I was able to get into it today and copy it. It's longish. I"ll have to split it.
Pack the Union: A Proposal to Admit New States for the Purpose of Amending the Constitution to Ensure Equal Representation
Note
JAN 10, 2020
133 Harv. L. Rev. 1049
PDF
For most of the twenty-first century, the world?s oldest surviving democracy has been led by a chief executive who received fewer votes than his opponent in an election for the position.
1. See Dennis W. Johnson, Campaigns and Elections 70 (2020).
The first of these executives started a war based on false pretenses that killed hundreds of thousands of civilians.
2. See Rebecca Adelman & Sherifa Zuhur, Iraqi Freedom, Operation, Casualties Of, in The Iraq War Encyclopedia 199, 201 (Thomas R. Mockaitis ed., 2013); Gregory W. Morgan, Iraq, History of, 1990 to Present, in The Iraq War Encyclopedia, supra, at 184, 188; Tim J. Watts & Paul G. Pierpaoli, Jr., Bush, George Walker, in The Iraq War Encyclopedia, supra, at 72, 75.
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The second ? a serial abuser of women
3. See Michael Barbaro & Megan Twohey, Crossing the Line: How Donald Trump Behaved with Women in Private, N.Y. Times (May 14, 2016),
https://nyti.ms/24RqHYi [https://perma.cc/7AM8-V74F].
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who hired as his campaign manager a lobbyist for violent dictatorships
4. See Franklin Foer, Paul Manafort, American Hustler, The Atlantic (Mar. 2018),
https://www.theatlantic.com/magazine/archive/2018/03/paul-manafort-american-hustler/550925 [https://perma.cc/2DA7-2Y7E].
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? authorized an immigration policy that forcibly separated migrant children from their families and indefinitely detained them in facilities described as ?concentration camps.?
5. Isaac Chotiner, Inside a Texas Building Where the Government Is Holding Immigrant Children, New Yorker (June 22, 2019),
https://www.newyorker.com/news/q-and-a/inside-a-texas-building-where-the-government-is-holding-immigrant-children [https://perma.cc/4LT4-LGL7].
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Democracy, as they say, is messy.
6. Cf. 444 Parl Deb HC (5th ser.) (1947) col. 203 (UK) (statement of Rt. Hon. Churchill) (?No one pretends that democracy is perfect or all-wise. Indeed, it has been said that democracy is the worst form of Government except all those other forms that have been tried . . . .?).
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But even when democracy is messy, a society?s commitment to the endeavor rests on the belief that giving power to the people is appropriate and fair.
7. Sidney Verba, Fairness, Equality, and Democracy: Three Big Words, 73 Soc. Res. 499, 503 (2006).
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Recent events have highlighted some of the ways in which federal elections in the United States are profoundly undemocratic and, thus, profoundly unfair.
8. See generally Ezra Klein & Mallory Brangan, Vox, The Roots of America?s Democracy Problem, YouTube (Nov. 20, 2018),
https://youtu.be/0ySL82WbcvU [https://perma.cc/9JWL-5R7W].
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The Electoral College ? when it contravenes the popular vote ? is an obvious example of this unfairness. But it is just one of the mathematically undemocratic features in the Constitution. Equal representation of states in the Senate, for example, gives citizens of low-population states undue influence in Congress. Conversely, American citizens residing in U.S. territories have no meaningful representation in Congress or the Electoral College.
If we truly hold to be self-evident that all are created equal,
9. See The Declaration of Independence para. 2 (U.S. 1776).
then it is time to amend the Constitution to ensure that all votes are treated equally. Just as it was unfair to exclude women and minorities from the franchise, so too is it unfair to weight votes differently. The 600,000 residents of Wyoming and the 40,000,000 residents of California
10. QuickFacts, U.S. Census Bureau,
https://www.census.gov/quickfacts/fact/table/CA,MT,WY/PST045218 [https://perma.cc/98R8-3JCA].
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should not be represented by the same number of senators. Nor should some citizens get to vote for President, while others do not. Any rationalization of the status quo must adopt the famous Orwellian farce: ?All animals are equal but some animals are more equal than others.?
11. George Orwell, Animal Farm 112 (1946).
These observations are not new, and they were noted well before the Constitution was ratified. During the Constitutional Convention, delegates from small states refused to accept a system of representation by population.
12. See Michael J. Klarman, The Framers? Coup: The Making of the United States Constitution 199?201 (2016).
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Likewise today, the faction that benefits from the unfair allocation of power has no interest in changing it.
