0:00:00.1 Speaker 1: We will hear argument first this morning in case 2303 United States versus Vaello Madero.

[music]

0:00:12.0 Leon: Hey everyone, this is Leon from Fiasco and Prolog projects. On this week's episode of 5-4, Peter, Rhiannon, and Michael are talking about Vaello Madero v United States. This recent case centers on a man named Jose Luis Vaello Madero, who was sued by the federal government to recoup disability payments that have been made to him. The government argued that he was not actually entitled to the funds he had received after he moved from New York to Puerto Rico.

0:00:40.5 Speaker 3: If he moved to, let's say Florida, it would have been no problem, but when the Social Security Administration learned where he moved, they cut him off from the program and demanded he pay back $28,000 worth of benefits he had already received.

0:00:53.9 Leon: In deciding this case, the justices drew on the insular cases and archaic series of rulings from the early 20th century. In an eight to one decision, they ruled against Vaello Madero holding effectively that Puerto Ricans are second class citizens. This is 5-4, a podcast about how much the Supreme Court sucks.

0:01:18.0 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have left our nation frightened and cowering like a Supreme Court justice when peaceful protesters assemble on a nearby sidewalk.

[laughter]

0:01:32.0 Rhianon: Got him.

0:01:32.1 Peter: I'm Peter. I'm here with Rhiannon.

0:01:34.9 Rhianon: Hey, everybody. Hello.

0:01:37.2 Peter: And Michael.

0:01:38.7 Michael: Hi, hi.

0:01:40.3 Peter: Before we get going, a prayer for all the public officials who have to deal with peaceful protests in their vicinity, who... I mean, must be harrowing, must be a uniquely frightening experience. Our hearts go out to all of them.

0:01:54.2 Michael: Can you imagine being reminded that there are lower class people around and that you are answerable to them, that is...

0:02:03.4 Peter: Right.

0:02:04.5 Rhianon: Yeah.

0:02:04.5 Michael: That must be...

0:02:05.1 Peter: And that they're mad at you.

0:02:06.2 Michael: Yeah.

0:02:06.9 Rhianon: Right. Wow.

0:02:09.1 Michael: Hard life.

0:02:10.5 Peter: It's the right to do terrible things on a massive and devastating scale is being infringed every day by protesters across this country.

0:02:19.6 Michael: That's right. Someone took King's sidewalk chalk and wrote outside Susan Collins house and she got on the phone and called the police. [laughter]

0:02:29.4 Rhianon: Oh my God.

0:02:30.2 Peter: And did you see the fucking picture of the writing?

0:02:31.4 Michael: Yeah, yeah.

0:02:32.5 Peter: It looks like children drew it. It's unreal, dude. What a coward.

0:02:40.2 Rhianon: I also just love that this conversation is about property rights and people's right to privacy with no recognition that like what we're talking about is the constitutional right to privacy and bodily autonomy. How about you not infringe on that, stupid bitch?

0:02:57.4 Michael: Yeah. That's right.

0:02:57.9 Peter: We would like to talk about something else is the leading theory in my mind. Alright, today's case is United States v Vaello Madero. This is a case about whether Congress must extend Supplemental Security Income benefits to Puerto Rican citizens. Supplemental Security Income, which we will call SSI, is a federal welfare program that provides money to certain low income folks with disabilities. My dude, Jose Luis Vaello Madero, is a Puerto Rican born citizen of the United States who applied for SSI following a debilitating illness. He was approved for benefits and started receiving them, but then he moved back to Puerto Rico. Technically, despite being United States citizens, Puerto Rican residents are not eligible to receive SSI. After a few years, the government catches on. They realize that he's living in Puerto Rico and no longer eligible, and they not only cut off his benefits, but sue him for the benefits that he received while living in Puerto Rico.

0:04:09.3 Rhianon: Ridiculous.

0:04:11.5 Michael: 28 grand, baby.

0:04:11.6 Peter: Yeah, $28,000 something. But he defends himself saying that this is actually a violation of the constitution's promise of equal protection under the law. The court disagrees. And in an eight to one decision written by Brett Kavanaugh says, No dice, buddy. Congress does not have to treat Puerto Ricans equally if it doesn't want to. So, Rhi, a little bit of color here.

