United States v. Vaello Madero

P R E L I M I N A R Y P R I N T Volume 596 U. S. Part 1 Pages 159–198

April 21, 2022

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certiorari to the united states court of appeals for the rst circuit No. 20–303. Argued November 9, 2021—Decided April 21, 2022

The Territory Clause of the United States Constitution—which states that Congress may “make all needful Rules and Regulations respecting the Territory . . . belonging to the United States,” Art. IV, § 3, cl. 2—affords Congress broad authority to legislate with respect to the U. S. Territo- ries. In exercising that authority, Congress has long maintained dif- ferent federal tax and benefts programs for residents of the Territories than for residents of the 50 States. For example, residents of Puerto Rico are typically exempt from most federal income, gift, estate, and excise taxes. See 48 U. S. C. § 734; see, e. g., 26 U. S. C. §§ 933, 2209, 4081–4084. But just as not every federal tax extends to residents of Puerto Rico, so too not every federal benefts program extends to resi- dents of Puerto Rico. One such benefts program is Supplemental Secu- rity Income (SSI), which by statute applies only to residents of the 50 States and the District of Columbia. 42 U. S. C. § 1382c(a)(1)(B)(i).

The question presented is whether the equal-protection component of the Fifth Amendment's Due Process Clause requires Congress to make Supplemental Security Income benefts available to residents of Puerto Rico to the same extent that Congress makes those benefts available to residents of the States.

Here, respondent Jose Luis Vaello Madero received SSI benefts while he was a resident of New York. He then moved to Puerto Rico, where he was no longer eligible to receive those benefts. Unaware of Vaello Madero's new residence, the Government continued to pay him SSI ben- efts. The Government eventually sued Vaello Madero to recover those errant payments, which totaled more than $28,000. In response, Vaello Madero invoked the Constitution, arguing that Congress's exclusion of residents of Puerto Rico from the SSI program violated the equal- protection component of the Fifth Amendment's Due Process Clause.

The District Court and the Court of Appeals agreed.

Held: The Constitution does not require Congress to extend SSI benefts to residents of Puerto Rico. In Califano v. Torres, 435 U. S. 1, and Harris v. Rosario, 446 U. S. 651, the Court applied the deferential rational-basis test to uphold Congress's decision not to extend certain federal benefts to Puerto Rico, noting that because Congress chose to treat residents of Puerto Rico differently from residents of the States for purposes of tax laws, it could do the same for benefts programs.

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Those two precedents dictate the result here. Congress's decision to exempt Puerto Rico's residents from most federal income, gift, estate, and excise taxes supplies a rational basis for likewise distinguishing residents of Puerto Rico from residents of the States for purposes of the SSI benefts program. Vaello Madero's contrary position would usher in potentially far-reaching consequences, with serious implications for the Puerto Rican people and the Puerto Rican economy. The Con- stitution does not require that extreme outcome. Pp. 164–166.

956 F. 3d 12, reversed.

Kavanaugh, J., delivered the opinion of the Court, in which Roberts,

joined. Thomas, J., post, p. 166, and Gorsuch, J., post, p. 180, fled con- curring opinions. Sotomayor, J., fled a dissenting opinion, post, p. 189.

Deputy Solicitor General Gannon argued the cause for the United States. With him on the briefs were Acting So- licitor General Prelogar, Acting Solicitor General Fletcher, Acting Assistant Attorney General Boynton, Deputy Solici- tor General Kneedler, and Vivek Suri.

Hermann Ferré argued the cause for respondent. With him on the brief was Juan O. Perla.*

*A brief of amicus curiae urging reversal was fled for the Interameri-

can Institute for Constitutional Rights by Manuel del Valle Colón.

Briefs of amici curiae urging affrmance were fled for the District of Columbia et al. by Karl A. Racine, Attorney General of the District of Columbia, Loren L. Alikhan, Solicitor General, Caroline S. Van Zile, Prin- cipal Deputy Solicitor General, and Samson J. Schatz, Assistant Attorney General, by Leevin T. Camacho, Attorney General of Guam, Shannon J.

Taitano, Chief Deputy Attorney General, and Stephanie E. Mendiola, Deputy Attorney General, by Andrew J. Bruck, Acting Attorney General of New Jersey, and by the Attorneys General for their respective jurisdic- tions as follows: William Tong of Connecticut, Kathleen Jennings of Dela- ware, Clare E. Connors of Hawaii, Brian E. Frosh of Maryland, Maura Healey of Massachusetts, Keith Ellison of Minnesota, Aaron D. Ford of Nevada, Hector Balderas of New Mexico, Letitia James of New York, Edward E. Manibusan of the Commonwealth of the Northern Mariana Islands, Ellen F. Rosenblum of Oregon, Josh Shapiro of Pennsylvania, Peter

F. Neronha of Rhode Island, Thomas J. Donovan, Jr., of Vermont, and Mark

R. Herring of Virginia; for the Commonwealth of Puerto Rico by Carlos

Lugo-Fiol, Domingo Emmanuelli-Hernández, Attorney General of Puerto Page Proof Pending PublicationCite as: 596 U. S. 159 (2022)

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Opinion of the Court Justice Kavanaugh delivered the opinion of the Court.

The United States includes fve Territories: American Samoa, Guam, the Northern Mariana Islands, the U. S. Vir- gin Islands, and Puerto Rico. This case involves Puerto

Rico, and Fernando Figueroa-Santiago, Solicitor General; for Puerto Rico Governor Pedro Pierluisi et al. by Lisa S. Blatt and Amy Mason Saharia; for the Puerto Rico House of Representatives by Emil Rodríguez Escud- ero and Jorge Martínez Luciano; for the Senate of Puerto Rico by Edwin Quiñones; for the Government of the U. S. Virgin Islands by Geoffrey

P. Eaton, Denise N. George, Attorney General of the U. S. Virgin Islands,

and Pamela R. Tepper, Solcitor General; for AARP et al. by Barbara Jones, William Alvarado Rivera, Barbara Silverstone, Cody Marvin, and Pedro G. Cruz Sánchez; for the American Bar Association by Reginald M.

Turner, Shay Dvoretzky, Geoffrey M. Wyatt, and Parker Rider-Longmaid; for the American Civil Liberties Union Foundation et al. by Adriel I. Cep- eda Derieux, Alejandro A. Ortiz, Jennesa Calvo-Friedman, David D.

Cole, David M. Zionts, Alexander Ely, and William Ramírez; for Latino- Justice PRLDEF et al. by Hector Torres and Lourdes Rosado; for the League of United Latin American Citizens by Paul Koster; for Members of the Congressional Shadow Delegation of Puerto Rico by John F. Nev- ares; for the National Disability Rights Network et al. by Archie Jennings and Steven Traubert; for the Plaintiff in Ruiz-Aviles v. SSA et al. by Isabel Abislaiman; for the Plaintiffs in Peña Martínez v. U. S. Dept. of Health & Human Services by Kathleen M. Sullivan, Rafael Escalera- Rodríguez, Derek L. Shaffer, Jonathan G. Cooper, and Efrén Rivera Ramos; for Public Benefts Scholars by E. Joshua Rosenkranz, Rachel G.

Shalev, and Thomas M. Bondy; for the Service Employees International Union et al. by Nicole G. Berner, Alvin Antonio Velazquez, Kimberly M. Sánchez Ocasio, Claire P. M. Prestel, Judith E. Rivlin, Teague P. Pater- son, Fernando R. Colón, David Strom, and Michael Nicholson; for U. S.

Citizens for Equal Protection, Inc., by José R. González-Irizarry; for the University of Puerto Rico Law School Amicus Justitiae Pro Bono Project by Hiram Meléndez-Juarbe; and for the Virgin Islands Bar Association by Dwyer Arce.

Briefs of amici curiae were fled for Diálogo Por Puerto Rico by Jesu´ s

R. Rabell-Méndez; for the Medicaid and Medicare Advantage Products As-

sociation of Puerto Rico by Roberto L. Prats Palerm and José A. Hernán- dez Mayoral; and for the Honorable Jenniffer A. Gonzalez, Resident Com- missioner for Puerto Rico, by Veronica Ferraiuoli Hornedo.

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Rico, which became a U. S. Territory in 1898 in the wake of the Spanish-American War.

For various historical and policy reasons, including local autonomy, Congress has not required residents of Puerto Rico to pay most federal income, gift, estate, and excise taxes. Congress has likewise not extended certain federal benefts programs to residents of Puerto Rico.

The question presented is whether the equal-protection component of the Fifth Amendment's Due Process Clause requires Congress to make Supplemental Security Income benefts available to residents of Puerto Rico to the same extent that Congress makes those benefts available to resi- dents of the States. In light of the text of the Constitution, longstanding historical practice, and this Court's precedents, the answer is no.

* * *

The Territory Clause of the Constitution states that Congress may “make all needful Rules and Regulations respecting the Territory . . . belonging to the United States.” Art. IV, § 3, cl. 2. The text of the Clause affords Congress broad authority to legislate with respect to the

U. S. Territories.

Exercising that authority, Congress sometimes legislates differently with respect to the Territories, including Puerto Rico, than it does with respect to the States. That long- standing congressional practice refects both national and local considerations. In tackling the many facets of territo- rial governance, Congress must make numerous policy judg- ments that account not only for the needs of the United States as a whole but also for (among other things) the unique histories, economic conditions, social circumstances, independent policy views, and relative autonomy of the indi- vidual Territories.

Of relevance here, Congress must decide how to structure federal taxes and benefts for residents of the Territories.

