TERRITORIAL EXCEPTIONALISM AND THE AMERICAN WELFARE STATE.

• Author: Hammond, Andrew

Table of Contents INTRODUCTION I. SOCIAL CITIZENSHIP OUTSIDE THE STATES A. Why Social Citizenship? B. Social Citizenship and American Federalism C. Territories as American Public Law's Outsiders II. TERRITORIAL WELFARE ADMINISTRATION A. Medical Assistance 1. The Federal Framework 2. Territories as a Medicaid Exception B. Food Assistance 1. The Federal Framework 2. Territories as a SNAP Exception C. Disability Assistance 1. The Federal Framework 2. Territories as an SSI Exception III. CHALLENGING THE STATUS QUO IN COURTS AND CONGRESS A. Challenging Territorial Welfare Administration in Court 1. Doctrinal Context: Equal Protection and the Right to Travel 2. Challenging the Exclusion of Territorial Residents from Federal Public Benefits B. Legislation: Placing Territories on Par with States 1. Emergency Relief: Economic Downturns, the Climate Crisis, and COVID-19 2. A Structural Proposal: Ending Territorial Exceptionalism in Public Benefits IV. BEYOND THE WELFARE STATE AS A RACIAL ORDER CONCLUSION INTRODUCTION

Jose Luis Vaello-Madero was born in Puerto Rico--a U.S. citizen by birth. (1) Thirty years later, he moved from Puerto Rico to New York. Nearly thirty years after that, in 2012, Vaello-Madero began to receive federal disability benefits through the Supplemental Security Income (SSI) program. In 2013, Vaello-Madero moved back to Puerto Rico. A few years later, the Social Security Administration informed him that it would discontinue his SSI benefits, dated retroactively to his return to Puerto Rico. In its notice, the agency stated that Vaello-Madero had been "outside of the U.S. for 30 days in a row or more" since 2014. (2) The agency noted that it "considered] the U.S. to be the 50 States of the U.S., the District of Columbia, and the Northern Mariana Islands." (3) Puerto Rico has been a United States territory for 122 years. (4)

Roughly a year later, the United States sued Vaello-Madero to recover the allegedly improper disability benefits over that two-year period, for a total of $28,081. (5) An investigator employed by the Social Security Administration got Vaello-Madero, who was without counsel at the time, to sign a stipulated judgment, which the federal government promptly filed in federal court in Puerto Rico. (6) The district court appointed counsel for Vaello-Madero who raised as an affirmative defense that excluding Vaello-Madero and other Puerto Rican residents from SSI benefits violated the Constitution's equal protection guarantee. (7) On cross-motions for summary judgment, the district judge agreed, and last April the First Circuit affirmed, holding that excluding Puerto Rican residents from the SSI program violates equal protection. The Supreme Court granted the government's petition for certiorari on March 1, 2021. (8)

Vaello-Madero's exclusion from public benefits epitomizes the extent to which federal law places millions of Americans outside the welfare state. Federal law excludes these American citizens from crucial public benefits simply because they live in the U.S. territories. For instance, Puerto Rico, the

Northern Mariana Islands (CNMI), and American Samoa are excluded from SNAP (food stamps). Instead, these three territories receive block grants for food assistance, which do not respond to a surge in increased need. (9) That's why, after Hurricane Maria decimated the island, Puerto Rico languished as it waited to receive additional temporary aid from Congress. (10) When it comes to healthcare, federal law reimburses territories for their Medicaid programs at significantly lower rates than it does for states. (11) And as with food assistance, the federal government caps medical assistance for each of these territories, a limit that does not exist for the fifty states or the District of Columbia. (12) As Vaello-Madero's case illustrates, no American living in Puerto Rico can receive SSI benefits, regardless of age or disability.

