Honolulu, HAWAII — When David Diamadi and his wife Joyce debated moving from Florida back to Joyce’s home island of Guam more than a decade ago, they considered what would be best for their daughter Haley, who has Down syndrome.

Living on the U.S. island territory would bring them closer to many members of Joyce’s extended family and would give Haley, who was then three years old, the chance to grow up loved and supported by her many cousins.

They knew living on Guam would mean more limited options for medical care. But at the time, Diamadi had no idea the move they ultimately ended up making would also eliminate his daughter’s ability to qualify for Supplemental Security Income, a federal benefit to support people with disabilities, when she turned 18.

He wouldn’t find out until years later that that’s always been the case for residents of Guam and most U.S. island territories.

The U.S. Supreme Court overwhelmingly affirmed last month that residents of Puerto Rico are not entitled to the disability benefits because they live in a U.S. territory and do not pay the same federal taxes as people who live in U.S. states.

“Just as not every federal tax extends to residents of Puerto Rico, so too not every federal benefits program extends to residents of Puerto Rico,” Justice Brett Kavanaugh wrote in the majority opinion for the United States v. Vaello Madero case, signed by eight of the nine justices.

The case involved Puerto Rico resident Jose Vaello Madero, who received disability payments when living in New York and continued to receive the checks when he moved to Puerto Rico. When the federal government realized Vaello Madero had moved to the island territory, the government sued for the return of more than $28,000 in disability payments.

Not every territory is excluded from the program. Residents of the Northern Mariana Islands are eligible for the disability payments due to their unique political status.

But the Supreme Court ruling underscores that residents of Guam, American Samoa, Puerto Rico and the Virgin Islands won’t be eligible for the extra funding anytime soon, a blow to advocates who say citizens of U.S. territories deserve the same access to federal programs as people in U.S. states.

Still, the case is just one development amid a broader ongoing advocacy effort to overturn the Insular Cases, long-held legal precedent that helps justify treating Americans who live in U.S. territories differently from residents of U.S. states.

This week, plaintiffs in another case, Fitisemanu v. United States, asked the Supreme Court to give American Samoans the right to birthright citizenship. Currently people born in American Samoa are U.S. nationals and must move to another U.S. jurisdiction and apply through an expedited process to receive U.S. citizenship.

UNITED STATES v. VAELLO MADERO

Justice Sonia Sotomayor was the only dissenter in the United States v. Vaello Madero case. She argued that people who qualify for the Supplemental Security Income program “pay few if any taxes at all.”

Basing program eligibility on payment of taxes could disqualify “needy residents of Vermont, Wyoming, South Dakota, North Dakota, Montana, and Alaska from benefits programs on the basis that residents of those States pay less into the Federal Treasury than residents of other states,” she wrote.

She also wrote that the Insular Cases “were premised on beliefs both odious and wrong.” Justice Neil Gorsuch, in his concurring opinion, similarly wrote that the “flaws in the Insular Cases are as fundamental as they are shameful.”

Neil Weare, an attorney and the founder of the nonprofit advocacy group Equally American, represents American Samoan plaintiffs in the Fitisemanu v. United States case. He’s also in the midst of a lawsuit in Hawaii, Borja v. Nago, pushing for voting rights for residents of Guam and the U.S. Virgin Islands.

Weare found both Sotomayor’s and Gorsuch’s opinions encouraging, particularly because the two justices both came to the same conclusion even though Gorsuch is conservative and Sotomayor is liberal.

“No Supreme Court justice has ever explicitly said it’s time to overrule the Insular Cases,” he said. That “is a good sign that they’re looking to address these issues.”

Not everyone agrees that territory residents should be treated the same as U.S. citizens in the states, or with efforts to extend citizenship to American Samoans.

In fact, the government of American Samoa has strongly opposed the effort and emphasized the value of the U.S. national status out of concern for how overturning the Insular Cases might infringe on local laws and customs.

Both American Samoa and the Northern Mariana Islands have restricted land ownership that many locals see as a vital part of Indigenous sovereignty, and some scholars think those land laws could be threatened if the Insular Cases were overruled.

Extending Supplemental Security Income to the territories has been met with less resistance than extending U.S. citizenship, but comes with a large price tag. One estimate said that between 2021 and 2023, the program could cost $22.7 billion for Puerto Rico residents and $0.7 billion for residents of other territories.

Biden’s Build Back Better proposal would have permanently extended Supplemental Security Income payments to residents of U.S. island territories, but the high price tag of the president’s many proposals stalled the legislation in the gridlocked Senate amid Republican opposition.

NEED FOR 24/7 CARE

Weare still thinks the Vaello Madero ruling could spur Congress into action.

David Diamadi, a National Guard member who has deployed to the Middle East and works for the Defense Department, does not share Weare’s optimism.

“I have very little confidence that anything is going to get passed anytime soon,” he said, citing partisan divisions in Washington.

Diamadi said the amount of disability support they’d receive — about $775 a month — is not a huge amount but would be enough to make a difference in the family’s financial spreadsheets.

Haley has an extreme version of Down syndrome. At 17, she still wears diapers, can’t fully speak and doesn’t have a long attention span. She also has epilepsy, autism and ADHD.

“She runs the gamut of many disabilities,” he said. She’s always going to need someone to care for her, Diamadi believes, and that kind of 24/7 caregiving is what a monthly Social Security Insurance payment could help cover.

Diamadi understands the argument that territory residents should pay more taxes to access more federal benefits. At the same time, he said, “She’s a U.S. citizen. I’m a U.S. citizen.”

Click to read more Civil Beat