(Slip Opinion) OCTOBER TERM, 2021 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is 

being done in connection with this case, at the time the opinion is issued. 

The syllabus constitutes no part of the opinion of the Court but has been 

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

UNITED STATES v. VAELLO MADERO 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE FIRST CIRCUIT 

No. 20–303. Argued November 9, 2021—Decided April 21, 2022 

The Territory Clause of the United States Constitution—which states 

that Congress may “make all needful Rules and Regulations respecting

the Territory . . . belonging to the United States,” Art. IV, §3, cl. 2—

affords Congress broad authority to legislate with respect to the U. S. 

Territories. In exercising that authority, Congress has long maintained different federal tax and benefits programs for residents of the 

Territories than for residents of the 50 States. For example, residents 

of Puerto Rico are typically exempt from most federal income, gift, estate, and excise taxes. See 48 U. S. C. §734; see, e.g., 26 U. S. C. §§933, 

2209, 4081–4084. But just as not every federal tax extends to residents

of Puerto Rico, so too not every federal benefits program extends to

residents of Puerto Rico. One such benefits program is Supplemental

Security Income (SSI), which by statute applies only to residents of the 

50 States and the District of Columbia. 42 U. S. C. §1382c(a)(1)(B)(i).

The question presented is whether the equal-protection component of

the Fifth Amendment’s Due Process Clause requires Congress to make 

Supplemental Security Income benefits available to residents of 

Puerto Rico to the same extent that Congress makes those benefits

available to residents of the States. 

Here, respondent Jose Luis Vaello Madero received SSI benefits 

while he was a resident of New York. He then moved to Puerto Rico, 

where he was no longer eligible to receive those benefits. Unaware of 

Vaello Madero’s new residence, the Government continued to pay him 

SSI benefits. The Government eventually sued Vaello Madero to recover those errant payments, which totaled more than $28,000. In response, Vaello Madero invoked the Constitution, arguing that Congress’s exclusion of residents of Puerto Rico from the SSI program 

violated the equal-protection component of the Fifth Amendment’s 
 

 

 

2 UNITED STATES v. VAELLO MADERO 

Syllabus 

Due Process Clause. The District Court and the Court of Appeals 

agreed. 

Held: The Constitution does not require Congress to extend SSI benefits

to residents of Puerto Rico. In Califano v. Torres, 435 U. S. 1, and 

Harris v. Rosario, 446 U. S. 651, the Court applied the deferential rational-basis test to uphold Congress’s decision not to extend certain 

federal benefits to Puerto Rico, noting that because Congress chose to

treat residents of Puerto Rico differently from residents of the States

for purposes of tax laws, it could do the same for benefits programs. 

Those two precedents dictate the result here. Congress’s decision to 

exempt Puerto Rico’s residents from most federal income, gift, estate,

and excise taxes supplies a rational basis for likewise distinguishing 

residents of Puerto Rico from residents of the States for purposes of 

the SSI benefits program. Vaello Madero’s contrary position would 

usher in potentially far-reaching consequences, with serious implications for the Puerto Rican people and the Puerto Rican economy. The 

Constitution does not require that extreme outcome. Pp. 4–6. 

956 F. 3d 12, reversed. 

KAVANAUGH, J., delivered the opinion of the Court, in which ROBERTS, 

C. J., and THOMAS, BREYER, ALITO, KAGAN, GORSUCH, and BARRETT, JJ., 

joined. THOMAS, J., and GORSUCH, J., filed concurring opinions. SOTOMAYOR, J., filed a dissenting opinion. 
 

 

 

_________________ 

_________________ 

Cite as: 596 U. S. ____ (2022) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the 

preliminary print of the United States Reports. Readers are requested to 

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that 

corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

No. 20–303 

UNITED STATES, PETITIONER v. 

JOSE LUIS VAELLO MADERO 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE FIRST CIRCUIT 

[April 21, 2022] 

JUSTICE KAVANAUGH delivered the opinion of the Court. 

The United States includes five Territories: American Samoa, Guam, the Northern Mariana Islands, the U. S. Virgin

Islands, and Puerto Rico. This case involves Puerto Rico, 

which became a U. S. Territory in 1898 in the wake of the 

Spanish-American War.

For various historical and policy reasons, including local

autonomy, Congress has not required residents of Puerto 

Rico to pay most federal income, gift, estate, and excise 

taxes. Congress has likewise not extended certain federal 

benefits programs to residents of Puerto Rico. 

The question presented is whether the equal-protection

component of the Fifth Amendment’s Due Process Clause

requires Congress to make Supplemental Security Income

benefits available to residents of Puerto Rico to the same 

extent that Congress makes those benefits available to residents of the States. In light of the text of the Constitution, 

longstanding historical practice, and this Court’s precedents, the answer is no. 
 

 

2 UNITED STATES v. VAELLO MADERO 

Opinion of the Court 

* * * 

The Territory Clause of the Constitution states that Congress may “make all needful Rules and Regulations respecting the Territory . . . belonging to the United States.” Art. 

IV, §3, cl. 2. The text of the Clause affords Congress broad 

authority to legislate with respect to the U. S. Territories. 

 Exercising that authority, Congress sometimes legislates 

differently with respect to the Territories, including Puerto 

Rico, than it does with respect to the States. That 

longstanding congressional practice reflects both national 

and local considerations. In tackling the many facets of territorial governance, Congress must make numerous policy 

judgments that account not only for the needs of the United

States as a whole but also for (among other things) the 

unique histories, economic conditions, social circumstances, 

independent policy views, and relative autonomy of the individual Territories. 

Of relevance here, Congress must decide how to structure

federal taxes and benefits for residents of the Territories. 

In doing so, Congress has long maintained federal tax and 

benefits programs for residents of Puerto Rico and the other

Territories that differ in some respects from the federal tax

and benefits programs for residents of the 50 States.

On the tax side, for example, residents of Puerto Rico are

typically exempt from most federal income, gift, estate, and 

excise taxes. See 39 Stat. 954, as amended, 48 U. S. C. 

§734; see, e.g., 26 U. S. C. §§933, 2209, 4081–4084. At the 

same time, residents of Puerto Rico generally pay Social Security, Medicare, and unemployment taxes. 26 U. S. C. 

§§3121(e), 3306(j). 

On the benefits side, residents of Puerto Rico are eligible 

for Social Security and Medicare. §3121(e); 42 U. S. C. 

§§410(h)–(i), 1301(a)(1). Residents of Puerto Rico are also 

eligible for federal unemployment benefits. 26 U. S. C. 

§3306(j); see also House Committee on Ways and Means, 
Cite as: 596 U. S. ____ (2022) 3 

Opinion of the Court 

Green Book: Background Material and Data on the Programs Within the Jurisdiction of the Committee on Ways 

and Means, App. A (24th ed. 2018).

But just as not every federal tax extends to residents of 

Puerto Rico, so too not every federal benefits program extends to residents of Puerto Rico. One example is the Supplemental Security Income program, which Congress 

passed and President Nixon signed into law in 1972. 86 

Stat. 1465. The Supplemental Security Income program

provides benefits for, among others, those who are age 65

or older and cannot financially support themselves.

To be eligible for Supplemental Security Income, an individual must be a “resident of the United States,” 42 U. S. C. 

§1382c(a)(1)(B)(i), which the statute defines as the 50

States and the District of Columbia, §1382c(e). A later statute included residents of the Northern Mariana Islands in 

the program. Note following 48 U. S. C. §1801; 90 Stat. 268. 

But residents of Puerto Rico are not eligible for Supplemental Security Income. Instead, the Federal Government 

provides supplemental income assistance to covered residents of Puerto Rico through a different benefits program—

one that is funded in part by the Federal Government and 

in part by Puerto Rico. Notes following §§1381−1385. 

The dispute in this case concerns a claim for Supplemental Security Income benefits by a resident of Puerto

Rico named Jose Luis Vaello Madero. In 2013, Vaello 

Madero moved from New York to Puerto Rico. While he 

lived in New York, Vaello Madero received Supplemental

Security Income benefits. After moving to Puerto Rico, 

Vaello Madero no longer was eligible for Supplemental Security Income benefits. Yet for several years, the U. S. Government remained unaware of Vaello Madero’s new residence and continued to pay him benefits. The overpayment 

totaled more than $28,000. 

Seeking to recover those errant payments, the U. S. Government sued Vaello Madero for restitution. In response, 
 

4 UNITED STATES v. VAELLO MADERO 

Opinion of the Court 

Vaello Madero invoked the U. S. Constitution. Vaello 

Madero argued that Congress’s exclusion of residents of 

Puerto Rico from the Supplemental Security Income program violated the equal-protection component of the Fifth

Amendment’s Due Process Clause. 

Vaello Madero’s constitutional argument prevailed in the

District Court and the Court of Appeals, 956 F. 3d 12 (CA1

2020), and we granted certiorari, 592 U. S. ___ (2021). We 

respectfully disagree with those Courts. In our view, this 

Court’s precedents, in addition to the constitutional text

and historical practice discussed above, establish that Congress may distinguish the Territories from the States in tax

and benefits programs such as Supplemental Security Income, so long as Congress has a rational basis for doing so.

In Califano v. Torres, the Court addressed whether Congress’s decision not to extend Supplemental Security Income to Puerto Rico violated the constitutional right to interstate travel. 435 U. S. 1 (1978) (per curiam). Applying

the deferential rational-basis test, the Court upheld Congress’s decision. The Court explained that Congress had 

exempted residents of Puerto Rico from federal taxes. And 

the Court concluded that Congress could likewise treat residents of Puerto Rico differently from residents of the States

in the Supplemental Security Income benefits program. 

Id., at 3–5, and n. 7. 