0:04:38.8 Rhianon: Yeah, yeah, I can give a brief history here, but also the most important thing to know in terms of the law for how the United States treats Puerto Rico and its residents is that this area of the law is governed by a very old and outdated set of we should say racist cases called the insular cases. We actually did a Patreon episode on the insular cases, so check that out if you haven't yet, but in short, basically in the late 1800s and early 1900s, there was debate about whether US colonies like Puerto Rico would be made states or if they would remain "Territories" and basically, the Supreme Court gave the green light to the colonies being treated differently and not becoming states, and they did so on an explicitly racist foundation. Right? Here's a quote from one of the insular cases. "It is obvious that in the annexation of outlying and distant possessions, grave questions will arise from differences of race, habits, laws and customs of the people, and from differences of soil, climate and production, which may require action on the part of Congress that would be quite unnecessary in the annexation of contiguous territory, inhabited only by people of the same race or by scattered bodies of Native Indians."

0:06:01.3 Rhianon: So you see that the insular cases say that Puerto Rico can be treated differently than states in, the 50 states, and basically, even though Puerto Ricans are US citizens like Peter said, they can be treated differently in federal law because of the insular cases. So let's talk about the law in the case here. First of all, in 1972, Congress established the SSI program that stands for Supplemental Security Income, and this program provides a guaranteed minimum income to certain vulnerable citizens who basically lack the means to support themselves, like as a result of disability or otherwise. Importantly, when Congress created SSI, it made the program available only to "residents of the United States," and then it defined the United States as the 50 states and the District of Columbia. Later, Congress also included residents of the Northern Mariana Islands as eligible for SSI.

0:07:01.0 Peter: Naturally.

0:07:02.2 Rhianon: Yeah, which is like...

0:07:03.8 Peter: What an omission... Off the bat.

0:07:05.5 Rhianon: Yeah, right, right.

0:07:07.3 Peter: The inclusion of the Northern Mariana Islands is particularly weird to me because first of all... Where the fuck is that? Right? It caught me off guard. I was like, I've heard of that.

0:07:16.1 Rhianon: Sure.

0:07:16.7 Peter: But this is the first time I've had to think about it in any depth, but also I don't know what leads to them adding one territory while leaving out the most prominent territories in our country, just a bizzare choice, and it really sort of highlights the fundamental claim here that Puerto Rico is being treated particularly unfairly...

0:07:37.3 Rhianon: Yeah, exactly.

0:07:38.8 Michael: Some Senator went like scuba diving out there and was like, This place is really nice.

[laughter]

0:07:43.2 Rhianon: That's right. Or some senator's mom retired there or something.

0:07:48.2 Peter: Let's throw these guys some rights... That was a great vacation.

0:07:50.5 Rhianon: Right, right, exactly. But yeah, so it's like Peter said, even though the residents of the Northern Mariana Islands were later added as eligible for SSI, still territories like Puerto Rico, Guam, those were excluded. Even though in 2011, the government estimated that over 300,000 residents of Puerto Rico would have qualified for SSI. And so this disparity in benefits coverage for Puerto Ricans has really serious implications. Census data shows that about 15% of Puerto Rico's population is disabled compared with just over 8% of the general American population. And so you're talking about a population that is often unable to work and would have no income whatsoever, if not for government programs designed to support the most vulnerable and the most needy in society. Right? And then even with other federal programs that claim to benefit disabled or elderly people in Puerto Rico, the monthly average benefit to US citizens in Puerto Rico was just $64 in 2016 compared to the monthly average SSI benefit to disabled people across the 50 states, that was $733. So disabled people in Puerto Rico are getting government assistance at much... This is less than 10%, right? Much, much lower.

0:09:15.8 Michael: It's an order of magnitude right there.

0:09:16.5 Rhianon: Right. Right. Much lower than disabled people in the 50 states and in the Northern Mariana Islands, apparently. Okay, so turning to the specifics of this case, Peter gave a really good run down up top, but Jose Luis Vaello-Madero is a US citizen who was born in PR in 1954. In 1985, he moved to New York, and in 2012, that's when he began receiving SSI after suffering from a serious illness that left him disabled and unable to work. He was still living in New York at the time he signed up, and he began receiving SSI benefits in New York, but about a year later, he moved back to Puerto Rico to take care of his wife, and he continued receiving those SSI benefits. It was about three years after that that Vaello-Madero went to a Social Security office in Puerto Rico because he was approaching his 62nd second birthday, and so he needed to update his information and his benefits according to the rules of SSI, but because he proactively went to the Social Security Office, the Social Security Administration, then learned that by a Vaello-Madero had moved from New York to Puerto Rico, and within two months, the Social Security Administration reduced his SSI benefits to zero, and then in addition, like we said up top, they sued him for the money that he had gotten in benefits during the period when he lived in PR, and during that period, he didn't know he was illegally collecting benefits. This lawsuit was to the tune of over $28,000.

