United States v. Vaello Madero

P R E L I M I N A R Y P R I N T
Volume 596 U. S. Part 1
Pages 159–198
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T H E S U P R E M E C O U R T
April 21, 2022
REBECCA A. WOMELDORF
reporter of decisions
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OCTOBER
TERM, 2021
159
Syllabus
UNITED STATES v. VAELLO MADERO
certiorari
to the united states court of appeals for
the rst 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 legislate with respect to the U. S. Territo-
ries. In exercising that authority, Congress has long maintained dif-
ferent federal tax and benefts 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, estate, 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 benefts program extends to resi-
dents of Puerto Rico. One such benefts program is Supplemental Secu-
rity 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 Due Process Clause requires Congress to make
Supplemental Security Income benefts available to residents of Puerto
Rico to the same extent that Congress makes those benefts available to
residents of the States.
Here, respondent Jose Luis Vaello Madero received SSI benefts while
he was a resident of New York. He then moved to Puerto Rico, where
he was no longer eligible to receive those benefts. Unaware of Vaello
Madero's new residence, the Government continued to pay him SSI ben-
efts. The Government eventually sued Vaello Madero to recover those
errant payments, which totaled more than $28,000. In response, Vaello
Madero invoked the Constitution, arguing that Congress's exclusion of
residents of Puerto Rico from the SSI program violated the equal-
protection component of the Fifth Amendment's Due Process Clause.
The District Court and the Court of Appeals agreed.
Held: The Constitution does not require Congress to extend SSI benefts
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
rational-basis test to uphold Congress's decision not to extend certain
federal benefts to Puerto Rico, noting 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 benefts programs.
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160 UNITED
STATES v. VAELLO MADERO
Syllabus
Those two precedents dictate the result 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 benefts program. Vaello Madero's contrary position would
usher in potentially far-reaching consequences, with serious implications
for the Puerto Rican people and the Puerto Rican economy. The Con-
stitution does not require that extreme outcome. Pp. 164–166.
956 F. 3d 12, reversed.
Kavanaugh, J., delivered the opinion of the Court, in which Roberts,
C. J., and Thomas, Breyer, Alito, Kagan, Gorsuch, and Barrett, JJ.,
joined. Thomas, J., post, p. 166, and Gorsuch, J., post, p. 180, fled con-
curring opinions. Sotomayor, J., fled a dissenting opinion, post, p. 189.
Deputy Solicitor General Gannon argued the cause for
the United States. With him on the briefs were Acting So-
licitor General Prelogar, Acting Solicitor General Fletcher,
Acting Assistant Attorney General Boynton, Deputy Solici-
tor General Kneedler, and Vivek Suri.
Hermann Ferré argued the cause for respondent. With
him on the brief was Juan O. Perla.*
*A brief of amicus curiae urging reversal was fled for the Interameri-
can Institute for Constitutional Rights by Manuel del Valle Colón.
Briefs of amici curiae urging affrmance were fled for the District of
Columbia et al. by Karl A. Racine, Attorney General of the District of
Columbia, Loren L. Alikhan, Solicitor General, Caroline S. Van Zile, Prin-
cipal Deputy Solicitor General, and Samson J. Schatz, Assistant Attorney
General, by Leevin T. Camacho, Attorney General of Guam, Shannon J.
Taitano, Chief Deputy Attorney General, and Stephanie E. Mendiola,
Deputy Attorney General, by Andrew J. Bruck, Acting Attorney General
of New Jersey, and by the Attorneys General for their respective jurisdic-
tions as follows: William Tong of Connecticut, Kathleen Jennings of Dela-
ware, Clare E. Connors of Hawaii, Brian E. Frosh of Maryland, Maura
Healey of Massachusetts, Keith Ellison of Minnesota, Aaron D. Ford of
Nevada, Hector Balderas of New Mexico, Letitia James of New York,
Edward E. Manibusan of the Commonwealth of the Northern Mariana
Islands, Ellen F. Rosenblum of Oregon, Josh Shapiro of Pennsylvania, Peter
F. Neronha of Rhode Island, Thomas J. Donovan, Jr., of Vermont, and Mark
R. Herring of Virginia; for the Commonwealth of Puerto Rico by Carlos
Lugo-Fiol, Domingo Emmanuelli-Hernández, Attorney General of Puerto
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as: 596 U. S. 159 (2022)
161
Opinion of the Court
Justice Kavanaugh del ivered the opi ni on of the
Cour
t.
The United States includes fve Territories: American
Samoa, Guam, the Northern Mariana Islands, the U. S. Vir-
gin Islands, and Puerto Rico. This case involves Puerto
Rico, and Fernando Figueroa-Santiago, Solicitor General; for Puerto Rico
Governor Pedro Pierluisi et al. by Lisa S. Blatt and Amy Mason Saharia;
for the Puerto Rico House of Representatives by Emil Rodríguez Escud-
ero and Jorge Martínez Luciano; for the Senate of Puerto Rico by Edwin
Quiñones; for the Government of the U. S. Virgin Islands by Geoffrey
P. Eaton, Denise N. George, Attorney General of the U. S. Virgin Islands,
and Pamela R. Tepper, Solcitor General; for AARP et al. by Barbara
Jones, William Alvarado Rivera, Barbara Silverstone, Cody Marvin, and
Pedro G. Cruz Sánchez; for the American Bar Association by Reginald M.
Turner, Shay Dvoretzky, Geoffrey M. Wyatt, and Parker Rider-Longmaid;
for the American Civil Liberties Union Foundation et al. by Adriel I. Cep-
eda Derieux, Alejandro A. Ortiz, Jennesa Calvo-Friedman, David D.