A few years later, in Harris v. Rosario, the Court again

ruled that Congress’s differential treatment of Puerto Rico

in a federal benefits program did not violate the Constitution—this time, the equal-protection component of the Fifth 

Amendment’s Due Process Clause. 446 U. S. 651 (1980) 

(per curiam). The Court stated that the Territory Clause 

permits Congress to “treat Puerto Rico differently from

States so long as there is a rational basis for its actions.” 

Id., at 651−652. Citing the prior decision in Torres, the 

Court noted that Congress’s tax laws treated residents of 

Puerto Rico differently from residents of the States. And 
Cite as: 596 U. S. ____ (2022) 5 

Opinion of the Court 

the Court concluded that Congress could do the same for 

that benefits program. 446 U. S., at 651–652. 

Those two precedents dictate the result here. The deferential rational-basis test applies. And Puerto Rico’s tax status—in particular, the fact that residents of Puerto Rico are 

typically exempt from most federal income, gift, estate, and 

excise taxes—supplies a rational basis for likewise distinguishing residents of Puerto Rico from residents of the 

States for purposes of the Supplemental Security Income 

benefits program. See Torres, 435 U. S., at 5, n. 7; Rosario, 

446 U. S., at 652. In devising tax and benefits programs, it

is reasonable for Congress to take account of the general 

balance of benefits to and burdens on the residents of 

Puerto Rico. In doing so, Congress need not conduct a dollar-to-dollar comparison of how its tax and benefits programs apply in the States as compared to the Territories, 

either at the individual or collective level. See Torres, 435 

U. S., at 3–5, and n. 7; Rosario, 446 U. S., at 652. Congress

need only have a rational basis for its tax and benefits programs. Congress has satisfied that requirement here.

Moreover, Vaello Madero’s position would usher in potentially far-reaching consequences. For one, Congress would 

presumably need to extend not just Supplemental Security

Income but also many other federal benefits programs to 

residents of the Territories in the same way that those programs cover residents of the States. And if this Court were 

to require identical treatment on the benefits side, residents of the States could presumably insist that federal 

taxes be imposed on residents of Puerto Rico and other Territories in the same way that those taxes are imposed on 

residents of the States. Doing that, however, would inflict

significant new financial burdens on residents of Puerto

Rico, with serious implications for the Puerto Rican people 

and the Puerto Rican economy. The Constitution does not 
 

6 UNITED STATES v. VAELLO MADERO 

Opinion of the Court 

require that extreme outcome.* 

* * * 

The Constitution affords Congress substantial discretion

over how to structure federal tax and benefits programs for 

residents of the Territories. Exercising that discretion, 

Congress may extend Supplemental Security Income benefits to residents of Puerto Rico. Indeed, the Solicitor General has informed the Court that the President supports

such legislation as a matter of policy. But the limited question before this Court is whether, under the Constitution, 

Congress must extend Supplemental Security Income to 

residents of Puerto Rico to the same extent as to residents 

of the States. The answer is no. We therefore reverse the 

judgment of the U. S. Court of Appeals for the First Circuit. 

It is so ordered. 

—————— 

*The Court’s decision today should not be read to imply that Congress

may exclude residents of individual States from benefits programs. Congress has not done so, and that question is not presented in this case. 
 

_________________ 

_________________ 

Cite as: 596 U. S. ____ (2022) 1 

THOMAS, J., concurring 

SUPREME COURT OF THE UNITED STATES 

No. 20–303 

UNITED STATES, PETITIONER v. 

JOSE LUIS VAELLO MADERO 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE FIRST CIRCUIT 

[April 21, 2022]

 JUSTICE THOMAS, concurring. 

I join the opinion of the Court. I write separately to address the premise that the Due Process Clause of the Fifth

Amendment contains an equal protection component whose 

substance is “precisely the same” as the Equal Protection

Clause of the Fourteenth Amendment. Weinberger v. Wiesenfeld, 420 U. S. 636, 638, n. 2 (1975). Although I have

joined the Court in applying this doctrine, see Adarand 

Constructors, Inc. v. Peña, 515 U. S. 200, 213–217 (1995), I 

now doubt whether it comports with the original meaning

of the Constitution. Firmer ground for prohibiting the Federal Government from discriminating on the basis of race,

at least with respect to civil rights, may well be found in the

Fourteenth Amendment’s Citizenship Clause. 

I 

Until the middle of the 20th century, this Court consistently recognized that the Fifth Amendment “contains no 

equal protection clause and it provides no guaranty against 

discriminatory legislation by Congress.” Detroit Bank v. 

United States, 317 U. S. 329, 337 (1943); see also LaBelle 

Iron Works v. United States, 256 U. S. 377, 392 (1921). 

However, the Court did maintain that the Fifth Amendment’s Due Process Clause prohibited “such discriminatory 
 

 

 

 

2 UNITED STATES v. VAELLO MADERO 

THOMAS, J., concurring 

legislation by Congress as amounts to a denial of due process,” i.e., legislation that would fail rational-basis review. 

Hirabayashi v. United States, 320 U. S. 81, 100, 102 (1943). 

In Bolling v. Sharpe, 347 U. S. 497 (1954), the Court began in earnest to fold an “equal protection” guarantee into 

the concept of “due process.” Decided the same day as 

Brown v. Board of Education, 347 U. S. 483 (1954), Bolling

confronted the constitutionality of government-imposed

segregation in the District of Columbia’s public schools. Because any such segregation was attributable to Congress, 

see U. S. Const., Art. I, §8, cl. 17, rather than state action, 

the Equal Protection Clause did not apply. Bolling instead 

read an equal protection principle into the Fifth Amendment’s requirement that “[n]o person shall . . . be deprived

of life, liberty, or property, without due process of law.” See 

347 U. S., at 498–500. 

Bolling’s locating of an equal protection guarantee in the 

Fifth Amendment’s Due Process Clause raises substantial 

questions. First, Bolling’s interpretation seemingly relies 

upon the Lochner-era theory that “unreasonable discrimination” is “a denial of due process of law.” 347 U. S., at 499 

(citing Buchanan v. Warley, 245 U. S. 60 (1917)); see also 

347 U. S., at 500 (“Segregation in public education is not 

reasonably related to any proper governmental objective” 

and therefore “constitutes an arbitrary deprivation of . . . 

liberty”); see Lochner v. New York, 198 U. S. 45 (1905). By

invoking “due process” to hold an allegedly “unreasonable”

or “arbitrary” legislative classification unconstitutional, 

Bolling made clear that it was applying this Court’s “substantive due process” doctrine. See N. Chapman & 

M. McConnell, Due Process as Separation of Powers, 121

Yale L. J. 1672, 1800 (2012) (“[W]hen the Court purports to 

evaluate whether a state’s interest is ‘legitimate’ or a ‘justif[ied]’ interference with a judge-made liberty, the result is 

no different in principle than in other modern substantive 

due process cases”). 
Cite as: 596 U. S. ____ (2022) 3 

THOMAS, J., concurring 

But “[t]he notion that a constitutional provision that 

guarantees only ‘process’ before a person is deprived of life, 

liberty, or property could define the substance of those 

rights strains credulity for even the most casual user of 

words.” McDonald v. Chicago, 561 U. S. 742, 811 (2010) 

(THOMAS, J., concurring in part and concurring in judgment). Rather, “‘considerable historical evidence supports 

the position that “due process of law” was a separation-ofpowers concept designed as a safeguard against unlicensed 

executive action, forbidding only deprivations not authorized by legislation or common law.’” Johnson v. United 

States, 576 U. S. 591, 623 (2015) (THOMAS, J., concurring in

judgment) (quoting D. Currie, The Constitution in the Supreme Court: The First Hundred Years 1789–1888, p. 272 

(1985)); see also In re Winship, 397 U. S. 358, 378–382 

(1970) (Black, J., dissenting). And, to the extent that the 

Due Process Clause restrains the authority of Congress, it

may, at most, prohibit Congress from authorizing the deprivation of a person’s life, liberty, or property without 

providing him the “customary procedures to which freemen

were entitled by the old law of England.” Pacific Mut. Life 

Ins. Co. v. Haslip, 499 U. S. 1, 28 (1991) (Scalia, J., concurring in judgment) (internal quotation marks omitted); see 

also Murray’s Lessee v. Hoboken Land & Improvement Co., 

18 How. 272 (1856). Either way, the Fifth Amendment’s

text and history provide little support for modern substantive due process doctrine.

To be sure, some have argued that “antebellum due process theory commonly included an equality principle” that

circumscribed legislative authority. K. Lash, Enforcing the

Rights of Due Process, 106 Geo. L. J. 1389, 1443 (2018). But 

there is no historical consensus that this kind of substantive due process took hold in antebellum America. See, e.g.,

I. Wurman, The Second Founding 28–35 (2020). And, in 

any event, “the pre-constitutional and Founding-era evidence regarding the meaning of ‘due process of law’ strongly 
 

4 UNITED STATES v. VAELLO MADERO 

THOMAS, J., concurring 

suggests the phrase most likely would have been viewed in 

1791 . . . as guaranteeing either that duly enacted law 

would be followed or that certain requisite procedures

would be observed.” R. Williams, The One and Only Substantive Due Process Clause, 120 Yale L. J. 408, 416 (2010). 

It is not clear why post-1791 developments should displace

more probative preconstitutional and founding-era evidence. See, e.g., S. Calabresi & S. Prakash, The President’s 

Power To Execute the Laws, 104 Yale L. J. 541, 550–551 

(1994) (“[T]he Constitution’s postenactment ‘legislative’

history” is “the history that is least likely to reflect the original understanding”).

