Territorial Exceptionalism and the American Welfare State

Abstract

Federal law excludes millions of American citizens from crucial public benefits simply because they live in the United States territories. If the Social Security Administration determines a low-income individual has a disability, that person can move to another state and continue to receive benefits. But if that person moves to, say, Guam or the U.S. Virgin Islands, that person loses their right to federal aid. Similarly with SNAP (food stamps), federal spending rises with increased demand—whether because of a recession, a pandemic, or a climate disaster. But unlike the rest of the United States, Puerto Rico, the Northern Mariana Islands, and American Samoa receive a limited amount of federal food assistance, regardless of need. That’s why, after Hurricane Maria, despite additional Congressional action, over a million Puerto Rican residents lost food assistance. And with Medicaid, federal law caps medical assistance for each of these five territories, a limit that does not exist for the fifty states or the District of Columbia.

This Article draws much-needed attention to these discrepancies in legal status and social protection. It surveys the eligibility rules and financing structure of disability benefits, food assistance, and health insurance for low-income Americans in the states and the territories. A comprehensive account of these practices provokes questions about the tiers of citizenship built by a fragmented and devolved American state. Part I invokes the scholarship on social citizenship, the idea that an individual cannot meaningfully participate in society without some modicum of economic security. Part I then explores the tension between that normative commitment and one of the defining features of the American welfare state—federalism. It then elaborates the exceptional legal status of Americans who live in U.S. territories. Part II provides a comprehensive overview of federal food, medical, and disability assistance, and in doing so, demonstrates how the American territories inhabit a different and, in many ways, dilapidated, corner of the American welfare state. Part III begins with an analysis of ongoing cases in federal court that challenge this facial discrimination. It then canvasses legislation introduced in Congress that would make significant progress in putting territorial Americans on par with Americans in the fifty states. The Part ends with proposed legislation. To conclude, Part IV brings the states back in, using the earlier discussion of territories as an invitation to imagine an American welfare state built on a foundation other than a racial order.

Keywords: Poverty Law, Law of the Territories, Equal Protection, SNAP, Medicaid, SSI, Puerto Rico, Guam, American Samoa, U.S. Virgin Islands, Northern Mariana Islands, Social Security Act, Health Law, Disability Law