On Tuesday, the Supreme Court will hear an appeal by the federal government in a case with major potential for a new look at how Congress treats the nation’s territories – especially, Puerto Rico. In a second hearing, it will examine the restrictions that states may put on religious counselors who sit with a Death Row inmate as execution proceeds.
The audio (streamed “live” without video) of both hearings can be found at Quick Links on the Supreme Court’s homepage – supremecourt.gov – as well as on c-span.org/supremecourt and at C-Span Now App.
First case: United States v. Vaello-Madero (The one-hour hearing is scheduled to begin at 10 a.m.)
Background: For 120 years, the United States has dealt with the people and island of Puerto Rico in a way reminiscent of colonial rule: most of the governing power is in Washington, not in San Juan, and the people there have U.S. citizenship (granted by Congress in 1921) but not all of the basic rights that go with that. They have no seats in Congress and no vote for President.
Last year, Puerto Rico’s voters approved, by a margin of 52-to-48 percent, a ballot measure in favor of pursuing statehood. That, however, is not a promising alternative for ending its second-class status; Republicans don’t want to risk two more Democrats in the Senate. So, the island is likely to remain a U.S. territory and, as such, Congress has been allowed to do with it what it wished with few, if any, workable constitutional restraints.
Article IV of the Constitution gives Congress the power to “make all needful rules and regulations respecting the territory or other property belonging to the United States.” Puerto Rico was handed over to the United States in 1898 under the treaty ending the Spanish-American War.
But when the American flag was raised on the island in 1898, did the Constitution “follow the flag”? It did not: in a series of rulings between 1901 and 1922, known together as the Insular Cases, the Supreme Court ruled that the Bill of Rights did not apply there.
It was clear then, and the perception has never changed, that part of the reason for such decisions was racist bigotry – the same sentiment that led the Supreme Court to rule against racial equality in the 1896 decision in Plessy v. Ferguson.
This infamous history lurks in the background as the Supreme Court on Tuesday reviews a case that might test the continuing validity of the precedents set by the Insular Cases. In fact, some of the legal briefs filed in the case specifically urge the Justices to cast aside those precedents. Among those briefs is a strongly worded document filed by the Virgin Islands Bar Association.
While the new case involves the Constitution, it is not clear at this point whether the Court has to undo those precedents in order to decide the outcome here. The case involves a question of equal access, for some Puerto Ricans, to a federal program of financial benefits.
In 1972, Congress set up – as part of the Social Security system – a program of “supplemental security income” (SSI, for short). People with low income, who are age 65 or over, or who are blind or disabled, receive a monthly check that lately has averaged about $575. More than 8 million people receive such checks each month.
Congress has made the program applicable in all 50 states, in the District of Columbia, and in the Northern Marianas Islands, but not to Puerto Rico. For Puerto Ricans, there is a separate federal-state program of aid to the aged, blind or disabled, but the monthly payments are lower than those under SSI and the terms of benefits are different.
This case involves a Puerto Rican man, Jose Luis Vaello-Madero, who has severe health problems. In 2012, while he was living in New York, he began receiving SSI benefits, paid to his bank account in New York. When he moved to Puerto Rico in 2013, his checks continued because, the government says, he did not notify officials of his move. When the government learned of his move, it assessed him $28,081 for SSI benefits to which he was not entitled.
The government sued him in federal court to collect, and he countered by claiming that the exclusion of Puerto Ricans from the program was unconstitutional – a violation of the equality principle under the Fifth Amendment’s Due Process Clause. A federal trial judge and then a federal appeals court agreed with him, declaring that modern constitutional doctrine made such differing treatment invalid.
The Trump Administration appealed to the Supreme Court, and the Biden Administration is continuing that appeal.
The question before the Court: Is it unconstitutional for Congress to treat Puerto Ricans less favorably in eligibility for SSI benefits?
Significance: While the federal government’s appeal relies heavily upon the Constitution’s grant of authority to control federal activity in the territories, and argues that laws made for the territories should be judged by the most tolerant legal standard, a ruling in the government’s favor would seem to reinforce the second-class constitutional status of people living in Puerto Rico – and, by the way, also people living in the Virgin Islands, another territory whose residents are U.S. citizens ineligible for SSI checks.
In a broader sense, a victory for the government would contradict much of the Court’s modern equal rights doctrine, and be a controversial reminder of the discredited history of the Insular Cases – and just at a time that America is having a troubled new national conversation about racial equality.
On the other side, a victory for Vaello-Madero would be a major setback for Congress’s power over the lives of people in U.S. territories, at least when constitutional claims are at stake. One side-effect, the government has argued, is that there are some federal programs more favorable to Puerto Ricans than to other U.S. citizens, and those would be affected, too.