Second, Bolling reasoned that the “liberty” protected by

the Due Process Clause covers “the full range of conduct 

which the individual is free to pursue,” 347 U. S., at 499– 

500, and therefore guaranteed freedom from segregated 

schooling. That understanding of “liberty” likely sweeps too

broadly. Given the relevant history, “it is hard to see how 

the ‘liberty’ protected by the [Due Process Clause] could be 

interpreted to include anything broader than freedom from 

physical restraint.” Obergefell v. Hodges, 576 U. S. 644, 725 

(2015) (THOMAS, J., dissenting). And even if “liberty” encompasses more than that, “[i]n the American legal tradition, liberty has long been understood as individual freedom 

from governmental action, not as a right to a particular government entitlement.” Id., at 726; see also C. Green, Seven 

Problems With Antidiscrimination Due Process, 11 Faulkner L. Rev. 1, 32 (2019) (“Even on [a] very expansive view, 

‘liberty’ is still only freedom from interference, rather than 

positive rights to receive benefits or participate in others’ 

activities”). Consequently, if “liberty” in the Due Process 

Clause does not include any rights to public benefits, it is

unclear how that provision can constrain the regulation of 

access to those benefits. 

Third, although the Bolling Court claimed that its decision “d[id] not imply that [due process and equal protection] 
 

 

Cite as: 596 U. S. ____ (2022) 5 

THOMAS, J., concurring 

are always interchangeable phrases,” 347 U. S., at 499, its

logic led this Court to later erase any distinction between 

them. We now maintain that the “equal protection obligations imposed by the Fifth and the Fourteenth Amendments [are] indistinguishable.” Adarand Constructors, 

Inc., 515 U. S., at 217; see also Sessions v. MoralesSantana, 582 U. S. ___, ___, n. 1 (2017) (slip op., at 2, n. 1). 

But if “due process of law” fully subsumed the guarantee of

equal protection, it is unclear why §1 of the Fourteenth 

Amendment would redundantly state both requirements in

consecutive Clauses. See, e.g., G. Maggs, Innovation in 

Constitutional Law, 86 Nw. U. L. Rev. 1038, 1053 (1992) 

(Maggs); R. Natelson, The Constitution and the Public 

Trust, 52 Buffalo L. Rev. 1077, 1174, n. 432 (2004); R. Primus, Bolling Alone, 104 Colum. L. Rev. 975, 976, n. 7 

(2004).

Fourth, Bolling asserted that because the Constitution 

prohibits States from racially segregating public schools, “it 

would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government.” 347 U. S., 

at 500. For one, such moral judgments lie beyond the commission of the federal courts. For another, the assertion is 

debatable at best. “The Constitution contains many limitations that apply only to the states, or only to the federal 

government, and this Court is not free to disregard those 

aspects of the constitutional design.” M. McConnell, Concurring in the Judgment, in What Brown v. Board of Education Should Have Said 166 (J. Balkin ed. 2001)

(McConnell) (footnotes omitted); see also Maggs 1052. Likewise, “the enactors of the Fourteenth Amendment might 

have reasonably believed that [an equal protection] provision was not needed against the federal government” because it “had shown itself to be a much better protector of

the rights of minorities than had the states.” M. Rappaport, 

Originalism and the Colorblind Constitution, 89 Notre 

Dame L. Rev. 71, 90 (2013); see also J. Ely, Democracy and 
 

6 UNITED STATES v. VAELLO MADERO 

THOMAS, J., concurring 

Distrust 33 (1980); McConnell 167; K. Roosevelt, Forget the 

Fundamentals: Fixing Substantive Due Process, 8 U. Pa. J.

Const. L. 983, 997 (2006).

In sum, the text and history of the Fifth Amendment’s

Due Process Clause provide limited support for reading into

that provision an equal protection guarantee. 

II 

Even if the Due Process Clause has no equal protection 

component, the Constitution may still prohibit the Federal 

Government from discriminating on the basis of race, at 

least with respect to civil rights. While my conclusions remain tentative, I think that the textual source of that obligation may reside in the Fourteenth Amendment’s Citizenship Clause. That Clause provides: “All persons born or 

naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the 

State wherein they reside.” Amdt. 14, §1, cl. 1. As I sketch 

out briefly below, considerable historical evidence suggests

that the Citizenship Clause “was adopted against a 

longstanding political and legal tradition that closely associated the status of ‘citizenship’ with the entitlement to legal equality.” R. Williams, Originalism and the Other Desegregation Decision, 99 Va. L. Rev. 493, 501 (2013) 

(Williams); see also A. Amar, Intratextualism, 112 Harv. 

L. Rev. 747, 768–769 (1999). Thus, the Citizenship Clause 

could provide a firmer foundation for Bolling’s result than 

the Fifth Amendment’s Due Process Clause. 

A 

In the years before the Fourteenth Amendment’s adoption, jurists and legislators often connected citizenship with

equality. Namely, the absence or presence of one entailed 

the absence or presence of the other. See Williams 513–515 

(discussing political discourse during the 1820s). By the 
 

Cite as: 596 U. S. ____ (2022) 7 

THOMAS, J., concurring 

late 1850s, the connection was well established. For example, even Chief Justice Taney in Dred Scott v. Sandford, 19 

How. 393 (1857), demonstrated this connection when discussing why, erroneously in my view, free blacks were “not 

intended to be included . . . under the word ‘citizens’ in the 

Constitution,” and therefore could “claim none of the rights

and privileges which that instrument provides for and secures to citizens of the United States.” Id., at 404. According to Taney, free blacks were at the founding “considered 

as a subordinate and inferior class of beings who had been 

subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and

had no rights or privileges but such as those who held power 

and the Government might choose to grant them.” Id., at 

404–405. 

He reached that conclusion after surveying discriminatory state laws and finding it “hardly consistent with the

respect due to these States, to suppose that they regarded

at that time, as fellow-citizens and members of the sovereignty, a class of beings whom they had thus stigmatized 

. . . and upon whom they had impressed such deep and enduring marks of inferiority and degradation.” Id., at 416. 

Under the Comity Clause of Article IV, moreover, States 

could not place “citizens” of the United States “in an inferior 

grade.” Id., at 423. Because it was long assumed that

blacks could be placed in such an “inferior grade,” how then 

could they be citizens? For Taney, then, States’ longstanding and widespread practice of denying free blacks equal 

civil rights conclusively showed that blacks were not “citizens” entitled to various constitutional protections, such as

the right to sue in federal court. 

Senator Stephen Douglas, defending Dred Scott a few 

months later in Springfield, Illinois, expressed the converse

of Taney’s reasoning. He asked his audience, “What is the 

object of making [Dred Scott] a citizen?” and answered, “Of

course to give him the rights, privileges and immunities of 
 

 

 

 

8 UNITED STATES v. VAELLO MADERO 

THOMAS, J., concurring 

a citizen, it being the great fundamental law in our Government, that under the law, citizens are equal in their rights

and privileges.” Kansas—The Mormons—Slavery, in A Political Textbook for 1860, p. 155 (H. Greeley & J. Cleveland 

eds. 1860). Thus, Douglas recognized that the bestowal of 

citizenship ineluctably entailed equal civil rights. Abolitionists agreed, but, unlike Taney and Douglas, reasoned 

that all persons—black or white—born in the United States 

were citizens and therefore entitled to equal civil rights. 

See Williams 515–518.1 

After the Civil War, the Nation again confronted the citizenship status of black Americans. Though they were no

longer slaves in light of the Thirteenth Amendment, the

question remained whether, by virtue of their freedom from 

bondage, these native-born men and women were “citizens.”

Consistent with Taney’s view in Dred Scott, southern governments rejected that free blacks were citizens and consequently enacted “Black Codes” that “restricted freed slaves’ 

rights to make and enforce private contracts, to own and

convey real and personal property, to hold certain jobs, to

seek relief in court, and to participate in common life as ordinary citizens.” J. Harrison, Reconstructing the Privileges

or Immunities Clause, 101 Yale L. J. 1385, 1388 (1992). 

—————— 1To be sure, not all agreed that citizenship entailed civil equality. Justice Curtis, dissenting in Dred Scott v. Sandford, 19 How. 393 (1857),

argued that “citizenship, under the Constitution of the United States, is

not dependent on the possession of any particular political or even of all

civil rights.” Id., at 583; see also United States v. Rhodes, 27 F. Cas. 785, 

790 (No. 16,151) (CC Ky. 1866) (Swayne, J., for the court) (“The fact that

one is a subject or citizen determines nothing as to his rights as such”); 

10 Op. Atty. Gen. 382, 398 (1862) (“I can hardly comprehend the thought

of the absolute incompatibility of degradation and citizenship”); 2

J. Kent, Commentaries on American Law *258, n. b (9th ed. 1858) (“If a 

slave born in the United States be . . . lawfully discharged from bondage,” 

he “becomes thenceforward a citizen” even if he remained subject to

“such disabilities as the laws of the states respectively may deem it expedient to prescribe to free persons of color”). 
Cite as: 596 U. S. ____ (2022) 9 

THOMAS, J., concurring 

In response, Congress enacted the Civil Rights Act of 

1866 to both repudiate Dred Scott and eradicate the Black 

Codes. The 1866 Act contained a citizenship clause similar 

to the Fourteenth Amendment’s: “[A]ll persons born in the 

United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of 

the United States.” Act of Apr. 9, 1866, 14 Stat. 27. The 

provision immediately succeeding that citizenship guarantee clarified that “such citizens, of every race and color”

were entitled to 

“the same right, in every State and Territory in the

United States, to make and enforce contracts, to sue, 

be parties, and give evidence, to inherit, purchase,

lease, sell, hold, and convey real and personal property,

and to full and equal benefit of all laws and proceedings 

for the security of person and property, as is enjoyed by 

white citizens, and shall be subject to like punishment, 

pains, and penalties, and to none other.” Ibid. 

Fleshing out the implications of the citizenship declaration,

this clause suggests that the right to be free of racial discrimination with respect to the enjoyment of certain rights

is a constituent part of citizenship.