In doing so, Congress has long maintained federal tax and Page Proof Pending PublicationCite as: 596 U. S. 159 (2022)

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benefts programs for residents of Puerto Rico and the other Territories that differ in some respects from the federal tax and benefts programs for residents of the 50 States.

On the tax side, for example, residents of Puerto Rico are typically exempt from most federal income, gift, estate, and excise taxes. See 39 Stat. 954, as amended, 48 U. S. C. § 734; see, e. g., 26 U. S. C. §§ 933, 2209, 4081–4084. At the same time, residents of Puerto Rico generally pay Social Security, Medicare, and unemployment taxes. 26 U. S. C. §§ 3121(e), 3306( j).

On the benefts side, residents of Puerto Rico are eligible for Social Security and Medicare. § 3121(e); 42 U. S. C. §§ 410(h)–(i), 1301(a)(1). Residents of Puerto Rico are also eligible for federal unemployment benefits. 26 U. S. C. § 3306( j); see also House Committee on Ways and Means, Green Book: Background Material and Data on the Programs Within the Jurisdiction of the Committee on Ways and Means, App. A (24th ed. 2018).

But just as not every federal tax extends to residents of Puerto Rico, so too not every federal benefts program ex- tends to residents of Puerto Rico. One example is the Sup- plemental Security Income program, which Congress passed and President Nixon signed into law in 1972. 86 Stat. 1465.

The Supplemental Security Income program provides bene- fts for, among others, those who are age 65 or older and cannot fnancially support themselves.

To be eligible for Supplemental Security Income, an indi- vidual must be a “resident of the United States,” 42 U. S. C. § 1382c(a)(1)(B)(i), which the statute defnes as the 50 States and the District of Columbia, § 1382c(e). A later statute in- cluded residents of the Northern Mariana Islands in the pro- gram. Note following 48 U. S. C. § 1801; 90 Stat. 268. But residents of Puerto Rico are not eligible for Supplemental Security Income. Instead, the Federal Government pro- vides supplemental income assistance to covered residents of Puerto Rico through a different benefts program—one that

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is funded in part by the Federal Government and in part by Puerto Rico. Notes following §§ 1381−1385.

The dispute in this case concerns a claim for Supplemental Security Income benefts by a resident of Puerto Rico named Jose Luis Vaello Madero. In 2013, Vaello Madero moved from New York to Puerto Rico. While he lived in New York, Vaello Madero received Supplemental Security Income benefts. After moving to Puerto Rico, Vaello Madero no longer was eligible for Supplemental Security Income bene- fts. Yet for several years, the U. S. Government remained unaware of Vaello Madero's new residence and continued to pay him benefts. The overpayment totaled more than $28,000.

Seeking to recover those errant payments, the U. S. Gov- ernment sued Vaello Madero for restitution. In response, Vaello Madero invoked the U. S. Constitution. Vaello Ma- dero argued that Congress's exclusion of residents of Puerto Rico from the Supplemental Security Income program vio- lated the equal-protection component of the Fifth Amend- ment's Due Process Clause.

Vaello Madero's constitutional argument prevailed in the District Court and the Court of Appeals, 956 F. 3d 12 (CA1 2020), and we granted certiorari, 592 U. S. ––– (2021). We respectfully disagree with those Courts. In our view, this Court's precedents, in addition to the constitutional text and historical practice discussed above, establish that Congress may distinguish the Territories from the States in tax and benefts programs such as Supplemental Security Income, so long as Congress has a rational basis for doing so.

In Califano v. Torres, the Court addressed whether Con- gress's decision not to extend Supplemental Security Income to Puerto Rico violated the constitutional right to interstate travel. 435 U. S. 1 (1978) (per curiam). Applying the def- erential rational-basis test, the Court upheld Congress's deci- sion. The Court explained that Congress had exempted res- idents of Puerto Rico from federal taxes. And the Court concluded that Congress could likewise treat residents of

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Puerto Rico differently from residents of the States in the Supplemental Security Income benefts program. Id., at 3– 5, and n. 7.

A few years later, in Harris v. Rosario, the Court again ruled that Congress's differential treatment of Puerto Rico in a federal benefts program did not violate the Constitu- tion—this time, the equal-protection component of the Fifth Amendment's Due Process Clause. 446 U. S. 651 (1980) (per curiam). The Court stated that the Territory Clause permits Congress to “treat Puerto Rico differently from States so long as there is a rational basis for its actions.” Id., at 651−652. Citing the prior decision in Torres, the Court noted that Congress's tax laws treated residents of Puerto Rico differently from residents of the States. And the Court concluded that Congress could do the same for that benefts program. 446 U. S., at 651–652.

Those two precedents dictate the result here. The defer- ential rational-basis test applies. And Puerto Rico's tax sta- tus—in particular, the fact that residents of Puerto Rico are typically exempt from most federal income, gift, estate, and excise taxes—supplies a rational basis for likewise distin- guishing residents of Puerto Rico from residents of the States for purposes of the Supplemental Security Income benefts program. See Torres, 435 U. S., at 5, n. 7; Rosario, 446 U. S., at 652. In devising tax and benefts programs, it is reasonable for Congress to take account of the general balance of benefts to and burdens on the residents of Puerto Rico. In doing so, Congress need not conduct a dollar-to- dollar comparison of how its tax and benefts programs apply in the States as compared to the Territories, either at the individual or collective level. See Torres, 435 U. S., at 3–5, and n. 7; Rosario, 446 U. S., at 652. Congress need only have a rational basis for its tax and benefts programs. Con- gress has satisfed that requirement here.

Moreover, Vaello Madero's position would usher in poten- tially far-reaching consequences. For one, Congress would presumably need to extend not just Supplemental Security

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Income but also many other federal benefts programs to res- idents of the Territories in the same way that those pro- grams cover residents of the States. And if this Court were to require identical treatment on the benefts side, residents of the States could presumably insist that federal taxes be imposed on residents of Puerto Rico and other Territories in the same way that those taxes are imposed on residents of the States. Doing that, however, would infict signifcant new fnancial burdens on residents of Puerto Rico, with seri- ous implications for the Puerto Rican people and the Puerto Rican economy. The Constitution does not require that ex- treme outcome.1

* * *

The Constitution affords Congress substantial discretion over how to structure federal tax and benefts programs for residents of the Territories. Exercising that discretion, Congress may extend Supplemental Security Income bene- fts to residents of Puerto Rico. Indeed, the Solicitor Gen- eral has informed the Court that the President supports such legislation as a matter of policy. But the limited question before this Court is whether, under the Constitution, Con- gress must extend Supplemental Security Income to resi- dents of Puerto Rico to the same extent as to residents of the States. The answer is no. We therefore reverse the judgment of the U. S. Court of Appeals for the First Circuit.

It is so ordered.

Justice Thomas, concurring. I join the opinion of the Court. I write separately to ad- dress the premise that the Due Process Clause of the Fifth Amendment contains an equal protection component whose substance is “precisely the same” as the Equal Protection Clause of the Fourteenth Amendment. Weinberger v. Wie-

1 The Court's decision today should not be read to imply that Congress may exclude residents of individual States from benefts programs. Con- gress has not done so, and that question is not presented in this case.

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senfeld, 420 U. S. 636, 638, n. 2 (1975). Although I have joined the Court in applying this doctrine, see Adarand Con- structors, Inc. v. Peña, 515 U. S. 200, 213–217 (1995), I now doubt whether it comports with the original meaning of the Constitution. Firmer ground for prohibiting the Federal Government from discriminating on the basis of race, at least with respect to civil rights, may well be found in the Four- teenth Amendment's Citizenship Clause.

Until the middle of the 20th century, this Court consist- ently recognized that the Fifth Amendment “contains no equal protection clause and it provides no guaranty against discriminatory legislation by Congress.” Detroit Bank v.

United States, 317 U. S. 329, 337 (1943); see also LaBelle Iron Works v. United States, 256 U. S. 377, 392 (1921). However, the Court did maintain that the Fifth Amendment's Due Process Clause prohibited “such discriminatory legislation by Congress as amounts to a denial of due process,” i. e., legislation that would fail rational-basis review. Hirabay- ashi v. United States, 320 U. S. 81, 100, 102 (1943).

In Bolling v. Sharpe, 347 U. S. 497 (1954), the Court began in earnest to fold an “equal protection” guarantee into the concept of “due process.” Decided the same day as Brown

v. Board of Education, 347 U. S. 483 (1954), Bolling con-

fronted the constitutionality of government-imposed segre- gation in the District of Columbia's public schools. Because any such segregation was attributable to Congress, see U. S.

Const., Art. I, § 8, cl. 17, rather than state action, the Equal Protection Clause did not apply. Bolling instead read an equal protection principle into the Fifth Amendment's re- quirement that “[n]o person shall . . . be deprived of life, liberty, or property, without due process of law.” See 347

U. S., at 498–500.

Bolling's locating of an equal protection guarantee in the Fifth Amendment's Due Process Clause raises substantial questions. First, Bolling's interpretation seemingly relies

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upon the Lochner-era theory that “unreasonable discrimina- tion” is “a denial of due process of law.” 347 U. S., at 499 (citing Buchanan v. Warley, 245 U. S. 60 (1917)); see also 347

U. S., at 500 (“Segregation in public education is not reason-

ably related to any proper governmental objective” and therefore “constitutes an arbitrary deprivation of . . . lib- erty”); see Lochner v. New York, 198 U. S. 45 (1905). By invoking “due process” to hold an allegedly “unreasonable” or “arbitrary” legislative classifcation unconstitutional, Bol- ling made clear that it was applying this Court's “substan- tive due process” doctrine. See N. Chapman & M. McCon- nell, Due Process as Separation of Powers, 121 Yale L. J.

