The Senate Finance Committee has released an updated version of its portion of the Build Back Better Act, the huge budget reconciliation bill that has already passed the House of Representatives. It contains two parts that affect the Social Security Administration. At the very beginning of the 1,180 document is a four week comprehensive paid leave benefit to be administered by Social Security and at the very end of the bill is extension of SSI to U.S. territories. As best one can tell, extension of SSI to the territories is uncontroversial, at least among Democrats, while paid leave is very controversial with one Democrat, Senator Joe Manchin. His possible opposition is crucial since it will take every Democrat in the Senate voting for the bill to pass it.
The comprehensive paid leave part of the bill would appropriate to Social Security at addition $1.5 billion in the current fiscal year and $1.59 billion a year thereafter for administration of the benefit. §2206(b). There would be an additional half a billion for FY 2024, the year in which comprehensive paid leave would start. §2206(c). By the way, there's no additional money appropriated in the bill for the extension of SSI to the territories.
No doubt Social Security will find administration of comprehensive paid leave challenging, if it passes. The thing about this is that if this passes getting it going will become a huge priority for the Biden Administration. The Social Security Administration's current backlogs cannot be allowed to persist or it will be impossible to implement comprehensive paid leave. If it is to get this additional workload, the agency's field offices, payment centers and teleservice centers must be massively buttressed with additional staff and this can't wait until the last minute. This can't be accomplished just with overtime. The agency will need to completely clear off its current backlogs and fully train its staff. If this passes in its current form the money may be there to do that. If this bill doesn't appropriate enough, the Biden Administration will be highly motivated to find additional money. I don't know how this sounds to Social Security employees but to someone like me who's on the receiving end of the agency's services, it sounds great.
After yesterday's oral argument before the Supreme Court I had expressed optimism that the Court would find it unconstitutional to deny SSI benefits to U.S. citizens who live in Puerto Rico. Others, including a writer for the highly-regarded SCOTUSblog, felt otherwise.
Let me explain. There were a number of questions asked by the justices about whether finding this exclusion unconstitutional would trigger litigation claiming denial of equal protection because certain laws favor one state or one region over another. Although the attorney representing Mr. Vaello-Madero could have done a better job of expressing it, the answer seemed simple to me. This sort of lawsuit can already be brought but seldom is because all that is required to withstand an equal protection challenge is a "rational basis" for a law. That's a minimal requirement that would normally be met. It's just that in this case, the exclusion of SSI is so obnoxious that it cannot even meet a minimal requirement. If a statute is found that is as obnoxious as this one, then by all means the Court should find it unconstitutional but such a statute should be almost nonexistent. The states have representation in Congress. Puerto Rico doesn't. My interpretation of the questioning was that the Justices want to make sure they write a narrow decision finding it unconstitutional to deny SSI in Puerto Rico and were inquiring about how they should do it. Another interpretation would be that the justices were expressing reasons why it would be too dangerous to give relief to Mr. Vaello-Madero.
Anyway, listen to the oral argument yourself and tell us what you think.
I listened to the oral argument is U.S. v. Vaello-Madero. You can't always tell from oral arguments and maybe I heard what I wanted to hear but my impression was that the only issue was how broad the opinion will be -- that all or virtually all of the justices are ready to hold it unconstitutional to deny SSI to U.S. citizens who reside in Puerto Rico and other territories.
If you also listened to the oral arguments, what was your take?
Update: The Supreme Court reporter at the Washington Post thinks the Supreme Court is reluctant to extend SSI to Puerto Rico. However, court reporters at The Hill seem uncertain about how the Court will come down.
Ian Millhiser has written an excellent summary for Vox of the legal issues presented by U.S. v. Vaello-Madero, which is to be heard by the Supreme Court tomorrow. Vaello-Madero presents the issue of whether it is constitutional to deny SSI benefits to U.S. citizens who reside in Puerto Rico and other U.S. territories.
The old precedents supporting the denial of SSI to Puerto Ricans, the so-called Insular Cases are so disreputable that they cannot be used to turn down Mr. Vaello-Madero. The Court could come up with new reasoning to justify turning down Mr. Vaello-Madero but would it? There probably won't be some liberal-conservative split on this case. Every amicus brief filed supported Mr. Vaello-Madero.