Cole, David M. Zionts, Alexander Ely, and William Ramírez; for Latino-
Justice PRLDEF et al. by Hector Torres and Lourdes Rosado; for the
League of United Latin American Citizens by Paul Koster; for Members
of the Congressional Shadow Delegation of Puerto Rico by John F. Nev-
ares; for the National Disability Rights Network et al. by Archie Jennings
and Steven Traubert; for the Plaintiff in Ruiz-Aviles v. SSA et al. by
Isabel Abislaiman; for the Plaintiffs in Peña Martínez v. U. S. Dept. of
Health & Human Services by Kathleen M. Sullivan, Rafael Escalera-
Rodríguez, Derek L. Shaffer, Jonathan G. Cooper, and Efrén Rivera
Ramos; for Public Benefts Scholars by E. Joshua Rosenkranz, Rachel G.
Shalev, and Thomas M. Bondy; for the Service Employees International
Union et al. by Nicole G. Berner, Alvin Antonio Velazquez, Kimberly M.
Sánchez Ocasio, Claire P. M. Prestel, Judith E. Rivlin, Teague P. Pater-
son, Fernando R. Colón, David Strom, and Michael Nicholson; for U. S.
Citizens for Equal Protection, Inc., by José R. González-Irizarry; for the
University of Puerto Rico Law School Amicus Justitiae Pro Bono Project
by Hiram Meléndez-Juarbe; and for the Virgin Islands Bar Association by
Dwyer Arce.
Briefs of amici curiae were fled for Diálogo Por Puerto Rico by Jesu ́ s
R. Rabell-Méndez; for the Medicaid and Medicare Advantage Products As-
sociation of Puerto Rico by Roberto L. Prats Palerm and José A. Hernán-
dez Mayoral; and for the Honorable Jenniffer A. Gonzalez, Resident Com-
missioner for Puerto Rico, by Veronica Ferraiuoli Hornedo.

162 UNITED
STATES v. VAELLO MADERO
Opinion of the Court
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 income, gift, estate, and excise
taxes. Congress has likewise not extended certain federal
benefts 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 Supplemental Security Income
benefts available to residents of Puerto Rico to the same
extent that Congress makes those benefts available to resi-
dents of the States. In light of the text of the Constitution,
longstanding historical practice, and this Court's precedents,
the answer is no.
***
The Territory Clause of the Constitution states that
Congress may “make all needful Rules and Regulations
respecting the Territory . . . belonging to the United
States.” Art. IV, § 3, cl. 2. The text of the Clause affords
Congress broad authority to legislate with respect 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 long-
standing congressional practice refects both national and
local considerations. In tackling the many facets of territo-
rial governance, Congress must make numerous policy judg-
ments 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 indi-
vidual Territories.
Of relevance here, Congress must decide how to structure
federal taxes and benefts for residents of the Territories.
In doing so, Congress has long maintained federal tax and
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163
Opinion of the Court
benefts programs for residents of Puerto Rico and the other
T
erritories that differ in some respects from the federal tax
and benefts 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 Security,
Medicare, and unemployment taxes. 26 U. S. C. §§ 3121(e),
3306( j).
On the benefts side, residents of Puerto Rico are eligible
for Socia l Secur ity and Medicare. § 3121(e); 42 U. S. C.
§§ 410(h)–(i), 1301(a)(1). Residents of Puerto Rico are also
elig ible for federal unemployment benefits. 26 U. S. C.
§ 3306( j); see also House Committee on Ways and Means,
Green Book: Background Material and Data on the Programs
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 benefts 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 bene-
fts for, among others, those who are age 65 or older and
cannot fnancially support themselves.
To be eligible for Supplemental 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 defnes as the 50 States
and the District of Columbia, § 1382c(e). A later statute in-
cluded residents of the Northern Mariana Islands in the pro-
gram. Note following 48 U. S. C. § 1801; 90 Stat. 268. But
residents of Puerto Rico are not eligible for Supplemental
Security Income. Instead, the Federal Government pro-
vides supplemental income assistance to covered residents of
Puerto Rico through a different benefts program—one that
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164 UNITED
STATES v. VAELLO MADERO
Opinion of the Court
is funded in part by the Federal Government and in part by
Puer
to Rico. Notes following §§ 1381−1385.
The dispute in this case concerns a claim for Supplemental
Security Income benefts 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 Madero received Supplemental Security Income
benefts. After moving to Puerto Rico, Vaello Madero no
longer was eligible for Supplemental Security Income bene-
fts. Yet for several years, the U. S. Government remained
unaware of Vaello Madero's new residence and continued to
pay him benefts. The overpayment totaled more than
$28,000.
Seeking to recover those errant payments, the U. S. Gov-
ernment sued Vaello Madero for restitution. In response,
Vaello Madero invoked the U. S. Constitution. Vaello Ma-
dero argued that Congress's exclusion of residents of Puerto
Rico from the Supplemental Security Income program vio-
lated the equal-protection component of the Fifth Amend-
ment'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 Congress
may distinguish the Territories from the States in tax and
benefts programs such as Supplemental Security Income, 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 Income
to Puerto Rico violated the constitutional right to interstate
travel. 435 U. S. 1 (1978) (per curiam). Applying the def-
erential rational-basis test, the Court upheld Congress's deci-
sion. The Court explained that Congress had exempted res-
idents of Puerto Rico from federal taxes. And the Court
concluded that Congress could likewise treat residents of
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165
Opinion of the Court
Puerto Rico differently from residents of the States in the
Supplement
al Security Income benefts program. Id., at 3–
5, and n. 7.
A few years later, in Harris v. Rosario, the Court again
ruled that Congress's differential treatment of Puerto Rico
in a federal benefts 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 Puerto 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 tax laws treated residents of
Puerto Rico differently from residents of the States. And
the Court concluded that Congress could do the same for
that benefts program. 446 U. S., at 651–652.
Those two precedents dictate the result here. The defer-
ential rational-basis test applies. 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
benefts program. See Torres, 435 U. S., at 5, n. 7; Rosario,
446 U. S., at 652. In devising tax and benefts programs, it
is reasonable for Congress to take account of the general
balance of benefts to and burdens on the residents of Puerto
Rico. In doing so, Congress need not conduct a dollar-to-
dollar comparison of how its tax and benefts programs 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 benefts programs. Con-
gress has satisfed that requirement here.
