1 (Slip Opinion) OCTOBER TERM, 2021

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 le gislate with respect to the U. S. Territories. In exercising that authority, Congress has long main

tained 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, es

tate, 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 Du e Process Clause requir es Congress to make Supplemental Security Income bene fits 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 eventu ally sued Vaello Madero to re

cover those errant payments, which totaled more than $28,000. In re

sponse, Vaello Madero invoked th e Constitution, arguing that Con

gress’s exclusion of residents of Puerto Rico from the SSI program violated the equal-protection co mponent of the Fifth Amendment’s2 UNITED STATES v. VAELLO MADERO

Syllabus
Due Process Clause. The District Court and the Court of Appeals agreed.
Held : The Constitution does not requir e 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 ra

tional-basis test to uphold Congress’s decision not to extend certain federal benefits to Puerto Rico, no ting 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 re sult 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 implica

tions for the Puerto Rican people an d the Puerto Rican economy. The Constitution does not require that extreme outcome. Pp. 4–6. 956 F. 3d 12, reversed.

K

AVANAUGH , J., delivered the opinion of the Court, in which R OBERTS , C. J., and T HOMAS , B REYER , A LITO , K AGAN , G ORSUCH , and B ARRETT , JJ., joined. T HOMAS , J., and G ORSUCH , J., filed concurring opinions. S O

TOMAYOR , J., filed a dissenting opinion._________________

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

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, Wash

ington, D. C. 20543, of any typographical or other form al 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]

J USTICE K AVANAUGH delivered the opinion of the Court.
The United States includes five Territories: American Sa

moa, 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 inco me, 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 Supp lemental Security Income benefits available to residents of Puerto Rico to the same extent that Congress makes those benefits available to res

idents of the States. In light of the text of the Constitution, longstanding historical practice, and this Court’s prece

dents, the answer is no.2 UNITED STATES v. VAELLO MADERO

Opinion of the Court

* * * The Territory Clause of the Constitution states that Con

gress may “make all needful Rules and Regulations respect

ing the Territory . . . belonging to the United States.” Art. IV, §3, cl. 2. The text of the Clause affords Congress broad authority to legislate with resp ect 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 pra ctice reflects both national and local considerations. In tackling the many facets of ter

ritorial 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 in

dividual Territories. Of relevance here, Congress mu st 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 Se

curity, Medicare, and unemployment taxes. 26 U. S. C. §§3121(e), 3306(j). On the benefits side, resident s 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,3 Cite as: 596 U. S. ____ (2022)

Opinion of the Court Green Book: Background Material and Data on the Pro

grams 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 ex

tends to residents of Puerto Rico. One example is the Sup

plemental 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 Suppleme ntal Security Income, an indi

vidual 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 stat

ute 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 Supple

mental Security Income. Instead, the Federal Government provides supplemental income assistance to covered resi

dents 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 Supple

mental Security Income benefi ts 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 Ma dero received Supplemental Security Income benefits. Af ter moving to Puerto Rico, Vaello Madero no longer was eligible for Supplemental Se

curity Income benefits. Yet fo r several years, the U. S. Gov

ernment remained unaware of Vaello Madero’s new resi

dence and continued to pay him benefits. The overpayment totaled more than $28,000. Seeking to recover those err ant payments, the U. S. Gov

ernment 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 pro

gram 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 Con

gress may distinguish the Territories from the States in tax and benefits programs such as Supplemental Security In

come, so long as Congress has a rational basis for doing so. In Califano v. Torres , the Court addressed whether Con

gress’s decision not to extend Supplemental Security In

come to Puerto Rico violated the constitutional right to in

terstate travel. 435 U. S. 1 (1978) ( per curiam ). Applying the deferential rational-basis test, the Court upheld Con

gress’s decision. The Court explained that Congress had exempted residents of Puerto Rico from federal taxes. And the Court concluded that Cong ress could likewise treat res

idents 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 differentia l treatment of Puerto Rico in a federal benefits program did not violate the Constitu

tion—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 Pu erto 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 ta x laws treated residents of Puerto Rico differently from residents of the States. And5 Cite as: 596 U. S. ____ (2022)

