111 Iowa L. Rev. 1851 (2026)
Abstract
Puerto Ricans have a relationship with the United States that is historically unparalleled. They have been citizens of the United States since 1917, served in every major conflict since World War I, and have been influential members of American culture, politics, and society. Yet, Puerto Rico is not fully part of the United States. The island of 3.2 million people—more than the population of eighteen states—is a U.S. territory. This means the federal government wields its complete and largely unrestrained plenary power over the Island, often treating Puerto Ricans differently than the rest of the United States. This differential treatment is acutely demonstrated in the social welfare context. Puerto Rico is one of the poorest areas of the United States, with forty-three percent of the population living below the poverty line (sitting right behind the poorest state, Mississippi). Despite this reality, Congress discriminates against Puerto Rico in social welfare programs such as Medicaid, Supplemental Security Income (“SSI”), and the Supplemental Nutrition Assistance Program (“SNAP”). In some instances, federal legislators provide people on the Island with less funding, and in other instances, they outright exclude them.
This Article uncovers the analytical underpinnings of a legally sanctioned social welfare regime that consciously refuses to provide assistance to some of the country’s neediest individuals. We argue that the federal government maintains and cultivates a selective disregard for other people’s poverty— those, like Puerto Ricans, who inhabit the dark agoras of our constitutional regime. Such legal and economic neglect has its origins in the halls of Congress and has been approved by federal courts on numerous occasions. More specifically, we highlight an under thematized mechanism for this exclusion: the Supreme Court’s invocation of legal doctrines that are deferential to Congressional discrimination—plenary powers, rational basis review, and territorial incorporation. This framework was recently laid bare in the Supreme Court case United States v. Vaello Madero, which approved a federal statute excluding American citizens living in Puerto Rico from SSI. Although social welfare programs were meant as a social safety net for our aging and disadvantaged community members, federal officials across all three branches of government have facilitated the exclusion of minoritized communities from that scheme.
But Vaello Madero was about more than a constitutional challenge to a discriminatory statute. The case invoked fundamental questions of constitutional interpretation, territorial governance, and social welfare. The case and the questions it posed should trouble people across ideological perspectives—from originalists like Justice Gorsuch, who highlighted the constitutional infirmities tied to the treatment of Puerto Rico, to conservative and liberal proponents of federalism, to advocates for racial and economic justice on the left. On the precipice of pending cuts to social welfare programs, this Article offers some normative suggestions on how advocates and the public might reimagine social welfare in ways that align with our democratic commitments.