Moreover, Vaello Madero's position would usher in poten-
tially far-reaching consequences. For one, Congress would
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166 UNITED
STATES v. VAELLO MADERO
Thomas, J., concurring
Income but also many other federal benefts programs to res-
idents
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 benefts 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 infict signifcant
new fnancial burdens on residents of Puerto Rico, with seri-
ous implications for the Puerto Rican people and the Puerto
Rican economy. The Constitution does not require that ex-
treme outcome.
1
***
The Constitution affords Congress substantial discretion
over how to structure federal tax and benefts programs
for residents of the Territories. Exercising that discretion,
Congress may extend Supplemental Security Income bene-
fts to residents of Puerto Rico. Indeed, the Solicitor Gen-
eral has informed the Court that the President supports such
legislation as a matter of policy. But the limited question
before this Court is whether, under the Constitution, Con-
gress must extend Supplemental Security Income to resi-
dents of Puerto Rico to the 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.
Justice Thomas, 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-
1
The Court's decision today should not be read to imply that Congress
may exclude residents of individual States from benefts programs. Con-
gress has not done so, and that question is not presented in this case.

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167
Thomas, J., concurring
senfeld, 420 U. S. 636, 638, n. 2 (1975). Although I have
joi
ned the Court in applying this doctrine, see Adarand Con-
structors, 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 Federal
Government from discriminating on the basis of race, at least
with respect to civil rights, may well be found in the Four-
teenth 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 Amendment's Due
Process Clause prohibited “such discriminatory legislation
by Congress as amounts to a denial of due process,” i. e.,
legislation that would fail rational-basis review. Hirabay-
ashi v. United States, 320 U. S. 81, 100, 102 (1943).
In Bolling v. Sharpe, 347 U. S. 497 (1954), the Court began
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 con-
fronted the constitutionality of government-imposed segre-
gation in the District of Columbia's public schools. Because
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 Amendment's re-
quirement 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
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168 UNITED
STATES v. VAELLO MADERO
Thomas, J., concurring
upon the Lochner-era theory that “unreasonable discrimina-
ti
on” 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 reason-
ably related to any proper governmental objective” and
therefore “constitutes an arbitrary deprivation of . . . lib-
erty”); see Lochner v. New York, 198 U. S. 45 (1905). By
invoking “due process” to hold an allegedly “unreasonable”
or “arbitrary” legislative classifcation unconstitutional, Bol-
ling made clear that it was applying this Court's “substan-
tive due process” doctrine. See N. Chapman & M. McCon-
nell, 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 `justif[ied]'
interference with a judge-made liberty, the result is no dif-
ferent in principle than in other modern substantive due
process cases”).
But “[t]he notion that a constitutional provision that guar-
antees only `process' before a person is deprived of life, lib-
erty, or property could defne the substance of those rights
strains credulity for even the most casual user of words.”
McDonald v. Chicago, 561 U. S. 742, 811 (2010) (Thomas, J.,
concurring in part and concurring in judgment). Rather,
“ `considerable historical evidence supports the position that
“due process of law” was a separation-of-powers concept de-
signed as a safeguard against unlicensed executive action,
forbidding only deprivations not authorized by legislation or
common law.' ” Johnson v. United States, 576 U. S. 591, 623
(2015) (Thomas, J., concurring in judgment) (quoting D. Cur-
rie, The Constitution in the Supreme Court: The First Hun-
dred 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 author-
ity of Congress, it may, at most, prohibit Congress from au-
thorizing the deprivation of a person's life, liberty, or prop-
erty without providing him the “customary procedures to
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Thomas, J., concurring
which freemen were entitled by the old law of England.”
P
acifc Mut. Life Ins. Co. v. Haslip, 499 U. S. 1, 28 (1991)
(Scalia, J., concurring in judgment) (internal quotation marks
omitted); see also Murray's Lessee v. Hoboken Land & Im-
provement Co., 18 How. 272 (1856). Either way, the Fifth
Amendment's text and history provide little support for
modern substantive due process doctrine.
To be sure, some have argued that “antebellum due proc-
ess theory commonly included an equality principle” that cir-
cumscribed 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 substantive
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 evidence re-
garding the meaning of `due process of law' strongly suggests
the phrase most likely would have been viewed in 1791 . . .
as guaranteeing either that duly enacted law would be fol-
lowed or that certain requisite procedures would be ob-
served.” R. Williams, The One and Only Substantive Due
Process Clause, 120 Yale L. J. 408, 416 (2010). It is not clear
why post-1791 developments should displace more probative
preconstitutional and founding-era evidence. 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 Constitu-
tion's postenactment `legislative' history” is “the history that
is least likely to refect the original 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 school-
ing. 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
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170 UNITED
STATES v. VAELLO MADERO
Thomas, J., concurring
(2015) (Thomas, J., dissenting). And even if “liberty” en-
compasses
more than that, “[i]n the American legal tradition,
liberty has long been understood as individual freedom from
governmental action, not as a right to a particular govern-
ment entitlement.” Id., at 726; see also C. Green, Seven
Problems With Antidiscrimination Due Process, 11 Faulkner
L. Rev. 1, 32 (2019) (“Even on [a] very expansive view, `lib-
erty' is still only freedom from interference, rather than posi-
tive rights to receive benefts or participate in others' activi-
ties”). Consequently, if “liberty” in the Due Process Clause
does not include any rights to public benefts, it is unclear
how that provision can constrain the regulation of access to
those benefts.
Third, although the Bolling Court claimed that its decision
“d[id] not imply that [due process and equal protection] 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 obligations im-
posed by the Fifth and the Fourteenth Amendments [are]
indistinguishable.” Adarand Constructors, Inc., 515 U. S.,
at 217; see a lso Session s v. M orales-San tana, 582 U. S.