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 defer

ential rational-basis test a pplies. And Puerto Rico’s tax sta

tus—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 distin

guishing 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, Co ngress need not conduct a dol

lar-to-dollar comparison of how its tax and benefits pro

grams 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 pro

grams. Congress has satisfied that requirement here. Moreover, Vaello Madero’s po sition would usher in poten

tially far-reaching consequenc es. 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 pro

grams cover residents of the States. And if this Court were to require identical treatment on the benefits side, resi

dents of the States could presumably insist that federal
taxes be imposed on residents of Puerto Rico and other Ter

ritories 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 not6 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 bene

fits to residents of Puerto Ri co. Indeed, the Solicitor Gen

eral has informed the Court that the President supports such legislation as a matter of policy. But the limited ques

tion before this Court is wh ether, under the Constitution, Congress must extend Supplemental Security Income to residents of Puerto Rico to th e 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 no t be read to imply that Congress may exclude residents of individual St ates from benefits programs. Con

gress has not done so, and that questi on is not presented in this case._________________

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

T HOMAS , 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]

J USTICE T HOMAS , concurring. I join the opinion of the Court. I write separately to ad

dress 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. Wie

senfeld , 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 Fed

eral 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 consist

ently 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 Amend

ment’s Due Process Clause prohibited “such discriminatory2 UNITED STATES v. VAELLO MADERO

T HOMAS , J., concurring legislation by Congress as amounts to a denial of due pro

cess,” 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 be

gan 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 constitutiona lity of government-imposed segregation in the District of Columbia’s public schools. Be

cause 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 Amend

ment’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 discrimi

nation” 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 prop er 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 “sub

stantive 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 ‘jus

tif[ied]’ interference with a judge-made liberty, the result is no different in principle than in other modern substantive due process cases”).3 Cite as: 596 U. S. ____ (2022)

T HOMAS , J., concurring But “[t]he notion that a co nstitutional 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) (T HOMAS , J., concurring in part and concurring in judg

ment). Rather, “ ‘considerable historical evidence supports the position that “due process of law” was a separation-of

powers concept designed as a safeguard against unlicensed executive action, forbidding only deprivations not author

ized by legislation or common law.’ ” Johnson v. United States , 576 U. S. 591, 623 (2015) (T HOMAS , J., concurring in judgment) (quoting D. Currie, The Constitution in the Su

preme 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 dep

rivation 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., concur

ring 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 substan

tive due process doctrine. To be sure, some have argued that “antebellum due pro

cess 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 substan

tive 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 evi

dence regarding the meaning of ‘due process of law’ strongly4 UNITED STATES v. VAELLO MADERO

T HOMAS , 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 Sub

stantive Due Process Clause, 120 Yale L. J. 408, 416 (2010). It is not clear why post-1791 developments should displace more probative preconstitut ional and founding-era evi

dence. 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 orig

inal 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) (T HOMAS , J., dissenting). And even if “liberty” en

compasses more than that, “[i]n the American legal tradi

tion, liberty has long been understood as individual freedom from governmental action, not as a right to a particular gov

ernment entitlement.” Id., at 726; see also C. Green, Seven Problems With Antidiscrimination Due Process, 11 Faulk

ner 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 deci

sion “d[id] not imply that [due process and equal protection]5 Cite as: 596 U. S. ____ (2022)