The government's brief in U.S. v. Vaello-Madero, a case pending at the Supreme Court, is due today. The issue in Vaello-Madero is whether it's constitutional to deny Supplemental Security Income (SSI) benefits to U.S. citizens who reside in Puerto Rico and other territories.
President Biden has expressed support for legislation extending SSI to territories but there is little hope that legislation will pass. His Administration has not yet taken a position in Vaello-Madero.
The traditional principle has been that the Solicitor General, who handles cases for the federal government at the Supreme Court, should defend the constitutionality of any statute. Even before Trump came to office there had been exceptions to this princriple. The Trump Administration completely abandoned the tradition of defending the constitutionality of legislation it opposed. Joe Biden is a very traditional President but this case provides a strong temptation to abandon tradition.
The Solicitor General has already obtained two extensions of time to file a brief. In support of the last request for an extension of time, the Solicitor General said that "the brief requires consultation with a number of components of the government."
Extending SSI to Puerto Rico would be a big deal. There have been estimates that several hundred thousand people could qualify for benefits. Handling all those claims with no phase in and no time to prepare would be an enormous logistical challenge for the Social Security Administration that would affect operations across the entire country.
Update: The government hasn't yet filed its brief but the President has released a statement saying that although he believes that SSI should be available in territories that his Administration will follow the conventional practice and defend the constitutionality of the statute.
Further update: The Solicitor General had finally filed a brief. Don’t expect anything original in the brief. There’s a lot of talk about the income tax not applying to Puerto Rico and stare decisis.
I was looking for something else but happened upon an estimate that Social Security's Office of Chief Actuary made last year of the costs of extending SSI to all U.S. territories. The cost would be $23.4 billion over a ten year period with the vast majority of that for Puerto Rico. There's no projection presented of the number of claimants who would become eligible for benefits.
The issue of whether it is constitutional to deny SSI benefits to U.S. citizens who reside in U.S. territories will be heard by the Supreme Court this fall. It is also possible that President Biden will formally propose this as a change in the statutes.
Time and again, the president has refused to provide Puerto Rico with much-needed resources. He’s repeatedly insulted Puerto Ricans and this latest action is another example of his disrespect for the island.
This ends when I’m elected president.
This isn't exactly a promise to withdraw the request that the Supreme Court hear U.S. v. Vaello-Madero, although it can be interpreted that way. This twitter history is drawing attention and some are expressing disappointment that Biden hasn't already changed the government's position on the case. Biden's press secretary has said that Biden supports legislation to extend SSI to U.S. territories.
Biden hasn't yet nominated a Solicitor General, the official who represents the federal government before the Supreme Court. Once he does, I hope that the Biden Administration's position on U.S. v. Vaello-Madero comes up in the confirmation hearing.
The Supreme Court has issued what should be its final oral argument schedule for this term of Court and it doesn't include U.S. v. Vaello-Madero, the case on the constitutionality of denying SSI to U.S. citizens residing in the U.S. territory of Puerto Rico. That means the case should be argued early in the October term of the Supreme Court, which always begins on the first Monday in October. An opinion might come in early 2022.
This delay would also give the Biden Administration time to settle the case if it wishes. I doubt they will but it's not out of the question. We still don't have a Solicitor General, the official responsible for handling cases at the Supreme Court on behalf of the federal government.
Michael Hiltzik of the Los Angeles Times has written a column about the threat that Social Security faces from Covid-19 "long haulers." We could see a huge wave of disability claims from Covid-19 survivors coming in the aftermath of the pandemic. This is in addition to the routine claims that people have deferred filing because of the closure of Social Security's field offices, the large backlog of cases that have built up at the initial and reconsideration levels during the pandemic and the possibility of a huge surge of SSI claims from Puerto Rico and other territories depending upon what the Supreme Court does with U.S. v. Vaello-Madero. The Social Security Administration isn't ready for any of this.