47, 52, n. 1 (2017). But if “due process of law” fully sub-
sumed the guarantee of equal protection, it is unclear why
§ 1 of the Fourteenth Amendment would redundantly state
both requirements i n consecutive Clauses. See, e. g.,
G. Maggs, Innovati on i n Constituti ona l Law, 86 Nw.
U. L. Rev. 1038, 1053 (1992) (Maggs); R. Natelson, The Con-
stitution and the Public Trust, 52 Buffalo L. Rev. 1077, 1174,
n. 432 (2004); R. Primus, 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
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171
Thomas, J., concurring
debatable at best. “The Constitution contains many limita-
ti
ons 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 Educa-
tion Should Have Said 166 (J. Balkin ed. 2001) (McConnell)
(footnotes omitted); see also Maggs 1052. Likewise, “the
enactors of the Fourteenth Amendment might have reason-
ably believed that [an equal protection] provision was not
needed against the federal government” because 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 and Distrust 33 (1980);
McConnell 167; K. Roosevelt, Forget the Fundamentals: Fix-
ing 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 remain
tentative, I think that the textual source of that obligation
may reside in the Fourteenth Amendment's Citizenship
Clause. That Clause provides: “All persons born or natural-
ized in the United States and subject to the jurisdiction
thereof, are citizens of the United States and of the State
wherein they reside.” Amdt. 14, § 1, cl. 1. As I sketch out
briefy below, considerable historical evidence suggests that
the Citizenship Clause “was adopted against a longstanding
political and legal tradition that closely associated the sta-
tus of `citizenship' with the entitlement to legal equality.”

172 UNITED
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Thomas, J., concurring
R. Williams, Originalism and the Other Desegregation Deci-
si
on, 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 frmer founda-
tion 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 often 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 the late
1850s, the connection was well established. For example,
even Chief Justice Taney in Dred Scott v. Sandford, 19 How.
393 (1857), demonstrated this connection when discussing
why, erroneously in my view, free blacks were “not intended
to be included . . . under the word `citizens' in the Consti-
tution,” and therefore could “claim none of the rights and pri-
vileges which that instrument provides for and secures to
citizens of the United States.” Id., at 404. According to
Taney, free blacks were at the founding “considered as a sub-
ordinate and inferior class of beings, who had been subju-
gated by the dominant race, and, whether emancipated or not,
yet remained subject to their authority, and had no rights or
privileges but such as those who held power and the Govern-
ment might choose to grant them.” Id., at 404–405.
He reached that conclusion after surveying discriminatory
state laws and fnding 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 sovereignty, a
class of beings whom they had thus stigmatized . . . and upon
whom they had impressed such deep and enduring marks of
inferiority and degradation.” Id., at 416. Under the Com-
ity 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
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citizens? For Taney, then, States' longstanding and wide-
spread
practice of denying free blacks equal civil rights con-
clusively showed that blacks were not “citizens” 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 Springfeld, 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 of 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 white—born in the United States were
citizens and therefore entitled to equal civil rights. See Wil-
liams 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
1
To be sure, not all agreed that citizenship entailed civil equality. Jus-
tice Curtis, dissenting in Dred Scott v. Sandford, 19 How. 393 (1857), ar-
gued 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, Com-
mentaries on American Law *258–*259, 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 expedient
to prescribe to free persons of color”).
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bondage, these native-born men and women were “citizens.”
Consistent
with Taney's view in Dred Scott, southern gov-
ernments rejected that free blacks 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 ordi-
nary citizens.” J. Harrison, Reconstructing the Privileges
or Immunities Clause, 101 Yale L. J. 1385, 1388 (1992). 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, excluding Indi-
ans not taxed, are hereby declared to be citizens of the
United States.” Act of Apr. 9, 1866, 14 Stat. 27. The pro-
vision immediately succeeding that citizenship guarantee
clarifed 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 beneft 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 right 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
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175
Thomas, J., concurring
instance, Representative Samuel Shellabarger argued that
“
the right of all citizens to be secured in the enjoyment 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 Ray-
mond, 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; 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, Repre-
sentative William Lawrence, the 1866 Act's principal House
sponsor, maintained that “the very nature of citizenship”
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 Clause, he and others characterized
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 (remarks of
Sen. Doolittle). Then, as Congress considered the Citi-
zenship Clause, Republicans reiterated the same equa l-
citizenship 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.
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And during the ratifcation debates, Republicans continued
to
publicly advocate that citizenship and equal civil rights
were concomitant. See id., at 549–554.
B
In the years following the Fourteenth Amendment's rati-
fcation, several Justices also appeared to endorse this under-
st andi ng of the Citi zensh ip Clause, consistent w ith
Reconstruction-era discourse. In the Slaugh ter-House
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 un-
doubtedly one of privileges and immunities of every citizen”).
Justice Field's dissent similarly explained that the 1866 Act
rested “upon the theory that citizens of the United States as
such were entitled to the rights and privileges 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 discrimina-
tion 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
ac ti on Congress cou ld reg u late under the Four teenth
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Thomas, J., concurring
Amendment. See Civ il Rights Cases, 109 U. S. 3, 25–26
(1883).
The lone dissenter, Justice John Marshall Harlan, fo-
cused primarily on citizenship and echoed Republicans' un-
derstanding 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 fundamental
in American citizenship that, in respect of such rights, there
shall be no discrimination by the State . . . against any citizen
because of his race.” Id., at 48.
Only fve years later, a unanimous Court in Gibson v. Mis-
sissippi, 162 U. S. 565 (1896), seemingly confrmed Harlan's
understanding of citizenship 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 Constitution “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 Process 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” implicated 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 Equal Protection Clause redundant be-
cause the latter applies to “person[s], ” whi le the Citizensh ip Clause
and Privileges or Immunities Clause apply to “citizens.” See McDonald

178 UNITED
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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 unconstitu-
tional, Harlan did not rely on the Equal Protection Clause.
Instead, he maintained that Louisiana's law was “inconsist-
ent . . . with that equality of rights which pertains to citi-
zenship, National and State.” Id., at 555. And Harlan's
famous declaration underscores the connection between
citizenship and equality: “Our Constitution is color-blind, and
neither knows nor tolerates classes among citizens. In re-
spect of civil rights, all citizens are equal before the law.”
