SSI extension to Puerto Rico lies in Congress’s court

After the United States Supreme Court’s overwhelming decision validating (in an 8-1 vote) the exclusion of Puerto Rico residents from the Supplemental Security Income (SSI) program in the case of José Luis Vaello Madero, the opportunity to unlock that access seems to be in the hands of the Democratic-majority Congress.

The window, however, is short and uphill during Congress’s ongoing session ending in December.

The extension of SSI to Puerto Rico residents is currently included in three congressional bills, among them the budget reconciliation bill called “Build Back Better” (BBB), which contains US President Joe Biden’s social agenda.

The bill, approved last November in the House of Representatives, includes the extension of the SSI program to Puerto Rico. The Social Security Administration (SSA), which manages SSI, estimated the extension would have an annual cost of $2.27 billion in 2020, out of the roughly $1.85 trillion total in the Build Back Better bill.

In a Senate divided halfway and in which US Vice President Kamala Harris can cast the tiebreaker vote– the legislation, being a budget reconciliation bill, could be approved by a simple majority and avoid the filibuster rule, which typically requires 60 votes to bring a bill to a final vote.

However, with Republicans in total opposition to the BBB, Democrats Joe Manchin and Kyrsten Sinema halted —without taking a stance on the SSI extension to Puerto Rico— a bill that they considered too onerous.

The available path in this context would be that Democrats, with greater probability after the November elections, could agree on a bill that includes some of the proposals of the BBB, among them extending the SSI to Puerto Rico.

El Nuevo Día newspaper asked all 100 United States senators for their stance on the extension of SSI to Puerto Rico and whether or not they favor Biden’s promise, which so far has not been able to materialize through any of the two available channels, be it judicial or legislative. Only five senators answered.

“Puerto Ricans are citizens of the United States, just like any citizen living in the continental US. The recent ruling by the Supreme Court of the US confirming the exclusion of Puerto Rico from Supplemental Security Income is inconceivable,” said Democratic Sen. Kirsten Gillibrand of New York.

GIllibrand said she favors legislation allowing Puerto Ricans to have access to SSI from the island. She also recognized that older and disabled adults rely heavily on SSI for various aspects of their daily lives, and advocated for equal access and rights for Puerto Ricans.

Democratic Senator Edward Markey of Massachusetts also supports the extension of SSI benefits to Puerto Ricans “through any possible legislative means, including annual appropriations or budget reconciliation processes, and would vote for this extension if it came to that,” for Senate consideration.

Markey stressed that United States citizens living in Puerto Rico and other US territories should be able to access the same benefits as Americans in the 50 states and Washington D.C.

He also criticized the Supreme Court’s decision in the Vaello-Madero case, noticing that it “reinforces the incorrect and discriminatory notion that Puerto Ricans and other people living in US territories are second-class citizens, in particularly elderly and disabled residents.”

Along the same lines, Democratic Senator Robert Menéndez of New Jersey assured he supports the inclusion of the SSI program for Puerto Rico in a budget reconciliation package.

“As far as pushing for any potential package to include an extension of SSI benefits for Americans in Puerto Rico and all territories, I would certainly support including such a provision. It’s fair to do so for the millions of Americans who live in Puerto Rico and other excluded territories,” he stated. Besides Puerto Rico, residents of the US Virgin Islands, Guam and American Samoa also do not have access to this program.

None of the Republican senators and other Democrats, including Manchin, answered direct questions about whether they would support a budget reconciliation bill with the SSI extension.

Pending on Congress

Apart from the Biden administration bill, on April 20 of last year, Senators Bernie Sanders (D-VT), Markey and Elizabeth Warren (D-Mass.) submitted Senate Bill 1228 to create the Territorial Equity Act of 2021 which, among other equality proposals, would extend the SSI to the island. However, nothing has happened beyond the bill’s introduction on Senate.

“US citizens living in Puerto Rico should have the same basic support that all other US citizens are entitled to, including Supplemental Security Income benefits. Congress should pass the Territorial Equity Act,” Warren told this news outlet.

The same bill was also introduced in the US House of Representatives by Representative Nydia Velázquez (D-NY), with the co-authorship of fellow New York Representatives Alexandria Ocasio Cortez and Ritchie Torres, as well as Rep. Representative Raúl Grijalva (D-AZ), chair of the Natural Resources Committee, which has jurisdiction over Puerto Rican affairs.

After being introduced in the House, H.R. 2713 was referred to the committees on Ways and Means, Energy and Commerce, Agriculture, Education and Labor, Natural Resources, as well as the Subcommittee on Nutrition, Oversight and Department Operations, and the Subcommittee on Health. But nothing has progressed since June 2021.