0:10:51.8 Michael: Yeah, if this was malicious, I suspect the guy wouldn't have just wandered into the Social Security Office.

0:10:57.4 Peter: Right.

0:10:57.7 Rhianon: That's right.

0:11:00.5 Peter: I also don't... I think the other evidence that it's not malicious is all he did was move to Puerto Rico where he's from and continue to collect the benefits that he was collecting before. He should have known. It's not like you're moving to the Northern Mariana Islands, buddy. [laughter] So the legal question here is, does excluding Puerto Rican residents from these benefits violate the principles of equal protection? Notably, we are not talking about the equal protection clause because the clause itself only applies to the states, not the federal government, which is giving these benefits.

0:11:33.4 Rhianon: Right.

0:11:35.5 Peter: But the court has held since the 1950s that the same principles of equal protection apply to the federal government. Usually this distinction wouldn't matter much; I'm only noting it here because as you will learn, Clarence Thomas is gonna make a bit of a stink about it.

0:11:52.0 Rhianon: That's right.

0:11:52.8 Michael: That's right. I'll get into the deets. Soon enough.

0:11:57.7 Peter: So, of course, the court says that the exclusion of Puerto Ricans from SSI benefits is not a violation of the Constitution. Kavanaugh writes the opinion. First, he notes what's called the territorial clause in the Constitution, which says, "In pertinent part, Congress may make all needful rules and regulations respecting the territory belonging to the United States." Kavanaugh says that this grants Congress broad authority to legislate about US territories, although I'm not entirely sure what that passage is supposed to make me think that it's cool for Congress to deny federal benefits to Puerto Ricans and not other citizens, but... Yeah.

0:12:30.3 Rhianon: Right.

0:12:31.7 Peter: Whatever. He's just looking to sort of hang his hat somewhere, right?

0:12:35.1 Rhianon: Right.

0:12:36.3 Peter: Next, they move on to the heart of the argument, which is essentially that Puerto Rico is sort of not part of our federal system. Puerto Ricans don't receive SSI benefits, but they also do not pay most federal taxes, and the court has in the past upheld that taxation system. So what they say here, more or less is, "Look, we've already blessed this economic system where Puerto Ricans do not participate in our government the way everyone else does, so that precedent is binding. Right. We've already said that's constitutional, and that's that."

0:13:07.9 Rhianon: Yeah.

0:13:09.0 Peter: There is one last passage in the opinion that I wanna quote in full: "Vaello-Madero's position would usher in potentially far-reaching consequences. For one, Congress would presumably need to extend, not just supplemental security income, but also many other federal benefits programs to residents of the territories in the same way that those programs cover residents of the states, and if this court were to require identical treatment upon the benefit side, residents of the states could presumably insist that federal taxes be imposed on residents of Puerto Rico and other territories in the same way that those taxes are imposed on residents of the states. Doing that however, would inflict significant new financial burdens on residents of Puerto Rico, with serious implications for the Puerto Rican people and the Puerto Rican economy. The Constitution does not require that extreme outcome." [chuckle] So that extreme outcome, where Puerto Ricans are treated like everyone else in the country, is what Brett Kavanaugh is warning about here.

0:14:10.8 Michael: Also an extreme outcome where part way through there is democratically elected representatives making policy pursuant to the preferences of the American public. That's... What the fuck is he talking about?

[laughter]

0:14:25.8 Rhianon: Right, right. So government is working? That's an extreme outcome?

0:14:29.8 Peter: He's essentially saying like, "Look, we've created this massive house of cards that rest upon disparate treatment of Puerto Rican."

0:14:36.0 Rhianon: Yes.

0:14:36.4 Peter: "We can't go tinkering with it now." It's just naked cowardice parading as jurisprudence.

0:14:42.6 Rhianon: That's right.

0:14:43.1 Peter: And I also wanna mention, this tax as argument, because it seems for a second like maybe he's sort of on the Puerto Rican side. He's like, "Well, they might have to pay federal taxes too." Keep in mind who we're talking about here. What we're talking about is people who are low income and in need of disability benefits. Their federal tax burden, even if Federal Tax is fully applied to them, would be very low. They would take that trade off in a second.

0:15:07.8 Rhianon: Yes.