Id., at 559 (emphasis added). Given that the Equal Protec-
tion Clause speaks of “person[s],” rather than citizens, Har-
lan's reasoning in Plessy suggests that citizenship itself car-
ried with it a right to equal treatment independent of the
“equal protection of the laws” guaranteed to all “person[s].”
4
v. Chicago, 561 U. S. 742, 850, n. 19 (2010) (Thomas, J., concurring in part
and concurring in judgment). Additionally, the Equal Protection Clause
may guarantee equality only with respect 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, in fra. Second,
this understanding of the Citizenship Clause also likely would not make
the Privileges or Immunities Clause redundant. In particular, there is no
evidence suggesting that Republicans disputed the proposition that citi-
zens “could [not] be deprived of rights of national citizenship by any gov-
ernmental entity, whether state or federal, consistent with the Fourteenth
Amendment.” R. Barnett & E. Bernick, The Original Meaning of the
Fourteenth Amendment 202 (2021). “All that was constitutionally dis-
puted among Republicans involved the status of national privileges and
immunities in the states.” Id., at 203. Thus, the Privileges or Immuni-
ties Clause may have confrmed that States specifcally could not abridge
the rights of national citizenship, including whatever civil equality is guar-
anteed to “citizens” under the Citizenship Clause.
4
Justice Harlan's decision not to rely on the Equal Protection Clause
also makes some sense in light of that provision's object—the “Protection
of the Laws.” It is possible that the Equal Protection Clause does not
prohibit discriminatory legislative classifcations, but, consistent with its
focus on “protection,” instead only “imposes a duty on each state to pro-
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Thomas, J., concurring
Beyond its emphasis on equal citizenship, Justice Harlan's
Pl
essy dissent also specifcally recognized that the Federal
Government could not engage in racial discrimination. 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 systems of govern-
ments, 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 prohibited the Federal
Government, as much as the States, from discriminating
with respect to civil rights.
While the historical evidence above is by no means conclu-
sive, it offers substantial support for the proposition that,
by conferring citizenship, the Citizenship Clause guarantees
citizens equal treatment by the Federal Government with
respect to civil rights.
5
tect all persons and property within its jurisdiction from violence and to
enforce their rights through the court system.” C. Green, The Original
Sense of the (Equal) Protection Clause: 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 Clause: Subsequent Interpretation and
Application, 19 Geo. Mason U. Civ. Rights L. J. 219 (2009); J. Harrison,
Reconstructing the Privileges or Immunities Clause, 101 Yale L. J. 1385,
1433–1451 (1992).
5
Adopting this understanding of the Citizenship Clause necessarily
prompts additional questions. For example, beyond prohibiting racial dis-
crimination with respect to civil rights, what other forms of discrimination
does the Citizenship Clause proscribe? Is access to government benefts
a “privilege” or “immunity” of citizenship—i. e., a civil right? See, e. g.,
id., at 1456 (observing that government benefts supported by general
taxation might have been understood by the Reconstruction generation
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 historical
evidence).
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***
J
ustice Har lan st ated i n Pl essy that the Four teenth
Amendment “added greatly to the dignity and glory of
American citizenship.” Id. at 555. And the “best part of
citizenship,” according to Charles 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 simi-
lar, and more supportable, result.
Justice Gorsuch, concurring.
A century ago in the Insular Cases, this Court held that
the federal government could rule Puerto Rico and other
Territories largely without regard to the Constitution. It is
past time to acknowledge the gravity of this error and admit
what we know to be true: The Insular Cases have no founda-
tion in the Constitution and rest instead on racial stereo-
types. 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
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 citizenship. As a man he is entitled to all
the rights of man, and as a citizen he becomes a member of our common
household with equality as the prevailing law. . . . Whatever he may have
been, he is now the same as ourselves. Our rights are his rights; our
equality is his equality; our privileges and immunities are his great posses-
sion.” Cong. Globe, 42d Cong., 2d Sess., 385.
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Gorsuch, J., concurring
Little War 3 (1958) (quoting letter from J. Hay to T. Roose-
velt).
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 Consti-
tution of Empire: Territorial Expansion and American Legal
History 111 (2004) (Lawson & Seidman). Under the ensuing
peace treaty signed in 1898, the United States took posses-
sion 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 annexation
of Hawaii, soon ignited a ferce debate. Some argued that
our republican traditions prevented the United States from
governing distant possessions as subservient colonies with-
out regard to the Constitution. Others sought to devise new
theories by which Congress could permanently rule the
country's new acquisitions as a European power might, unre-
strained by domestic law. See Cabranes 395.
Leading members of the legal academy provided infuen-
tial support for those in the second camp. Their work culmi-
nated 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 com-
pulsory application of [those rights] to ancient and thickly
settled Spanish colonies would furnish . . . proof of our unft-
ness 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
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colonies, substantially as England might govern them. ”
Our
New Possessions, 12 Harv. L. Rev. 464, 467 (1899). Ab-
bott 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 Pos-
sessions: 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 colonialism made its frst ap-
pearance in this Court in the form of a tax dispute in Downes
v. Bidwell, 182 U. S. 244 (1901). Pursuant to the 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, Im-
posts, and Excises shall be uniform throughout 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 frst had to decide
whether the Constitution applied at all in Puerto Rico. Ul-
timately, a fractured set of opinions emerged. Employing
arguments similar to those advanced by Professors Langdell
and Thayer, Justice Brown saw things in the starkest terms.
Applying the Constitution made sense in “contiguous territo-
r[ies] inhabited only by people of the same race, or by scat-
tered bodies of native Indians.” Id., at 282. But it would
not do for islands “inhabited by alien races, differing 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 principles, may for a time be impossible.”