T HOMAS , 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 obliga

tions imposed by the Fifth and the Fourteenth Amend

ments [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. Pri

mus, 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 im

pose a lesser duty on the Federal Government.” 347 U. S., at 500. For one, such moral judgments lie beyond the com

mission of the federal courts. For another, the assertion is debatable at best. “The Constitution contains many limita

tions 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, Con

curring in the Judgment, in What Brown v. Board of Edu

cation Should Have Said 166 (J. Balkin ed. 2001) (McConnell) (footnotes omitted); see also Maggs 1052. Like

wise, “the enactors of the Fourteenth Amendment might have reasonably believed that [an equal protection] provi

sion was not needed against the federal government” be

cause 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 and6 UNITED STATES v. VAELLO MADERO

T HOMAS , 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 re

main tentative, I think that the textual source of that obli

gation may reside in the Fourteenth Amendment’s Citizen

ship Clause. That Clause provides: “All persons born or naturalized in the United States and subject to the jurisdic

tion 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 asso

ciated the status of ‘citizenship’ with the entitlement to le

gal equality.” R. Williams, Originalism and the Other De

segregation 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 adop

tion, jurists and legislators of ten 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 the7 Cite as: 596 U. S. ____ (2022)

T HOMAS , J., concurring
late 1850s, the connection was well established. For exam

ple, even Chief Justice Taney in Dred Scott v. Sandford , 19 How. 393 (1857), demonstrated this connection when dis

cussing why, erroneously in my view, free blacks were “not intended to be included . . . und er the word ‘citizens’ in the Constitution,” and therefore co uld “claim none of the rights and privileges which that instrument provides for and se

cures to citizens of the United States.” Id., at 404. Accord

ing 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 emanci

pated or not, yet remained s ubject 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 discrimina

tory 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 sover

eignty, a class of beings whom they had thus stigmatized . . . and upon whom they had impressed such deep and en

during 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’ longstand

ing and widespread practice of denying free blacks equal civil rights conclusively showed that blacks were not “citi

zens” 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 of8 UNITED STATES v. VAELLO MADERO

T HOMAS , J., concurring a citizen, it being the great fundamental law in our Govern

ment, that under the law, citizens are equal in their rights and privileges.” Kansas—The Mormons—Slavery, in A Po

litical Textbook for 1860, p. 155 (H. Greeley & J. Cleveland eds. 1860). Thus, Douglas recognized that the bestowal of citizenship ineluctably entailed equal civil rights. Aboli

tionists agreed, but, unlike Taney and Douglas, reasoned that all persons—black or whit e—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 citi

zenship 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 gov

ernments rejected that free blac ks were citizens and conse

quently 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 or

dinary citizens.” J. Harrison, Reconstructing the Privileges or Immunities Clause, 101 Yale L. J. 1385, 1388 (1992).

——————

1 To be sure, not all agreed that citi zenship entailed civil equality. Jus

tice 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 ex

pedient to prescribe to free persons of color”).9 Cite as: 596 U. S. ____ (2022)

T HOMAS , 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, exclud

ing 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 guaran

tee 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 righ t to be free of racial dis

crimination 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 ar

gued that “the right of all citizens to be secured in the en

joyment 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

T HOMAS , 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 citizen

ship” 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 Amend

ment and the Privileges and Immunities of American Citi

zenship 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 Cl ause, he and others charac

terized 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 (re

marks of Sen. Doolittle). Then, as Congress considered theCitizenship 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 citi zenship and equal civil rights were concomitant. See id., at 549–554.

B In the years following the Fourteenth Amendment’s rati

fication, several Justices also appeared to endorse this un

derstanding of the Citizenship Clause, consistent with Reconstruction-era discourse. In the Slaughter-House11 Cite as: 596 U. S. ____ (2022)

T HOMAS , J., concurring

Cases , 16 Wall. 36 (1873), Justice Bradley’s dissent articu

lated the equal-citizenship principle: “Citizenship of the United States ought to be, and, according to the Constitu

tion, 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 di ssent similarly explained that the 1866 Act rested “upon the theory that citizens of the United States as such were en titled to the rights and privi

leges 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 discrimi

nation in public accommodations. During the congressional debates over the 1875 Act, Republicans reiterated the rela

tionship 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 be

cause 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 funda

mental in American citizenship that, in respect of such rights, there shall be no discrimination by the State . . .12 UNITED STATES v. VAELLO MADERO

T HOMAS , 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 Har

lan’s understanding of citizenshi p 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 Con

stitution “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 Pro

cess 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

——————

2 Although 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” im plicated the Fifth Amendment’s Due Process Clause, which applies broadly to all “person[s].”