0:15:07.9 Peter: So this sort of idea that maybe he's sort of helping them, absolute bullshit.

0:15:13.2 Rhianon: Yeah, yeah.

0:15:14.3 Michael: Yeah, and part of this argument makes it sound like there's this sort of grave injustice on a macro level about the idea that Puerto Rican people would receive more government benefits than they "deserve" based on what they pay in taxes. But it's actually the case that a huge portion of the country, the states receive far more in federal benefits then they provide in tax income. A lot of them, [0:15:45.3] ____ in the country, but not every state has a massive economy, but they're all entitled to benefits, and that is normal, and that's not really a big issue, and most people aren't angry about that. [chuckle] That's just part of what being a big nation that has some re-distributive properties looks like. We redistribute wealth from wealthier people to less wealthier people and from wealthier states to less wealthy states. It's just not that big a deal. Anyway, moving on from the asshole Cavanaugh to the asshole Clarence Thomas.

[laughter]

0:16:24.9 Michael: Thomas writes this concurrence, as Peter alluded to, basically saying, "Hey, I'm not so sure about this idea that a Fifth Amendment of the Constitution requires the federal government to treat all its citizens equally." And so basically, the idea is this, the Fifth Amendment, which applies to the Federal government, has a Due Process Clause that says people should not be deprived of life, liberty or property without due process of law. The 14th Amendment, which applies to the States, both as a Due Process Clause and an Equal Protection Clause, and the court has said, "Well, look, the liberty that's protected in the Fifth Amendment includes the equal objection of the laws as it's described in the 14th Amendment." And therefore the federal government has to treat everyone equally. Thomas takes exception to this, and he bursts out the history books and starts going through just like a laundry list of the worst Supreme Court decisions, [laughter] and he's like, "Let's talk about Dred Scott. Let's talk about Plessy v. Ferguson." I'm talking...

[laughter]

0:17:38.3 Michael: It was so... [laughter] So his idea is just so ridiculous. I'm sorry. His idea is this, the 14th Amendment also has a citizenship clause that says that everyone born in the United States is a citizen of the United States. And he says, "Well, back in the day, it was kind of understood that the promise of equality was tied up with your status as a citizen." And so by guaranteeing everyone citizenship, you are being guaranteed equal Protection under the law from the federal government. That's the argument.

0:18:20.0 Peter: So Michael, what's the difference between his conception and the court's current conception?

[laughter]

0:18:25.0 Michael: Yes, [laughter] you might be wondering, so what's the big deal? If he says the federal government has to treat people equally either way, the difference is, under his telling, it would only apply to US citizens, which, something like 50 million non-citizens live in the United States. And this would effectively create a formal cast with fewer rights than the rest of us.

0:18:57.1 Peter: And non-citizens, so people know, are currently covered by the promise of equal protection. It applies to anyone.

0:19:03.9 Michael: That's right.

0:19:04.6 Peter: There's no citizenship requirement at all.

0:19:08.0 Michael: That's what it means to say the Fifth Amendment includes an equal protection component. It restricts the government from treating different people unequally. It says, "It has to treat everyone the same." That is a restriction on the government's power, and Thomas wants to remove it in the case of non-citizens. And I think that sounds bad as it is, and it's got some real... It reminds me of Starship Troopers. I don't know if you guys saw that movie.

0:19:37.0 Peter: Of course.

0:19:39.0 Michael: [chuckle] Which is a satire of fascism and there, it's like citizens, being a citizen is so tied up in your rights and your privileges. It very much reminds me of that, but it also, it's like this is a moment, a political moment where immigration status is hugely political, right?

0:20:00.6 Rhianon: Yes.

0:20:01.9 Michael: And puts people in extremely vulnerable positions. It's a favorite punching bag of the right-wing right now. There was no end of horrific stories about what ICE was doing under the Trump administration and into the Biden administration, both to undocumented immigrants and documented immigrants alike. Treading all over their rights. This would be a blank check for some truly heinous shit at a moment when at least one, if not both political parties are primed to do some truly heinous shit. It's scary. It's a scary thing.

0:20:41.3 Rhianon: Yeah.

0:20:42.7 Peter: It's also quintessential Clarence Thomas. You have this majority opinion that's just awful and then Thomas pops in and he's like, "I have an idea that's even worse."

0:20:52.7 Rhianon: Right, right, right. Classic Thomas.

0:20:55.6 Peter: And it also... There's another way in which it's classic Thomas, that he basically starts off being like, "Look, I used to think that the Federal promise of equal protection was real, but I've been reading a lot and now I don't." The concurrence basically starts off with like, "Look, I've been thinking."

