This fall, the Supreme Court is due to hear arguments on whether it’s constitutional for the United States to exclude residents of Puerto Rico from Supplemental Security Income. On Monday, President Joe Biden pretended to sidestep the question entirely.
In a statement declaring the exclusion to be “inconsistent with my Administration’s policies and values,” Biden nonetheless announced that the Justice Department would be filing a brief defending the exclusion, which it did later Monday night. By way of defense, he pointed to the department’s “longstanding practice of defending the constitutionality of federal statutes, regardless of policy preferences.”
That hand wave doesn’t erase how Biden’s statement and his Justice Department’s actions reinforce the racist history that allowed for such exclusion in the first place. The suggestion that the president believes the matter is a “policy preference” implies that he does not believe the exclusion of an estimated 700,000 Puerto Rico residents — United States citizens — from SSI is an unconstitutional violation of equal protection guarantees. It also means, in effect, that Biden thinks the Trump administration’s position that the disparate treatment of Puerto Rico is constitutional is correct.
That hand wave doesn’t erase how Biden’s statement and his Justice Department’s actions reinforce the racist history that allowed for such exclusion in the first place.
This position, in and of itself, is disturbing. Both the district court and federal appeals court that heard the challenge found against the United States’ exclusionary policy. In addressing the Trump administration’s arguments in the case, Judge Juan Torruella, in his final year on the appeals court bench before his death in October, wrote that “the cost of including Puerto Rico’s elderly, disabled, and blind in SSI cannot by itself justify their exclusion.”
Noting that the appeals court “considered even conceivable theoretical reasons for the differential treatment,” the three-judge panel nonetheless unanimously concluded that the Constitution’s “equal protection guarantees” — even in a territory — “forbids the arbitrary denial of SSI benefits to residents of Puerto Rico.”
As Matt Ford wrote this year in The New Republic, a deeper dive into the case leads back to a line of cases known as the Insular Cases in which “racism played an unambiguous factor.” The cases, Ford explained, addressed the treatment of “territories acquired by the U.S. during the Spanish-American War” and use reasoning described by Doug Mack in 2017 as being “built on the same racist worldview” as Plessy v. Ferguson’s since-overturned “separate but equal.” They also form the basis for the two more recent Supreme Court rulings relied on by the Trump administration at the appeals court in its defense of the exclusionary treatment of Puerto Ricans today.
Relying on those more recent rulings, the Biden administration’s Justice Department on Monday night continued that argument, telling the Supreme Court that “Congress’s decision not to extend the SSI program to Puerto Rico complies with the equal-protection component of the Due Process Clause.”
Biden’s failure here goes beyond his punt to Congress, pressing as he does in his statement for congressional action to fix the exclusionary treatment. He’s also holding back on his authority in this matter. Defending the constitutionality of statutes is, as Biden said, “critical to the Department’s mission of preserving the rule of law.” However, there also are exceptions to that practice, exceptions that his statement ignores.
Yes, the Justice Department generally defends statutes whenever a “reasonable argument” can be made for constitutionality of the statute in question. But there are three main exceptions: when separation of powers questions are at issue (think of a law that purports to limit executive power); when a statute conflicts with Supreme Court precedent; or — as Seth Waxman, former solicitor general in the Clinton administration, put it — “in cases in which it is manifest that the President has concluded that the statute is unconstitutional.”
Biden knows that final exception all too well. It was during his time as vice president that the Justice Department had to decide whether to defend the Defense of Marriage Act. On Feb. 23, 2011, President Barack Obama officially made a decision that the relevant part of DOMA was unconstitutional and, as such, his attorney general, Eric Holder, announced that DOJ would no longer be defending part of the law.
As was made clear in Biden’s statement about the Puerto Rico case on Monday, someone in charge needs to actually say that they think the law or provision at issue is unconstitutional. Before then, however, Obama administration officials had taken a similar position to Biden’s stance on Puerto Rico, arguing that regardless of their own policy views, while it was law, they would be enforcing it in court. The difference between those early Obama administration filings and now is that the argument about constitutionality is in a different posture. When Obama took office, no court — let alone an appeals court — had ruled DOMA to be unconstitutional. To the contrary, every challenge at that point had failed. By 2011, though, Obama wasn’t alone. Courts had begun ruling on the question, with the first federal judge deciding in July 2010 that the DOMA provision was unconstitutional. For Biden, the question of the constitutionality of exclusionary treatment of Puerto Ricans has already reached past that point with last year’s appeals court ruling. Biden reaching a similar conclusion would, thus, be just that: a similar conclusion. Not so incidentally, Biden isn’t alone in his intimate familiarity with this issue. Chief Justice John Roberts has also addressed whether DOJ has to defend the constitutionality of a congressional provision, during his time in the solicitor general’s office under President George H.W. Bush. For Roberts, the matter was a congressionally mandated racial preference regarding broadcast licenses. As reported during his confirmation hearing to become chief justice, Roberts in 1990 was “reluctant to defend” the Federal Communications Commission in its support of the mandate. He, like Waxman and Holder, had concluded that there are times when the Justice Department need not defend the constitutionality of federal laws and policies. The ultimate issue, as was made clear in Biden’s statement about the Puerto Rico case on Monday, is that someone in charge needs to actually say that they think the law or provision at issue is unconstitutional. For now, while Biden is willing to say that the exclusion is “inconsistent” with his administration’s “values,” he is unwilling to fight for those values and say — as a federal appeals court has already done — that it’s unconstitutional to do so.
Chris Geidner
Chris Geidner is a journalist and MSNBC columnist whose Law Dork newsletter covers the Supreme Court, law and politics. His more than two decades in journalism include widely recognized coverage of LGBTQ issues, the criminal legal system and other complex legal and political questions. Geidner also contributes to Grid and Bolts and previously worked as the Supreme Court correspondent and legal editor at BuzzFeed News, as well as for The Appeal and Metro Weekly. 
