to deal uniformly with the qualifications for and the provision of aid for people who are disabled or elderly and unable to support themselves to a federal minimum standard the only basis by which the government might arguably maintain that congress has greater power and exercising its article one powers when it comes to the territories is of course the insular cases and the government would have to concede that new york residents could not be excluded from a national program they certainly wouldn't stand for it and they would use the political processes available to them here congress can treat puerto rico residents differently only if there's a reference to the insular cases and that is exactly what power found out and harris apparently hold stating in a footnote that rational basis review is the proper standard based on the insular cases i'll note for the for the record that in torres the puerto rico justice brennan argued that any limits based on the insular cases to the basic rights granted by the constitution were anachronistic in the  so what about today only if the intell of cases are still valid today must the court then resort to a rational basis review of puerto rico's exclusion of the s s i program so we're back again to the fact that puerto rico residents are discre insular minority and politically powerless facially excluding such a group cannot withstand strict heightened scrutiny and if and if found on harris and generally the insula cases you runners i'd like to use the limited time available to address two quick points the st has to do with how best to interpret the holdings in colorado and harris and the nd has to do whether those holdings can be distinguished with respect to the st point  supreme court in both of these decisions made quite clear that the statute is constitutional under the sort of challenge that the defendant has brought we know this because the st question to ask whenever any equal protection claim is brought is what the applicable to  scrutiny is harris as this court explained in rio's rivera very clearly answers that question and that question is rational basis review and so under rational basis review the next step is whether the statute is rational and all that is required is for of the courts to come up with just one basis as to why congress might have wanted to make the classification that it did and colophon no clearly says that there are multiple reasons that are rational and not invidious for why congress may have wanted to do exactly what it did here so applying harrison colophon no compels the conclusion that the statute is challenge is constitutional now the only question that remains is whether the court can ignore those controlling holdings and you know what we heard from the other side was that you know those holdings were ill conceived but that doesn't give the court license to reconsider what the supreme court has already previously held because nothing of relevance has changed with respect to the st rational basis that the supreme court articulated the tax exemption which was although kind of glossed over and harris mentioned directly in california and that in the footnote which does talk about puerto rico unique tax status that tax status remains in effect today and with respect to the nd our friendship so it's talking about that but that's only the nd half of the sentence your honor so if you go to a footnote seven on page i think no weight of the reporter that i have it said isn't yet footnote seven it says st because of the unique tax status of puerto rico its residents do not contribute to the public of the applicable income tax laws that puerto rico you know the residents of puerto rico have to follow and the reason the supreme court didn't do that is because under rational basis review the congress did not need to think about the question at of puerto rico do not contribute in we know that that is patently and why why wouldn't congress be required to dig into it two reasons rise of st again you know we take a different view of what that means we think the fit newt is better understood to refer to the unique income tax status of income earned in puerto rico i take it from your honor's questions if you disagree with that premise there's two things i would say in response to that the st i remains the controlling holding of the united states supreme court and therefore binds this court the nd is we're fir the court back to my discussion of the jefferson case which has to do with the allocation of social benefits legislation and the benefits that you know congress is voluntarily providing and as to that congress does not need to engage in as detailed an inquiry into what taxes may or may not apply to puerto rico you know just go through every page of the income tax code in order to figure out what might or might not apply to partner rico all that is required is for congress to have just a general sense entirely separate from whatever the empirical data show that the particular classification makes sense what's your best authority for that statement the best authority for that statement if you'll bear with me your honor comes from the supreme court's decision in beach communications so at page three hundred and thirteen of point is underscored by how the supreme court has deployed rational basis review in the past if you look at colorado and harris and indeed if you look at this court's decisions applying rational basis review at no point does the court invasion the sort of eviden inquiry that your honour's are asking me about instead the court acknowledging that congress has tremendous latitude when making social welfare decisions simply asks whether congress might have had a rational reason to do so certain constitutional right may be asserted by a particular individual and again i want to underscore that at no point has anybody disputed much less the government that the residents of puerto rico are entitled to invoke the protections of the equal protection guarantees in the united states constitution in exactly the same manner as the residents of the fifty states and of the district of columbia remember this statute doesn't have to do with a terrible yes under center and so if i could just walk through how i would understand the analysis of the guiding decision would be the supreme court's decision in arlington and in arlington the supreme court is officially neutral classification it refers to haarlem now we're going to walk through the arlington heights analysis to see whether we can look beyond the classification that congress made and figure out whether there was something invidious and smoke out  discrimination what we're saying here and what the other side has failed to grapple with is that applying that very same arlington heights framework to the particular statute challenged in this case does not result in the conclusion that the particular which is again facially neutral was motivated by any sort of discriminatory animist as advanced no your honor because the insular cases do not supply the relevant background for the enactments that congress makes