0:21:12.0 Michael: "I've joined these opinions."

0:21:16.0 Peter: He literally says, "Look, I've sort of come around on this." Like, "Yeah. All the crank shit I read has really been getting to my brain."

0:21:25.2 Michael: Yeah, and he's like, "I am kind of thinking out loud here." He's like, "I'm not sure this is the thing that requires examination," which seems to be just an invitation for every fucking kook and hack in the right wing legal circle to start coming up with bullshit articles for him to cite later on.

0:21:44.0 Rhianon: Yep. "We're just brainstorming here. No bad ideas."

[laughter]

0:21:55.3 Peter: And you know it's bad, by the way... In this day and age, when a Thomas concurrence doesn't get Gorsuch or Alito, you know that shit's crazy.

0:22:01.9 Rhianon: Yeah. Yeah, good point. So we should talk about the sole descent here. Peter said up top, this is an eight to one decision, and we should talk about the liberals who joined this shit opinion a little bit later on. But the one descent here, Sonia Sotomayor, says that this is not rational, this does not make sense. So part of this case is decided with rational basis review, meaning that if it's found that the government just has a rational reason for treating this group differently than another group, then it's fine, but what Sotomayor says is, this is irrational. This is arbitrary. She says that the court's holding is "irrational and antithetical to the very nature of the SSI program and the equal protection of citizens guaranteed by the Constitution." She's like, "Hello, people in Puerto Rico are US citizens, you can't treat them differently just on the basis that they live in Puerto Rico, or they live in a US territory."

0:23:02.0 Michael: Or that they're being treated differently in other ways.

0:23:05.5 Rhianon: Yeah, yeah, exactly. So what Sotomayor says is this whole thing is arbitrary and this rule is used to burden a particular group of individuals here, US citizens who live in Puerto Rico. Congress's decision, she says, "to exclude millions of US citizens who reside in Puerto Rico from the SSI program fails even this deferential test." This is a very... The rational basis test is a very easy test for the government to pass. Just have one rational reason why you have this policy? But what Sotomayor is saying is, even that, even that easy of a test, the government fails on this because it makes zero sense why the people of Puerto Rico can't get SSI benefits like other citizens of the United States.

0:23:55.5 Michael: Yeah, that's right.

0:23:57.4 Peter: So Gorsuch files a concurrence, he joins the majority opinion, but he writes separately. I'm gonna quote from it to give the gist. "Because no party asks us to overrule the insular cases to resolve today's dispute I joined 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 over-rules them." So basically he's saying, "this is all based upon the insular cases, they're awful, but no one has asked us here to overturn them, so I'm still... I'm gonna join the majority." So a couple of things. One, Gorsuch is like, he's sort of woke about these historical atrocities, in a way that he's distinctly not about modern inequality. It's very interesting. I wonder if the abstraction of it sort of makes him feel like he can address it more squarely, 'cause he's great on native rights and all sorts of things that you just sort of don't see manifest in his modern jurisprudence so much. I think it's much easier for him to say, "Hey, this case from 1900 was very racist," than it is for him to be like, "Yeah, the modern Republican Congress is very racist."

0:25:07.6 Rhianon: Or like, "Our own record on voting rights is racist." He's not there.

0:25:11.2 Peter: So sort of a cool concurrence in a way, sort of a cowardly concurrence in a way because, like, just say it, just say the jurisprudence that this is based on is so disgusting, so racist that it is invalid by default. Someone doesn't need to ask you to overturn something necessarily, you can say, "this has no basis in our constitution, we reject it." If you think that this decision flows from the insular cases and that those cases are unconstitutional, why keep building upon that, what he calls a rotten foundation? I don't quite get it.

0:25:44.8 Michael: Well, that's also what they did with Citizens United. That's what they did with [0:25:51.5] ____. The court can and does, sometimes, request supplemental briefing on a new question that it presents. "Hey, this case presumes that the insular cases are correct, but are they?" It can ask that, it can direct the parties to do that, it just only does that on issues that it's eager to rule on rather than waiting for the right case.

0:26:19.7 Peter: What's interesting about Gorsuch's concurrence is Kagan and Breyer don't join it. So not only do they not join the Sotomayor descent, which I think is because Sotomayor is sort of taking a stand on rational basis review, which is supposed to be a rubber stamp. It's not supposed to be, but in practice, rational basis review is the lowest form of scrutiny that the court can give a law and it's effectively been a rubber stamp in the past. And Sotomayor is basically saying "I don't really agree with the use of rational basis review," that's sort of implicit in her dissent.