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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 other
cases, Justice White argued, only “fundamental” (if unspeci-
fed) 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 “incorporate”
the island. Id., at 341–342. Still, it would be a mistake to
overstate the gap between 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 un-
known island, peopled with an uncivilized race . . . for com-
mercial and strategic reasons”—a right that “could not be
practically exercised if the result would be to endow” full
constitutional protections “on those absolutely unft to re-
ceive [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 indefnite period.” Id., at 372. Justice Harlan criticized
the Court for “engraft[ing] upon our republican institutions
a colonial system such as exists under monarchical govern-
ments.” Id., at 380. And Justice Harlan dismissed Justice
White's supposed middle ground, which he could fnd no-
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Gorsuch, J., concurring
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 White's “incorporation” theory,
including its suggestion that certain constitutional protec-
tions are “fundamental” and therefore apply even in far-fung
“unincorporated” possessions. Dorr v. United States, 195
U. S. 138, 148–149 (1904). At the same time, it became clear
that very few constitutional limits on the power of the fed-
eral government could be relied upon in the newly acquired
Territories absent a clear congressional statement. See,
e. g., Hawaii v. Mankichi, 190 U. S. 197, 215–216 (1903) (opin-
ion of Brown, J.); id., at 218–219 (White, J., concurring); Cf.
S. Laughlin, The Burger Court and the United States Terri-
tories, 36 U. Fla. L. Rev. 755, 773 (1984) (“[W]hile Justice
White had won the battle over which doctrine should nomi-
nally 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 Territo-
ries 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. citizenship. See Act of Mar. 2,
1917, § 5, 39 Stat. 953. In the Court's estimation, the “local-
ity [was] determinative of the application of the Constitution,
. . . not the status of the people who live in it.” Balzac,
258 U. S., at 309. And, on the Court's account, Puerto Rico's
“localities” included “compact and ancient communities” 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 faws in the Insular Cases are as fundamental as they
are shameful. Nothing in the Constitution speaks of “incor-

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Gorsuch, J., concurring
porated” and “unincorporated” Territories. Nothing in it
extends
to the latter only certain supposedly “fundamental”
constitutional guarantees. Nothing in it authorizes judges
to engage in the sordid business of segregating Territories
and the people who live in them on the basis of race, ethnic-
ity, 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 sovereign
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, Mar-
bury v. Madison, 1 Cranch 137, 176–177 (1803). Empires
and duchies in Europe may have subscribed to the “doctrine
. . . that the people were made for kings, not kings for the
people.” The Federalist No. 45, p. 289 (C. Rossiter ed. 1961)
(J. Madison). “Monarchical and despotic governments” may
possess the power to act “unrestrained by written constitu-
tions.” Downes, 182 U. S., at 380 (Harlan, J., dissenting).
But our Nation's government “has no existence except by
virtue of the Constitution,” and it may not ignore that char-
ter in the Territories any more than it may in the States.
Id., at 382.
The Insular Cases' departure from the Constitution's orig-
inal meaning has never been much of a secret. Even com-
mentators at the time understood that the notion of territo-
rial incorporation was a thoroughly modern invention.
1
The
Insular Cases deviated, too, from this Court's prior and long-
standing understanding of the Constitution. In 1898, the
very same year as the Spanish-American War, a lopsided ma-
1
See C. Littlefeld, The Insular Cases, 15 Harv. L. Rev. 169, 169–170
(1901); F. Coudert, The Evolution of the Doctrine of Territorial Incorpora-
tion, 26 Colum. L. Rev. 823, 832 (1926) (Coudert); see also M. Ramsey,
Originalism and Birthright Citizenship, 109 Geo. L. J. 405, 435 (2020); Law-
son & Seidman 196–197.

186 UNITED
STATES v. VAELLO MADERO
Gorsuch, J., concurring
jority of this Court judged it “beyond question” that the
Constituti
on'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 before that, the
Court held that the Constitution's Tax Uniformity Clause
constrained legislation governing the District of Columbia.
Loughborough v. Blake, 5 Wheat. 317, 319 (1820) (Marshall,
C. J.). In between, this Court reached 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). But instead of con-
fronting their errors directly, this Court has devised a work-
around. Employing the specious logic of the Insular Cases,
the Court has proceeded to declare “fundamental”—and thus
applicable even to “unincorporated” Territories—more and
more of the Constitution's guarantees. See S. Cleveland,
Powers Inherent in Sovereignty: Indians, Aliens, Territories,
and the Nineteenth Century Origins of Plenary Power Over
Foreign Affairs, 81 Texas L. Rev. 1, 241–243 (2002) (collect-
ing 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 fctions of the
2
See, e. g., Springville v. Thomas, 166 U. S. 707, 708–709 (1897) (Seventh
Amendment jury-unanimity requirement applied in Utah Territory); Wilk-
erson v. Utah, 99 U. S. 130, 137 (1879) (Eighth Amendment prohibition on
cruel and unusual punishment 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 Uniformity Clause, applied
in California).
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187
Gorsuch, J., concurring
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 unincorporated 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.
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 provision
after provision of the Constitution “fundamental” and thus
operative in “unincorporated” Territories. But even one
hundred years on, that pitiable job remains unfnished. Still
today under this Court's cases we are asked to believe that
the right to a trial by jury remains insuffciently “fundamen-
tal” to apply to some 3 million U. S. citizens in “unincor-
porated” Puerto Rico. At the same time, the full panoply
of constitutional rights apparently applies on the Palmyra
Atoll, an uninhabited patch of land in the Pacifc Ocean, be-
cause it represents our Nation's only remaining “incorpo-
rated” Territory.
3
It is an implausible and embarrassing
state of affairs.
3
The atoll lies approximately 1,000 miles from Hawaii. Palmyra Atoll,
Dept. of Interior, Offce of Insular Affairs (last visited Apr. 19, 2022),
https://www.doi.gov/oia / islands/palmyraatoll (Palmyra Atoll DOI Over-
view). When Congress supposedly “incorporated” Hawaii as a Territory,
it included Palmyra, then a Hawaiian 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, however, the
atoll was not folded into Hawaii on statehood, and it remained under fed-
eral control. See Act of Mar. 18, 1959, Pub. L. 86–3, § 2, 73 Stat. 4; Act of
July 12, 1960, § 48, 74 Stat. 424. So today our bureaucracies endow that
Territory alone a capital “T” in their offcial lists while the others, Puerto
Rico i ncluded, ear n only a lowercase “ t. ” See Pa lmyra Atol l DOI
Overview.
