Puerto Ricans do not have full access to Social Security benefits like citizens in the states. (GFR Media) (horizontal-x3)
Puerto Ricans do not have full access to Social Security benefits like citizens in the states. (GFR Media)

Washington - Federal Judge Gustavo Gelpí invited Governor Ricardo Rosselló and Jenniffer González, Resident Commissioner in Washington, to argue in the case in which Puerto Rican José Luis Vaello Madero challenges the stage set by the US Supreme Court to limit Puerto Rican residents access to federal programs.

Vaello Madero refuses to reimburse $ 28,081 in payments from Supplemental Security Income (SSI) received on the Island, and challenges American jurisprudence, which based on  early 20th century Insular Cases justifies not giving the Island full access to United States government welfare social programs. That judicial regulation created the concept of unincorporated territory and the theory that Puerto Rico belongs to the USA but is not part of the USA.

Under the Insular Cases jurisprudence, Congress imposed PROMESA which created an Oversight Board and a territorial bankruptcy system to restructure Puerto Rican public debt.

Gelpí, Chief Judge for the United States District Court for the District of Puerto Rico., rejected on May 14 a request from the US government to dismiss the case filed by Vaello Madero. In a motion, the government of the United States had demanded that Vaello Madero first argue his case before the Social Security Administration.

However, Judge Gelpí, who seeks to revive the debate on Puerto Rico´s colonial situation and has argued before that the United States incorporated the Island “de facto”, decided that he has jurisdiction to revise the case.

"Recent developments on Puerto Rico, for example, greater awareness on the mainland about its situation after Hurricane Maria, as well as national and local consensus against unequal treatment, can further encourage courts to review Califano and Harris," said Gelpí. He referred to the cases Califano versus Torrres (1978) and Harris versus Rosario (1980), resolved by the US Supreme Court and that have validated that there is no full access to federal programs in the territories, as long as there is a "rational basis".

While Vaello Madero was living in New York, he received SSI benefits, which are financed through the federal government general fund, not Social Security payments. He moved to Puerto Rico in 2013 and in 2016 he found out that he was ineligible for SSI.

Although payments were stopped, the Social Security Administration, which manages SSI, asked him to reimburse $ 28,081.

In an order issued on Tuesday, Judge Gelpí invited Governor Ricardo Rosselló -through the Secretary of Justice, Wanda Vázquez Garced- and Commissioner González to join the case as "friends of the court" or amicus curiae since "it is of great interest for the Commonwealth and its approximately 3.4 million US citizens".

When commenting on the case in El Nuevo Día, the Commissioner said that "the time of infamous island cases is over". "The discrimination stain and the violation of civil rights of the American citizens residing in Puerto Rico is on the table," she said.

As retired law professor, the executive president of the Puerto Rican Independence Party (PIP), former senator Fernando Martín, said he did not know "of any development since Califano and Harris cases that can make one think that (the judicial federal system, as last resort) will resolve differently than it has before”.

For Martín, the expansion of individual rights through the federal Constitution can be an open field, but beyond pointing out the deficiencies of the Puerto Rico colonial system, he does not see that the US Supreme Court will "correct" them, as it is a matter that rests on the United States political branches.

In response to the lawsuit filed by the investment firm Aurelius and the Electrical Industry and Irrigation Workers Union (Utier) against PROMESA constitutionality, the government of Puerto Rico had to defend the constitutionality of the statute, which was created under Congress plenary powers protection and Insular Cases jurisprudence.

"The invitation that Judge Gelpí sent to the Governor and the Resident Commissioner would force them to assume a definitive position for or against the Insular Cases," said former governor Aníbal Acevedo Vilá.

But, the former governor believes that Rosselló "faces the difficulty that if he accepted the challenge that, somehow, this federal judge is making, he has to harmonize what he says before Gelpi, with what his lawyers have said so far before Judge (Laura Taylor) Swain regarding the powers of the Board under the Insular Cases protection. Clearly, the governor can not have a position in one case and different one in the other," he said.

Another case

Yesterday, the government of Puerto Rico intervened as a friend of the court in the revision requested to the US Supreme Court to recognize residents of Puerto Rico, Guam and the US Virgin Islands the right to vote they had in the states.

Although in the understanding that resolving the lack of political rights of the residents of Puerto Rico before the federal government is beyond the scope of that case - Luis Segovia versus the US - the written argument of the Secretary of Justice, Wanda Vázquez Garced, maintained that losing the vote for the president of the United States because a person moved to the island "should not be acceptable in a democratic society".

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