13. See Erin Corbett, Why Democrats Want to Abolish the Electoral College ? and Republicans Want to Keep It, Fortune (Apr. 2, 2019),
http://fortune.com/2019/04/02/abolish-the-electoral-college-votes [https://perma.cc/WU4H-LT8Z].
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Article V of the Constitution requires supermajorities to amend the Constitution, so pragmatists have been reduced to advocating meager solutions: perhaps Congress could admit Washington, D.C., as a state; maybe Puerto Rico too, if we?re really feeling ambitious.
14. E.g., Ezra Klein, Democrats Need to Get Serious on Statehood for DC and Puerto Rico, Vox (Oct. 26, 2018, 10:10 AM),
https://www.vox.com/policy-and-politics/2018/10/26/18024542/dc-puerto-rico-statehood-senate-democracy [https://perma.cc/9JMF-WS97].
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While a step in the right direction, these proposals are inadequate. To create a system where every vote counts equally, the Constitution must be amended. To do this, Congress should pass legislation reducing the size of Washington, D.C., to an area encompassing only a few core federal buildings and then admit the rest of the District?s 127 neighborhoods
15. See Jennifer Comey et al., Urban Inst., State of Washington, D.C.?s Neighborhoods 3 (2010) (identifying 127 neighborhoods).
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as states. These states ? which could be added with a simple congressional majority ? would add enough votes in Congress to ratify four amendments: (1) a transfer of the Senate?s power to a body that represents citizens equally; (2) an expansion of the House so that all citizens are represented in equal-sized districts; (3) a replacement of the Electoral College with a popular vote; and (4) a modification of the Constitution?s amendment process that would ensure future amendments are ratified by states representing most Americans.
Radical as this proposal may sound, it is no more radical than a nominally democratic system of government that gives citizens widely disproportionate voting power depending on where they live. The people should not tolerate a system that is manifestly unfair; they should instead fight fire with fire, and use the unfair provisions of the Constitution to create a better system.
This Note proceeds in three parts. Part I identifies the issue of unequal representation in the federal government. Part II explains the proposal to admit new states and pass new amendments. Part III addresses legal, historical, and political counterarguments.
I. THE PROBLEM OF UNEQUAL REPRESENTATION
The problem of unequal representation is rooted in provisions of the Constitution that treat citizens living in different places differently. These provisions date to the Constitutional Convention, but in many respects, the present state of affairs does not reflect the Framers? intentions. Developments since ratification call into question the inequality of the status quo, which has a substantial effect on public policy and is likely to get worse unless it is addressed.
A. HISTORY ? HOW AND WHY THE PROBLEM EXISTS
1. The Senate. ? In the Senate, each state is represented by two senators regardless of population.
16. U.S. Const. art. I, ? 3, cl. 1.
As a result, the Senate is arguably the least democratic legislative chamber in any developed nation.
17. See Adam Liptak, Smaller States Find Outsize Clout Growing in Senate, N.Y. Times (Mar. 11, 2013),
https://nyti.ms/2kQU4hb [https://perma.cc/Q4NU-8GUF].
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At the Constitutional Convention, the arguments in favor of representation by state were never particularly persuasive, but the voting structure of the Convention ? where decisions had to be approved by a majority of states ? ensured that small-state delegates got their way.
18. See Klarman, supra note 11, at 201.
Gunning Bedford, a delegate from Delaware, warned that if representation were based on population, large states might ?crush the small ones? in Congress.
19. Id. at 190; see also Fred Barbash, The Founding 69 (1987).
But as James Madison noted, that risk is minimal, because large states do not inherently have anything in common that would bring them together for such purposes.
20. See Noah Feldman, The Three Lives of James Madison 137?38 (2017).
The only issue that would reliably divide small and large states is the very question of how to allocate power among them.
21. See id. at 141.
Luther Martin, of Maryland, also argued that because the federal government was a confederation of equally ?sovereign and free? states, each should be considered an equal contracting party.
22. Klarman, supra note 12, at 188.
But again, this view is not especially compelling. As Pennsylvania delegate James Wilson wryly inquired: ?Can we forget for whom we are forming a government? Is it for men, or for the imaginary beings called states??
23. Id. at 185; see also Barbash, supra note 19, at 67 (?As [Madison] saw it, this was to be a government constituted by the people, not by states, and the people rather than the states should be represented.?).
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States do not have interests independent of the people who live in them, so equal numbers of people ought to be entitled to an equal number of representatives.
Moreover, while it was at least plausible at the time to argue that the federal government was a creature of sovereign states, today the federal government is intimately involved with individual lives in a way that would have been unimaginable to those in the Founding era.
