Four Amicus Briefs Filed in D.C. Circuit Case About Citizenship in U.S. Territories

Does the Constitution allow people born on U.S. soil to be recognized as Americans, but not as U.S. citizens?  That is the question before the U.S. Court of Appeals for the District of Columbia in the landmark case Tuaua v. United States.  Yesterday, prominent elected officials, scholars, and policy leaders filed a total of four amicus curiae (“friend of the court”) briefs to assist the Court of Appeals as it addresses these issues, each represented on a pro bono basis by a prominent national firm.

“These amicus briefs demonstrate the importance of the question of birthright citizenship in U.S. territories, both at a human level and as an issue of fundamental constitutional concern,” said Neil Weare, President of We the People Project, who, along with attorneys at Arnold & Porter LLP and attorney Charles V. Ala’ilima, represents Lene Tuaua, the Los Angeles-based Samoan Federation of America, and others in their challenge of federal laws that label individuals born in American Samoa as “nationals, but not citizens, of the United States.” 

Filing in support of the plaintiffs were citizenship scholars represented by Gibson, Dunn & Crutcher LLP, Members of Congress and former government officials represented by Covington & Burling LLP, and David Cohen, represented by Jenner & Block LLP.  Finally, scholars of constitutional law and legal history, represented by Wilmer Cutler Pickering Hale and Dorr LLP, filed on behalf of neither party, but pushed back against the Government’s argument that a series of controversial Plessy-era decisions known as the Insular Cases should answer this case.

“We’re very grateful and proud to have the support and participation of so many learned scholars and dedicated public servants.  The diversity of their experiences and perspectives should encourage the Court to take a very hard look at the government’s mistaken assumptions about what the Citizenship Clause means,” said Murad Hussain, part of the team of attorneys at Arnold & Porter LLP representing the Plaintiffs-Appellants.

David Cohen, an attorney of Samoan heritage who served as Deputy Assistant Secretary of Interior overseeing the Office of Insular Affairs from 2002 to 2008, addressed the human impact “non-citizen national” status has on the lives of those born in American Samoa.  Mr. Cohen’s brief outlines how tens of thousands of “non-citizen nationals” living throughout the United States are denied basic rights like the rights to vote, serve on juries, and bear arms. “Non-citizen nationals” are even denied certain career opportunities in government and military service.  Read more here.

Addressing the history and importance of birthright citizenship in the United States are Professors Sam Erman, Nathan Perl-Rosenthal, Holly Brewer, Linda Bosniak, Kristin Collins, Rose Cuison-Villazor, Stella Elias, Linda Kerber, Bernadette Meyler, Michael Ramsey, Lucy Salyer, Rogers Smith, and Charles Venator-Santiago.  They argue that the common law understanding of birthright citizenship supports recognition of citizenship by birth throughout the United States, including U.S. territories.  Their brief highlights that the only judicially recognized exception to this principle was the Supreme Court’s infamous decision in Dred Scott v. Sanford, which denied citizenship to African-Americans, and which was later overturned by the Fourteenth Amendment.  Read more here.

The perspectives and experiences of other U.S. territories is the subject of the brief filed by Congresswoman Madeleine Bordallo (Guam) and Congresswoman Donna Christensen (Virgin Islands), along with former Governors Pedro Rossello (Puerto Rico), Carl Gutierrez (Guam), and Charles Turnbull (Virgin Islands), as well as former Assistant Secretary of Interior for Insular Affairs Tony Babauta.  They explain how birthright citizenship has benefitted residents of Puerto Rico, Guam, the Virgin Islands, and the Northern Mariana Islands without displacing what makes each of these areas unique.  Read more here.

Finally, Professors Christina Duffy Ponsa, Gary Lawson, Sanford Levinson, Bartholomew H. Sparrow, and Andrew Kent, filing on behalf of neither party, argue that the Government’s reliance on the Insular Cases is misplaced.  They argue that the Insular Cases doctrine is irrelevant to determining the Citizenship Clause’s geographic scope and demonstrate why the courts should not endorse an expansion of the Insular Cases’ controversial incorporation doctrine.  Read more here.  (In February, several of these amici participated in Harvard Law School’s “Revisiting the Insular Cases” conference where Judge Torruella argued that “[t]he Insular Cases represent classic Plessy v. Ferguson legal doctrine . . . that should be totally eradicated from present day constitutional reasoning.”)  

Last June, the D.C. District Court dismissed the Tuaua lawsuit, and the plaintiffs appealed to the D.C. Circuit.  This past February, the D.C. Circuit denied the federal government’s motion to dispose of the appeal before full briefing.

The federal government will file its brief later this summer, as will the American Samoa Government and the Territory’s congressman, who have moved to intervene in the appeal.  If the D.C. Circuit holds oral argument, it is expected to take place later this year.

More information about Tuaua v. United States, including the opening brief and other case materials, is available here; additional background on the plaintiffs is available here

For an overview of the constitutional arguments in Tuaua v. United States, please see Neil Weare’s February Op-Ed on CNN.com, “Citizenship is a Birthright in U.S. Territories.”  

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