3 This understanding of the Citizenship Clause likely would not render other parts of the Fourteenth Amendment redundant. First, the Citizen

ship Clause would not make the Equa l Protection Clause redundant be

cause 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) (T HOMAS , J., concurring in part and concurring in judgment). Additi onally, the Equal Pr otection Clause may guarantee equality only with respec t 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 re dundant. In particular, there is no evidence suggesting that Republic ans disputed the proposition that citizens “could [not] be deprived of rights of national citizenship by any13 Cite as: 596 U. S. ____ (2022)

T HOMAS , 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 segrega

tion on train cars. In asserting that the law was unconsti

tutional, 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 Har

lan’s famous declaration underscores the connection be

tween citizenship and equality: “Our Constitution is color

blind, and neither knows nor tolerates classes among citi

zens . 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 citizen

ship itself carried with it a right to equal treatment inde

pendent of the “equal protection of the laws” guaranteed to all “person[s].” 4

—————— governmental entity, whether state or federal, consistent with the Four

teenth Amendment.” R. Barnett & E. Bernick, Th e 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 Im

munities Clause may have confirmed that States specifically could not abridge the rights of national citize nship, including whatever civil equal

ity is guaranteed to “citizens” under the Citizenship Clause.

4 Justice Harlan’s decision not to re ly on the Equal Protection Clause also makes some sense in light of th at provision’s object—the “Protection of the Laws.” It is possible that the Equal Protection Clause does not prohibit discriminatory legislative cla ssifications, but, consistent with its focus on “protection,” instead only “i mposes a duty on each state to pro

tect all persons and proper ty within its jurisdiction from violence and to enforce their rights through the cour t system.” C. Gr een, The Original Sense of the (Equal) Protection Clau se: 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 Clau se: Subsequent Interpretation and Application, 19 Geo. Mason U. Civ. Ri ghts 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

T HOMAS , J., concurring Beyond its emphasis on equal citizenship, Justice Har

lan’s Plessy dissent also specifically recognized that the Federal Government could not engage in racial discrimina

tion. 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 sys

tems 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 pro

hibited the Federal Government, as much as the States, from discriminating with respect to civil rights. While the historical evidence above is by no means con

clusive, it offers substantial support for the proposition that, by conferring citizenship, the Citizenship Clause guarantees citizens equal treatment by the Federal Govern

ment 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

——————

5 Adopting this understanding of th e Citizenship Clause necessarily prompts additional questions. For example, beyond prohibiting racial discrimination with respect to civil rights, what other forms of discrimi

nation 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 gen

eral taxation might have been understood by the Reconstruction gener

ation 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 histor

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

T HOMAS , J., concurring citizenship,” according to C harles Sumner, is “equality be

fore 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 Gov

ernment from denying citizens equality with respect to civil rights. Rather than continue to invoke the Fifth Amend

ment’s Due Process Clause to justify Bolling , in an appro

priate case, we should more carefully consider whether this interpretation of the Citizenship Clause would yield a sim

ilar, and more supportable, result.