1672, 1800 (2012) (“[W]hen the Court purports to evaluate whether a state's interest is `legitimate' or a `justif[ied]' interference with a judge-made liberty, the result is no dif- ferent in principle than in other modern substantive due process cases”).

But “[t]he notion that a constitutional provision that guar- antees only `process' before a person is deprived of life, lib- erty, or property could defne the substance of those rights strains credulity for even the most casual user of words.” McDonald v. Chicago, 561 U. S. 742, 811 (2010) (Thomas, J., concurring in part and concurring in judgment). Rather, “ `considerable historical evidence supports the position that “due process of law” was a separation-of-powers concept de- signed as a safeguard against unlicensed executive action, forbidding only deprivations not authorized by legislation or common law.' ” Johnson v. United States, 576 U. S. 591, 623 (2015) (Thomas, J., concurring in judgment) (quoting D. Cur- rie, The Constitution in the Supreme Court: The First Hun- dred Years 1789–1888, p. 272 (1985)); see also In re Winship, 397 U. S. 358, 378–382 (1970) (Black, J., dissenting). And, to the extent that the Due Process Clause restrains the author- ity of Congress, it may, at most, prohibit Congress from au- thorizing the deprivation of a person's life, liberty, or prop- erty without providing him the “customary procedures to

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which freemen were entitled by the old law of England.” Pacifc Mut. Life Ins. Co. v. Haslip, 499 U. S. 1, 28 (1991) (Scalia, J., concurring in judgment) (internal quotation marks omitted); see also Murray's Lessee v. Hoboken Land & Im- provement Co., 18 How. 272 (1856). Either way, the Fifth Amendment's text and history provide little support for modern substantive due process doctrine.

To be sure, some have argued that “antebellum due proc- ess theory commonly included an equality principle” that cir- cumscribed legislative authority. K. Lash, Enforcing the Rights of Due Process, 106 Geo. L. J. 1389, 1443 (2018). But there is no historical consensus that this kind of substantive due process took hold in antebellum America. See, e. g.,

event, “the pre-constitutional and Founding-era evidence re- garding the meaning of `due process of law' strongly suggests the phrase most likely would have been viewed in 1791 . . . as guaranteeing either that duly enacted law would be fol- lowed or that certain requisite procedures would be ob- served.” R. Williams, The One and Only Substantive Due Process Clause, 120 Yale L. J. 408, 416 (2010). It is not clear why post-1791 developments should displace more probative preconstitutional and founding-era evidence. See, e. g.,

S. Calabresi & S. Prakash, The President's Power To Execute

the Laws, 104 Yale L. J. 541, 550–551 (1994) (“[T]he Constitu- tion's postenactment `legislative' history” is “the history that is least likely to refect the original understanding”).

Second, Bolling reasoned that the “liberty” protected by the Due Process Clause covers “the full range of conduct which the individual is free to pursue,” 347 U. S., at 499–500, and therefore guaranteed freedom from segregated school- ing. That understanding of “liberty” likely sweeps too broadly. Given the relevant history, “it is hard to see how the `liberty' protected by the [Due Process Clause] could be interpreted to include anything broader than freedom from physical restraint.” Obergefell v. Hodges, 576 U. S. 644, 725

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(2015) (Thomas, J., dissenting). And even if “liberty” en- compasses more than that, “[i]n the American legal tradition, liberty has long been understood as individual freedom from governmental action, not as a right to a particular govern- ment entitlement.” Id., at 726; see also C. Green, Seven Problems With Antidiscrimination Due Process, 11 Faulkner

erty' is still only freedom from interference, rather than posi- tive rights to receive benefts or participate in others' activi- ties”). Consequently, if “liberty” in the Due Process Clause does not include any rights to public benefts, it is unclear how that provision can constrain the regulation of access to those benefts.

Third, although the Bolling Court claimed that its decision “d[id] not imply that [due process and equal protection] are always interchangeable phrases,” 347 U. S., at 499, its logic led this Court to later erase any distinction between them.

We now maintain that the “equal protection obligations im- posed by the Fifth and the Fourteenth Amendments [are] indistinguishable.” Adarand Constructors, Inc., 515 U. S., at 217; see also Sessions v. Morales-Santana, 582 U. S.

47, 52, n. 1 (2017). But if “due process of law” fully sub- sumed the guarantee of equal protection, it is unclear why § 1 of the Fourteenth Amendment would redundantly state both requirements in consecutive Clauses. See, e. g.,

G. Maggs, Innovation in Constitutional Law, 86 Nw.

U. L. Rev. 1038, 1053 (1992) (Maggs); R. Natelson, The Con-

stitution and the Public Trust, 52 Buffalo L. Rev. 1077, 1174,

n. 432 (2004); R. Primus, Bolling Alone, 104 Colum. L. Rev.

975, 976, n. 7 (2004).

Fourth, Bolling asserted that because the Constitution prohibits States from racially segregating public schools, “it would be unthinkable that the same Constitution would im- pose a lesser duty on the Federal Government.” 347 U. S., at 500. For one, such moral judgments lie beyond the com- mission of the federal courts. For another, the assertion is

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debatable at best. “The Constitution contains many limita- tions that apply only to the states, or only to the federal government, and this Court is not free to disregard those aspects of the constitutional design.” M. McConnell, Con- curring in the Judgment, in What Brown v. Board of Educa- tion Should Have Said 166 (J. Balkin ed. 2001) (McConnell) (footnotes omitted); see also Maggs 1052. Likewise, “the enactors of the Fourteenth Amendment might have reason- ably believed that [an equal protection] provision was not needed against the federal government” because it “had shown itself to be a much better protector of the rights of minorities than had the states.” M. Rappaport, Originalism and the Colorblind Constitution, 89 Notre Dame L. Rev. 71, 90 (2013); see also J. Ely, Democracy and Distrust 33 (1980); McConnell 167; K. Roosevelt, Forget the Fundamentals: Fix- ing Substantive Due Process, 8 U. Pa. J. Const. L. 983, 997 (2006).

In sum, the text and history of the Fifth Amendment's Due Process Clause provide limited support for reading into that provision an equal protection guarantee.

Even if the Due Process Clause has no equal protection component, the Constitution may still prohibit the Federal Government from discriminating on the basis of race, at least with respect to civil rights. While my conclusions remain tentative, I think that the textual source of that obligation may reside in the Fourteenth Amendment's Citizenship Clause. That Clause provides: “All persons born or natural- ized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Amdt. 14, § 1, cl. 1. As I sketch out briefy below, considerable historical evidence suggests that the Citizenship Clause “was adopted against a longstanding political and legal tradition that closely associated the sta- tus of `citizenship' with the entitlement to legal equality.”

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R. Williams, Originalism and the Other Desegregation Deci-

sion, 99 Va. L. Rev. 493, 501 (2013) (Williams); see also A.

Amar, Intratextualism, 112 Harv. L. Rev. 747, 768–769 (1999).

Thus, the Citizenship Clause could provide a frmer founda- tion for Bolling's result than the Fifth Amendment's Due Process Clause.

In the years before the Fourteenth Amendment's adop- tion, jurists and legislators often connected citizenship with equality. Namely, the absence or presence of one entailed the absence or presence of the other. See Williams 513–515 (discussing political discourse during the 1820s). By the late 1850s, the connection was well established. For example, even Chief Justice Taney in Dred Scott v. Sandford, 19 How.

393 (1857), demonstrated this connection when discussing why, erroneously in my view, free blacks were “not intended to be included . . . under the word `citizens' in the Consti- tution,” and therefore could “claim none of the rights and pri- vileges which that instrument provides for and secures to citizens of the United States.” Id., at 404. According to Taney, free blacks were at the founding “considered as a sub- ordinate and inferior class of beings, who had been subju- gated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held power and the Govern- ment might choose to grant them.” Id., at 404–405.

He reached that conclusion after surveying discriminatory state laws and fnding it “hardly consistent with the respect due to these States, to suppose that they regarded at that time, as fellow-citizens and members of the sovereignty, a class of beings whom they had thus stigmatized . . . and upon whom they had impressed such deep and enduring marks of inferiority and degradation.” Id., at 416. Under the Com- ity Clause of Article IV, moreover, States could not place “citizens” of the United States “in an inferior grade.” Id., at 423. Because it was long assumed that blacks could be placed in such an “inferior grade,” how then could they be

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citizens? For Taney, then, States' longstanding and wide- spread practice of denying free blacks equal civil rights con- clusively showed that blacks were not “citizens” entitled to various constitutional protections, such as the right to sue in federal court.

Senator Stephen Douglas, defending Dred Scott a few months later in Springfeld, Illinois, expressed the converse of Taney's reasoning. He asked his audience, “What is the object of making [Dred Scott] a citizen?” and answered, “Of course to give him the rights, privileges and immunities of a citizen, it being the great fundamental law in our Govern- ment, that under the law, citizens are equal in their rights and privileges.” Kansas—The Mormons—Slavery, in A Po- litical Textbook for 1860, p. 155 (H. Greeley & J. Cleveland eds. 1860). Thus, Douglas recognized that the bestowal of citizenship ineluctably entailed equal civil rights. Aboli- tionists agreed, but, unlike Taney and Douglas, reasoned that all persons—black or white—born in the United States were citizens and therefore entitled to equal civil rights. See Wil- liams 515–518.1

After the Civil War, the Nation again confronted the citi- zenship status of black Americans. Though they were no longer slaves in light of the Thirteenth Amendment, the question remained whether, by virtue of their freedom from

1 To be sure, not all agreed that citizenship entailed civil equality. Jus- tice Curtis, dissenting in Dred Scott v. Sandford, 19 How. 393 (1857), ar- gued that “citizenship, under the Constitution of the United States, is not dependent on the possession of any particular political or even of all civil rights.” Id., at 583; see also United States v. Rhodes, 27 F. Cas. 785, 790 (No. 16,151) (CC Ky. 1866) (Swayne, J., for the court) (“The fact that one is a subject or citizen determines nothing as to his rights as such”); 10 Op.

