You may not have learned this in school, but we have millions of second-class citizens living in the United States today. They’re trapped in a parallel legal system straight out of the “separate but equal” era, and to this day nobody’s put an end to this racist treatment.

U.S. citizens and nationals living in the U.S. territories — Guam, Puerto Rico, the U.S. Virgin Islands, American Samoa and the Commonwealth of the Northern Mariana Islands — are Americans, serve in our military and are subject to every federal law on the books. But thanks to a series of absurd legal rulings more than a century old, if you live in one of these territories today, you don’t have access to the same federal services we take for granted, for the most part your vote doesn’t count, and you may get demands from the federal government to pay back benefits you received when you lived on the mainland.

Speeches about equal protection are frustrating when the reality doesn’t live up to the rhetoric. This is worse than that. This is using the legal and financial power of the federal government to penalize Americans for where they live.

Today we’ll talk a bit about how we got here, how some members of Congress are trying to end this injustice, and how the Supreme Court and the Biden administration fit into the picture.

How We Got Here

Following the Spanish-American War and the annexation of Puerto Rico, Guam and the Philippines from the Spanish crown, the Supreme Court issued a series of rulings known as the Insular Cases in 1901 establishing how these newly acquired lands would be governed. Rather than enforcing a plain reading of the Constitution, the Court ruled that our founding charter does not fully apply to the territories, which would instead be governed by special laws.

Justice Henry Billings Brown wrote in his 1901 lead opinion in Downes v. Bidwell that since the territories were inhabited by inferior ‘alien races’ that could not understand ‘Anglo-Saxon’ principles, they could be denied rights enjoyed on the mainland. This was the same man who in 1896 established the ‘separate but equal’ doctrine in Plessy v. Ferguson, now treated as shorthand for the ugliness of a bygone era.

These rulings formed the basis for what’s now referred to as the territorial incorporation doctrine, under which the full rights and privileges of the Constitution extend only to places that are fully “incorporated” into the country (this became important when Alaska and Hawaii became states, for instance). Most of the five territories we listed above have lived in the shadow of this doctrine for more than a century now. These lands may belong to the United States, but according to this bizarre and outdated policy, the people living there both are and are not Americans.

If this sounds like a thinly veiled legal excuse for colonialism — “We may control your territory, but you’re not one of us” — you’re not crazy. Mainstream legal theory today considers these rulings and how they were reached largely indefensible. But you don’t change policies just by frowning at them, and Congress and a century of presidential administrations just haven’t done the work of rectifying this injustice.

What’s Happening Today

The consequences of this unequal legal treatment get scant attention on the mainland, where many Americans aren’t even aware, for instance, that Puerto Ricans are U.S. citizens. (Remember when Donald Trump tried to pretend that responding to Hurricane Maria wasn’t his responsibility?) But this is a matter of life and death, especially in territories where poverty rates are comparable to the United States at the height of the Great Depression. In 2019, the Census Bureau showed that more than 65 percent of residents in American Samoa lived below the federal poverty line, and in Puerto Rico the number was close to 40 percent. Federal programs that provide critical resources to American individuals and families — including Medicaid, Supplemental Security Income (SSI), and the Supplemental Nutrition Assistance Program (SNAP) — are designed to prevent these outcomes, and yet people living in the territories do not have full access to them.

When this disparity takes concrete form in real peoples’ lives, it produces ugly and outrageous results. This fall, the Supreme Court is set to hear oral arguments in U.S. v. Vaello-Madero, which centers on whether a resident of Puerto Rico is eligible for SSI benefits despite decades of bad legal rulings to the contrary. The case formally hinges on the due process clause of the Fifth Amendment, which guarantees equal protection under the law and prohibits distinguishing between groups of people in ways that are irrelevant to legitimate governing objectives. The federal government’s treatment of territorial residents is a clear violation of this principle.

The facts of the case at issue make for uncomfortable reading. Jose Luis Vaello-Madero was born in Puerto Rico in 1954, moved to New York in 1985 and started receiving SSI benefits in 2012 due to health problems. He returned to Puerto Rico in 2013 to help care for his wife, and three years later was told by the Social Security Administration that not only was the federal government terminating his benefits, it was filing a lawsuit to recover more than $28,000 he had received while in Puerto Rico.

Two federal courts have ruled in Mr. Vaello-Madero’s favor, and the Department of Justice has a chance to do the right thing here by dropping its challenge to those rulings before the Supreme Court needs to consider the case. Not every legal precedent is defensible — courts stopped treating Dred Scott as binding for good reason — and the American people gain nothing by continuing this fight.