Moreover, as Congress debated the 1866 Act, “the view

that the status of citizenship conferred upon its recipients

at least some minimal level of equality rights was widely

shared among both supporters and opponents.” Williams 

535. For instance, Representative Samuel Shellabarger argued that “the right of all citizens to be secured in the enjoyment of whatever privileges their citizenship does confer

upon them is in its very nature equal . . . .” Cong. Globe, 

39th Cong., 1st Sess., 1293 (1866). Representative Henry 

Jarvis Raymond, meanwhile, wanted Congress to declare 

that free blacks were citizens, “and thus secure to them 

whatever rights, immunities, privileges, and powers belong

as of right to all citizens of the United States.” Id., at 1266; 
 

 

10 UNITED STATES v. VAELLO MADERO 

THOMAS, J., concurring 

see also ibid. (“[T]he right of citizenship involves everything

else. Make the colored man a citizen of the United States 

and he has every right which you or I have as citizens of the 

United States . . . ”). And after President Johnson’s veto, 

Representative William Lawrence, the 1866 Act’s principal

House sponsor, maintained that “the very nature of citizenship” guaranteed an “equality of civil rights.” Id., at 1836. 

The 1866 Act’s reversal of Dred Scott raised questions 

whether Congress had such authority under the existing 

Constitution. See, e.g., K. Lash, The Fourteenth Amendment and the Privileges and Immunities of American Citizenship 169 (2014). Once incorporated into the Fourteenth

Amendment, the Citizenship Clause “forever closed the 

door on Dred Scott” and “constitutionalized the Civil Rights 

Act of 1866.” Id., at 171. When Senator Jacob Howard 

moved to add the Citizenship Clause, he and others characterized the Clause as largely “declaratory” of existing law, 

including the 1866 Act. Cong. Globe, 39th Cong., 1st Sess.,

at 2890 (remarks of Sen. Howard); see also id., at 2896 (remarks of Sen. Doolittle). Then, as Congress considered the 

Citizenship Clause, Republicans reiterated the same equalcitizenship principle that featured in the debates over the 

1866 Act. Senator John Conness, for instance, remarked 

that the 1866 Act guaranteed that all born in the United 

States “be regarded and treated as citizens of the United 

States, entitled to equal civil rights with other citizens of 

the United States.” Id., at 2891; see also Williams 543–548. 

And during the ratification debates, Republicans continued

to publicly advocate that citizenship and equal civil rights 

were concomitant. See id., at 549–554. 

B 

In the years following the Fourteenth Amendment’s ratification, several Justices also appeared to endorse this understanding of the Citizenship Clause, consistent with

Reconstruction-era discourse. In the Slaughter-House 
 

Cite as: 596 U. S. ____ (2022) 11 

THOMAS, J., concurring 

Cases, 16 Wall. 36 (1873), Justice Bradley’s dissent articulated the equal-citizenship principle: “Citizenship of the 

United States ought to be, and, according to the Constitution, is, a sure and undoubted title to equal rights in any 

and every State in this Union.” Id., at 113. “If a man be 

denied full equality before the law, he is denied one of the 

essential rights of citizenship as a citizen of the United

States.” Ibid.; see also id., at 118 (“Equality before the law 

is undoubtedly one of privileges and immunities of every 

citizen”). Justice Field’s dissent similarly explained that 

the 1866 Act rested “upon the theory that citizens of the 

United States as such were entitled to the rights and privileges enumerated, and that to deny to any such citizen 

equality in these rights and privileges with others, was, to

the extent of the denial, subjecting him to an involuntary

servitude,” i.e., rejecting his status as a citizen. Id., at 91– 

92. 

Three years after the Slaughter-House Cases, Congress

enacted the Civil Rights Act of 1875, prohibiting discrimination in public accommodations. During the congressional 

debates over the 1875 Act, Republicans reiterated the relationship between the status of “citizen” and entitlement to 

equal civil rights. See Williams 565–570; see also C. Green, 

Equal Citizenship, Civil Rights, and the Constitution 164–

202 (2015) (collecting examples). In a virtually unanimous

opinion, this Court held the 1875 Act unconstitutional because discrimination by public accommodations was not

state action Congress could regulate under the Fourteenth

Amendment. See Civil Rights Cases, 109 U. S. 3, 25–26 

(1883). The lone dissenter, Justice John Marshall Harlan, 

focused primarily on citizenship and echoed Republicans’ 

understanding of equal citizenship: “Citizenship in this

country necessarily imports at least equality of civil rights 

among citizens of every race in the same State. It is fundamental in American citizenship that, in respect of such

rights, there shall be no discrimination by the State . . . 
 

12 UNITED STATES v. VAELLO MADERO 

THOMAS, J., concurring 

against any citizen because of his race.” Id., at 48. 

Only five years later, a unanimous Court in Gibson v. 

Mississippi, 162 U. S. 565 (1896), seemingly confirmed Harlan’s understanding of citizenship and the textual source of 

the equal-citizenship guarantee. Writing for the Court,

Justice Harlan declared that “the Constitution of the 

United States, in its present form, forbids, so far as civil and 

political rights are concerned, discrimination by the General 

Government, or by the States, against any citizen because 

of his race. All citizens are equal before the law.” Id., at 

591 (emphasis added).2 The Court’s reference to the Constitution “in its present form” (i.e., in 1896) indicates that

the Court located an equality principle applicable to both

the States and “the General Government” in the Fourteenth 

Amendment, not the Fifth. And because the usual textual 

candidates—the Privileges or Immunities Clause, Due Process Clause, and Equal Protection Clause—apply only to 

“State[s],” it stands to reason that Gibson understood the 

Citizenship Clause to forbid discrimination by the Federal 

Government “so far as civil . . . rights are concerned.” Ibid.3 

—————— 2Although Bolling v. Sharpe, 347 U. S. 497, 499 (1954), recited part of

this quotation, it did not attempt to explain how Gibson’s discussion of 

racial equality among “citizens” implicated the Fifth Amendment’s Due

Process Clause, which applies broadly to all “person[s].” 3This understanding of the Citizenship Clause likely would not render

other parts of the Fourteenth Amendment redundant. First, the Citizenship Clause would not make the Equal Protection Clause redundant because the latter applies to “person[s],” while the Citizenship Clause and 

Privileges or Immunities Clause apply to “citizens.” See McDonald v. 

Chicago, 561 U. S. 742, 850, n. 19 (2010) (THOMAS, J., concurring in part 

and concurring in judgment). Additionally, the Equal Protection Clause

may guarantee equality only with respect to a subset of rights related to

“protection,” while the Citizenship Clause and Privileges or Immunities

Clause implicate a broader set of civil rights. See n. 4, infra. Second, 

this understanding of the Citizenship Clause also likely would not make 

the Privileges or Immunities Clause redundant. In particular, there is 

no evidence suggesting that Republicans disputed the proposition that 

citizens “could [not] be deprived of rights of national citizenship by any 
Cite as: 596 U. S. ____ (2022) 13 

THOMAS, J., concurring 

The same year as Gibson, Justice Harlan also penned his 

dissent in Plessy v. Ferguson, 163 U. S. 537 (1896), in which

the Court upheld a Louisiana law requiring racial segregation on train cars. In asserting that the law was unconstitutional, Harlan did not rely on the Equal Protection

Clause. Instead, he maintained that Louisiana’s law was 

“inconsistent . . . with the equality of rights which pertains

to citizenship, National and State.” Id., at 555. And Harlan’s famous declaration underscores the connection between citizenship and equality: “Our Constitution is colorblind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before 

the law.” Id., at 559 (emphasis added). Given that the 

Equal Protection Clause speaks of “person[s],” rather than

citizens, Harlan’s reasoning in Plessy suggests that citizenship itself carried with it a right to equal treatment independent of the “equal protection of the laws” guaranteed to

all “person[s].”4 

—————— 

governmental entity, whether state or federal, consistent with the Fourteenth Amendment.” R. Barnett & E. Bernick, The Original Meaning of

the Fourteenth Amendment 202 (2021). “All that was constitutionally

disputed among Republicans involved the status of national privileges

and immunities in the states.” Id., at 203. Thus, the Privileges or Immunities Clause may have confirmed that States specifically could not 

abridge the rights of national citizenship, including whatever civil equality is guaranteed to “citizens” under the Citizenship Clause. 4 Justice Harlan’s decision not to rely on the Equal Protection Clause 

also makes some sense in light of that provision’s object—the “Protection 

of the Laws.” It is possible that the Equal Protection Clause does not 

prohibit discriminatory legislative classifications, but, consistent with its

focus on “protection,” instead only “imposes a duty on each state to protect all persons and property within its jurisdiction from violence and to

enforce their rights through the court system.” C. Green, The Original

Sense of the (Equal) Protection Clause: Pre-Enactment History, 19 Geo. 

Mason U. Civ. Rights L. J. 1, 3 (2008); see also C. Green, The Original

Sense of the (Equal) Protection Clause: Subsequent Interpretation and 

Application, 19 Geo. Mason U. Civ. Rights L. J. 219 (2009); J. Harrison,

Reconstructing the Privileges or Immunities Clause, 101 Yale L. J. 1385,

1433–1451 (1992). 
 

 

14 UNITED STATES v. VAELLO MADERO 

THOMAS, J., concurring 

Beyond its emphasis on equal citizenship, Justice Harlan’s Plessy dissent also specifically recognized that the

Federal Government could not engage in racial discrimination. The Fourteenth Amendment, Harlan explained, “gave

citizenship to all born or naturalized in the United States, 

and residing here,” “obliterated the race line from our systems of governments, National and State,” and “placed our 

free institutions upon the broad and sure foundation of the

equality of all men before the law.” Id., at 563 (emphasis 

added). In short, Harlan understood that citizenship and 

equality went hand in hand and that equal citizenship prohibited the Federal Government, as much as the States, 

from discriminating with respect to civil rights. 