Atty. Gen. 382, 398 (1862) (“I can hardly comprehend the thought of the absolute incompatibility of degradation and citizenship”); 2 J. Kent, Com- mentaries on American Law *258–*259, n. b (9th ed. 1858) (“If a slave born in the United States be . . . lawfully discharged from bondage,” he “becomes thenceforward a citizen” even if he remained subject to “such disabilities as the laws of the states respectively may deem it expedient to prescribe to free persons of color”).

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bondage, these native-born men and women were “citizens.” Consistent with Taney's view in Dred Scott, southern gov- ernments rejected that free blacks were citizens and conse- quently enacted “Black Codes” that “restricted freed slaves' rights to make and enforce private contracts, to own and convey real and personal property, to hold certain jobs, to seek relief in court, and to participate in common life as ordi- nary citizens.” J. Harrison, Reconstructing the Privileges or Immunities Clause, 101 Yale L. J. 1385, 1388 (1992). In response, Congress enacted the Civil Rights Act of 1866 to both repudiate Dred Scott and eradicate the Black Codes.

The 1866 Act contained a citizenship clause similar to the Fourteenth Amendment's: “[A]ll persons born in the United States and not subject to any foreign power, excluding Indi- ans not taxed, are hereby declared to be citizens of the United States.” Act of Apr. 9, 1866, 14 Stat. 27. The pro- vision immediately succeeding that citizenship guarantee clarifed that “such citizens, of every race and color” were entitled to

“the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal beneft of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other.” Ibid.

Fleshing out the implications of the citizenship declaration, this clause suggests that the right to be free of racial dis- crimination with respect to the enjoyment of certain rights is a constituent part of citizenship.

Moreover, as Congress debated the 1866 Act, “the view that the status of citizenship conferred upon its recipients at least some minimal level of equality rights was widely shared among both supporters and opponents.” Williams 535. For

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instance, Representative Samuel Shellabarger argued that “the right of all citizens to be secured in the enjoyment of whatever privileges their citizenship does confer upon them is in its very nature equal . . . .” Cong. Globe, 39th Cong., 1st Sess., 1293 (1866). Representative Henry Jarvis Ray- mond, meanwhile, wanted Congress to declare that free blacks were citizens, “and thus secure to them whatever rights, immunities, privileges, and powers belong as of right to all citizens of the United States.” Id., at 1266; see also ibid. (“[T]he right of citizenship involves everything else.

Make the colored man a citizen of the United States and he has every right which you or I have as citizens of the United States . . . ”). And after President Johnson's veto, Repre- sentative William Lawrence, the 1866 Act's principal House sponsor, maintained that “the very nature of citizenship” guaranteed an “equality of civil rights.” Id., at 1836.

The 1866 Act's reversal of Dred Scott raised questions whether Congress had such authority under the existing Constitution. See, e. g., K. Lash, The Fourteenth Amend- ment and the Privileges and Immunities of American Citi- zenship 169 (2014). Once incorporated into the Fourteenth Amendment, the Citizenship Clause “forever closed the door on Dred Scott” and “constitutionalized the Civil Rights Act of 1866.” Id., at 171. When Senator Jacob Howard moved to add the Citizenship Clause, he and others characterized the Clause as largely “declaratory” of existing law, including the 1866 Act. Cong. Globe, 39th Cong., 1st Sess., at 2890 (remarks of Sen. Howard); see also id., at 2896 (remarks of Sen. Doolittle). Then, as Congress considered the Citi- zenship Clause, Republicans reiterated the same equal- citizenship principle that featured in the debates over the 1866 Act. Senator John Conness, for instance, remarked that the 1866 Act guaranteed that all born in the United States “be regarded and treated as citizens of the United States, entitled to equal civil rights with other citizens of the United States.” Id., at 2891; see also Williams 543–548.

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And during the ratifcation debates, Republicans continued to publicly advocate that citizenship and equal civil rights were concomitant. See id., at 549–554.

In the years following the Fourteenth Amendment's rati- fcation, several Justices also appeared to endorse this under- standing of the Citizenship Clause, consistent with Reconstruction-era discourse. In the Slaughter-House Cases, 16 Wall. 36 (1873), Justice Bradley's dissent articu- lated the equal-citizenship principle: “Citizenship of the United States ought to be, and, according to the Constitu- tion, is, a sure and undoubted title to equal rights in any and every State in this Union.” Id., at 113. “If a man be denied full equality before the law, he is denied one of the essential rights of citizenship as a citizen of the United States.” Ibid.; see also id., at 118 (“Equality before the law is un- doubtedly one of privileges and immunities of every citizen”).

Justice Field's dissent similarly explained that the 1866 Act rested “upon the theory that citizens of the United States as such were entitled to the rights and privileges enumerated, and that to deny to any such citizen equality in these rights and privileges with others, was, to the extent of the denial, subjecting him to an involuntary servitude,” i. e., rejecting his status as a citizen. Id., at 91–92.

Three years after the Slaughter-House Cases, Congress enacted the Civil Rights Act of 1875, prohibiting discrimina- tion in public accommodations. During the congressional debates over the 1875 Act, Republicans reiterated the rela- tionship between the status of “citizen” and entitlement to equal civil rights. See Williams 565–570; see also C. Green, Equal Citizenship, Civil Rights, and the Constitution 164– 202 (2015) (collecting examples). In a virtually unanimous opinion, this Court held the 1875 Act unconstitutional be- cause discrimination by public accommodations was not state action Congress could regulate under the Fourteenth

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Amendment. See Civil Rights Cases, 109 U. S. 3, 25–26 (1883). The lone dissenter, Justice John Marshall Harlan, fo- cused primarily on citizenship and echoed Republicans' un- derstanding of equal citizenship: “Citizenship in this country necessarily imports at least equality of civil rights among citizens of every race in the same State. It is fundamental in American citizenship that, in respect of such rights, there shall be no discrimination by the State . . . against any citizen because of his race.” Id., at 48.

Only fve years later, a unanimous Court in Gibson v. Mis- sissippi, 162 U. S. 565 (1896), seemingly confrmed Harlan's understanding of citizenship and the textual source of the equal-citizenship guarantee. Writing for the Court, Justice Harlan declared that “the Constitution of the United States, in its present form, forbids, so far as civil and political rights are concerned, discrimination by the General Government, or by the States, against any citizen because of his race. All citizens are equal before the law.” Id., at 591 (emphasis added).2 The Court's reference to the Constitution “in its present form” (i. e., in 1896) indicates that the Court located an equality principle applicable to both the States and “the General Government” in the Fourteenth Amendment, not the Fifth. And because the usual textual candidates—the Privileges or Immunities Clause, Due Process Clause, and Equal Protection Clause—apply only to “State[s],” it stands to reason that Gibson understood the Citizenship Clause to forbid discrimination by the Federal Government “so far as civil . . . rights are concerned.” Ibid.3

2 Although Bolling v. Sharpe, 347 U. S. 497, 499 (1954), recited part of this quotation, it did not attempt to explain how Gibson's discussion of racial equality among “citizens” implicated the Fifth Amendment's Due Process Clause, which applies broadly to all “person[s].”

3 This understanding of the Citizenship Clause likely would not render other parts of the Fourteenth Amendment redundant. First, the Citizen- ship Clause would not make the Equal Protection Clause redundant be- cause the latter applies to “person[s], ” while the Citizenship Clause and Privileges or Immunities Clause apply to “citizens.” See McDonald

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The same year as Gibson, Justice Harlan also penned his dissent in Plessy v. Ferguson, 163 U. S. 537 (1896), in which the Court upheld a Louisiana law requiring racial segrega- tion on train cars. In asserting that the law was unconstitu- tional, Harlan did not rely on the Equal Protection Clause.

Instead, he maintained that Louisiana's law was “inconsist- ent . . . with that equality of rights which pertains to citi- zenship, National and State.” Id., at 555. And Harlan's famous declaration underscores the connection between citizenship and equality: “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In re- spect of civil rights, all citizens are equal before the law.” Id., at 559 (emphasis added). Given that the Equal Protec- tion Clause speaks of “person[s],” rather than citizens, Har- lan's reasoning in Plessy suggests that citizenship itself car- ried with it a right to equal treatment independent of the “equal protection of the laws” guaranteed to all “person[s].” 4

v. Chicago, 561 U. S. 742, 850, n. 19 (2010) (Thomas, J., concurring in part

and concurring in judgment). Additionally, the Equal Protection Clause may guarantee equality only with respect to a subset of rights related to “protection,” while the Citizenship Clause and Privileges or Immunities Clause implicate a broader set of civil rights. See n. 4, infra. Second, this understanding of the Citizenship Clause also likely would not make the Privileges or Immunities Clause redundant. In particular, there is no evidence suggesting that Republicans disputed the proposition that citi- zens “could [not] be deprived of rights of national citizenship by any gov- ernmental entity, whether state or federal, consistent with the Fourteenth Amendment.” R. Barnett & E. Bernick, The Original Meaning of the Fourteenth Amendment 202 (2021). “All that was constitutionally dis- puted among Republicans involved the status of national privileges and immunities in the states.” Id., at 203. Thus, the Privileges or Immuni- ties Clause may have confrmed that States specifcally could not abridge the rights of national citizenship, including whatever civil equality is guar- anteed to “citizens” under the Citizenship Clause.

