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This fall, the Supreme Court is due to hear arguments on whether its constitutional for the United States to exclude residents of Puerto Rico from Supplemental Security Income. On Monday, President Joe Biden pretended to sidestep the question entirely.

In a statement declaring the exclusion to be inconsistent with my Administrations policies and values, Biden nonetheless announced that the Justice Department would be filing a brief defending the exclusion, which it did later Monday night. By way of defense, he pointed to the departments longstanding practice of defending the constitutionality of federal statutes, regardless of policy preferences.

That hand wave doesnt erase how Bidens statement and his Justice Departments actions reinforce the racist history that allowed for such exclusion in the first place. The suggestion that the president believes the matter is a policy preference implies that he does not believe the exclusion of an estimated 700,000 Puerto Rico residents United States citizens from SSI is an unconstitutional violation of equal protection guarantees. It also means, in effect, that Biden thinks the Trump administrations position that the disparate treatment of Puerto Rico is constitutional is correct.

That hand wave doesnt erase how Bidens statement and his Justice Departments actions reinforce the racist history that allowed for such exclusion in the first place.

This position, in and of itself, is disturbing. Both the district court and federal appeals court that heard the challenge found against the United States exclusionary policy. In addressing the Trump administrations arguments in the case, Judge Juan Torruella, in his final year on the appeals court bench before his death in October, wrote that the cost of including Puerto Rico's elderly, disabled, and blind in SSI cannot by itself justify their exclusion.

Noting that the appeals court considered even conceivable theoretical reasons for the differential treatment, the three-judge panel nonetheless unanimously concluded that the Constitutions equal protection guarantees even in a territory forbids the arbitrary denial of SSI benefits to residents of Puerto Rico.

As Matt Ford wrote this year in The New Republic, a deeper dive into the case leads back to a line of cases known as the Insular Cases in which racism played an unambiguous factor. The cases, Ford explained, addressed the treatment of territories acquired by the U.S. during the Spanish-American War and use reasoning described by Doug Mack in 2017 as being built on the same racist worldview as Plessy v. Fergusons since-overturned separate but equal. They also form the basis for the two more recent Supreme Court rulings relied on by the Trump administration at the appeals court in its defense of the exclusionary treatment of Puerto Ricans today.

Relying on those more recent rulings, the Biden administrations Justice Department on Monday night continued that argument, telling the Supreme Court that Congresss decision not to extend the SSI program to Puerto Rico complies with the equal-protection component of the Due Process Clause.

Bidens failure here goes beyond his punt to Congress, pressing as he does in his statement for congressional action to fix the exclusionary treatment. He's also holding back on his authority in this matter. Defending the constitutionality of statutes is, as Biden said, critical to the Departments mission of preserving the rule of law. However, there also are exceptions to that practice, exceptions that his statement ignores.

Yes, the Justice Department generally defends statutes whenever a reasonable argument can be made for constitutionality of the statute in question. But there are three main exceptions: when separation of powers questions are at issue (think of a law that purports to limit executive power); when a statute conflicts with Supreme Court precedent; or as Seth Waxman, former solicitor general in the Clinton administration, put it in cases in which it is manifest that the President has concluded that the statute is unconstitutional.

Biden knows that final exception all too well. It was during his time as vice president that the Justice Department had to decide whether to defend the Defense of Marriage Act. On Feb. 23, 2011, President Barack Obama officially made a decision that the relevant part of DOMA was unconstitutional and, as such, his attorney general, Eric Holder, announced that DOJ would no longer be defending part of the law.

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Puerto Ricans are Americans. Biden needs to defend their rights. - MSNBC