While the historical evidence above is by no means conclusive, it offers substantial support for the proposition

that, by conferring citizenship, the Citizenship Clause 

guarantees citizens equal treatment by the Federal Government with respect to civil rights.5 

* * * 

Justice Harlan stated in Plessy that the Fourteenth 

Amendment “added greatly to the dignity and glory of

American citizenship.” Id. at 555. And the “best part of 

—————— 5Adopting this understanding of the Citizenship Clause necessarily 

prompts additional questions. For example, beyond prohibiting racial 

discrimination with respect to civil rights, what other forms of discrimination does the Citizenship Clause proscribe? Is access to government 

benefits a “privilege” or “immunity” of citizenship—i.e., a civil right? See, 

e.g., id., at 1456 (observing that government benefits supported by general taxation might have been understood by the Reconstruction generation as a privilege of citizenship). And, most relevant to Bolling itself, 

is access to public education a “privilege” or “immunity” of citizenship? 

See, e.g., M. McConnell, Originalism and the Desegregation Decisions, 

81 Va. L. Rev. 947, 1023–1043, 1103–1105 (1995) (discussing the historical evidence). 
 

 

Cite as: 596 U. S. ____ (2022) 15 

THOMAS, J., concurring 

citizenship,” according to Charles Sumner, is “equality before the law.” Cong. Globe, 42d Cong., 2d Sess., 384 (1872).6 

The Citizenship Clause’s conferral of the “dignity and glory 

of American citizenship” may well prohibit the Federal Government from denying citizens equality with respect to civil 

rights. Rather than continue to invoke the Fifth Amendment’s Due Process Clause to justify Bolling, in an appropriate case, we should more carefully consider whether this

interpretation of the Citizenship Clause would yield a similar, and more supportable, result. 

—————— 6Sumner continued: “Ceasing to be a slave the former victim has become not only a man, but a citizen, admitted alike within the pale of humanity and within the pale of citizenship. As a man he is entitled to all 

the rights of man, and as a citizen he becomes a member of our common 

household with equality as the prevailing law. . . . Whatever he may have 

been, he is now the same as ourselves. Our rights are his rights; our 

equality is his equality; our privileges and immunities are his great possession.” Cong. Globe, 42d Cong., 2d Sess., 385. 
 

_________________ 

_________________ 

Cite as: 596 U. S. ____ (2022) 1 

GORSUCH, J., concurring 

SUPREME COURT OF THE UNITED STATES 

No. 20–303 

UNITED STATES, PETITIONER v. 

JOSE LUIS VAELLO MADERO 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE FIRST CIRCUIT 

[April 21, 2022] 

JUSTICE GORSUCH, concurring. 

A century ago in the Insular Cases, this Court held that 

the federal government could rule Puerto Rico and other

Territories largely without regard to the Constitution. It is 

past time to acknowledge the gravity of this error and admit 

what we know to be true: The Insular Cases have no foundation in the Constitution and rest instead on racial stereotypes. They deserve no place in our law. 

I 

The Insular Cases were the product of what John Hay

called a “‘splendid little war.’” F. Freidel, The Splendid Little War 3 (1958) (quoting letter from J. Hay to T. Roosevelt).

Ostensibly waged to liberate Cuba and avenge the sinking

of the Maine, the Spanish-American War proved a boon for 

the country’s burgeoning colonial ambitions. See 

J. Cabranes, Citizenship and the American Empire, 127 

U. Pa. L. Rev. 391, 392–395, and nn. 3–4 (1978) (Cabranes);

K. Wenzer, Theodore Roosevelt and the United States Battleship Maine, 9 Fed. Hist. 111, 113–116, 124–128 (2017). 

The aging Spanish empire was in no position to defend its

island possessions, and several fell to American forces in 

quick succession. See G. Lawson & G. Seidman, The Constitution of Empire: Territorial Expansion and American

Legal History 111 (2004) (Lawson & Seidman). Under the 
 

 

2 UNITED STATES v. VAELLO MADERO 

GORSUCH, J., concurring 

ensuing peace treaty signed in 1898, the United States took 

possession of Puerto Rico, Guam, and the Philippines.

Treaty of Paris, Arts. 1–3, Dec. 10, 1898, 30 Stat. 1755–

1756. 

But these acquisitions, hard on the heels of the annexation of Hawaii, soon ignited a fierce debate. Some argued

that our republican traditions prevented the United States 

from governing distant possessions as subservient colonies 

without regard to the Constitution. Others sought to devise 

new theories by which Congress could permanently rule the 

country’s new acquisitions as a European power might, unrestrained by domestic law. See Cabranes 395. 

Leading members of the legal academy provided influential support for those in the second camp. Their work culminated in a series of articles in the Harvard Law Review 

in 1899. Christopher Langdell argued that the Bill of 

Rights was “so peculiarly . . . English that an immediate 

and compulsory application of [those rights] to ancient and 

thickly settled Spanish colonies would furnish . . . proof of

our unfitness to govern dependencies, or deal with alien

races.” The Status of Our New Territories, 12 Harv. L. Rev. 

365, 386 (1899). James Bradley Thayer contended that 

“there is no lack of power in our nation . . . to govern these

islands as colonies, substantially as England might govern

them.” Our New Possessions, 12 Harv. L. Rev. 464, 467 

(1899). Abbott Lawrence Lowell submitted that, “apart 

from treaty or legislation, possessions acquired by conquest 

or cession do not become a part of the United States,” and 

“constitutional limitations . . . do not apply.” The Status of 

Our New Possessions: A Third View, 13 Harv. L. Rev. 155, 

176 (1899). Such rules, he said, “are inapplicable except 

among a people whose social and political evolution has

been consonant with our own.” Ibid. 

The debate over American colonialism made its first appearance in this Court in the form of a tax dispute in 

Downes v. Bidwell, 182 U. S. 244 (1901). Pursuant to the 
 

Cite as: 596 U. S. ____ (2022) 3 

GORSUCH, J., concurring 

Foraker Act, Congress erected a civil government in Puerto

Rico and imposed a tax on goods exported to, or imported 

from, the new Territory. See Act of Apr. 12, 1900, ch. 191, 

§§ 2–3, 31 Stat. 77–78. After incurring a $659.35 tax bill, 

an importer challenged the Act as inconsistent with the 

Constitution’s Tax Uniformity Clause, which provides that

“all Duties, Imposts, and Excises shall be uniform throughout the United States.” Art. I, § 8, cl. 1; Downes, 182 U. S., 

at 247, 249. 

To answer the question whether the Act complied with 

the Constitution, the Court resolved that it first had to decide whether the Constitution applied at all in Puerto Rico. 

Ultimately, a fractured set of opinions emerged. Employing

arguments similar to those advanced by Professors Langdell and Thayer, Justice Brown saw things in the starkest 

terms. Applying the Constitution made sense in “contiguous territor[ies] inhabited only by people of the same race,

or by scattered bodies of native Indians.” Id., at 282. But 

it would not do for islands “inhabited by alien races, differing from us in religion, customs, laws, methods of taxation,

and modes of thought.” Id., at 287. There, Justice Brown 

contended, “the administration of government and justice, 

according to Anglo-Saxon principles, may for a time be impossible.” Ibid. On his view, the Constitution should reach 

Puerto Rico only if and when Congress so directed. Id., at 

279. 

Justice White offered a different theory that drew on Professor Lowell’s thinking. See Developments in the Law—

The U. S. Territories, 130 Harv. L. Rev. 1616, 1617–1620 

(2017). To Justice White, the Constitution’s application depended on “the situation of the territory and its relations to

the United States.” Downes, 182 U. S., at 293 (concurring 

opinion). In some cases, Congress might express an intention to “incorporate” a Territory into the United States at a 

future date; in a Territory like that the Constitution must

apply fully and immediately. Id., at 339. But in other 
 

 

4 UNITED STATES v. VAELLO MADERO 

GORSUCH, J., concurring 

cases, Justice White argued, only “fundamental” (if unspecified) aspects of the Constitution should have force. Id., 

at 291. In his judgment, Puerto Rico fell into this second 

category and remained “foreign to the United States” because, unlike Territories in the American West, Congress

had not done enough to indicate its intention to “incorporate” the island. Id., at 341–342. Still, it would be a mistake to overstate the gap between the theories advanced by 

Justice White and Justice Brown. At bottom, both rested 

on a view about the Nation’s “right” to acquire and exploit

“an unknown island, peopled with an uncivilized race . . . 

for commercial and strategic reasons”—a right that “could 

not be practically exercised if the result would be to endow”

full constitutional protections “on those absolutely unfit to

receive [them].” Id., at 306 (White, J., concurring).

In dissent, Chief Justice Fuller expressed astonishment

that Congress could “keep [a Territory], like a disembodied

shade, in an intermediate state of ambiguous existence for 

an indefinite period.” Id., at 372. Justice Harlan criticized 

the Court for “engraft[ing] upon our republican institutions 

a colonial system such as exists under monarchical governments.” Id., at 380. And Justice Harlan dismissed Justice 

White’s supposed middle ground, which he could find nowhere in the Constitution’s terms: “I am constrained to say

that this idea of ‘incorporation’ has some occult meaning 

which my mind does not apprehend.” Id., at 391. 

Later decisions blurred the line between Justice Brown’s 

approach and Justice White’s even further. Eventually, a

majority embraced Justice White’s “incorporation” theory, 

including its suggestion that certain constitutional protections are “fundamental” and therefore apply even in farflung “unincorporated” possessions. Dorr v. United States, 

195 U. S. 138, 148–149 (1904). At the same time, it became 

clear that very few constitutional limits on the power of the

federal government could be relied upon in the newly acquired Territories absent a clear congressional statement. 
Cite as: 596 U. S. ____ (2022) 5 

GORSUCH, J., concurring 

See, e.g., Hawaii v. Mankichi, 190 U. S. 197, 215–216 (1903) 

(opinion of Brown, J.); id., at 218–219 (White, J., concurring); Cf. S. Laughlin, The Burger Court and the United 

States Territories, 36 U. Fla. L. Rev. 755, 773 (1984) 

(“[W]hile Justice White had won the battle over which doctrine should nominally prevail, Justice Brown had won the

war”).