4 Justice Harlan's decision not to rely on the Equal Protection Clause also makes some sense in light of that provision's object—the “Protection of the Laws.” It is possible that the Equal Protection Clause does not prohibit discriminatory legislative classifcations, but, consistent with its focus on “protection,” instead only “imposes a duty on each state to pro-

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Beyond its emphasis on equal citizenship, Justice Harlan's Plessy dissent also specifcally recognized that the Federal Government could not engage in racial discrimination. The Fourteenth Amendment, Harlan explained, “gave citizenship to all born or naturalized in the United States and residing here, obliterated the race line from our systems of govern- ments, National and State, and placed our free institutions upon the broad and sure foundation of the equality of all men before the law.” Id., at 563 (emphasis added). In short, Harlan understood that citizenship and equality went hand in hand and that equal citizenship prohibited the Federal Government, as much as the States, from discriminating with respect to civil rights.

While the historical evidence above is by no means conclu- sive, it offers substantial support for the proposition that, by conferring citizenship, the Citizenship Clause guarantees citizens equal treatment by the Federal Government with respect to civil rights.5

tect all persons and property within its jurisdiction from violence and to enforce their rights through the court system.” C. Green, The Original Sense of the (Equal) Protection Clause: Pre-Enactment History, 19 Geo.

Mason U. Civ. Rights L. J. 1, 3 (2008); see also C. Green, The Original Sense of the (Equal) Protection Clause: Subsequent Interpretation and Application, 19 Geo. Mason U. Civ. Rights L. J. 219 (2009); J. Harrison, Reconstructing the Privileges or Immunities Clause, 101 Yale L. J. 1385, 1433–1451 (1992).

5 Adopting this understanding of the Citizenship Clause necessarily prompts additional questions. For example, beyond prohibiting racial dis- crimination with respect to civil rights, what other forms of discrimination does the Citizenship Clause proscribe? Is access to government benefts a “privilege” or “immunity” of citizenship—i. e., a civil right? See, e. g., id., at 1456 (observing that government benefts supported by general taxation might have been understood by the Reconstruction generation as a privilege of citizenship). And, most relevant to Bolling itself, is access to public education a “privilege” or “immunity” of citizenship?

See, e. g., M. McConnell, Originalism and the Desegregation Decisions, 81 Va. L. Rev. 947, 1023–1043, 1103–1105 (1995) (discussing the historical evidence).

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Justice Harlan stated in Plessy that the Fourteenth Amendment “added greatly to the dignity and glory of American citizenship.” Id. at 555. And the “best part of citizenship,” according to Charles Sumner, is “equality be- fore the law.” Cong. Globe, 42d Cong., 2d Sess., 384 (1872).6 The Citizenship Clause's conferral of the “dignity and glory of American citizenship” may well prohibit the Federal Gov- ernment from denying citizens equality with respect to civil rights. Rather than continue to invoke the Fifth Amend- ment's Due Process Clause to justify Bolling, in an appro- priate case, we should more carefully consider whether this interpretation of the Citizenship Clause would yield a simi- lar, and more supportable, result.

Justice Gorsuch, concurring. A century ago in the Insular Cases, this Court held that the federal government could rule Puerto Rico and other Territories largely without regard to the Constitution. It is past time to acknowledge the gravity of this error and admit what we know to be true: The Insular Cases have no founda- tion in the Constitution and rest instead on racial stereo- types. They deserve no place in our law.

The Insular Cases were the product of what John Hay called a “ `splendid little war.' ” F. Freidel, The Splendid

6 Sumner continued: “Ceasing to be a slave the former victim has be- come not only a man, but a citizen, admitted alike within the pale of hu- manity and within the pale of citizenship. As a man he is entitled to all the rights of man, and as a citizen he becomes a member of our common household with equality as the prevailing law. . . . Whatever he may have been, he is now the same as ourselves. Our rights are his rights; our equality is his equality; our privileges and immunities are his great posses- sion.” Cong. Globe, 42d Cong., 2d Sess., 385.

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Little War 3 (1958) (quoting letter from J. Hay to T. Roose- velt). Ostensibly waged to liberate Cuba and avenge the sinking of the Maine, the Spanish-American War proved a boon for the country's burgeoning colonial ambitions. See

J. Cabranes, Citizenship and the American Empire, 127

U. Pa. L. Rev. 391, 392–395, and nn. 3–4 (1978) (Cabranes);

K. Wenzer, Theodore Roosevelt and the United States Bat-

tleship Maine, 9 Fed. Hist. 111, 113–116, 124–128 (2017).

The aging Spanish empire was in no position to defend its island possessions, and several fell to American forces in quick succession. See G. Lawson & G. Seidman, The Consti- tution of Empire: Territorial Expansion and American Legal History 111 (2004) (Lawson & Seidman). Under the ensuing peace treaty signed in 1898, the United States took posses- sion of Puerto Rico, Guam, and the Philippines. Treaty of Paris, Arts. 1–3, Dec. 10, 1898, 30 Stat. 1755–1756.

But these acquisitions, hard on the heels of the annexation of Hawaii, soon ignited a ferce debate. Some argued that our republican traditions prevented the United States from governing distant possessions as subservient colonies with- out regard to the Constitution. Others sought to devise new theories by which Congress could permanently rule the country's new acquisitions as a European power might, unre- strained by domestic law. See Cabranes 395.

Leading members of the legal academy provided infuen- tial support for those in the second camp. Their work culmi- nated in a series of articles in the Harvard Law Review in 1899. Christopher Langdell argued that the Bill of Rights was “so peculiarly . . . English that an immediate and com- pulsory application of [those rights] to ancient and thickly settled Spanish colonies would furnish . . . proof of our unft- ness to govern dependencies, or deal with alien races.” The Status of Our New Territories, 12 Harv. L. Rev. 365, 386 (1899). James Bradley Thayer contended that “there is no lack of power in our nation . . . to govern these islands as

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colonies, substantially as England might govern them.” Our New Possessions, 12 Harv. L. Rev. 464, 467 (1899). Ab- bott Lawrence Lowell submitted that, “apart from treaty or legislation, possessions acquired by conquest or cession do not become a part of the United States,” and “constitutional limitations . . . do not apply.” The Status of Our New Pos- sessions: A Third View, 13 Harv. L. Rev. 155, 176 (1899).

Such rules, he said, “are inapplicable except among a people whose social and political evolution has been consonant with our own.” Ibid.

The debate over American colonialism made its frst ap- pearance in this Court in the form of a tax dispute in Downes

v. Bidwell, 182 U. S. 244 (1901). Pursuant to the Foraker

Act, Congress erected a civil government in Puerto Rico and imposed a tax on goods exported to, or imported from, the new Territory. See Act of Apr. 12, 1900, ch. 191, §§ 2–3, 31 Stat. 77–78. After incurring a $659.35 tax bill, an importer challenged the Act as inconsistent with the Constitution's Tax Uniformity Clause, which provides that “all Duties, Im- posts, and Excises shall be uniform throughout the United States.” Art. I, § 8, cl. 1; Downes, 182 U. S., at 247, 249.

To answer the question whether the Act complied with the Constitution, the Court resolved that it frst had to decide whether the Constitution applied at all in Puerto Rico. Ul- timately, a fractured set of opinions emerged. Employing arguments similar to those advanced by Professors Langdell and Thayer, Justice Brown saw things in the starkest terms.

Applying the Constitution made sense in “contiguous territo- r[ies] inhabited only by people of the same race, or by scat- tered bodies of native Indians.” Id., at 282. But it would not do for islands “inhabited by alien races, differing from us in religion, customs, laws, methods of taxation, and modes of thought.” Id., at 287. There, Justice Brown contended, “the administration of government and justice, according to Anglo-Saxon principles, may for a time be impossible.”

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Ibid. On his view, the Constitution should reach Puerto Rico only if and when Congress so directed. Id., at 279.

Justice White offered a different theory that drew on Pro- fessor Lowell's thinking. See Developments in the Law— The U. S. Territories, 130 Harv. L. Rev. 1616, 1617–1620 (2017). To Justice White, the Constitution's application de- pended on “the situation of the territory and its relations to the United States.” Downes, 182 U. S., at 293 (concurring opinion). In some cases, Congress might express an inten- tion to “incorporate” a Territory into the United States at a future date; in a Territory like that the Constitution must apply fully and immediately. Id., at 339. But in other cases, Justice White argued, only “fundamental” (if unspeci- fed) aspects of the Constitution should have force. Id., at 291. In his judgment, Puerto Rico fell into this second category and remained “foreign to the United States” be- cause, unlike Territories in the American West, Congress had not done enough to indicate its intention to “incorporate” the island. Id., at 341–342. Still, it would be a mistake to overstate the gap between the theories advanced by Justice White and Justice Brown. At bottom, both rested on a view about the Nation's “right” to acquire and exploit “an un- known island, peopled with an uncivilized race . . . for com- mercial and strategic reasons”—a right that “could not be practically exercised if the result would be to endow” full constitutional protections “on those absolutely unft to re- ceive [them].” Id., at 306 (White, J., concurring).