——————

6 Sumner continued: “Ceasing to be a slave the former victim has be

come not only a man, but a citizen, admitted alike within the pale of hu

manity and within the pale of citizenshi p. As a man he is entitled to all the rights of man, and as a citize n he becomes a member of our common household with equality as the preva iling law. . . . Whatever he may have been, he is now the same as ourselve s. Our rights are his rights; our equality is his equality; our privilege s and immunities are his great pos

session.” Cong. Globe, 42d Cong., 2d Sess., 385._________________

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

G ORSUCH , 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]

J USTICE G ORSUCH , concurring. A century ago in the Insular Cases, this Court held that the federal government could rule Puerto Rico and other Territories largely with out regard to the Constitution. It is past time to acknowledge the gr avity of this error and admit what we know to be true: The Insular Cases have no foun

dation in the Constitution and rest instead on racial stere

otypes. 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 Lit

tle 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 Bat

tleship 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 Con

stitution of Empire: Territorial Expansion and American Legal History 111 (2004) (Lawson & Seidman). Under the2 UNITED STATES v. VAELLO MADERO

G ORSUCH , 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 annexa

tion 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 Constituti on. Others sought to devise new theories by which Congress could permanently rule the country’s new acquisitions as a European power might, un

restrained by domestic law. See Cabranes 395. Leading members of the legal academy provided influen

tial support for those in the second camp. Their work cul

minated 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 colo nialism made its first ap

pearance in this Court in the form of a tax dispute in Downes v. Bidwell , 182 U. S. 244 (1901). Pursuant to the3 Cite as: 596 U. S. ____ (2022)

G ORSUCH , 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 through

out 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 de

cide whether the Constitution applied at all in Puerto Rico. Ultimately, a fractured set of opinions emerged. Employingarguments similar to those advanced by Professors Langdell and Thayer, Justice Brown saw things in the starkest terms. Applying the Constitution made sense in “contigu

ous 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 “i nhabited by alien races, differ

ing 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 princi ples, may for a time be im

possible.” 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 Pro

fessor 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 de

pended 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 inten

tion 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 other4 UNITED STATES v. VAELLO MADERO

G ORSUCH , J., concurring cases, Justice White argued, only “fundamental” (if unspec

ified) 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” be

cause, unlike Territories in the American West, Congress had not done enough to indicate its intention to “incorpo

rate” the island. Id. , at 341–342. Still, it would be a mis

take to overstate the gap betw een 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 ex ists under monarchical govern

ments.” Id. , at 380. And Justice Harlan dismissed Justice White’s supposed middle ground, which he could find no

where 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 Wh ite’s “incorporation” theory, including its suggestion that certain constitutional protec

tions 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 constitutio nal limits on the power of the federal government could be relied upon in the newly ac

quired Territories absent a clear congressional statement.5 Cite as: 596 U. S. ____ (2022)

G ORSUCH , 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., concur

ring); 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 doc

trine 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 Terri

tories 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. citi zenship. See Act of Mar. 2, 1917, § 5, 39 Stat. 953. In the Court’s estimation, the “lo

cality [was] determinative of the application of the Consti

tution, . . . not the status of the people who live in it.” Bal

zac , 258 U. S., at 309. And, on the Court’s account, Puerto Rico’s “localities” included “compact and ancient communi

ties” 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 “funda

mental” constitutional guarantees. Nothing in it author

izes 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 gov

ernment “deriv[es] its powers directly” from the sovereign6 UNITED STATES v. VAELLO MADERO

G ORSUCH , 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). Em

pires and duchies in Europe may have subscribed to the “doctrine . . . that the people were made for kings, not kings for the people.” The Federalis t No. 45, p. 289 (C. Rossiter ed. 1961) (J. Madison). “Monarchical and despotic govern

ments” may possess the power to act “unrestrained by writ

ten constitutions.” Downes , 182 U. S., at 380 (Harlan, J., dissenting). But our Nation’s government “has no existence except by virtue of the Constitu tion,” 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 ter

ritorial 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 lop

sided 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 be

fore that, the Court held that the Constitution’s Tax Uni

formity Clause constrained le gislation governing the Dis

trict of Columbia. Loughborough v. Blake , 5 Wheat. 317, 319 (1820) (Marshall, C. J.). In between, this Court reached