These discrepancies surrounding public benefits mirror the exclusion of territorial Americans in other areas of federal law. An American who lives in, say, Florida who then moves to the British Virgin Islands can vote in presidential elections via an absentee ballot. (13) But if that same person moves to the U.S. Virgin Islands, she cannot. (14) To draw attention to its residents' disenfranchisement, Guam held a presidential straw poll on Election Day. (15) American Samoans possess an even stranger status. While those born in the other four territories are recognized by the federal government as citizens by birth, the State Department stamps American Samoans' passports with the following disclaimer: "The bearer [of this passport] is a United States national and not a United States citizen." (16) Last year, a federal judge disagreed, ruling that a person born in American Samoa is a U.S. citizen within the meaning of the Fourteenth Amendment. (17) The Tenth Circuit heard argument on the case last fall. (18) Any inquiry into the public law that governs the U.S. territories necessarily runs up against a persistent democratic deficit.

While some may dismiss these irregularities as mere fodder for academic debate, they ensnare over three million Americans. Five times as many Americans live in the territories than in the District of Columbia. Roughly as many Americans live in the territories (19) as those in Alaska, Delaware, Hawaii, and Wyoming combined. (20) While the federal government excludes these Americans from the official poverty measurements for the country, what data we have on poverty levels paints a stark picture. (21) The Census Bureau estimates that the poverty rate in Puerto Rico in 2018 was 43.5%, compared to 11.8% in the fifty states and the District of Columbia. (22) Adults living in the U.S. Virgin Islands are two and a half times more likely to lack health insurance than those in the fifty states. (23)

This level of poverty and deprivation will only worsen as the five U.S. territories are particularly vulnerable to the ravages of the climate crisis. Those who live there will face increasingly tenuous living conditions due to extreme weather events made more frequent and more intense by a warming planet. (24) In 2018, American Samoa suffered through Cyclone Gita (25) and the CNMI withstood Typhoon Yutu--the most powerful storm to hit the United States since 1935. (26) Two Category 5 hurricanes struck the U.S. Virgin Islands within a two-week period in 2017. (27) One of them, Hurricane Maria, also decimated Puerto Rico. (28) Precisely when territories need additional resources to recover from the rolling disaster that is climate change, federal law fails them.

This Article lays bare the ways in which federal law denies certain Americans protection from hunger, sickness, and disability because they live in the country's territories. The Article explores the ways in which federal law disadvantages Americans who live in the territories by impeding their access to basic disability, food, and medical assistance. (29) There is a rich scholarly conversation on the exceptional status of the U.S. territories, much of it critical. (30) But this literature does not focus on social protection, and it does not cover the distinct domains of disability law, food assistance, and health care. Moreover, this Article adds to the literature by seizing on two recent developments: significant congressional activity over the last several years and litigation winding through the federal courts right now. The groundswell of demands for racial justice and the outcome of the 2020 election may create an opportunity for significant progress in this neglected corner of federal law.

Two caveats are in order. First, this Article risks eliding the different histories, politics, and social dynamics of these five territories. Today, each of these territories have different constituencies, interests, and agendas when it comes to the federal government. These differences make it challenging to capture their respective subordination in our current constitutional order. But by providing a comprehensive comparative analysis of how federal law treats these five territories in the specific field of welfare provision, this Article shows that their treatment compared to states, or even among themselves, is difficult to justify.

Second, bear in mind that those who reside in these territories do not necessarily think American citizenship is an unalloyed good. Indeed, in this context and others, it has often been perceived as a weapon that the federal government can wield to stifle sovereignty and promote assimilation. (31) And the territories themselves are sites of migration, and not just to and from the United States. (32) Indeed, many in the territories insist on some kind of independence from the United States. (33) However, this Article does not question whether the territories should have a different legal relationship to the United States, whether it be statehood, independence or something else. Rather, this Article begins with the fact that most who live in the territories today are American citizens and proceeds to focus on what the social dimensions of these Americans' citizenship should be.

Social citizenship is defined as the extent to which an individual's membership in a polity includes protection from the social and economic vulnerability that accompanies the common crises of modern life, such as unemployment, sickness, and old age. (34) Thus, the purpose of this project is more modest than some of the more wide-ranging scholarship on the U.S. territories. It is grounded in the reality that American public law attempts to protect people from these inevitable misfortunes. Yet the legacies of a racialized welfare state and its architecture of states' rights has undermined the possibility of a legal commitment to a social minimum. This status quo, whether it was ever justified, is ill-suited to the demands of American society today, and Americans who live in U.S...