In dissent, Chief Justice Fuller expressed astonishment that Congress could “keep [a Territory], like a disembodied shade, in an intermediate state of ambiguous existence for an indefnite period.” Id., at 372. Justice Harlan criticized the Court for “engraft[ing] upon our republican institutions a colonial system such as exists under monarchical govern- ments.” Id., at 380. And Justice Harlan dismissed Justice White's supposed middle ground, which he could fnd no-

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where in the Constitution's terms: “I am constrained to say that this idea of `incorporation' has some occult meaning which my mind does not apprehend.” Id., at 391.

Later decisions blurred the line between Justice Brown's approach and Justice White's even further. Eventually, a majority embraced Justice White's “incorporation” theory, including its suggestion that certain constitutional protec- tions are “fundamental” and therefore apply even in far-fung “unincorporated” possessions. Dorr v. United States, 195

U. S. 138, 148–149 (1904). At the same time, it became clear

that very few constitutional limits on the power of the fed- eral government could be relied upon in the newly acquired Territories absent a clear congressional statement. See,

e. g., Hawaii v. Mankichi, 190 U. S. 197, 215–216 (1903) (opin-

ion of Brown, J.); id., at 218–219 (White, J., concurring); Cf.

S. Laughlin, The Burger Court and the United States Terri-

tories, 36 U. Fla. L. Rev. 755, 773 (1984) (“[W]hile Justice White had won the battle over which doctrine should nomi- nally prevail, Justice Brown had won the war”).

Even the right to trial by jury, the Court concluded, was not fundamental enough to apply in unincorporated Territo- ries like Puerto Rico. Balzac v. Porto Rico, 258 U. S. 298, 306, 308–310 (1922). It did not matter to the Court that, by the time it reached the question, Congress had already granted Puerto Ricans U. S. citizenship. See Act of Mar. 2, 1917, § 5, 39 Stat. 953. In the Court's estimation, the “local- ity [was] determinative of the application of the Constitution, . . . not the status of the people who live in it.” Balzac, 258 U. S., at 309. And, on the Court's account, Puerto Rico's “localities” included “compact and ancient communities” that had not yet developed the “impartial attitude” or “conscious duty of participation” required of citizens by the “Anglo- Saxon” jury trial. Id., at 310.

The faws in the Insular Cases are as fundamental as they are shameful. Nothing in the Constitution speaks of “incor-

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porated” and “unincorporated” Territories. Nothing in it extends to the latter only certain supposedly “fundamental” constitutional guarantees. Nothing in it authorizes judges to engage in the sordid business of segregating Territories and the people who live in them on the basis of race, ethnic- ity, or religion.

The Insular Cases can claim support in academic work of the period, ugly racial stereotypes, and the theories of social Darwinists. But they have no home in our Constitution or its original understanding. In this country, the federal gov- ernment “deriv[es] its powers directly” from the sovereign people, McCulloch v. Maryland, 4 Wheat. 316, 404–405 (1819), and is empowered to act only in accord with the terms of the written Constitution the people have approved, Mar- bury v. Madison, 1 Cranch 137, 176–177 (1803). Empires and duchies in Europe may have subscribed to the “doctrine . . . that the people were made for kings, not kings for the people.” The Federalist No. 45, p. 289 (C. Rossiter ed. 1961) (J. Madison). “Monarchical and despotic governments” may possess the power to act “unrestrained by written constitu- tions.” Downes, 182 U. S., at 380 (Harlan, J., dissenting).

But our Nation's government “has no existence except by virtue of the Constitution,” and it may not ignore that char- ter in the Territories any more than it may in the States.

Id., at 382.

The Insular Cases' departure from the Constitution's orig- inal meaning has never been much of a secret. Even com- mentators at the time understood that the notion of territo- rial incorporation was a thoroughly modern invention.1 The Insular Cases deviated, too, from this Court's prior and long- standing understanding of the Constitution. In 1898, the very same year as the Spanish-American War, a lopsided ma-

1 See C. Littlefeld, The Insular Cases, 15 Harv. L. Rev. 169, 169–170 (1901); F. Coudert, The Evolution of the Doctrine of Territorial Incorpora- tion, 26 Colum. L. Rev. 823, 832 (1926) (Coudert); see also M. Ramsey, Originalism and Birthright Citizenship, 109 Geo. L. J. 405, 435 (2020); Law- son & Seidman 196–197.

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jority of this Court judged it “beyond question” that the Constitution's jury-trial guarantees reached “the Territories of the United States.” Thompson v. Utah, 170 U. S. 343, 346–347 (1898) (Harlan, J.). Nearly 80 years before that, the Court held that the Constitution's Tax Uniformity Clause constrained legislation governing the District of Columbia.

Loughborough v. Blake, 5 Wheat. 317, 319 (1820) (Marshall,

case after case.2

With the passage of time, this Court has come to admit discomfort with the Insular Cases. See Reid v. Covert, 354

U. S. 1, 14 (1957) (plurality opinion); Financial Oversight

and Mgmt. Bd. for Puerto Rico v. Aurelius Investment, LLC, 590 U. S. –––, ––– – ––– (2020). But instead of con- fronting their errors directly, this Court has devised a work- around. Employing the specious logic of the Insular Cases, the Court has proceeded to declare “fundamental”—and thus applicable even to “unincorporated” Territories—more and more of the Constitution's guarantees. See S. Cleveland, Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth Century Origins of Plenary Power Over Foreign Affairs, 81 Texas L. Rev. 1, 241–243 (2002) (collect- ing cases).

That solution is no solution. It leaves the Insular Cases on the books. Lower courts continue to feel constrained to apply their terms. See, e. g., Fitisemanu v. United States,

1 F. 4th 862, 873 (CA10 2021); Tuaua v. United States, 788

F. 3d 300, 306–307 (CADC 2015). And the fctions of the

2 See, e. g., Springville v. Thomas, 166 U. S. 707, 708–709 (1897) (Seventh

Amendment jury-unanimity requirement applied in Utah Territory); Wilk- erson v. Utah, 99 U. S. 130, 137 (1879) (Eighth Amendment prohibition on cruel and unusual punishment applied in Utah Territory); Reynolds v.

United States, 98 U. S. 145, 154, 158, 162 (1879) (Sixth Amendment jury- trial and confrontation rights and First Amendment free-exercise right applied in Utah Territory); see also Cross v. Harrison, 16 How. 164, 193, 197–198 (1854) (domestic law, including the Tax Uniformity Clause, applied in California).

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Insular Cases on which this workaround depends are just that. What provision of the Constitution could any judge rightly declare less than fundamental? On what basis could any judge profess the right to draw distinctions between in- corporated and unincorporated Territories, terms nowhere mentioned in the Constitution and which in the past have turned on bigotry? There are no good answers to these bad questions.

This workaround, too, has proven as ineffectual as it is inappropriate. Perhaps this Court can continue to drain the Insular Cases of some of their poison by declaring provision after provision of the Constitution “fundamental” and thus operative in “unincorporated” Territories. But even one hundred years on, that pitiable job remains unfnished. Still today under this Court's cases we are asked to believe that the right to a trial by jury remains insuffciently “fundamen- tal” to apply to some 3 million U. S. citizens in “unincor- porated” Puerto Rico. At the same time, the full panoply of constitutional rights apparently applies on the Palmyra Atoll, an uninhabited patch of land in the Pacifc Ocean, be- cause it represents our Nation's only remaining “incorpo- rated” Territory.3 It is an implausible and embarrassing state of affairs.

3 The atoll lies approximately 1,000 miles from Hawaii. Palmyra Atoll,

Dept. of Interior, Offce of Insular Affairs (last visited Apr. 19, 2022), https://www.doi.gov/oia/islands/palmyraatoll (Palmyra Atoll DOI Over- view). When Congress supposedly “incorporated” Hawaii as a Territory, it included Palmyra, then a Hawaiian possession. See Act of Apr. 30, 1900, ch. 339, §§ 2–5, 31 Stat. 141–142; Hawaii v. Mankichi, 190 U. S. 197,

211 (1903) (Congress “formally incorporated” Hawaii in 1900); United

States v. Fullard-Leo, 331 U. S. 256, 259 (1947). Ultimately, however, the atoll was not folded into Hawaii on statehood, and it remained under fed- eral control. See Act of Mar. 18, 1959, Pub. L. 86–3, § 2, 73 Stat. 4; Act of July 12, 1960, § 48, 74 Stat. 424. So today our bureaucracies endow that Territory alone a capital “T” in their offcial lists while the others, Puerto Rico included, earn only a lowercase “ t. ” See Palmyra Atoll DOI Overview.

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Gorsuch, J., concurring The case before us only defers a long overdue reckoning.

Rather than ask the Court to overrule the Insular Cases, both sides in this litigation work from the shared premise that the equal protection guarantee under which Mr. Vaello Madero brings his claim is a “fundamental” feature of the Constitution and thus applies in “unincorporated” Territories like Puerto Rico. See Tr. of Oral Arg. 10–11; Brief for United States 12. Proceeding on the parties' shared prem- ise, the Court applies the Constitution and holds that the conduct challenged here does not offend its terms. All that may obviate the necessity of overruling the Insular Cases today. But it should not obscure what we know to be true about their errors, and in an appropriate case I hope the Court will soon recognize that the Constitution's applica- tion should never turn on a governmental concession or the misguided framework of the Insular Cases. Asked why he dissented in those cases year after year, Justice Harlan replied that “ `no question can be settled until set- tled right.' ” Coudert 842. We should settle this question right.

To be sure, settling this question right would raise diffcult new ones. Cases would no longer turn on the fctions of the Insular Cases but on the terms of the Constitution itself.