A similar debate is taking place in Guam. Twin sisters Katrina and Leslie Schaller both have a genetic disorder known as myotonic dystrophy, which causes long-term degeneration of muscle function. For many years, the Schaller sisters lived in their native state of Pennsylvania and received crucial support in the form of federal SSI benefits. However, the loss of a family member in 2007 forced Katrina Schaller to relocate to Guam, where she could receive care from her older sister and brother-in-law. Because U.S. Citizens living in Guam are also ineligible for federal SSI, Katrina Schaller ultimately lost the benefits she had relied on for so many years. This policy has also prevented Leslie Schaller from visiting her sister in Guam, given that such a trip would require an extended stay due to her worsening physical condition, and residing in the territory for more than a month would cause her to also lose her SSI benefits.

The Schaller sisters have challenged this discrimination in court, and in 2020 a federal judge in Guam found that the exclusion of Guam residents from federal SSI violated the U.S. Constitution’s Equal Protection Clause.

In a letter to the Committee on Natural Resources, Attorney Rodney J. Jacob, one of the lawyers representing Katrina Schaller, describes this historic case in more detail, as well as another case involving a Mr. Frank Q. Taitano, who like Mr. Vaello-Madero in Puerto Rico, is challenging “overpayment” expenses from benefits he received after relocating from the mainland to his place of birth in Guam.

Indeed, across the board, today’s federal courts and law enforcement officials are supposed to know better, and yet they continue to cite the territorial incorporation doctrine — written when legal thinking about equal rights was still in its infancy — to justify perpetual discrimination.

To make matters even worse, the people suffering this unequal treatment aren’t even able to take political action to resolve it. The Insular Cases and the territorial incorporation doctrine mean that territorial residents do not have the same voting rights as those who live in the states. An American living in the territories is unable to vote for president. As part of the legacy of the Insular Cases, the territories have no representation in the Senate, do not have full voting representation in the House and are not allotted proportional representation in the House the way the states are. Under the standard formula, the Puerto Rican population would warrant four members in the House of Representatives. Instead, it has a single resident commissioner whose vote is counted at the committee level but not on the House floor. Whenever you hear a bill “passed the House,” nobody representing any territory was able to participate in that vote.

For example, Mr. Ben Borja is a resident of Guam, a U.S. Navy veteran, and the lead plaintiff in case where he is challenging his inability to vote in U.S. elections because he lives in a territory. In a statement about how his own disenfranchisement, Mr. Borja said: “I served 28 years in the U.S. Navy, leaving my family for months at a time to defend democracy and the Constitution. I’ve earned the right to vote, and I want to be able to see my children and grandchildren treated the same as any other U.S. citizen. Every citizen deserves the right to vote, wherever they happen to live.”

Mr. John Fitisemanu, who was born in American Samoa but has lived and paid taxes in Utah for more than twenty years, has also been denied his right to vote in U.S. elections. In this instance, his inability to vote is due to his citizenship status; residents of American Samoa are considered U.S. nationals, not U.S. citizens. U.S. nationals may apply for a U.S. passport and travel and live in the United States, however they are not entitled to other benefits of full citizenship, such as the right the vote in U.S. elections and apply for certain jobs. Mr. Fitisemanu is challenging this barrier to participating in his state’s elections in a case that is currently pending a decision in the Tenth Circuit Court of Appeals.

Regarding his case, Mr. Fitisemanu stated: “I was born on U.S. soil in American Samoa, have a U.S. passport, work hard, and pay my taxes. But based on a discriminatory federal law, I’m denied citizenship and the right to vote. I cannot understand how I can be a passport-holding American, but not be recognized as a U.S. citizen. This isn’t just unfair, it’s unconstitutional.”

Some Members of Congress Are Trying to Fix This

As you can see, this is all a mess, and the web of unequal treatment and strange legal hurdles territorial residents face is not easy to explain all at once. Suffice to say that members of Congress have introduced a series of bills to end the various forms of discrimination the incorporation doctrine has produced:

1. Voting Rights

  • H.R.1, the For the People Act, includes provisions to increase voting rights, justice and democracy in the U.S. territories

2. Medicaid

  • H.R. 265 eliminates Medicaid funding limitations for U.S. territories beginning in FY2021
  • H.R.1722 amends titles XI and XIX of the Social Security Act to stabilize the Medicaid program in Puerto Rico

3. Supplemental Security Income

  • H.R. 537 seeks to extend the SSI program to Puerto Rico, the U.S. Virgin Islands, Guam, and American Samoa

4. Temporary Assistance for Needy Families

  • H.R.1773 seeks to make the Commonwealth of the Northern Mariana Islands eligible to operate TANF programs

In addition, Chair Raúl M. Grijalva (D-Ariz.) has introduced a bipartisan resolution calling on the House of Representatives to reject the Insular Cases and the territorial incorporation doctrine, and disapprove of its continued use as meaningful precedent by the Justice Department, federal courts and other litigants.