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188 UNITED
STATES v. VAELLO MADERO
Gorsuch, J., concurring
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” Territories
like Puerto Rico. See Tr. of Oral Arg. 10–11; Brief for
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 governmental concession or
the misguided framework of the Insular Cases. Asked
why he dissented in those cases year after year, Justice
Harlan replied that “ `no question can be settled until set-
tled right.' ” Coudert 842. We should settle this question
right.
To be sure, settling this question right would raise diffcult
new ones. Cases would no longer turn on the fctions of the
Insular Cases but on the terms of the Constitution itself.
Disputes are sure to arise about exactly which of its individ-
ual 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 justifed tools to answer them, includ-
ing not just the Constitution's text and its original under-
standing but the Nation's historical practices (or at least
those uninfected by the Insular Cases). See Fitisemanu, 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, Constitutional Liq-
uidation, 71 Stan. L. Rev. 1, 13–21 (2019). Nor, in any event,

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189
Sotomayor, J., dissenting
can the diffculty of the task supply an excuse for neglect-
i
ng it.
4
*
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 Americans
in Puerto Rico deserve no less.
Justice Sotomayor, 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 protec-
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 “unincorporated” Territories (now) serves
the benefcial end of safeguarding traditional cultures. See, e. g., Fitisem-
anu, 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
expressing vehement disagreement with the Insular Cases. Put aside,
too, 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.
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190 UNITED
STATES v. VAELLO MADERO
Sotomayor, J., dissenting
tion guarantee. I disagree. In my view, there is no ra-
ti
onal basis for Congress to treat needy citizens living any-
where in the United States so differently from others. To
hold otherwise, as the Court does, is irrational and antitheti-
cal 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 rep-
resented 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 people, or those with disabilities
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
income and asset limits for individual participation and de-
termined their own beneft amounts. See Brief for Public
Benefts Scholars as Amici Curiae 27. The Federal Govern-
ment paid 75% of the benefts and 50% of the administrative
costs, subject to a statutory cap on total expenditures. See
Congressional Research Service, W. Morton, Cash Assist-
ance 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 benefts directly to
qualifying low-income individuals who are over 65 years old,
blind, or disabled. The Federal Government sets uniform
qualifcations for eligibility and fully funds the program
through mandatory appropriations from the general fund of
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191
Sotomayor, J., dissenting
the United States Treasury. See 42 U. S. C. § 1381 et seq.
U
nlike AABD benefts, SSI benefts do not vary based on
the specifc State or Territory that a benefciary is located
in, as long as the benefciary is otherwise eligible.
1
In sum,
SSI created a fully nationalized assistance program with fed-
eral administration, federal determination of eligibility, and
fnanced entirely from federal funds.
When Congress created SSI, it made the program avail-
able only to “resident[s] of the United States,” and it defned
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 Common-
wealth 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 references to the “United States”
include Puerto Rico. See, e. g., 52 U. S. C. § 20310(8). In
this context, however, Congress did not extend the SSI pro-
gram to Puerto Rico and other Territories. Instead, Con-
gress left in place the AABD program. See notes following
42 U. S. C. §§ 1381–1385.
Congress' decision not to include Puerto Rico in the SSI
program has a signifcant 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 Government
Accountability Offce estimates that over 300,000 Puerto
1
The amount of benefts SSI pays to eligible recipients can vary, depend-
ing, for instance, on whether the recipient has an “eligible spouse.” 42
U. S. C. § 1382(b).
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.
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192 UNITED
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Sotomayor, J., dissenting
Rico residents would have qualifed for SSI. Brief for Hon.
J
enniffer A. Gonzalez Colon, Resident Commissioner 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, signifcantly fewer Puerto Rico resi-
dents are eligible for AABD than would be eligible for SSI,
and the benefts they receive under AABD are hardly com-
parable to those they would likely receive under SSI.
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 returned
to Puerto Rico.
In June 2016, Vaello Madero, approaching his 62d birthday,
went to a Social Security Administration offce in Puerto
Rico to apply for Title II Social Security benefts. As a re-
sult, 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 ben-
efts to $0, retroactively effective to August 2013. By letter,
the Administration notifed Vaello Madero that he was “out-
side of the United States” while he was living in Puerto Rico.
App. 39, 45.
In 2017, the United States fled suit against Vaello Madero
to recover the $28,081 (plus interest, costs, and attorney's
fees) that it calculated Vaello Madero had illegally cashed
while he resided in Puerto Rico. As an affrmative defense
to the suit, Vaello Madero claimed that excluding U. S. citi-
zens who reside in Puerto Rico from the SSI program vio-
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193
Sotomayor, J., dissenting
lated the equal protection guarantee of the Fifth Amend-
ment.
3
The
United States District Court for the District of
Puerto Rico agreed, granting summary judgment to Vaello
Madero.
The Court of Appeals unanimously affrmed. See 956
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 provided
a rational basis for the challenged classifcation, explaining
that SSI recipients are, by defnition, low-income individuals
who cannot afford to pay taxes. Id., at 27. The Court of
Appeals also observed that SSI is a “national program” that
is operated and administered uniformly, without regard to
State of residence. Id., at 25. The court therefore declared
invalid the “exclusion of Puerto Rico residents from SSI cov-
erage.” 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 similarly 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 classifcations upon imper-
missible criteria or use them arbitrarily to burden a particu-
3
The Fifth Amendment's Due Process Clause prohibits the Government
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 Amendment.' ”
Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 224 (1995) (quoting
Buckley v. Valeo, 424 U. S. 1, 93 (1976) (per curiam)).
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194 UNITED
STATES v. VAELLO MADERO
Sotomayor, J., dissenting
lar group of individuals. Where a law treats differently two
di
fferent groups of people that are not members of a suspect
or quasi-suspect classifcation, and the classifcation does not
implicate a fundamental right, the law will survive an equal
protection challenge if it is “rationally related to a legitimate
governmental interest.” Department of Agriculture v. Mo-
reno, 413 U. S. 528, 533 (1973).