Previously, Puerto Rico’s non-voting member of Congress, Jenniffer González, a Republican, introduced on January 28, 2021 the bill H.R. 537, or the Supplemental Security Income Equalization Act, to extend SSI to Puerto Rico.

The bill was co-authored by Democratic Representatives Torres and Darren Soto (Florida), as well as delegates from the US Virgin Islands, American Samoa, Guam, and the Northern Mariana Islands.

After being referred to the Subcommittee on Social Security and the House Ways and Means Committee, nothing has happened.

González acknowledged that, considering the November mid-term elections and the way they could affect the House and Senate’s composition, “opportunities are limited”, for the bill she filed or any other congressional measure to extend the SSI.

However, after the Supreme Court’s decision in the Vaello-Madero controversy, she said that “it is time to continue pushing the issue and not let it drop.”

“This program is created to give financial aid to people who do not have the economic capacity, are below poverty levels and have certain conditions,” she said in an interview with this news outlet.

She likewise stressed that many Puerto Rican families “unfortunately have to migrate to the states in order to receive these benefits.”

“It is nothing more than inequity and geographical discrimination, based on the zip code, because the need is the same, the poverty of these people and the conditions by which they’re affected are the same, and this is the only remedy or help offered by the federal government for all these families,” she denounced.

Political inequality

Political analyst Ángel Rosa described as “distant” the possibility that the SSI be extended to Puerto Rico before November, considering the mid-term elections. Rosa recalled that the program’s extension to the island was a promise from Biden, which is why he included that proposal in the BBB, a “dead bill”, according to Rosa.

Rosa highlighted that in its legal brief, the Biden administration did not withdraw the legal arguments of former President Donald Trump’s administration in the Vaello-Madero case, which was accepted by the majority of the Supreme Court in its decision against Puerto Rican residents.

“It was thought that the easiest way to propose to Congress the inclusion of Puerto Rico in SSI benefits was to include it in Biden’s social reform agenda, because it is something that the Democrats are programmatically committed to, theoretically,” Rosa added.

“It’s something that, in theory, is part of the legislative agenda of this administration, which has a meager majority in the Senate, which is where the problem really is. Nobody would’ve imagined that due to other issues —of which the SSI for Puerto Rico is not part of— Biden’s social agenda is dead from a legislative standpoint,” he said.

The main blocking chip has been Senator Joe Manchin (D-WV), a conservative Democrat with whom the administration hasn’t been able to reach an agreement on Biden’s proposed public spending. “Manchin is the fiftieth vote and he can stop the legislation as he’s been able to,” Rosa added.

Rosa, also a Political Sciences professor at the University of Puerto Rico, Mayagüez campus, said another possibility, although improbable, would be for lawmakers to reach agreements in both House and Senate and issue legislation independent of the BBB before the end of the federal fiscal year in September.

“It’s not only a matter of programmatic inequality from Congress to the territories, but also of political inequality. The votes of those who live in the territories are not necessary for re-electing any member of Congress”, he said about Puerto Ricans’ absence of decision-making political power in Congress, where they lack voting representation.

The dilemma of Puerto Rico and other territories’ exclusion from the program is tied to legal aspects of US territories, which are not considered an integral part of the union. “This is a direct consequence of the Insular Cases,” Rosa said.

“The Insular Cases say that the people who live in the territories do not live in the United States, but in a possession of the United States. Therefore, not all constitutional provisions that apply to people in the states apply to those in the territories,” he explained.

In the recent Vaello-Madero case, the US Supreme Court avoided getting into that controversy and did not overturn the Insular Cases.

For attorney John Mudd, neither Democrats nor Republicans have shown that bringing about the SSI’s extension to Puerto Rico is a priority. He added there is no urgency due to a lack of political power.

“It’s a disgusting discrimination based on an 1899 article by the (then) dean of Harvard Law School and the Downes v. Bidwell case (of 1901),” he said.

In that case, a distinction was made between an incorporated and an unincorporated territory, and Puerto Rico was determined as being not incorporated to the United States.

Mudd noted the Biden administration has continued 1901′s vision. According to the federal court attorney, a mistake in the Vaello-Madero case defense was not to address the Insular Cases and request their revocation, a decision solely in the hands of the US Supreme Court.

For Mudd, the extension of SSI to Puerto Rico is more than a matter of social justice, but about “equal protection of the laws.”

[This article was originally published by El Nuevodia.]

Did you like this story? Your support means a lot! Your tax-deductible donation will advance our mission of supporting journalism as a catalyst for change.