24. See generally 1 Bruce Ackerman, We the People: Foundations 105 (1991) (describing the changes since the Founding that redefined the national government).
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If the federal government can levy personal income taxes, change the definition of marriage, and penalize the failure to purchase health insurance,
25. U.S. Const. amend. XVI; Obergefell v. Hodges, 135 S. Ct. 2584, 2607 (2015); Nat?l Fed?n of Indep. Bus. v. Sebelius, 567 U.S. 519, 574 (2012).
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shouldn?t the people whose lives depend on those decisions be entitled to equal representation?
2. The House. ? While more democratic than the Senate, the House of Representatives suffers from anti-democratic features as well. Most obviously, representatives are elected only by citizens of states, so the millions of American citizens living in the District of Columbia and U.S. territories are without meaningful representation in Congress.
26. Neil Weare, Equally American: Amending the Constitution to Provide Voting Rights in U.S. Territories and the District of Columbia, 46 Stetson L. Rev. 259, 260 (2017).
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And even among the states, House elections do not treat voters equally. Because each state is entitled to at least one representative, and because the size of the House is capped by statute at 435,
27. See Reapportionment Act of 1929, ch. 28, ? 22, 46 Stat. 21, 26?27 (codified as amended at 2 U.S.C. ? 2a (2018)).
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there are significant disparities between the powers of voters in each state.
28. Wyoming?s single House district, for example, covers a population of less than 600,000, while Montana?s is home to more than 1,000,000. See QuickFacts, U.S. Census Bureau, supra note 10.
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Unlike the Senate, which has treated voters differently from the beginning, the House was supposed to continually grow so as to remain democratic and representative of the citizenry.
29. See Christopher St. John Yates, A House of Our Own or a House We?ve Outgrown? An Argument for Increasing the Size of the House of Representatives, 25 Colum. J.L. & Soc. Problems 157, 175?79 (1992).
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Both the seemingly permanent disenfranchisement of citizens in populous self-governing territories and the statutory cap on the size of the chamber are inconsistent with the Framers? vision of a body reflecting the will of the people.
30. See The Federalist No. 55, at 340?41 (James Madison) (Clinton Rossiter ed., 2003) (promising that the House would expand with the population); Weare, supra note 26, at 259, 262?63.
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3. The Electoral College. ? The Electoral College produces similarly undemocratic outcomes. More than ten percent of Presidents have been elected despite losing the popular vote,
31. See Johnson, supra note 1, at 70.
in large part because the system presently operates in a manner inconceivable to its creators.
32. For starters, the Framers seemed to think the Electoral College would rarely produce a winner, and that the House would typically select the next President. See Klarman, supra note 12, at 232, 369, 629.
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Like the debate over apportionment of the national legislature, deliberations over the method of electing the Executive pitted small and large states against each other.
33. See Note, Rethinking the Electoral College Debate: The Framers, Federalism, and One Person, One Vote, 114 Harv. L. Rev. 2526, 2528?29 (2001).
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The resulting compromise promoted two values: First, the use of electors would dilute populist influence, while ensuring that the President would not be unduly dependent on Congress.
34. See Jeffrey St. John, Constitutional Journal 197?99 (1987); see also Klarman, supra note 12, at 228 (discussing the manners in which the people would be ignorant and inept at selecting the ?chief magistrate?).
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Second, each state would receive a number of electors equal to the sum of its representatives plus its senators so that large states would not have an unfair advantage.
35. See Klarman, supra note 12, at 231; St. John, supra note 34, at 199.
Since ratification, the premises underlying these compromises have almost completely eroded.
36. See Akhil Reed Amar with Vikram David Amar, Electoral College History: Slavery, Sexism, and the South, FindLaw (Nov. 30, 2001), reprinted in Akhil Reed Amar, The Constitution Today 342, 346 (2016).
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The electors no longer play a serious role in ?diluting? populist influence because states immediately realized that the best way to maximize their influence on the election was to direct all of their electors to vote for the candidate that won their state.
37. See William Josephson & Beverly J. Ross, Repairing the Electoral College, 22 J. Legis. 145, 154 (1996).
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This winner-take-all approach also substantially undercuts the protection for small states.
38. Note, supra note 33, at 2531 (?[T]he emergence of the . . . winner-take-all system for state selection of electors, which the Framers did not anticipate, has rendered the notion of any consistent small-state, regional, or federalist protection in the electoral college highly tenuous.? (footnotes omitted)).
