Biden DOJ will defend excluding Puerto Ricans from disability payments

President Biden on Monday announced that the Department of Justice (DOJ) will continue to defend a law that excludes Puerto Ricans from the Supplemental Security Income (SSI) program, while calling on Congress to extend eligibility to the U.S. territory’s residents.

Biden said the Justice Department will be adhering to its practice of defending the constitutionality of federal law in the legal challenge against a provision in the Social Security Act that excludes Puerto Rico residents from the program, which provides income for low-income citizens with disabilities.

“This provision is inconsistent with my Administration’s policies and values,” Biden said in a statement. “However, the Department of Justice has a longstanding practice of defending the constitutionality of federal statutes, regardless of policy preferences. This practice is critical to the Department’s mission of preserving the rule of law. Consistent with this important practice, the Department is defending the constitutionality of the Social Security Act provision in this case.”

The president said that the solicitor general’s office would be filing a Supreme Court brief Monday arguing in favor of the provision.

The Supreme Court earlier this year agreed to hear a case challenging the constitutionality of Puerto Rico’s exclusion from the program. The government sued José Luis Vaello-Madero, an elderly disabled man who had been receiving SSI payments, for $28,000 in supplemental income that he had received after he moved from New York to Puerto Rico. 

Attorneys for Vaello-Madero successfully argued in the lower courts that the Social Security Act provision violated the Constitution’s Equal Protection Clause, prompting the Trump administration to take the case to the Supreme Court.

Administrations have chosen in the past to not defend the constitutionality of certain federal laws that they opposed. Former President Obama’s Justice Department opted not to defend the 1996 Defense of Marriage Act, which barred the federal government from recognizing same-sex marriages.

And the Trump administration chose not to put up a court fight against challenges to the Affordable Care Act, Obama’s signature health legislation. 

Hermann Ferré, an attorney for Vaello-Madero, said Monday that Biden’s announcement contradicts any legal argument in defense of the Social Security Act’s provision.

“We don’t see how it’s possible to defend a statutory scheme that, as the President rightly acknowledges, treats Puerto Rico residents as ‘second-class citizens,'” Ferré said in an emailed statement. “Such treatment is, by definition, unconstitutional under equal protection principles. This is not about a difference of policy preferences or whether to extend legislative grace. It’s about correcting the longstanding unconstitutional, second-class treatment of Puerto Rico residents.”

–Updated at 1:38 p.m.