Matt Ford has written an interesting piece for TNR on the background of the Supreme Court case on whether it is constitutional to deny SSI benefits to U.S. citizens who reside in Puerto Rico. There's little question about it. This and other distinctions were made in the case of Puerto Rico due to racism. As Ford writes:
... In Dawnes v. Bidwell, the first of the Insular Cases, the Supreme Court described Puerto Rico and other newfound colonial possessions as “inhabited by alien races, differing from us in religion, customs, laws, methods of taxation, and modes of thought,” where “the administration of government and justice, according to Anglo-Saxon principles, may for a time be impossible.” ...
The Supreme Court has granted a writ of certiorari, that is it has agreed to hear, the case of U.S. v. Vaello-Madero, which presents the issue of whether it is constitutional to deny SSI benefits to U.S. citizens who reside in the territory of Puerto Rico. I don't know whether this will be argued in this term of Court. If it's too late for this term, it will be heard in the next term, which always begins on the first Monday in October.
The Supreme Court has "relisted" U.S. v. Vaello-Madero, the case presenting the issue of the constitutionality of denying SSI to U.S. citizens who reside in Puerto Rico and most other U.S. territories. This means that the Court will once again consider whether to agree to hear the case. John Elwood, writing for SCOTUSblog, says that the Court is likely to agree to hear the case.
This case is a big freaking deal to Social Security world. If the Court finds that it's unconstitutional to deny SSI to Puerto Rico residents, there will be an avalanche of new claims. All parts of the Social Security Administration will be affected. I expect that it will be the biggest logistical challenge for the agency since the creation of SSI in the 1970s.
It's not clear what position that the new Administration will take on this case. The nomination of Merrick Garland to be Attorney General suggests that the Biden Administration will follow traditional policies which include defending the constitutionality of any statue but there's not been an announcement of a Solicitor General nomination. It's the Solicitor General who actually handles Supreme Court cases for the federal government. The Trump Administration abandoned traditional policies and routinely refused to defend statutes it disagreed with. If the Biden Administration follows suit, it could settle this case as well as any class actions on the issue. Yes, even cases scheduled for oral argument at the Supreme Court can be settled.
Update: The Supreme Court took no action on the Vaello-Madero case today.
From Pacific Daily News:
Providing cash assistance to Guam’s elderly and people with disabilities could cause inflation here, according to the Justice Department, which argued it therefore is reasonable for Congress to deny Supplemental Security Income benefits to U.S. citizens living on Guam.
Denying local eligibility for SSI benefits also is reasonable because of the island’s unique tax relationship with the federal government, the Justice Department stated in a brief filed late last week with the U.S. Court of Appeals for the Ninth Circuit.
The Justice Department is challenging a June 2020 ruling by District Court of Guam Chief Judge Frances Tydingco-Gatewood, who said denying SSI payments to Guam resident Katrina Schaller, a woman with a disability, is discriminatory and unconstitutional. The judge prohibited the federal government from continuing to enforce the discriminatory provisions against Schaller. ...
Two lawsuits have been filed against the U.S. Social Security Administration challenging the U.S. government's policy of refusing to provide Supplemental Security Income (SSI) disability benefits to American citizens living on Guam.
The lawsuits were filed on behalf of twin sisters Katrina Schaller of Barrigada, Guam; and Leslie Schaller of Greensburg, Pennsylvania. The two complementary federal cases were filed simultaneously on Thursday in both Guam and Pittsburgh, Pennsylvania.
The sisters are 48 years old. Each lives with myotonic dystrophy, a debilitating, degenerative genetic disorder that severely inhibits muscle function and other critical aspects of daily life.
Although Leslie Schaller is able to live independently in Pennsylvania due to the aid she receives from SSI, Katrina is ineligible for the same SSI benefits received by her twin because she lives on Guam with her older sister and brother-in-law. ...
According to a release from the law firm, the SSI law limits benefits to American citizens who live "in the United States," which is defined in the law as being the 50 states, the District of Columbia and the Commonwealth of the Northern Mariana Islands, but not Guam.Guam doesn't matter much. There aren't enough potential SSI recipients there. Well, it certainly matters to Katrina Schaller and a number of other Guamians but there aren't enough of them to be very costly. Puerto Rico would matter a lot because it's far bigger. I don't know exactly what the cause of action is in this Guam case but I don't see how a court could easily distinguish Guam from Puerto Rico. Other than one being in the Caribbean and they other in the Pacific, the main difference is that Puerto Rico is a lot bigger than Guam.