Rational-basis review is a deferential standard, but it is
not “ tooth less. ” Ma thews v. Lucas, 427 U. S. 495, 510
(1976). Even neutral classifcations must “rationally ad-
vanc[e] a reasonable and identifable governmental objec-
tive.” Schweiker v. Wilson, 450 U. S. 221, 235 (1981).
When the relationship between a statutory classifcation and
its goal is “so attenuated as to render the distinction arbi-
trary or irrational,” that distinction violates equal protec-
tion. 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” provides a rational basis for ex-
cluding citizens who reside in Puerto Rico from the SSI
program. Ante, at 165 (emphasis deleted). As the United
States argues, “Congress could rationally conclude that a ju-
4
Because I would hold that this classifcation does not survive rational
basis, I do not consider whether the differential 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 disclaims 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 Justice Gorsuch's view that it “is past time
to acknowledge the gravity” of the error of the Insular Cases. Ante, at
180 (concurring opinion). Those cases were premised on beliefs both odi-
ous and wrong, and I share the concurrence's “hope [that] the Court will
soon recognize that the Constitution's application should never depend on
the government's concession or the misguided framework of the Insular
Cases.” Ante, at 188.
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Sotomayor, J., dissenting
risdiction that makes a reduced contribution to the federal
treasury
should receive a reduced share of the benefts
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. Rosa-
rio, 446 U. S. 651 (1980) (per curiam), require acceptance of
this rationale. Ante, at 164–165. It is true that both Cali-
fano and Harris relied on Puerto Rico's tax status to justify
the unequal treatment of its residents. See Califano, 435
U. S., at 5, n. 7; Harris, 446 U. S., at 652. Neither case, how-
ever, 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
resolved 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 benefts 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 disposi-
tions, Califano and Harris are not “of the same precedential
value as would be an opinion of this Court treating the ques-
tion on the merits.” Edelman v. Jordan, 415 U. S. 651, 671
(1974). And both Califano and Harris rested on the mis-
taken premise that residents of Puerto Rico do not contrib-
ute at all to the Federal Treasury. Califano, 435 U. S., at 5,
n. 7; Harris, 446 U. S., at 652. Here, the United States con-
cedes that “residents of Puerto Rico make some contribu-
tions 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, recipients apply for assistance di-
rectly to the Federal Government, and the Federal Govern-
ment disburses funds directly and uniformly to recipients
without regard to where they reside. Indeed, when it cre-
ated SSI, Congress replaced existing programs that differed
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196 UNITED
STATES v. VAELLO MADERO
Sotomayor, J., dissenting
between States as well as between States and Territories
and
that involved States and Territories in administering the
programs. Under the current system, the jurisdiction in
which an SSI recipient resides has no bearing at all on the
purposes or requirements of the SSI program. For this rea-
son alone, it is irrational to tie an individual's entitlement to
SSI to that individual's place of residency.
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 defnition, SSI recipients pay
few if any taxes at all, as the First Circuit correctly recog-
nized below: “[B]y its very terms, only low-income individu-
als lacking in monetary resources 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
flers. 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 benefts to and burdens on”
5
Both the District Court and the Court 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 explained
that each year from 1998 to 2006 (when an economic recession set in),
residents of Puerto Rico contributed in aggregate over $4 billion to the
Federal Treasury, a sum larger than the contributions by residents of Ver-
mont, Wyoming, and several other States. Id., at 24. Even between
2016 and 2018, during the recession and despite several natural disasters,
residents of Puerto Rico 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 income
taxes by all federal employees in Puerto Rico,” and “the full Social Secu-
rity, Medicare, and Unemployment Compensation taxes that are paid in
the rest of the United States.” Id., at 25 (footnote omitted).

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Sotomayor, J., dissenting
citizens when deciding eligibility for benefts. Ante, at 165.
That
is not a rational basis for this classifcation, however,
because SSI is a means-tested program of last resort 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.
B
The Court cautions that holding this classifcation uncon-
stitutional would “usher in potentially far-reaching conse-
quences,” such as requiring the extension of other federal
programs to citizens who reside in all Territories. Ibid. It
bears noting that tax status did not preclude Congress' ex-
tension of SSI to the Northern Mariana Islands, undermining
that justifcation as a rational basis to distinguish Puerto
Rico from the States. In any event, the Court identifes no
federal program other than SSI that operates in such a uni-
form, nationalized, and direct manner. For instance, the
Supplemental Nutrition Assistance Program is administered
by local governments. See Brief for Public Benefts Schol-
ars 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 dramatic
repercussions. If Congress can exclude citizens from safety-
net programs on the ground that they reside in jurisdictions
that do not pay suffcient taxes, Congress could exclude
needy residents of Vermont, Wyoming, South Dakota, North
Dakota, Montana, and Alaska from benefts programs 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 pro-
gram, and then excluded entire States on the basis that the
6
The United States concedes that the analysis would be the same if
Congress excluded residents of a State from the SSI program. Tr. of Oral
Arg. 6.

198 UNITED
STATES v. VAELLO MADERO
Sotomayor, J., dissenting
taxpaying residents of that State do not pay suffcient fed-
era
l taxes. The Court's holding today suggests that doing
so would be constitutional and not a violation of the Constitu-
tion's promise of equal protection of citizens.
***
SSI is designed to support the neediest citizens. As a
program of last resort, it is aimed at preventing the most
severe poverty. In view of that core purpose, denying bene-
fts to hundreds of thousands of eligible Puerto Rico residents
because they do not pay enough in taxes is utterly irrational.
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 poverty 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 vagar-
ies of the political process. Because residents of Puerto
Rico do not have voting representation in Congress, they
cannot rely on their elected representatives 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” respecting the Territories. Art. IV,
§ 3, cl. 2. That constitutional command does not permit Con-
gress to ignore the equally weighty constitutional command
that it treat United States citizens equally. I respectfully
dissent.
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Page Proof Pending Publication
Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
for the convenience of the reader and constitutes no part of the opinion of
the Court. A list of counsel who argued or fled briefs in this case, and
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
p. 195, line 3 from bottom, “disperses” is replaced with “disburses”