Disputes are sure to arise about exactly which of its individ- ual provisions applies in the Territories and how. Some of these new questions may prove hard to resolve. But at least they would be the right questions. And at least courts would employ legally justifed tools to answer them, includ- ing not just the Constitution's text and its original under- standing but the Nation's historical practices (or at least those uninfected by the Insular Cases). See Fitisemanu, 1

F. 4th, at 883 (Tymkovich, C. J., concurring); see also NLRB

v. Noel Canning, 573 U. S. 513, 525 (2014); id., at 572–574,

and n. 1 (Scalia, J., dissenting); W. Baude, Constitutional Liq- uidation, 71 Stan. L. Rev. 1, 13–21 (2019). Nor, in any event,

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can the diffculty of the task supply an excuse for neglect- ing it.4 *

Because no party asks us to overrule the Insular Cases to resolve today's dispute, I join the Court's opinion. But the time has come to recognize that the Insular Cases rest on a rotten foundation. And I hope the day comes soon when the Court squarely overrules them. We should follow Justice Harlan and settle this question right. Our fellow Americans in Puerto Rico deserve no less.

Justice Sotomayor, dissenting.

The Supplemental Security Income (SSI) program pro- vides a guaranteed minimum income to certain vulnerable citizens who lack the means to support themselves. If they meet uniform federal eligibility criteria, recipients are enti- tled to SSI regardless of their contributions, or their State's contributions, to the United States Treasury, which funds the program. Despite these broad eligibility criteria, today the Court holds that Congress' decision to exclude citizen residents of Puerto Rico from this important safety-net pro- gram is consistent with the Fifth Amendment's equal protec-

4 In the last few years, some have attempted a revisionist account of

the Insular Cases. On this view, this Court's decision to withhold full constitutional protection from “unincorporated” Territories (now) serves the benefcial end of safeguarding traditional cultures. See, e. g., Fitisem- anu, 1 F. 4th, at 870. Put aside the amicus briefs from the Governor of Puerto Rico, territorial advocacy groups, and the U. S. Virgin Islands expressing vehement disagreement with the Insular Cases. Put aside, too, the uncomfortable truth that recent attempts to repurpose the Insular Cases merely drape the worst of their logic in new garb. At bottom, the Constitution's restraints on federal power do not turn on a court's un- schooled assessment of a Territory's local customs or contemporary cur- rents in public opinion or academic theory. Our government may not deny constitutionally protected individual rights out of (purportedly) be- nign neglect any more than it may out of animus.

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tion guarantee. I disagree. In my view, there is no ra- tional basis for Congress to treat needy citizens living any- where in the United States so differently from others. To hold otherwise, as the Court does, is irrational and antitheti- cal to the very nature of the SSI program and the equal protection of citizens guaranteed by the Constitution. I re- spectfully dissent.

Congress' enactment of the SSI program in 1972 rep- resented a major change in the Federal Government's rela- tionship with States and Territories in assisting low-income individuals. Prior to 1972, means-based assistance for peo- ple over the age of 64, blind people, or those with disabilities came in the form of programs administered and funded by States and supplemented with matching federal funds. See

S. Rep. No. 92–1230, pp. 383–384. One of those programs

was known as Aid to the Aged, Blind, and Disabled (AABD).

Under AABD, the States and Territories set their own income and asset limits for individual participation and de- termined their own beneft amounts. See Brief for Public Benefts Scholars as Amici Curiae 27. The Federal Govern- ment paid 75% of the benefts and 50% of the administrative costs, subject to a statutory cap on total expenditures. See Congressional Research Service, W. Morton, Cash Assist- ance for the Aged, Blind, and Disabled in Puerto Rico 12 (2016).

To provide a uniform, guaranteed minimum income for the neediest adults, Congress established the SSI program in

the States.” Schweiker v. Gray Panthers, 453 U. S. 34, 38 (1981). Rather than dispensing money through block grants to the States, SSI provides monthly cash benefts directly to qualifying low-income individuals who are over 65 years old, blind, or disabled. The Federal Government sets uniform qualifcations for eligibility and fully funds the program through mandatory appropriations from the general fund of

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the United States Treasury. See 42 U. S. C. § 1381 et seq.

Unlike AABD benefts, SSI benefts do not vary based on the specifc State or Territory that a benefciary is located in, as long as the benefciary is otherwise eligible.1 In sum, SSI created a fully nationalized assistance program with fed- eral administration, federal determination of eligibility, and fnanced entirely from federal funds.

When Congress created SSI, it made the program avail- able only to “resident[s] of the United States,” and it defned United States as including “the 50 States and the District of Columbia.” 42 U. S. C. §§ 1382c(a)(1)(B)(i), (e). Congress later extended the SSI program to residents of the Common- wealth of the Northern Mariana Islands. 90 Stat. 263, note following 48 U. S. C. § 1801.

Although Puerto Rico is not a State, it has been part of the United States for well over a century, and people born in Puerto Rico are U. S. citizens.2 In other contexts, Con- gress has made clear that references to the “United States” include Puerto Rico. See, e. g., 52 U. S. C. § 20310(8). In this context, however, Congress did not extend the SSI pro- gram to Puerto Rico and other Territories. Instead, Con- gress left in place the AABD program. See notes following

Congress' decision not to include Puerto Rico in the SSI program has a signifcant impact on U. S. citizens in Puerto Rico. In 2021, 34,224 residents of Puerto Rico were enrolled in the AABD program; by contrast, in 2011, the Government Accountability Offce estimates that over 300,000 Puerto

1 The amount of benefts SSI pays to eligible recipients can vary, depend- ing, for instance, on whether the recipient has an “eligible spouse.” 42

U. S. C. § 1382(b).

2 By the 1898 Treaty of Paris, Spain “cede[d] to the United States the Island of Porto Rico.” Treaty of Paris, Art. 2, Dec. 10, 1898, 30 Stat. 1755.

Through the Jones Act of 1917, anyone born in Puerto Rico on or after April 11, 1899, became a United States citizen. Organic Act of Puerto Rico, § 5, 39 Stat. 953.

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Sotomayor, J., dissenting Rico residents would have qualifed for SSI. Brief for Hon.

Jenniffer A. Gonzalez Colon, Resident Commissioner for Puerto Rico, as Amicus Curiae 28, 34. The 34,224 Puerto Rico residents enrolled in AABD in 2021 received an average of $82 per month, compared to the $574 per month that the average SSI recipient received in Fiscal Year 2020. Id., at 29, 33. In other words, signifcantly fewer Puerto Rico resi- dents are eligible for AABD than would be eligible for SSI, and the benefts they receive under AABD are hardly com- parable to those they would likely receive under SSI.

Jose Luis Vaello Madero is a U. S. citizen who was born in Puerto Rico in 1954. In 1985, he moved to New York, and in 2012, while still living in New York, he began receiving SSI after suffering from a serious illness. Approximately one year later, Vaello Madero moved back to Puerto Rico.

Vaello Madero continued to receive monthly SSI payments of between $733 and $808 via direct deposit after he returned to Puerto Rico.

In June 2016, Vaello Madero, approaching his 62d birthday, went to a Social Security Administration offce in Puerto Rico to apply for Title II Social Security benefts. As a re- sult, the Social Security Administration learned that Vaello Madero had moved from New York to Puerto Rico, and within two months, the Administration reduced his SSI ben- efts to $0, retroactively effective to August 2013. By letter, the Administration notifed Vaello Madero that he was “out- side of the United States” while he was living in Puerto Rico.

App. 39, 45.

In 2017, the United States fled suit against Vaello Madero to recover the $28,081 (plus interest, costs, and attorney's fees) that it calculated Vaello Madero had illegally cashed while he resided in Puerto Rico. As an affrmative defense to the suit, Vaello Madero claimed that excluding U. S. citi- zens who reside in Puerto Rico from the SSI program vio-

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lated the equal protection guarantee of the Fifth Amend- ment.3 The United States District Court for the District of Puerto Rico agreed, granting summary judgment to Vaello Madero.

The Court of Appeals unanimously affrmed. See 956

F. 3d 12 (CA1 2020). The court agreed that rational-basis

review applied to Vaello Madero's equal protection claim. It found no rational basis to exclude “individuals who meet all the eligibility criteria for SSI except for their residency in Puerto Rico.” Id., at 18. The court rejected the United States' argument that the tax status of Puerto Rico provided a rational basis for the challenged classifcation, explaining that SSI recipients are, by defnition, low-income individuals who cannot afford to pay taxes. Id., at 27. The Court of Appeals also observed that SSI is a “national program” that is operated and administered uniformly, without regard to State of residence. Id., at 25. The court therefore declared invalid the “exclusion of Puerto Rico residents from SSI cov- erage.” Id., at 32.

The United States petitioned this Court for a writ of cer- tiorari, which we granted. 592 U. S. ––– (2021).

In general, the Equal Protection Clause guarantees that the Government will treat similarly situated individuals in a similar manner. Equal protection does not foreclose the Government's ability to classify persons or draw lines when creating and applying laws, but it does guarantee that the Government cannot base those classifcations upon imper- missible criteria or use them arbitrarily to burden a particu-

3 The Fifth Amendment's Due Process Clause prohibits the Government from denying a person the equal protection of laws. See Bolling v.

Sharpe, 347 U. S. 497, 499 (1954). “ `Equal protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment.' ” Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 224 (1995) (quoting Buckley v. Valeo, 424 U. S. 1, 93 (1976) (per curiam)).

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lar group of individuals. Where a law treats differently two different groups of people that are not members of a suspect or quasi-suspect classifcation, and the classifcation does not implicate a fundamental right, the law will survive an equal protection challenge if it is “rationally related to a legitimate governmental interest.” Department of Agriculture v. Mo- reno, 413 U. S. 528, 533 (1973).