0:26:57.4 Rhianon: That's right.

0:26:57.7 Peter: Is that she disagrees with the way that rational basis review has been utilized historically by the court. Maybe that's a step too far for Kagan and Breyer. But I read through Gorsuch's concurrence expecting that there'd be something that sort of put them off, like why wouldn't they sign on to this one? But I just don't see it. I don't get it.

0:27:17.9 Michael: I don't either.

0:27:18.1 Peter: I don't get why they didn't join one or the other, it's wild to me that they wouldn't join a concurrence saying, "By the way, the insular cases are racist and bad," which is obviously fucking true. What's their objection to that? I don't get it. It's wild. It makes no sense. It's hard to be sort of shocked by the Supreme Court when we have a podcast about how fucking terrible it is, but I just... I'm surprised that they don't agree with him here, it sort of doesn't conform with my priors, I didn't realize that they sucked so badly on this.

0:27:49.3 Rhianon: Right, right. It seems so obvious.

0:27:51.3 Michael: Yeah, another thing I was struck by reading this concurrence, circling back to Peter's earlier point about woke Gorsuch, is that I think also there's an element where he's less afraid than some of his colleagues on upsetting reliance interests. I think you see this with McGirt, which was the native rights case, and there was a lot of hemming and hawing from the conservatives about how the current state of affairs have been relied upon for 100 years plus and it's just the way things were, and whether or not it was right at the start, we've sort of accepted that it's right now, he's not afraid to say, Well, no that's fucked up, it was wrong 150 years ago, and so we should write it now. And that's the same thing with this. We talked about... Peter and Rhi both talked about how the insular cases are sort of created like a house of cards of legal jurisprudence.

0:28:52.5 Rhianon: And Kavanaugh's literally saying explicitly like we've relied on this for years. This is the relationship.

0:29:00.1 Michael: Yeah, exactly. It's like... We're too invested. It's a sunk cost at this point and Gorsuch is saying, "No, we can't blink from this just because it's difficult, it's wrong." And I respect that, I do. But again, that is not an excuse for Kagan and Breyer to not join this. [laughter] Like What the fuck?

0:29:20.9 Rhianon: Right. It's completely bizarre.

0:29:23.5 Peter: So another element of this interesting little item is that this case was brought during the Trump administration, right?

0:29:31.0 Rhianon: Yeah.

0:29:32.1 Peter: His defense is that this violates equal protection. That won the day in two federal courts, causing the Trump administration to appeal to the Supreme Court in September of 2020. When he did, candidate Joseph Biden tweeted about the appeal, saying, "Time and again, the president has refused to provide Puerto Rico with much needed resources. He's repeatedly insulted Puerto Ricans and this latest action is another example of his disrespect for the island. This ends when I'm elected president." His campaign also put out a lengthy statement concerning its policy towards Puerto Rico that said it would "Ensure that Puerto Ricans have access to SSI benefits."

0:30:14.8 Rhianon: Well, that sounds good.

0:30:16.6 Peter: Yeah, those strong words might have given you the impression that Biden, when elected, would not pursue the appeal.

0:30:23.0 Michael: Oops.

0:30:26.7 Peter: Wrong. The administration decides to defend the policy anyway, when they do, they put out a statement saying, "This provision is inconsistent with my administration's policies and values, however, the Department of Justice has a long-standing practice of defending the constitutionality of Federal statutes, regardless of policy preferences. This practice is critical to the department's mission of preserving the Rule of Law."

0:30:52.8 Rhianon: Fuck your long-standing practice. What are you talking about?

0:30:57.4 Peter: First of all that's not even that true. Administrations somewhat regularly abandoned cases that they disagree with.

0:31:04.3 Michael: Yes.

0:31:05.2 Peter: The Obama administration, which Joe Biden was the vice president during. I'm not sure if he remembers, but I do, famously abandoned the legal defense of the Defense of Marriage Act, the federal anti-gay marriage legislation, but even if it was true, that there is a tradition of defending these laws in court, the question becomes, which value is more important, the Department of Justice's practice of defending federal statutes or the equality and dignity of Puerto Ricans? The Biden administration gave you their answer. I just... The standard campaign lie is something to be expected, it's not particularly shocking, but it's fucking horse shit how much of a stink he made about this. Just taking advantage of... You have to keep in mind, the hurricane that devastates Puerto Rico, the Trump administration makes it a huge ordeal to get relief funds to the island, and Democrats were sort of righteously outraged about it, And so Biden is tapping into that outrage and tapping into the general sense that Trump is racist, and using that to sort of make this promise that I will treat Puerto Ricans better, I will treat them with human dignity, I will treat them equally, then the opportunity arises and he pulls back on it, a really disgusting promise to break.