——————

1 See C. Littlefield, The Insular Cases, 15 Harv. L. Rev. 169, 169–170 (1901); F. Coudert, The Evolution of the Doctrine of Territorial Incorpo

ration, 26 Colum. L. Rev. 823, 832 (1926) (Coudert); see also M. Ramsey, Originalism and Birthright Citizenshi p, 109 Geo. L. J. 405, 435 (2020); Lawson & Seidman 196–197.7 Cite as: 596 U. S. ____ (2022)

G ORSUCH , 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 in

stead of confronting their errors directly, this Court has de

vised a workaround. Employing the specious logic of the Insular Cases, the Court has proceeded to declare “funda

mental”—and thus applicable even to “unincorporated” Territories—more and more of the Constitution’s guaran

tees. See S. Cleveland, Powers Inherent in Sovereignty: In

dians, Aliens, Territories, and the Nineteenth Century Or

igins 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 in

corporated and unincorporate d 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.

——————

2 See, e.g. , Springville v. Thomas , 166 U. S. 707, 708–709 (1897) (Sev

enth Amendment jury-unanimity re quirement applied in Utah Terri

tory); Wilkerson v. Utah , 99 U. S. 130, 137 (1879) (Eighth Amendment prohibition on cruel and unusual puni shment 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 Uni

formity Clause, applied in California).8 UNITED STATES v. VAELLO MADERO

G ORSUCH , 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 pro

vision after provision of the Constitution “fundamental” and thus operative in “unincor porated” Territories. But even one hundred years on, that pitiable job remains unfin

ished. Still today under this Court’s cases we are asked to believe that the right to a trial by jury remains insuffi

ciently “fundamental” to apply to some 3 million U. S. citi

zens in “unincorporated” Pue rto Rico. At the same time, the full panoply of constitutio nal rights apparently applies on the Palmyra Atoll, an uninhabited patch of land in the Pacific Ocean, because it repr esents our Nation’s only re

maining “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” Territo

ries like Puerto Rico. See Tr. of Oral Arg. 10–11; Brief for

——————

3 The 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/palmyr aatoll (Palmyra Atoll DOI Over

view). When Congress supposedly “inc orporated” Hawaii as a Territory, it included Palmyra, then a Hawaiia n 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, how

ever, the atoll was not folded into Hawaii on statehood, and it remained under federal control. See Act of Ma r. 18, 1959, Pub. L. 86–3, § 2, 73 Stat. 4; Act of July 12, 1960, § 48, 74 Stat. 424. So today our bureaucra

cies endow that Territory alone a capi tal “T” in their official lists while the others, Puerto Rico included, earn only a lowercase “t.” See Palmyra Atoll DOI Overview.9 Cite as: 596 U. S. ____ (2022)

G ORSUCH , J., concurring United States 12. Proceeding on the parties’ shared prem

ise, 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 applica

tion should never turn on a go vernmental concession or the misguided framework of the Insular Cases. Asked why he dissented in those cases year after year, Justice Harlan re

plied 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 diffi

cult 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 Fitise

manu , 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, Con

stitutional 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 “uninc orporated” Territories (now) serves the beneficial end of safeguardi ng traditional cultures. See, e.g. , Fitise

manu , 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 ex

pressing vehement disagreement with th e Insular Cases. Put aside, too,10 UNITED STATES v. VAELLO MADERO

G ORSUCH , 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 Ameri

cans 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 un

schooled assessment of a Territory’ s local customs or contemporary cur

rents in public opinion or academic theory. Our government may not deny constitutionally protected individual rights out of (purportedly) be

nign neglect any more than it may out of animus._________________

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

S OTOMAYOR , 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]

J USTICE S OTOMAYOR , dissenting. The Supplemental Security Income (SSI) program pro

vides a guaranteed minimum income to certain vulnerable citizens who lack the means to support themselves. If they meet uniform federal eligibility criteria, recipients are enti

tled 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 pro

gram is consistent with the Fifth Amendment’s equal pro

tection guarantee. I disagree. In my view, there is no ra

tional 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 anti

thetical to the very nature of the SSI program and the equal protection of citizens guaranteed by the Constitution. I re

spectfully dissent.