Even the right to trial by jury, the Court concluded, was

not fundamental enough to apply in unincorporated Territories like Puerto Rico. Balzac v. Porto Rico, 258 U. S. 298, 

306, 308–310 (1922). It did not matter to the Court that, by 

the time it reached the question, Congress had already 

granted Puerto Ricans U. S. citizenship. See Act of Mar. 2, 

1917, § 5, 39 Stat. 953. In the Court’s estimation, the “locality [was] determinative of the application of the Constitution, . . . not the status of the people who live in it.” Balzac, 258 U. S., at 309. And, on the Court’s account, Puerto 

Rico’s “localities” included “compact and ancient communities” that had not yet developed the “impartial attitude” or

“conscious duty of participation” required of citizens by the

“Anglo-Saxon” jury trial. Id., at 310. 

II 

The flaws in the Insular Cases are as fundamental as 

they are shameful. Nothing in the Constitution speaks of

“incorporated” and “unincorporated” Territories. Nothing

in it extends to the latter only certain supposedly “fundamental” constitutional guarantees. Nothing in it authorizes judges to engage in the sordid business of segregating

Territories and the people who live in them on the basis of

race, ethnicity, or religion.

The Insular Cases can claim support in academic work of

the period, ugly racial stereotypes, and the theories of social

Darwinists. But they have no home in our Constitution or

its original understanding. In this country, the federal government “deriv[es] its powers directly” from the sovereign 
 

 

6 UNITED STATES v. VAELLO MADERO 

GORSUCH, J., concurring 

people, McCulloch v. Maryland, 4 Wheat. 316, 404–405 

(1819), and is empowered to act only in accord with the 

terms of the written Constitution the people have approved, 

Marbury v. Madison, 1 Cranch 137, 176–177 (1803). Empires and duchies in Europe may have subscribed to the

“doctrine . . . that the people were made for kings, not kings 

for the people.” The Federalist No. 45, p. 289 (C. Rossiter 

ed. 1961) (J. Madison). “Monarchical and despotic governments” may possess the power to act “unrestrained by written constitutions.” Downes, 182 U. S., at 380 (Harlan, J., 

dissenting). But our Nation’s government “has no existence 

except by virtue of the Constitution,” and it may not ignore

that charter in the Territories any more than it may in the

States. Id., at 382. 

The Insular Cases’ departure from the Constitution’s 

original meaning has never been much of a secret. Even 

commentators at the time understood that the notion of territorial incorporation was a thoroughly modern invention.1 

The Insular Cases deviated, too, from this Court’s prior and 

longstanding understanding of the Constitution. In 1898, 

the very same year as the Spanish-American War, a lopsided majority of this Court judged it “beyond question”

that the Constitution’s jury-trial guarantees reached “the 

territories of the United States.” Thompson v. Utah, 170 

U. S. 343, 346–347 (1898) (Harlan, J.). Nearly 80 years before that, the Court held that the Constitution’s Tax Uniformity Clause constrained legislation governing the District of Columbia. Loughborough v. Blake, 5 Wheat. 317, 

319 (1820) (Marshall, C. J.). In between, this Court reached 

—————— 1See C. Littlefield, The Insular Cases, 15 Harv. L. Rev. 169, 169–170 

(1901); F. Coudert, The Evolution of the Doctrine of Territorial Incorporation, 26 Colum. L. Rev. 823, 832 (1926) (Coudert); see also M. Ramsey, 

Originalism and Birthright Citizenship, 109 Geo. L. J. 405, 435 (2020);

Lawson & Seidman 196–197. 
Cite as: 596 U. S. ____ (2022) 7 

GORSUCH, J., concurring 

similar conclusions in case after case.2 

With the passage of time, this Court has come to admit

discomfort with the Insular Cases. See Reid v. Covert, 354 

U. S. 1, 14 (1957) (plurality opinion); Financial Oversight 

and Mgmt. Bd. for Puerto Rico v. Aurelius Investment, LLC, 

590 U. S. ___, ___–___ (2020) (slip op., at 21–22). But instead of confronting their errors directly, this Court has devised a workaround. Employing the specious logic of the

Insular Cases, the Court has proceeded to declare “fundamental”—and thus applicable even to “unincorporated” 

Territories—more and more of the Constitution’s guarantees. See S. Cleveland, Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth Century Origins of Plenary Power Over Foreign Affairs, 81 Texas L. 

Rev. 1, 241–243 (2002) (collecting cases).

That solution is no solution. It leaves the Insular Cases 

on the books. Lower courts continue to feel constrained to 

apply their terms. See, e.g., Fitisemanu v. United States, 1 

F. 4th 862, 873 (CA10 2021); Tuaua v. United States, 788 

F. 3d 300, 306–307 (CADC 2015). And the fictions of the 

Insular Cases on which this workaround depends are just

that. What provision of the Constitution could any judge

rightly declare less than fundamental? On what basis could 

any judge profess the right to draw distinctions between incorporated and unincorporated Territories, terms nowhere 

mentioned in the Constitution and which in the past have

turned on bigotry? There are no good answers to these bad 

questions. 

—————— 2See, e.g., Springville v. Thomas, 166 U. S. 707, 708–709 (1897) (Seventh Amendment jury-unanimity requirement applied in Utah Territory); Wilkerson v. Utah, 99 U. S. 130, 137 (1879) (Eighth Amendment

prohibition on cruel and unusual punishment applied in Utah Territory); 

Reynolds v. United States, 98 U. S. 145, 154, 158, 162 (1879) (Sixth 

Amendment jury-trial and confrontation rights and First Amendment 

free-exercise right applied in Utah Territory); see also Cross v. Harrison, 

16 How. 164, 193, 197–198 (1854) (domestic law, including the Tax Uniformity Clause, applied in California). 
 

8 UNITED STATES v. VAELLO MADERO 

GORSUCH, J., concurring 

This workaround, too, has proven as ineffectual as it is

inappropriate. Perhaps this Court can continue to drain 

the Insular Cases of some of their poison by declaring provision after provision of the Constitution “fundamental” 

and thus operative in “unincorporated” Territories. But 

even one hundred years on, that pitiable job remains unfinished. Still today under this Court’s cases we are asked to 

believe that the right to a trial by jury remains insufficiently “fundamental” to apply to some 3 million U. S. citizens in “unincorporated” Puerto Rico. At the same time, 

the full panoply of constitutional rights apparently applies

on the Palmyra Atoll, an uninhabited patch of land in the

Pacific Ocean, because it represents our Nation’s only remaining “incorporated” Territory.3 It is an implausible and

embarrassing state of affairs.

The case before us only defers a long overdue reckoning. 

Rather than ask the Court to overrule the Insular Cases, 

both sides in this litigation work from the shared premise

that the equal protection guarantee under which Mr. Vaello 

Madero brings his claim is a “fundamental” feature of the 

Constitution and thus applies in “unincorporated” Territories like Puerto Rico. See Tr. of Oral Arg. 10–11; Brief for 

—————— 3The atoll lies approximately 1,000 miles from Hawaii. Palmyra Atoll, 

Dept. of Interior, Office of Insular Affairs (last visited Apr. 19, 2022), 

https://www.doi.gov/oia/islands/palmyraatoll (Palmyra Atoll DOI Overview). When Congress supposedly “incorporated” Hawaii as a Territory, 

it included Palmyra, then a Hawaiian possession. See Act of Apr. 30, 

1900, ch. 339, §§ 2–5, 31 Stat. 141–142; Hawaii v. Mankichi, 190 U. S. 

197, 211 (1903) (Congress “formally incorporated” Hawaii in 1900); 

United States v. Fullard-Leo, 331 U. S. 256, 259 (1947). Ultimately, however, the atoll was not folded into Hawaii on statehood, and it remained 

under federal control. See Act of Mar. 18, 1959, Pub. L. 86–3, § 2, 73

Stat. 4; Act of July 12, 1960, § 48, 74 Stat. 424. So today our bureaucracies endow that Territory alone a capital “T” in their official lists while 

the others, Puerto Rico included, earn only a lowercase “t.” See Palmyra 

Atoll DOI Overview. 
Cite as: 596 U. S. ____ (2022) 9 

GORSUCH, J., concurring 

United States 12. Proceeding on the parties’ shared premise, the Court applies the Constitution and holds that the

conduct challenged here does not offend its terms. All that 

may obviate the necessity of overruling the Insular Cases 

today. But it should not obscure what we know to be true 

about their errors, and in an appropriate case I hope the

Court will soon recognize that the Constitution’s application should never turn on a governmental concession or the 

misguided framework of the Insular Cases. Asked why he

dissented in those cases year after year, Justice Harlan replied that “‘no question can be settled until settled right.’” 

Coudert 842. We should settle this question right. 

To be sure, settling this question right would raise difficult new ones. Cases would no longer turn on the fictions

of the Insular Cases but on the terms of the Constitution 

itself. Disputes are sure to arise about exactly which of its 

individual provisions applies in the Territories and how.

Some of these new questions may prove hard to resolve. 

But at least they would be the right questions. And at least 

courts would employ legally justified tools to answer them, 

including not just the Constitution’s text and its original 

understanding but the Nation’s historical practices (or at

least those uninfected by the Insular Cases). See Fitisemanu, 1 F. 4th, at 883 (Tymkovich, C. J., concurring); see 

also NLRB v. Noel Canning, 573 U. S. 513, 525 (2014); id., 

at 572–574, and n. 1 (Scalia, J., dissenting); W. Baude, Constitutional Liquidation, 71 Stan. L. Rev. 1, 13–21 (2019). 