Rational-basis review is a deferential standard, but it is not “ toothless. ” Mathews v. Lucas, 427 U. S. 495, 510 (1976). Even neutral classifcations must “rationally ad- vanc[e] a reasonable and identifable governmental objec- tive.” Schweiker v. Wilson, 450 U. S. 221, 235 (1981).

When the relationship between a statutory classifcation and its goal is “so attenuated as to render the distinction arbi- trary or irrational,” that distinction violates equal protec- tion. Nordlinger v. Hahn, 505 U. S. 1, 11 (1992).

Congress' decision to exclude millions of U. S. citizens who reside in Puerto Rico from the SSI program fails even this deferential test.4

The United States contends, and the Court accepts, that Puerto Rico's “tax status” provides a rational basis for ex- cluding citizens who reside in Puerto Rico from the SSI program. Ante, at 165 (emphasis deleted). As the United States argues, “Congress could rationally conclude that a ju-

4 Because I would hold that this classifcation does not survive rational basis, I do not consider whether the differential treatment of citizens who reside in Puerto Rico requires a heightened standard of review, as the District Court held. See 356 F. Supp. 3d 208, 214–215 (PR 2019). In addition, because the Government disclaims any reliance on the Insular Cases, Tr. of Oral Arg. 8–9, I do not address those cases in my analysis. I do agree, however, with Justice Gorsuch's view that it “is past time to acknowledge the gravity” of the error of the Insular Cases. Ante, at 180 (concurring opinion). Those cases were premised on beliefs both odi- ous and wrong, and I share the concurrence's “hope [that] the Court will soon recognize that the Constitution's application should never depend on the government's concession or the misguided framework of the Insular Cases.” Ante, at 188.

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risdiction that makes a reduced contribution to the federal treasury should receive a reduced share of the benefts funded by that treasury.” Brief for United States 17–18.

The Court holds that our prior decisions in Califano v.

Torres, 435 U. S. 1 (1978) (per curiam), and Harris v. Rosa- rio, 446 U. S. 651 (1980) (per curiam), require acceptance of this rationale. Ante, at 164–165. It is true that both Cali- fano and Harris relied on Puerto Rico's tax status to justify the unequal treatment of its residents. See Califano, 435

U. S., at 5, n. 7; Harris, 446 U. S., at 652. Neither case, how-

ever, stood for the principle that Puerto Rico's tax status could justify any and all unequal treatment of its residents, and neither addressed the claims at issue here. Califano resolved a claim under the right to travel, while Harris de- cided a challenge to the unequal distribution of block grants to the States and Puerto Rico under a separate benefts pro- gram. Those cases do not preclude an equal protection chal- lenge to a uniform, federalized, direct-to-individual poverty reduction program like SSI. Moreover, as summary disposi- tions, Califano and Harris are not “of the same precedential value as would be an opinion of this Court treating the ques- tion on the merits.” Edelman v. Jordan, 415 U. S. 651, 671 (1974). And both Califano and Harris rested on the mis- taken premise that residents of Puerto Rico do not contrib- ute at all to the Federal Treasury. Califano, 435 U. S., at 5,

n. 7; Harris, 446 U. S., at 652. Here, the United States con-

cedes that “residents of Puerto Rico make some contribu- tions to the federal treasury.” Brief for United States 19 (emphasis deleted).

Moreover, the Court overlooks the fact that SSI estab- lishes a direct relationship between the recipient and the Federal Government. The Federal Government develops uniform eligibility criteria, recipients apply for assistance di- rectly to the Federal Government, and the Federal Govern- ment disburses funds directly and uniformly to recipients without regard to where they reside. Indeed, when it cre- ated SSI, Congress replaced existing programs that differed

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between States as well as between States and Territories and that involved States and Territories in administering the programs. Under the current system, the jurisdiction in which an SSI recipient resides has no bearing at all on the purposes or requirements of the SSI program. For this rea- son alone, it is irrational to tie an individual's entitlement to SSI to that individual's place of residency.

While it is true that residents of Puerto Rico typically are exempt from paying some federal taxes,5 that distinction does not create a rational basis to distinguish between them and other SSI recipients. By defnition, SSI recipients pay few if any taxes at all, as the First Circuit correctly recog- nized below: “[B]y its very terms, only low-income individu- als lacking in monetary resources are eligible” for SSI. 956

F. 3d, at 27. In fact, to qualify for SSI, recipients must have

an income well below the standard deduction for single tax flers. Ibid. It is “antithetical to the entire premise of the program” to hold that Congress can exclude citizens who can scarcely afford to pay any taxes at all on the basis that they do not pay enough taxes. Ibid.

In some cases, it might be “reasonable for Congress to take account of the general balance of benefts to and burdens on”

5 Both the District Court and the Court of Appeals below recognized that citizens who reside in Puerto Rico pay several of the same types of federal taxes as citizens who reside in a State. See 356 F. Supp. 3d, at 215, n. 9; 956 F. 3d 12, 24–26 (CA1 2020). The Court of Appeals explained that each year from 1998 to 2006 (when an economic recession set in), residents of Puerto Rico contributed in aggregate over $4 billion to the Federal Treasury, a sum larger than the contributions by residents of Ver- mont, Wyoming, and several other States. Id., at 24. Even between 2016 and 2018, during the recession and despite several natural disasters, residents of Puerto Rico still contributed between $3 and $4 billion per year to the Treasury. Id., at 24–25. Those contributions came in the form of “federal income taxes by residents of Puerto Rico on income from sources outside Puerto Rico,” “the regular payment of federal income taxes by all federal employees in Puerto Rico,” and “the full Social Secu- rity, Medicare, and Unemployment Compensation taxes that are paid in the rest of the United States.” Id., at 25 (footnote omitted).

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citizens when deciding eligibility for benefts. Ante, at 165.

That is not a rational basis for this classifcation, however, because SSI is a means-tested program of last resort for the poorest Americans who lack the means even to pay taxes.

Residents of Puerto Rico who would be eligible for SSI are like SSI recipients in every material respect: They are needy

U. S. citizens living in the United States.

The Court cautions that holding this classifcation uncon- stitutional would “usher in potentially far-reaching conse- quences,” such as requiring the extension of other federal programs to citizens who reside in all Territories. Ibid. It bears noting that tax status did not preclude Congress' ex- tension of SSI to the Northern Mariana Islands, undermining that justifcation as a rational basis to distinguish Puerto Rico from the States. In any event, the Court identifes no federal program other than SSI that operates in such a uni- form, nationalized, and direct manner. For instance, the Supplemental Nutrition Assistance Program is administered by local governments. See Brief for Public Benefts Schol- ars as Amici Curiae 8–9. That distinction alone may justify differential treatment by jurisdiction of residence.

In fact, it is the Court's holding that might have dramatic repercussions. If Congress can exclude citizens from safety- net programs on the ground that they reside in jurisdictions that do not pay suffcient taxes, Congress could exclude needy residents of Vermont, Wyoming, South Dakota, North Dakota, Montana, and Alaska from benefts programs on the basis that residents of those States pay less into the Federal Treasury than residents of other States.6 Congress has never enacted a uniform, nationalized direct assistance pro- gram, and then excluded entire States on the basis that the

6 The United States concedes that the analysis would be the same if Congress excluded residents of a State from the SSI program. Tr. of Oral Arg. 6.

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taxpaying residents of that State do not pay suffcient fed- eral taxes. The Court's holding today suggests that doing so would be constitutional and not a violation of the Constitu- tion's promise of equal protection of citizens.

* * *

SSI is designed to support the neediest citizens. As a program of last resort, it is aimed at preventing the most severe poverty. In view of that core purpose, denying bene- fts to hundreds of thousands of eligible Puerto Rico residents because they do not pay enough in taxes is utterly irrational.

Congress' decision to deny to the U. S. citizens of Puerto Rico a social safety net that it provides to almost all other

U. S. citizens is especially cruel given those citizens' dire

need for aid. Puerto Rico has a disproportionately large population of seniors and people with disabilities. See Brief for AARP et al. as Amici Curiae 8–10. The Census Bureau estimated that in 2019, 43.5% of residents of Puerto Rican residents lived below the poverty line—more than triple the national percentage of 12.3%. See C. Benson, American Community Survey Briefs, Poverty: 2018 and 2019, p. 5 (Sept. 2020), https://www.census.gov/content/dam/Census/ library/publications/2020/acs/acsbr20-04.pdf.

Equal treatment of citizens should not be left to the vagar- ies of the political process. Because residents of Puerto Rico do not have voting representation in Congress, they cannot rely on their elected representatives to remedy the punishing disparities suffered by citizen residents of Puerto Rico under Congress' unequal treatment.

The Constitution permits Congress to “make all needful Rules and Regulations” respecting the Territories. Art. IV, § 3, cl. 2. That constitutional command does not permit Con- gress to ignore the equally weighty constitutional command that it treat United States citizens equally. I respectfully dissent.

Page Proof Pending PublicationReporter’s Note

The attached opinion has been revised to refect the usual publication and citation style of the United States Reports. The revised pagination makes available the offcial United States Reports citation in advance of publication. The syllabus has been prepared by the Reporter of Decisions for the convenience of the reader and constitutes no part of the opinion of the Court. A list of counsel who argued or fled briefs in this case, and who were members of the bar of this Court at the time this case was argued, has been inserted following the syllabus. Other revisions may include adjustments to formatting, captions, citation form, and any errant punctuation. The following additional edits were made:

p. 195, line 3 from bottom, “disperses” is replaced with “disburses”

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