The federal government is seeking to keep the decision as narrow as possible, relying very heavily on two prior, preliminary rulings by the Court – in 1978 and 1980 – allowing Congress to treat Puerto Ricans differently on access to federal benefits. The circumstances in each were somewhat different from those in the Vaello-Madero case, his lawyers say.
Among those opposing the government in the case are Puerto Rico’s current government, the six elected “shadow delegates” that Puerto Rico has in Congress (they have no voting power there) and the American Bar Association.
Second case: Ramirez v. Collier (The hearing, scheduled for 65 minutes, will begin shortly after the Puerto Rican’s hearing concludes.)
Background: Few, if any, issues get more attention from the Supreme Court, year after year, than the death penalty. Since Utah executed Gary Gilmore by firing squad in early 1977 after ten years without capital punishment being carried out in this country, the Court has been engaged in a multi-faceted, unending inquiry into just what limits to impose on the penalty. Mostly, the focus has been on whether that ultimate penalty violates the Eighth Amendment’s ban on “cruel and unusual punishment.”
From time to time, a few Justices have argued that the entire pursuit is futile, so, they argued, capital punishment should be ended as a constitutional matter. That view has never been supported by any majority, so working out the details continues to occupy the Court. (Twenty-four states and the federal government still have the death penalty, three states currently have a moratorium on executions, and 23 states have abolished it.)
In recent years, the Court has been occupied by cases seeking to test the constitutionality of methods of execution. The move by more states to the use of injections of lethal drugs has produced a wave of cases for the Court over which chemical “cocktail” can be used. The legal standard is whether a particular protocol will cause severe pain and suffering during the process.
This new case from Texas moves the Court into a focus on who can be present in the execution chamber when a convicted individual is put to death. The Court, in a few preliminary cases without full briefing and hearings, has indicated that a Death Row inmate who is religious is sometimes entitled to have a religious counselor among witnesses to the execution. The case of John Henry Ramirez of Corpus Christi is an attempt to expand that opportunity.
Ramirez was convicted in 2008 of a 2004 murder in the parking lot of a convenience store. The victim was stabbed 29 times. Ramirez also was involved in a robbery at knifepoint of a second victim; he fled to Mexico and was not arrested until more than three years later. His conviction and death penalty were upheld in state and federal courts.
In his appeal to the Supreme Court, Ramirez is no longer challenging his conviction, his death sentence or the method to be used to end his life – injection of lethal drugs. Instead, he is pursuing a plea to have his church pastor from Corpus Christi in the death chamber with him while the execution is being carried out. There is no longer any dispute about whether the pastor can be there, but only about what he can do while there.
The question before the Court: While the Court, in granting review of Ramirez’s appeal, added several procedural issues, the main question is this: Does either the Constitution’s guarantee of religious rights or a federal law supporting such rights for prison inmates give the inmate a right to have his religious pastor – during the execution process – speak or whisper to him, pray with him or touch him in the religious ritual of “laying on of hands”?
Significance: While this case centers on prison inmates’ rights, it arises against a background of a back-and-forth contest between Congress and the Supreme Court, dating back to the 1990s, over the meaning of the First Amendment’s guarantee of the “free exercise” of religion.
That started when the Court ruled (in the 1990 case of Employment Division v. Smith) that states would not violate the “free exercise” clause if they passed laws that were applied generally, and did not target religious practices for discriminatory treatment, even if such a law had some negative effect on religious worship or rituals.
Congress reacted to that in 1993 by passing a sweeping law designed to counter the Smith decision, the Religious Freedom Restoration Act (RFRA). But then, in 1997, in the case of City of Boerne v. Flores, the Court ruled that the RFRA law could not be applied to state laws, only those at the federal level. Reacting again, in 2006, Congress enacted a law somewhat patterned after RFRA but narrower in scope: the Religious Land Use and Institutionalized Persons Act. That does apply to the states.
Ramirez’s appeal relies both on that 2006 law and the First Amendment’s “free exercise” clause, setting up this case (if his appeal gets past the procedural obstacles) as a major test case on both the statute at issue and the constitutional clause.
It poses a significant challenge for the Court’s current majority of conservative Justices. They have shown repeatedly that they are quite sympathetic to claims that government has violated religious freedom, including the few times they have confronted the issue of having religious counselors present in capital punishment chambers. But those Justices also are quite sympathetic to the needs of prison officials to keep tight control on what happens within the prison walls. It could be difficult to find a middle-ground between those two, when the focus is on actions by an outsider even as prison staff administers the lethal drugs to cause death.
On Wednesday, the Court will hold the final hearing of the current sitting, in a case testing constitutional limits on city governments’ power to control billboard advertising. That case will be discussed in this space tomorrow.