Nor, in any event, can the difficulty of the task supply an

excuse for neglecting it.4 

—————— 4 In the last few years, some have attempted a revisionist account of 

the Insular Cases. On this view, this Court’s decision to withhold full 

constitutional protection from “unincorporated” Territories (now) serves

the beneficial end of safeguarding traditional cultures. See, e.g., Fitisemanu, 1 F. 4th, at 870. Put aside the amicus briefs from the Governor of 

Puerto Rico, territorial advocacy groups, and the U. S. Virgin Islands expressing vehement disagreement with the Insular Cases. Put aside, too, 
 

10 UNITED STATES v. VAELLO MADERO 

GORSUCH, J., concurring 

* 

Because no party asks us to overrule the Insular Cases to 

resolve today’s dispute, I join the Court’s opinion. But the 

time has come to recognize that the Insular Cases rest on a

rotten foundation. And I hope the day comes soon when the

Court squarely overrules them. We should follow Justice 

Harlan and settle this question right. Our fellow Americans in Puerto Rico deserve no less. 

—————— 

the uncomfortable truth that recent attempts to repurpose the Insular

Cases merely drape the worst of their logic in new garb. At bottom, the 

Constitution’s restraints on federal power do not turn on a court’s unschooled assessment of a Territory’s local customs or contemporary currents in public opinion or academic theory. Our government may not 

deny constitutionally protected individual rights out of (purportedly) benign neglect any more than it may out of animus. 
 

_________________ 

_________________ 

Cite as: 596 U. S. ____ (2022) 1 

SOTOMAYOR, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 20–303 

UNITED STATES, PETITIONER v. 

JOSE LUIS VAELLO MADERO 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE FIRST CIRCUIT 

[April 21, 2022] 

JUSTICE SOTOMAYOR, dissenting. 

The Supplemental Security Income (SSI) program provides a guaranteed minimum income to certain vulnerable

citizens who lack the means to support themselves. If they

meet uniform federal eligibility criteria, recipients are entitled to SSI regardless of their contributions, or their State’s

contributions, to the United States Treasury, which funds

the program. Despite these broad eligibility criteria, today 

the Court holds that Congress’ decision to exclude citizen

residents of Puerto Rico from this important safety-net program is consistent with the Fifth Amendment’s equal protection guarantee. I disagree. 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 program and the equal 

protection of citizens guaranteed by the Constitution. I respectfully dissent. 

I 

Congress’ enactment of the SSI program in 1972 represented a major change in the Federal Government’s relationship with States and Territories in assisting low-income

individuals. Prior to 1972, means-based assistance for people over the age of 64, blind people, or those with disabilities 
 

 

 

 

2 UNITED STATES v. VAELLO MADERO 

SOTOMAYOR, J., dissenting 

came in the form of programs administered and funded by

States and supplemented with matching federal funds. See 

S. Rep. No. 92–1230, pp. 383–384. One of those programs

was known as Aid to the Aged, Blind, and Disabled (AABD).

Under AABD, the States and Territories set their own income and asset limits for individual participation and determined their own benefit amounts. See Brief for Public 

Benefits Scholars as Amici Curiae 27. The Federal Government paid 75% of the benefits and 50% of the administrative costs, subject to a statutory cap on total expenditures.

See Congressional Research Service, W. Morton, Cash Assistance for the Aged, Blind, and Disabled in Puerto Rico 12

(2016).

To provide a uniform, guaranteed minimum income for 

the neediest adults, Congress established the SSI program 

in 1972. In creating the SSI program, Congress “displaced

the States.” Schweiker v. Gray Panthers, 453 U. S. 34, 38 

(1981). Rather than dispensing money through block

grants to the States, SSI provides monthly cash benefits directly to qualifying low-income individuals who are over 65

years old, blind, or disabled. The Federal Government sets 

uniform qualifications for eligibility and fully funds the program through mandatory appropriations from the general 

fund of the United States Treasury. See 42 U. S. C. §1381 

et seq. Unlike AABD benefits, SSI benefits do not vary 

based on the specific State or Territory that a beneficiary is

located in, as long as the beneficiary is otherwise eligible.1 

In sum, SSI created a fully nationalized assistance program

with federal administration, federal determination of eligibility, and financed entirely from federal funds.

When Congress created SSI, it made the program available only to “resident[s] of the United States,” and it defined 

—————— 1The amount of benefits SSI pays to eligible recipients can vary, depending, for instance, on whether the recipient has an “eligible spouse.” 

42 U. S. C. §1382(b). 
 

 

 

Cite as: 596 U. S. ____ (2022) 3 

SOTOMAYOR, J., dissenting 

United States as including “the 50 States and the District

of Columbia.” 42 U. S. C. §§1382c(a)(1)(B)(i), (e). Congress

later extended the SSI program to residents of the Commonwealth of the Northern Mariana Islands. 90 Stat. 263, 

note following 48 U. S. C. §1801. 

Although Puerto Rico is not a State, it has been part of

the United States for well over a century, and people born 

in Puerto Rico are U. S. citizens.2 In other contexts, Congress has made clear that references to the “United States”

include Puerto Rico. See, e.g., 52 U. S. C. §20310(8). In this 

context, however, Congress did not extend the SSI program 

to Puerto Rico and other Territories. Instead, Congress left 

in place the AABD program. See notes following 42 U. S. C. 

§§1381–1385. 

Congress’ decision not to include Puerto Rico in the SSI

program has a significant impact on U. S. citizens in Puerto

Rico. In 2021, 34,224 residents of Puerto Rico were enrolled 

in the AABD program; by contrast, in 2011, the Government Accountability Office estimates that over 300,000

Puerto Rico residents would have qualified for SSI. Brief 

for Hon. Jenniffer A. Gonzalez Colon, Resident Commissioner for Puerto Rico, as Amicus Curiae 28, 34. The 34,224 

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. 

Id., at 29, 33. In other words, significantly fewer Puerto 

Rico residents are eligible for AABD than would be eligible 

for SSI, and the benefits they receive under AABD are

hardly comparable to those they would likely receive under 

SSI. 

—————— 2By the 1898 Treaty of Paris, Spain “cede[d] to the United States the 

Island of Porto Rico.” Treaty of Paris, Art. 2, Dec. 10, 1898, 30 Stat. 1755. 

Through the Jones Act of 1917, anyone born in Puerto Rico on or after 

April 11, 1899, became a United States citizen. Organic Act of Puerto 

Rico, §5, 39 Stat. 953. 
 

 

4 UNITED STATES v. VAELLO MADERO 

SOTOMAYOR, J., dissenting 

II 

Jose Luis Vaello Madero is a U. S. citizen who was born 

in Puerto Rico in 1954. In 1985, he moved to New York, and 

in 2012, while still living in New York, he began receiving 

SSI after suffering from a serious illness. Approximately 

one year later, Vaello Madero moved back to Puerto Rico.

Vaello Madero continued to receive monthly SSI payments

of between $733 and $808 via direct deposit after he returned to Puerto Rico. 

In June 2016, Vaello Madero, approaching his 62d birthday, went to a Social Security Administration office in 

Puerto Rico to apply for Title II Social Security benefits. As 

a result, the Social Security Administration learned that 

Vaello Madero had moved from New York to Puerto Rico, 

and within two months, the Administration reduced his SSI 

benefits to $0, retroactively effective to August 2013. By

letter, the Administration notified Vaello Madero that he 

was “outside of the United States” while he was living in

Puerto Rico. App. 39, 45.

In 2017, the United States filed suit against Vaello 

Madero to recover the $28,081 (plus interest, costs, and attorney’s fees) that it calculated Vaello Madero had illegally 

cashed while he resided in Puerto Rico. As an affirmative 

defense to the suit, Vaello Madero claimed that excluding

U. S. citizens who reside in Puerto Rico from the SSI program violated the equal protection guarantee of the Fifth 

Amendment.3 The United States District Court for the District of Puerto Rico agreed, granting summary judgment to

Vaello Madero. 

The Court of Appeals unanimously affirmed. See 956 

—————— 3The Fifth Amendment’s Due Process Clause prohibits the Government from denying a person the equal protection of laws. See Bolling v. 

Sharpe, 347 U. S. 497, 499 (1954). “‘Equal protection analysis in the 

Fifth Amendment area is the same as that under the Fourteenth Amendment.’ ” Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 224 (1995) 

(quoting Buckley v. Valeo, 424 U. S. 1, 93 (1976) (per curiam)). 
 

Cite as: 596 U. S. ____ (2022) 5 

SOTOMAYOR, J., dissenting 

F. 3d 12 (CA1 2020). The court agreed that rational-basis 

review applied to Vaello Madero’s equal protection claim. 

It found no rational basis to exclude “individuals who meet 

all the eligibility criteria for SSI except for their residency 

in Puerto Rico.” Id., at 18. The court rejected the United

States’ argument that the tax status of Puerto Rico provided a rational basis for the challenged classification, explaining that SSI recipients are, by definition, low-income

individuals who cannot afford to pay taxes. Id., at 27. The 

Court of Appeals also observed that SSI is a “national program” that is operated and administered uniformly, without regard to State of residence. Id., at 25. The court therefore declared invalid the “exclusion of Puerto Rico residents 

from SSI coverage.” Id., at 32. 

The United States petitioned this Court for a writ of certiorari, which we granted. 592 U. S. ___ (2021). 

III 

In general, the Equal Protection Clause guarantees that 

the Government will treat similarly situated individuals in 

a similar manner. Equal protection does not foreclose the 

Government’s ability to classify persons or draw lines when 

creating and applying laws, but it does guarantee that the 

Government cannot base those classifications upon impermissible criteria or use them arbitrarily to burden a particular group of individuals. Where a law treats differently 

two different groups of people that are not members of a 

suspect or quasi-suspect classification, and the classification does not implicate a fundamental right, the law will 

survive an equal protection challenge if it is “rationally related to a legitimate governmental interest.” Department 

of Agriculture v. Moreno, 413 U. S. 528, 533 (1973).

