Justice Thomas's Concurrence in Vaello-Madero

Justice Thomas wrote a thoughtful concurrence last week in a case raising an equal protection challenge against the denial of SSI benefits to Puerto Rico. He raised questions about whether Bolling v. Sharpe was correctly decided and suggested that the Citizenship Clause (rather than the Due Process Clause) was the better place to locate an equal protection guarantee against federal action.

One difference between Bolling and Justice Thomas's tentative position is that the latter would deny equal protection to non-citizens against federal action. This is part of a broader contraction in non-citizen rights that would occur by shifting doctrines from the Due Process Clause to citizenship provisions such as the Privileges or Immunities Clause. This contraction may be correct as an original matter, but would also present problems.