What Can Be Done About SSI For Puerto Rico And Other Territories?

Puerto Rico's flag

     I had promised some ideas on what can be done about the possibility that the Supreme Court will find that it is unconstitutional to deny SSI benefits to U.S. citizens who are residents of Puerto Rico and other U.S. territories. If this happens, there's going to be an avalanche of claims. I suppose I haven't gotten around to writing about this before now because I doubt that much will be done.

     If Donald Trump is re-elected or if Republicans continue to control the Senate, I'm pretty sure nothing will happen in advance of a Supreme Court decision. In fact, I'm pretty sure that it will be difficult to mount an effective response even after a Supreme Court decision that SSI must be offered to residents in the U.S. territories if Republicans control the White House or the Senate. As a party, they are hostile to government benefit programs and to Hispanics and they're disinterested in government operations.

     If Democrats control the White House and the Senate, it may depend upon what Senate Democrats do about the filibuster. While most Senate Democrats favor doing something about the filibuster, Senators Manchin, Jones and Sinema, at the least, oppose this effort. Democrats will need more than a bare majority to nuke the filibuster.

     If Democrats do control the White House and the Senate and can get around the filibuster, they can give the Social Security Administration more money to implement SSI in the territories. The problem is that the agency needed additional appropriations a couple of years ago to start preparing for this. About all the agency can do now with more money is to throw a lot of overtime at it, not just in Puerto Rico and the other territories, but across the country. This is way too big a problem to be handled just in the territories.

     Another thing that Congress can do is what was done at the time SSI was first created in 1972 and came into effect in 1974. They can grandfather in recipients of Aid to the Aged, Blind and Disabled (AABD). You see, SSI wasn't the first needs based program of financial assistance to the aged, blind and disabled. AABD benefits go back to the 1935. It's Title XIV of the Social Security Act. Those benefits were administered by the states but mostly paid for with federal dollars. In order to reduce the challenges of initially implementing SSI, recipients of AABD were grandfathered onto SSI benefits. AABD went away once SSI was implemented, except in the U.S. territories where it persists to this day.

     The problem with grandfathering in AABD recipients, apart from Republican efforts to obstruct the effort, is that there aren't that many recipients of AABD. Puerto Rico is poor but it had only about 37,00 AABD recipients as of 2016, the most recent year for which I can find numbers, and almost half of those were aged recipients, the easiest category to put on SSI benefits. This contrasts with the estimated 700,000 Puerto Ricans which may qualify for SSI. Why so few AABD recipients in Puerto Rico? The average AABD benefit in Puerto Rico is only $77 a month and the income limit is only $65 a month. Grandfathering in AABD recipients is better than nothing but it doesn't get you very far.

     The only other thing I can come up with is that Congress could pass a bill giving SSI to the territories effective in 2023 before a Supreme Court decision. That would give time to prepare adequately. The plaintiffs from Puerto Rico and Guam with pending cases could be bought off. What would you do about others trying to get benefits before 2023? I guess you'd just try to stall them and hope there's not too many of them. Of course, to do this Congress would have to act before the Supreme Court gets around to the issue. I doubt that there is any way of delaying a Supreme Court decision past June 2021. Unfortunately, preemptively giving SSI to the territories would require that Democrats control the White House, the House of Representatives and the Senate, be able to nuke the filibuster and focus on this issue almost immediately after inauguration day. I'd be very surprised if that all happens.

     Does anyone have any better ideas other than hoping the Supreme Court holds that denying SSI to U.S. citizens residing in U.S. territories is constitutional? The Supreme Court could rule that way but as I mentioned in an earlier post, five federal judges have issued rulings on the issue so far and all five have found it unconstitutional even though four of the five were nominated by Republican Presidents.

     By the way, even if the Supreme Court rules that it's constitutional to deny SSI benefits to U.S. citizens who reside in the territories, we're not out of the woods. There is an effort to give statehood to D.C and Puerto Rico. There's a decent chance of that happening, depending upon the election result.