0:32:36.4 Rhianon: Yeah. And explicit, right there, right there. Everybody has receipts on this.

0:32:41.6 Peter: Right, right.

0:32:42.9 Michael: Yeah, and just to emphasize what Peter was saying earlier, the Defensive Marriage Act, Obama's decision to not defend that was not unique. Like you said, it really is. This happens all the time, there are law review articles about it, one of them sort of a famous one called The Indefensible Duty to Defend. The Clinton administration did this too, with the law that purported to replace Miranda v. Arizona for the federal government and that they didn't have to abide by Miranda, they didn't defend that in court at all, they said it was unconstitutional. That's what they told the Supreme Court. It's normal, it's totally normal. And hiding behind this bullshit is cowardly. Just own it. If you're gonna do it, fucking own it. Speaking of which... [laughter]

0:33:30.7 Michael: Speaking of other things they're doing that are pretty heinous, there is a case called Fitisemanu v United States, which is a citizen of American Samoa who was born in American Samoa, saying that the citizenship clause, that we talked about earlier, in the 14th Amendment, makes him an American citizen. He says, "Look, I was born within the jurisdiction of the United States. American Samoa is within the jurisdiction of the United States."

0:33:58.6 Rhianon: That's right.

0:34:00.2 Michael: "Therefore, under the 14th Amendment, I am a citizen, I'm an American citizen." The Tenth Circuit said, "No, you're not." And cited the Insular Cases, saying that only some parts of the constitution apply to American Samoa and the citizenship clause is not one of them. This case will now be before the Supreme Court. I don't know if they were purposefully waiting for the Puerto Rico case that we're discussing now, Vaello Madero, to finish, 'cause their cert petition got filed like five days after this case came down, and the very first line in it is citing to Vaello Madero in their cert petition. So it kinda seems like they were waiting for it, but yeah, that's before the justices right now, and I imagine you have at least two, in Gorsuch and Sotomayor, I'm sure, to hear this case [0:34:50.3] ____. I would hope Kagan and Breyer join them, and there are four.

0:34:53.5 Rhianon: Right.

0:34:54.2 Michael: And it squarely presents the issue whether or not the Insular Cases should be overruled.

0:35:01.6 Rhianon: Yeah.

0:35:02.3 Michael: And yes, the Biden administration is the defendant to that, and they are fighting it. They're saying, "No, this guy is not an American citizen." That's their position in federal court right now.

0:35:12.5 Peter: Well, it's a long-standing tradition of being incredibly racist...

0:35:16.4 Michael: Yeah, that's right.

0:35:18.6 Peter: Towards Puerto Ricans.

[laughter]

0:35:19.8 Michael: Or American Samoans.

0:35:19.9 Peter: That is a long-standing tradition.

0:35:21.0 Rhianon: Yeah.

0:35:21.3 Michael: Yeah.

0:35:22.0 Peter: It's always incredible to watch the Democrats, but anyone really, be like, on one hand, there's the unequal treatment of these very real human beings; on the other hand, there's the complete abstraction of the rule of law.

0:35:35.5 Rhianon: Yeah.

0:35:35.9 Michael: These principles that sort of exist in the ether, and we must defend those ether principles. [chuckle] Sorry, they weigh very heavy. It's just fucking... Just appalling. I wanna call it lawyer brain, but it's something worse. Right?

0:35:50.6 Rhianon: Yeah.

0:35:51.0 Peter: It's so much worse because it builds in the dehumanization of people within these territories.

0:35:57.8 Michael: Yeah.

0:35:58.0 Rhianon: Yeah, yeah. It's a rotten kind of lawyer brain. It's a lawyer brain that's used in bad faith. And like you said, for just furthering the dehumanization and sort of marginalization of a permanent second class.

0:36:11.6 Peter: Right. My final thought about this case is that it's the manifestation of all these ways in which injustices compile over time, and the inadequacy of the law as it is constructed in addressing them. In the practice of law, there's a value placed on incrementalism, almost inherently. We're taught that judges must be cautious, be wary about overruling precedent and creating new rules. Any changes must be made slowly, using small steps only.