Rational-basis review is a deferential standard, but it is 

not “toothless.” Mathews v. Lucas, 427 U. S. 495, 510 

(1976). Even neutral classifications must “rationally ad-
 

 

 

6 UNITED STATES v. VAELLO MADERO 

SOTOMAYOR, J., dissenting 

vanc[e] a reasonable and identifiable governmental objective.” Schweiker v. Wilson, 450 U. S. 221, 235 (1981). When 

the relationship between a statutory classification and its 

goal is “so attenuated as to render the distinction arbitrary 

or irrational,” that distinction violates equal protection. 

Nordlinger v. Hahn, 505 U. S. 1, 11 (1992). 

Congress’ decision to exclude millions of U. S. citizens 

who reside in Puerto Rico from the SSI program fails even

this deferential test.4 

A 

The United States contends, and the Court accepts, that

Puerto Rico’s “tax status” provides a rational basis for excluding citizens who reside in Puerto Rico from the SSI program. See ante, at 5 (emphasis deleted). As the United 

States argues, “Congress could rationally conclude that a

jurisdiction that makes a reduced contribution to the federal treasury should receive a reduced share of the benefits 

funded by that treasury.” Brief for United States 17–18. 

The Court holds that our prior decisions in Califano v. 

Torres, 435 U. S. 1 (1978) (per curiam), and Harris v. Rosario, 446 U. S. 651 (1980) (per curiam), require acceptance

of this rationale. Ante, at 4–5. It is true that both Califano 

and Harris relied on Puerto Rico’s tax status to justify the 

unequal treatment of its residents. See Califano, 435 U. S., 

—————— 4Because I would hold that this classification does not survive rational 

basis, I do not consider whether the differential treatment of citizens who 

reside in Puerto Rico requires a heightened standard of review, as the 

District Court held. See 356 F. Supp. 3d 208, 214–215 (PR 2019). In 

addition, because the Government disclaims any reliance on the Insular

Cases, Tr. of Oral Arg. 8–9, I do not address those cases in my analysis.

I do agree, however, with JUSTICE GORSUCH’s view that it “is past time to 

acknowledge the gravity” of the error of the Insular Cases. Ante, at 1 

(concurring opinion). Those cases were premised on beliefs both odious

and wrong, and I share the concurrence’s “hope [that] the Court will soon

recognize that the Constitution’s application should never depend on the

government’s concession or the misguided framework of the Insular 

Cases.” Ante, at 9. 
Cite as: 596 U. S. ____ (2022) 7 

SOTOMAYOR, J., dissenting 

at 5, n. 7; Harris, 446 U. S., at 652. Neither case, however, 

stood for the principle that Puerto Rico’s tax status could 

justify any and all unequal treatment of its residents, and 

neither addressed the claims at issue here. Califano resolved a claim under the right to travel, while Harris decided a challenge to the unequal distribution of block grants

to the States and Puerto Rico under a separate benefits program. Those cases do not preclude an equal protection challenge to a uniform, federalized, direct-to-individual poverty 

reduction program like SSI. Moreover, as summary dispositions, Califano and Harris are not “of the same precedential value as would be an opinion of this Court treating the 

question on the merits.” Edelman v. Jordan, 415 U. S. 651, 

671 (1974). And both Califano and Harris rested on the 

mistaken premise that residents of Puerto Rico do not contribute at all to the Federal Treasury. Califano, 435 U. S., 

at 5, n. 7; Harris, 446 U. S., at 652. Here, the United States 

concedes that “residents of Puerto Rico make some contributions to the federal treasury.” Brief for United States 19 

(emphasis deleted).

Moreover, the Court overlooks the fact that SSI establishes a direct relationship between the recipient and the 

Federal Government. The Federal Government develops 

uniform eligibility criteria, recipients apply for assistance

directly to the Federal Government, and the Federal Government disperses funds directly and uniformly to recipients without regard to where they reside. Indeed, when it 

created SSI, Congress replaced existing programs that differed between States as well as between States and Territories and that involved States and Territories in administering the programs. Under the current system, the 

jurisdiction in which an SSI recipient resides has no bearing at all on the purposes or requirements of the SSI program. For this reason alone, it is irrational to tie an individual’s entitlement to SSI to that individual’s place of

residency. 
 

8 UNITED STATES v. VAELLO MADERO 

SOTOMAYOR, J., dissenting 

While it is true that residents of Puerto Rico typically are

exempt from paying some federal taxes,5 that distinction 

does not create a rational basis to distinguish between them

and other SSI recipients. By definition, SSI recipients pay

few if any taxes at all, as the First Circuit correctly recognized below: “[B]y its very terms, only low-income individuals lacking in monetary resources are eligible” for SSI. 956 

F. 3d, at 27. In fact, to qualify for SSI, recipients must have

an income well below the standard deduction for single tax

filers. Ibid. It is “antithetical to the entire premise of the

program” to hold that Congress can exclude citizens who 

can scarcely afford to pay any taxes at all on the basis that 

they do not pay enough taxes. Ibid. 

In some cases, it might be “reasonable for Congress to

take account of the general balance of benefits to and burdens on” citizens when deciding eligibility for benefits. 

Ante, at 5. That is not a rational basis for this classification, 

however, because SSI is a means-tested program of last resort for the poorest Americans who lack the means even to 

pay taxes. Residents of Puerto Rico who would be eligible

for SSI are like SSI recipients in every material respect:

They are needy U. S. citizens living in the United States. 

—————— 5Both the District Court and the Court of Appeals below recognized 

that citizens who reside in Puerto Rico pay several of the same types of 

federal taxes as citizens who reside in a State. See 356 F. Supp. 3d, at 

215, n. 9; 956 F. 3d 12, 24–26 (CA1 2020). The Court of Appeals explained that each year from 1998 to 2006 (when an economic recession 

set in), residents of Puerto Rico contributed in aggregate over $4 billion 

to the Federal Treasury, a sum larger than the contributions by residents 

of Vermont, Wyoming, and several other States. Id., at 24. Even between 2016 and 2018, during the recession and despite several natural 

disasters, residents of Puerto Rico still contributed between $3 and $4 

billion per year to the Treasury. Id., at 24–25. Those contributions came 

in the form of “federal income taxes by residents of Puerto Rico on income 

from sources outside Puerto Rico,” “the regular payment of federal income taxes by all federal employees in Puerto Rico,” and “the full Social

Security, Medicare, and Unemployment Compensation taxes that are 

paid in the rest of the United States.” Id., at 25 (footnote omitted). 
 

Cite as: 596 U. S. ____ (2022) 9 

SOTOMAYOR, J., dissenting 

B 

The Court cautions that holding this classification unconstitutional would “usher in potentially far-reaching consequences,” such as requiring the extension of other federal

programs to citizens who reside in all Territories. Ante, at 

5. It bears noting that tax status did not preclude Congress’ 

extension of SSI to the Northern Mariana Islands, undermining that justification as a rational basis to distinguish 

Puerto Rico from the States. In any event, the Court identifies no federal program other than SSI that operates in

such a uniform, nationalized, and direct manner. For instance, the Supplemental Nutrition Assistance Program is

administered by local governments. See Brief for Public 

Benefits Scholars as Amici Curiae 8–9. That distinction 

alone may justify differential treatment by jurisdiction of

residence. 

In fact, it is the Court’s holding that might have dramatic 

repercussions. If Congress can exclude citizens from safetynet programs on the ground that they reside in jurisdictions 

that do not pay sufficient taxes, Congress could exclude

needy residents of Vermont, Wyoming, South Dakota, 

North Dakota, Montana, and Alaska from benefits programs on the basis that residents of those States pay less 

into the Federal Treasury than residents of other States.6 

Congress has never enacted a uniform, nationalized direct 

assistance program, and then excluded entire States on the

basis that the taxpaying residents of that State do not pay 

sufficient federal taxes. The Court’s holding today suggests

that doing so would be constitutional and not a violation of 

the Constitution’s promise of equal protection of citizens. 

—————— 6The United States concedes that the analysis would be the same if 

Congress excluded residents of a State from the SSI program. Tr. of Oral 

Arg. 6. 
 

10 UNITED STATES v. VAELLO MADERO 

SOTOMAYOR, J., dissenting 

* * * 

SSI is designed to support the neediest citizens. As a program of last resort, it is aimed at preventing the most severe poverty. In view of that core purpose, denying benefits 

to hundreds of thousands of eligible Puerto Rico residents

because they do not pay enough in taxes is utterly irrational. 

Congress’ decision to deny to the U. S. citizens of Puerto

Rico a social safety net that it provides to almost all other 

U. S. citizens is especially cruel given those citizens’ dire

need for aid. Puerto Rico has a disproportionately large 

population of seniors and people with disabilities. See Brief 

for AARP et al. as Amici Curiae 8–10. The Census Bureau 

estimated that in 2019, 43.5% of residents of Puerto Rican 

residents lived below the poverty line—more than triple the 

national percentage of 12.3%. See C. Benson, American 

Community Survey Briefs, Poverty: 2018 and 2019, p. 5 

(Sept. 2020), https://www.census.gov/content/dam/Census/

library/publications/2020/acs/acsbr20-04.pdf.

Equal treatment of citizens should not be left to the vagaries of the political process. Because residents of Puerto 

Rico do not have voting representation in Congress, they

cannot rely on their elected representatives to remedy the 

punishing disparities suffered by citizen residents of Puerto

Rico under Congress’ unequal treatment. 

The Constitution permits Congress to “make all needful 

Rules and Regulations” respecting the Territories. Art. IV, 

§3, cl. 2. That constitutional command does not permit 

Congress to ignore the equally weighty constitutional command that it treat United States citizens equally. I respectfully dissent.