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Although there remains, at least in theory, a modest ?boost? for small states, the practical effect of winner-take-all laws is to focus a wildly disproportionate share of campaign resources on large battleground states,
39. See David Str?mberg, How the Electoral College Influences Campaigns and Policy: The Probability of Being Florida, 98 Am. Econ. Rev. 769, 769 (2008).
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because miniscule changes in the result of one large state can have a determinative effect on the entire election.
40. See, e.g., Ari Berman, Give Us the Ballot 207?14 (2015) (recalling the decisive Florida recount in the 2000 presidential election).
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B. EFFECTS ? PUBLIC POLICY THAT DOES NOT REFLECT THE PEOPLE
The public policy implications of unequal representation are substantial. Congress does not pass laws that people want, nor does it confirm the Supreme Court Justices people want.
41. Compare Amber Phillips, A Majority Say Merrick Garland Should Be Confirmed. But That Means Less than You Think, Wash. Post (Mar. 21, 2016, 2:37 PM),
https://wapo.st/1UJtQp7 [https://perma.cc/5CUB-G7LT], with Ariel Edwards-Levy, Brett Kavanaugh Is on Track to Be a Historically Unpopular Supreme Court Justice, HuffPost (Oct. 5, 2018 7:13 PM),
https://www.huffpost.com/entry/brett-kavanaugh-unpopular-supreme-court-justice_n_5bb7c331e4b028e1fe3d9646 [https://perma.cc/MW64-XVAJ].
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Americans without representation are neglected by ?their? government. Presidents are elected in spite of their popular support, not because of it. This is not how democracy is supposed to work. There may be something to be said for putting a check on the impulses of an electorate, but there is no good justification for nominally allocating power to the people, but distributing it on unequal terms.
1. Legislation. ? It is common knowledge that the U.S. Congress does not pass legislation favored by most Americans. Wide majorities favor universal background checks for gun purchases,
42. See Robert J. Spitzer, The Politics of Gun Control 125 (6th ed. 2015).
more robust parental leave policies,
43. Claire Groden, An Overwhelming Majority of Americans Support Paid Parental Leave, Fortune (Apr. 15, 2016),
https://fortune.com/2016/04/15/an-overwhelming-majority-of-americans-support-paid-parental-leave [https://perma.cc/F9SG-XGG5].
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and raising taxes on the wealthy.
44. Spencer Piston, Class Attitudes in America 57 (2018).
One common explanation for the disconnect between popular policy preferences and congressional inaction is the influence of money in politics. The wealthy have unrepresentative interests and disproportionate power.
45. See Americans? Views on Money in Politics, N.Y. Times (June 2, 2015),
https://nyti.ms/2mfQXtT [https://perma.cc/X4KH-HUMW].
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Surely there is some truth to this explanation, but it does not tell the whole story. Another explanation is that the representatives themselves are not the representatives preferred by the public.
46. See John D. Griffin, Senate Apportionment as a Source of Political Inequality, 31 Leg. Stud. Quart. 405, 406 (2006). There are of course other potentially relevant factors, such as the non-uniform distribution of people with certain preferences, the propensity of certain people to vote, and the relative importance of an issue to a voter choosing between a limited number of candidates.
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In the 2018 midterms, for example, Democratic congressional candidates won the House popular vote by the largest midterm margin of victory ever.
47. Jane C. Timm, Democrats Smash Watergate Record for House Popular Vote in Midterms, NBC News (Nov. 26, 2018, 11:24 AM),
https://www.nbcnews.com/politics/elections/democrats-smash-watergate-record-house-popular-vote-midterms-n940116 [https://perma.cc/G7FJ-WDLY].
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Republican candidates for Senate received a total of 38% of votes cast, while Democratic candidates received 58%.
48. See Office of the Clerk, U.S. House of Representatives, Statistics of the Congressional Election from Official Sources for the Election of November 6, 2018, at 57 (2019),
https://history.house.gov/Institution/Election-Statistics/2018election [https://perma.cc/TJ49-C7UG].
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And yet, Republicans not only retained a majority in the chamber, they actually increased it.
49. Maureen Groppe, Republicans Make History by Growing Senate Majority While Losing House, USA Today (Nov. 7, 2018, 3:51 PM),
https://www.usatoday.com/story/news/politics/elections/2018/11/06/election-day-2018-republicans-senate/1848366002 [https://perma.cc/BE2P-44KX].
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Given that only one-third of Senate seats are up in each election, it would make sense to see only modest changes in the overall composition of the body each cycle. But when the losing party in a wave election gains seats in the Senate, something is amiss.