0:36:42.7 Rhianon: Yeah.

0:36:45.5 Peter: But this is where that sort of obsession with incrementalism gets you, right? Over 100 years ago, the court creates a two-tiered system whereby Puerto Ricans and other people in other territories are deemed constitutionally inferior, expressly because of their race. Expressly.

0:37:02.2 Rhianon: Yes. Yes.

0:37:02.8 Peter: It's not something that people deny. Right? That is the reality of the Insular Cases, not something that we think is the takeaway of the Insular Cases. It's something that everyone agrees. They are predicated on the idea that there are lesser races. Right?

0:37:16.4 Michael: Right. And everybody agrees, because they say it explicitly in the cases. It's like... [chuckle]

0:37:20.0 Peter: Yeah.

0:37:20.5 Rhianon: Right.

0:37:21.4 Peter: You just can't argue it. And on top of that holding, you get this massive system of different benefits and different taxation systems and all that shit. And because of the unwillingness of judges to do anything that they deem too drastic, you have the court, including two liberal justices, continuing to build atop those racist foundations. Right? The ways in which those tiny injustices compile into something that the court is then unwilling to yank the rug out from under, it's something that you really only see in the law. Right? The conception of the law that exists in America today, where it's sort of inherently conservative, right?

0:38:03.7 Rhianon: Right.

0:38:04.1 Peter: You must be incrementalist, you must be cautious. Those concepts, of course, go out the window when they're pulling Roe v. Wade out from under you, or whatever the fuck, but that's the justification that's sitting somewhere in the back of Kagan's mind, right?

0:38:18.3 Rhianon: Yeah.

0:38:20.2 Peter: Damn. I don't know what it is about these cases, but they fucking piss me off.

0:38:21.7 Michael: Yeah.

0:38:23.0 Peter: There's the direct bridge from 100 something years ago to today with zero interference from policy makers or the courts.

0:38:33.2 Rhianon: Right.

0:38:33.8 Peter: It's just like, Are we all looking at this shit, are we all fucking seeing this?

0:38:37.9 Rhianon: It's obvious.

0:38:39.1 Peter: You understand that there's this entire system predicated on the idea that some people are less than others. It's expressly predicated on that. Is someone gonna do something about this at some point, or is it just gonna be one fucking empty promise after another?

0:38:52.6 Rhianon: Right. I guess we're just gonna leave it.

0:38:55.4 Peter: Next week...

[laughter]

[music]

0:39:06.9 Peter: Alright, next week Whren v United States, a much requested case about traffic stops and the various ways in which cops can use them to fuck you over. [chuckle]

0:39:23.4 Michael: Yeah.

0:39:23.8 Rhianon: Yep.

0:39:25.8 Peter: That was a good summary, right?

0:39:25.9 Rhianon: Yeah, you got it.

0:39:26.6 Peter: Follow us on Twitter @fivefourpod, subscribe to our Patreon, patreon.com/fivefourpod for premium episodes, access to Zoom events, our private Slack; a bunch of shit. We will see you next week. And take care of yourselves. You know? Have to end with like a mental health...

0:39:50.1 Rhianon: Mental health check in.

0:39:51.9 Peter: Like a mental health reminder these days, it's gonna be a rough couple of months for my homies who follow the Supreme Court, so for real, take care of yourselves.

0:40:00.0 Rhianon: Yeah.

0:40:00.8 Peter: Be well, we'll see you next week.

0:40:02.0 Leon: 5-4 is presented by Prologue Projects. Rachel Ward is our producer. Leon Neyfakh and Andrew Parsons provide editorial support. Our production manager is Percia Verlin, and our assistant producer is Arlene Arevalo. Our artwork is by Teddy Blanks at CHIPS NY. And our theme song is by Spatial Relations.

0:40:28.4 Michael: Yeah, and... Fuck, I had a thought and I just lost it.

0:40:33.9 Peter: Give it a second.

0:40:34.0 Michael: Yeah, give me one second. Goddamn it. I don't know.

0:40:36.5 Rhianon: Happens all the time. Just keep going and he'll remember in like 30 seconds.

[laughter]

0:40:40.4 Peter: Puerto Ricans, taxes, Kavanagh. Just throwing words at you.

0:40:45.4 Michael: Oh, I know.

0:40:47.3 Rhianon: Yes.

[laughter]

0:40:51.0 Peter: The words worked, baby.