As his resolution notes in the preamble, the incorporation doctrine was held to be ridiculous even by many people at the time it was adopted. Justice Harlan, who penned the lone dissent to Plessy v. Ferguson, also wrote a series of powerful dissents to the Insular Cases, declaring in Downes that “[t]he idea that this country may acquire territories anywhere upon the earth, by conquest or treaty, and hold them as mere colonies or provinces — the people inhabiting them to enjoy only such rights as Congress chooses to accord to them — is wholly inconsistent with the spirit and genius, as well as with the words, of the Constitution.”

At a recent Natural Resources Committee legislative hearing, legal experts and representatives from American Samoa, Guam, and the U.S. Virgin Islands discussed the troubling legacy of the Insular Cases and its impact on residents of the territories. Rep. Stacey E. Plaskett (D-USVI) said, “Ultimately, the ongoing discrimination against Americans in the territories in federal benefits programs cannot be separated from the harmful legacy of the Insular Cases. As we have seen with the COVID-19 pandemic and recent major natural disasters, the territories are extremely vulnerable.”

Now Congress just needs to pass these measures. In the meantime, the Biden administration can and should do everything it can to reverse course and end this legalized discrimination.

President Biden’s recent appointment of Judge Gustavo A. Gelpí to the U.S. Court of Appeals for the First Circuit is a major step toward this goal. Judge Gelpí, a Puerto Rico native who served as chief judge of the U.S. District Court for the District of Puerto Rico, has previously denounced the racist underpinnings of the Insular Cases and criticized the Supreme Court and Congress for denying U.S. citizens residing in the territories full and equal rights of citizenship. Judge Gelpí’s appointment will fill the vacancy left by Judge Juan Torruella’s passing last year. Judge Torruella was the first Puerto Rican named to the First Circuit and a powerful legal voice against the unequal treatment of the territories enabled by the Insular Cases doctrine.

Where to Go From Here

The good news is that there is little public support for maintaining the status quo. As Data for Progress found in a survey conducted in early May of 2021, “Overall, a plurality of voters (47 percent) support the Supreme Court overruling the Insular Cases. Similarly, 42 percent of voters support Congressional action to condemn the Insular Cases, like those being taken [by the Natural Resources Committee]. With nearly half of voters supporting various actions aimed at reducing the harm that the Insular Cases cause, there is little opposition.” A big chunk of voters of all political persuasions said they didn’t know anything about the issue — which is itself a part of the reason this persist.

Scholars, activists and lawmakers are trying to change that, not only because of the impacts of this discrimination but because of what our failure to address those impacts says about our form of government. Prof. Sanford Levinson, one of the country’s leading constitutional law scholars and the author of six books on constitutional principles and public confidence in government, has called the Insular Cases “central documents in the history of American racism,” which is — unfortunately — both a very high bar to clear and the perfect way to describe the situation. The question now is how many more generations have to suffer because of a bad precedent.

Justice Brown wasn’t the only one to write an opinion in the Downes case in 1901. In a separate 3-Justice plurality ruling developing the territorial incorporation doctrine, Justice Edward White expressed concerns over the “evils” of admitting “millions of inhabitants” of “unknown islands, peopled with an uncivilized race,” who he believed would be “absolutely unfit” for citizenship. This was written in the 20th Century, more than 35 years after the end of the Civil War and more than 50 years after Darwin had published On the Origin of Species. By that point, while American political life wasn’t exactly enlightened by modern standards, the common biological descent of humanity was widely accepted and the world was no longer the terrifying land of uncivilized enemies that had once existed in the American imagination.

The language of the Insular Cases and the logic of the territorial incorporation doctrine were not universally approved even at the time. But they have endured, and they will continue to endure until Congress, the courts and the executive branch decide otherwise. The United States is not supposed to go forth conquering new territories and inventing laws to apply to them after the fact. We tell ourselves we’re a republic, not an empire. It’s time to live up to that ideal by extending full legal protection and equal treatment to U.S. citizens and U.S. nationals living in the territories.

House Natural Resources Committee Democrats, U.S. House of Representatives.