2. The Supreme Court. ? The problem of unequal representation affects more than legislation. For example, in February 2016, Justice Antonin Scalia died, leaving the Supreme Court divided between four Democratic appointees and four Republican appointees.
50. David A. Kaplan, The Most Dangerous Branch 10 (2018).
The Republican-controlled Senate refused to hold hearings for the Democratic President?s nominee, and the Senate majority leader announced that control of the Court was to be decided by ?the American people.?
51. Id. at 66.
In November 2016, the American people spoke definitively: Democratic Senate candidates received 10 million more votes than Republican candidates, and 11 percentage points more of the total vote.
52. See Office of the Clerk, U.S. House of Representatives, Statistics of the Presidential and Congressional Election from Official Sources for the Election of November 8, 2016, at 83 (2017),
https://history.house.gov/Institution/Election-Statistics/2016election [https://perma.cc/N2MR-MHAK].
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The Democratic presidential nominee similarly received nearly 3 million more votes than her opponent.
53. Id. at 82.
And yet, because of the unfair method of representation, Republicans retained control of the Senate and took over the White House.
54. Geoffrey Skelley, Straight Tickets for Senate, Split Tickets for Governor: The 2016 Senate and Gubernatorial Elections, in Larry J. Sabato et al., Trumped 52, 56?57 (2017).
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In the ensuing Congress, two new conservative Justices were appointed to the Court despite the fact that senators representing a majority of Americans voted against both of them.
55. See Michael Tomasky, Opinion, The Supreme Court?s Legitimacy Crisis, N.Y. Times (Oct. 5, 2018),
https://nyti.ms/2y40ZH9 [https://perma.cc/8TZK-8FGS].
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In fact, of the five sitting Justices appointed by Republican Presidents, all but one was appointed by a President who was elected despite losing the popular vote.
56. See Greg Price, Brett Kavanaugh Will Be Fourth Supreme Court Justice Nominated by President Who Didn?t Win the Popular Vote, Newsweek (Oct. 6, 2018, 10:19 AM),
https://www.newsweek.com/supreme-court-justices-president-popular-vote-1156542 [https://perma.cc/P3U2-CTTZ]. President George W. Bush appointed both of his Justices during his second term ? after the 2004 election where he won both the popular and electoral vote ? but had the popular vote winner of the 2000 election assumed the office, it seems doubtful that President Bush would have even been President at all.
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The policy consequences of these appointments ? appointments that were only possible due to an unfair system of representation ? are profound. Some of the biggest cases of the twenty-first century were decided by 5?4 votes split down party lines,
57. See, e.g., Trump v. Hawaii, 138 S. Ct. 2392, 2402, 2423 (2018) (upholding President Trump?s travel ban); Shelby County v. Holder, 133 S. Ct. 2612, 2617, 2631 (2013) (striking down portions of the Voting Rights Act); District of Columbia v. Heller, 554 U.S. 570, 572, 636 (2008) (guaranteeing a personal right to own a firearm); Gonzales v. Carhart, 550 U.S. 124, 130, 166?67 (2007) (upholding federal abortion restrictions).
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results that almost certainly would have been different if the United States had a fair method of representation.
None of this is to say the judiciary should be a rubber stamp on public opinion; perhaps its countermajoritarian function is essential.
58. See United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938).
But if the courts are to be subject to public control, their judges and Justices appointed and confirmed by representatives of the people, and their decisions binding on the entire nation, it makes little sense to give some citizens much more voting power than others.
3. U.S. Territories. ? The problem of unequal representation is especially severe for citizens of U.S. territories. Such citizens pay payroll taxes but, with few exceptions, are not eligible for Supplemental Security Income.
59. See Medicaid and CHIP Payment and Access Commission, Fact Sheet: Medicaid and CHIP in the Territories 1 (2019),
https://www.macpac.gov/wp-content/uploads/2019/07/Medicaid-and-CHIP-in-the-Territories.pdf [https://perma.cc/G8UW-VNGB].
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Nor are the territories reimbursed for Medicaid at the same rate as states.
60. Id.
They also serve in the military at higher rates than the national average, and yet, per capita healthcare spending on veterans in the territories is much lower than the national average.
61. See, e.g., Josh Hicks, Guam: A High Concentration of Veterans, but Rock-Bottom VA Funding, Wash. Post (Oct. 29, 2014),
https://www.washingtonpost.com/news/federal-eye/wp/2014/10/29/guam-a-high-concentration-of-veterans-with-little-va-funding [https://perma.cc/P36M-G5S4].
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