Since the beginning of this month, Puerto Ricans have been fighting against the privatization of their energy grid by LUMA Energy. Images and videos of Borikéns the streets of San Juan demanding an end to the privatization were shared widely. The struggle against LUMA Energy is just one of many struggles for Puerto Ricans in the past few years that includes the ongoing fight against the Fiscal Control Board and the struggle to recover from Hurricane Maria. Underlying these struggles is the fight for independence against US colonialism.
There is another struggle for Boriqua that has received less media attention yet also exposes the colonial oppression of the US. The struggle lies in the courts. In November, the US Supreme Court will hear a case on the legality of Puerto Ricans collecting Supplemental Security Income (SSI). SSI is a welfare service which provides income to US citizens who are disabled or older than 65. In order to qualify one must make less than $750 a month. The other condition to SSI is that one must reside within a US state and not a territory. So even though people who live in US colonies like Guam, Samoa and Puerto Rico are US citizens they cannot receive these welfare benefits. There is another program in Puerto Rico called Aid to the Aged, Blind, and Disabled Program, but it is much more difficult to qualify for since you must be making $75 a month or less to receive benefits. The separation of programs amounts to legal discrimination against US citizens solely based on if they live in the US mainland or in a colony.
The case that will be heard by the US Supreme Court involves a Puerto Rican man, Jose Luis Vaello-Madero, who was living in NYC for several decades while receiving SSI checks for a disability. In 2013 he moved from NYC to PR to care for his wife. For three years he continued to receive SSI benefits while living in PR. In 2016, the US cut off his SSI benefits and sent him a notice that the benefits would no longer continue because he now resides in Puerto Rico. After cutting his benefits and sending the notice, the US government then filed a lawsuit against Vaello-Madero claiming he was overpaid by SSI and demanded he pay back over $28,000. The only difference in Mr. Vaello-Madero’s status was that he now lived in Puerto Rico, and because he was residing on the islands, the US government could legally discriminate against him.
Even though this case only deals with one Puerto Rican and his experience, it is based on historical legal precedents which have established in law the second-class status of Puerto Ricans. These precedents layout the racist and colonialist mindset that the US has in regards to Puerto Ricans. After the Spanish-American War the US courts issued a series of decisions beginning in 1901 now known as the Insular Cases. These cases first differentiated between incorporated and unincorporated territories stating that the incorporated territories were territories that would eventually become states whereas the unincorporated territories would not. Only a few years after seizing Spanish colonies, the US made sure to categorize the colonies as those that have a desired population and those with an undesirable population.
The US went further and found that in unincorporated territories, there was no need to extend Constitutional rights to the populations there. This included fundamental rights that were extended to the white US population in incorporated territories like the right to a jury during trial. In the 1922 case of Puerto Rican journalist Jesus Maria Balzac, he was convicted for libel after criticizing the colonial governor. When he was put on trial, Balzac was not given a jury and he claimed that this was a violation of his Constitutional rights as a US citizen. The court found that even though the 1917 Jones Act extended US citizenship to Puerto Ricans, it did not extend Constitutional rights. In other words, Puerto Ricans were not entitled to being treated like other US citizens despite being considered US citizens. The justification for these decisions, according to the former US attorney general under George Bush Sr., Richard Thornburgh, relies on the theory that the indigenous populations of the Spanish colonies were “alien races.” This idea of “alien races” being inferior still influences US decision making when it comes to its colonies to this day.
Five decades later, in 1978, another case went further and explicitly made it legal to exclude Puerto Ricans from welfare benefits otherwise available to US citizens. The Califano v Torres case dealt with the same issue of social security income for Puerto Ricans with similar facts as Jose Luis Vaello-Madero’s case. In Califano, a Puerto Rican couple were living in the US and receiving SSI benefits when they moved to Puerto Rico. Once they moved out of the 50 states, they lost access to the SSI benefits. In the course of the trial the court made three arguments for not extending welfare benefits to Puerto Ricans that live on the islands despite being US citizens. The first argument was that Puerto Ricans who live on the islands do not contribute to the US national treasure; second Puerto Rico would be too costly as a state; third extending this welfare to Puerto Ricans would disrupt the archipelago’s economy. These arguments were considered by the Supreme Court of the United States as providing a “rational” basis for discrimination against Puerto Ricans.
Fast forward to 2021 and the current case of Vaello-Madero addresses the “rational” justification for discrimination in the Califano case. The Puerto Rican judge in Vaello-Madero’s case pointed out that many of these “rational” arguments made in the 70s were actually irrational since they contradict reality. To address the first point that Puerto Rico does not contribute to the US treasury, the judge in Madero’s case states that Puerto Ricans do pay certain federal payroll taxes and can receive benefits from some federal programs. Because Puerto Ricans pay taxes that go to welfare programs and receive only some benefits, it is irrational for the US to pick and choose which programs apply and which do not. In addition, he points to the 1916 Federal Aid Highway Act to show that the US does not discriminate against Puerto Ricans based on income or income taxes. In the 1916 Federal Aid Highway Act the US did not extend funds to improve roads and infrastructure to colonies like Puerto Rico, but did provide funds to other territories such as Alaska despite both paying federal taxes that went to the program. Finally he points out that the cost of including Puerto Ricans into the SSI program would be $1.8 billion, which is little to nothing when the federal budget is $3.8 trillion.
Currently Puerto Ricans are engaged in struggles rooted in centuries of colonial occupation. In 2021, 123 years after the US took Puerto Rico from its people, the arguments justifying discrimination against Boriqua is up for debate. This legal struggle along with the fight against the Fiscal Control Board, against LUMA, privatization, destructive tourism, and for independence needs to be given our foremost attention. These cases were decided with consideration to the expansion of the US colonial empire, at a time where ideas like the “White Man’s Burden” in reference to “alien races” were not only common but accepted within legal and legislative institutions. Any belief that the US cared about freedom or equality is undermined by the fact that 19th century racism is still used today to justify discrimination against Puerto Rico and its people.