I Congress’ enactment of the SSI program in 1972 repre

sented a major change in the Federal Government’s rela

tionship with States and Territories in assisting low-income individuals. Prior to 1972, means-based assistance for peo

ple over the age of 64, blind p eople, or those with disabilities2 UNITED STATES v. VAELLO MADERO

S OTOMAYOR , 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 in

come and asset limits for indi vidual participation and de

termined their own benefit amounts. See Brief for Public Benefits Scholars as Amici Curiae 27. The Federal Govern

ment paid 75% of the benefits and 50% of the administra

tive costs, subject to a statutory cap on total expenditures. See Congressional Research Service, W. Morton, Cash As

sistance 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 di

rectly 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 pro

gram 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, fe deral determination of eligi

bility, and financed entirely from federal funds. When Congress created SSI, it made the program availa

ble only to “resident[s] of the United States,” and it defined

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1 The amount of benefits SSI pays to eligible recipients can vary, de

pending, for instance, on whether the recipient has an “eligible spouse.” 42 U. S. C. §1382(b).3 Cite as: 596 U. S. ____ (2022)

S OTOMAYOR , 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 Com

monwealth 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, Con

gress has made clear that refe rences to the “United States” include Puerto Rico. See, e.g., 52 U. S. C. §20310(8). In this context, however, Congress di d not extend the SSI program to Puerto Rico and other Territo ries. Instead, Congress left in place the AABD program. See notes following 42 U. S. C. §§1381–1385. Congress’ decision not to in clude 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 Govern

ment Accountability Office estimates that over 300,000 Puerto Rico residents would have qualified for SSI. Brief for Hon. Jenniffer A. Gonzalez Colon, Resident Commis

sioner 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 fo r 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.

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2 By 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

S OTOMAYOR , 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 re

turned to Puerto Rico. In June 2016, Vaello Madero, approaching his 62d birth

day, went to a Social Securi ty 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 noti fied 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 at

torney’s fees) that it calculat ed 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 pro

gram violated the equal protection guarantee of the Fifth Amendment. 3 The United States District Court for the Dis

trict of Puerto Rico agreed, granting summary judgment to Vaello Madero. The Court of Appeals unanimously affirmed. See 956

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3 The Fifth Amendment’s Due Proce ss Clause prohibits the Govern

ment 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 Amend

ment.’ ” Adarand Constructors, Inc. v. Peña , 515 U. S. 200, 224 (1995) (quoting Buckley v. Valeo , 424 U. S. 1, 93 (1976) ( per curiam )).5 Cite as: 596 U. S. ____ (2022)

S OTOMAYOR , 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 pro

vided a rational basis for the challenged classification, ex

plaining 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 pro

gram” that is operated and administered uniformly, with

out regard to State of residence. Id., at 25. The court there

fore declared invalid the “exclu sion of Puerto Rico residents from SSI coverage.” Id., at 32. The United States petitioned this Court for a writ of cer

tiorari, which we granted. 592 U. S. ___ (2021).

III In general, the Equal Protection Clause guarantees that the Government will treat simila rly 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 imper

missible criteria or use them arbitrarily to burden a partic

ular 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 classifica

tion does not implicate a fundamental right, the law will survive an equal protection challe nge if it is “rationally re

lated to a legitimate go vernmental 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

S OTOMAYOR , J., dissenting vanc[e] a reasonable and identifiable governmental objec

tive.” Schweiker v. Wilson , 450 U. S. 221, 235 (1981). When the relationship between a stat utory 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” prov ides a rational basis for ex

cluding citizens who reside in Puerto Rico from the SSI pro

gram. See ante, at 5 (emphasis deleted). As the United States argues, “Congress could rationally conclude that a jurisdiction that makes a re duced contributio n to the fed

eral 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. Ro

sario , 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 ta x status to justify the unequal treatment of its residents. See Califano , 435 U. S.,

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4 Because I would hold that this classification does not survive rational basis, I do not consider whether the di fferential 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 di sclaims 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 J USTICE G ORSUCH ’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 th e concurrence’s “hope [tha t] the Court will soon recognize that the Constitution’s app lication should never depend on the government’s concession or the mi sguided framework of the Insular Cases.” Ante , at 9.7 Cite as: 596 U. S. ____ (2022)

S OTOMAYOR , 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 re

solved a claim under the right to travel, while Harris de

cided a challenge to the unequal distribution of block grants to the States and Puerto Rico under a separate benefits pro

gram. Those cases do not preclude an equal protection chal

lenge to a uniform, federalized , direct-to-individual poverty reduction program like SSI. Moreover, as summary dispo

sitions, Califano and Harris are not “of the same preceden

tial 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 resident s of Puerto Rico do not con

tribute 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 contri

butions to the federal treasury.” Brief for United States 19 (emphasis deleted). Moreover, the Court overlooks the fact that SSI estab

lishes a direct relationship between the recipient and the Federal Government. The Federal Government develops uniform eligibility criteria, reci pients apply for assistance directly to the Federal Gove rnment, and the Federal Gov

ernment disperses funds directl y and uniformly to recipi

ents without regard to where they reside. Indeed, when it created SSI, Congress replaced existing programs that dif

fered between States as well as between States and Terri

tories and that involved States and Territories in adminis

tering the programs. Under the current system, the jurisdiction in which an SSI recipient resides has no bear

ing at all on the purposes or requirements of the SSI pro

gram. For this reason alone, it is irrational to tie an indi

vidual’s entitlement to SSI to that individual’s place of residency.8 UNITED STATES v. VAELLO MADERO

S OTOMAYOR , 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 th e First Circuit correctly recog

nized below: “[B]y its very term s, only low-income individu

als lacking in monetary resou rces 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 bur

dens on” citizens when decidi ng 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 re

sort 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.

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5 Both the District Court and the Co urt 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 ex

plained that each year from 1998 to 2006 (when an economic recession set in), residents of Puerto Rico co ntributed in aggreg ate 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 be

tween 2016 and 2018, during the recession and despite several natural disasters, residents of Puerto Ri co 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 in

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

S OTOMAYOR , J., dissenting

B The Court cautions that holding this classification uncon

stitutional would “usher in potentially far-reaching conse

quences,” such as requiring the extension of other federal programs to citizens who re side in all Territories. Ante , at 5. It bears noting that tax status did not preclude Congress’ extension of SSI to the Northern Mariana Islands, under

mining that justification as a rational basis to distinguish Puerto Rico from the States. In any event, the Court iden

tifies no federal program othe r than SSI that operates in such a uniform, nationalized, and direct manner. For in

stance, 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 dramaticrepercussions. If Congress can exclude citizens from safetynet programs on the ground that they reside in jurisdictions that do not pay sufficient ta xes, Congress could exclude needy residents of Vermont, Wyoming, South Dakota, North Dakota, Montana, and Alaska from benefits pro

grams 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 constitu tional and not a violation of the Constitution’s promise of equal protection of citizens.

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6 The United States concedes that th e 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

S OTOMAYOR , J., dissenting

* * * SSI is designed to support the neediest citizens. As a pro

gram of last resort, it is aimed at preventing the most se

vere 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 irra

tional. 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 pove rty 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 va

garies of the political process. Because residents of Puerto Rico do not have voting representation in Congress, they cannot rely on their elected re presentatives 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” respecti ng the Territories. Art. IV, §3, cl. 2. That constitutional command does not permit Congress to ignore the equally weighty constitutional com

mand that it treat United Stat es citizens equally. I respect

fully dissent.