DC Circuit Panel Finds Birthright Citizenship Is Not a “Fundamental Right” in U.S. Territories

Tuaua Plaintiffs Will Seek Rehearing by Full D.C. Court

On Friday, June 5th, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit became the first federal appeals court to hold that citizenship by birth on U.S. soil is not a “fundamental right” in U.S. territories, ruling in Tuaua v. United States that people born in the U.S. territory of American Samoa have no claim to U.S. birthright citizenship under the Citizenship Clause of the Fourteenth Amendment to the U.S. Constitution.  Federal statutes currently classify American Samoans as “non-citizen nationals” of the United States.

The Tuaua plaintiffs will request that the full D.C. Circuit now rehear the case en banc

The panel’s opinion, authored by Judge Janice Rogers Brown and joined by Senior Judges Laurence H. Silberman and David B. Sentelle, adopted a narrow view of constitutional rights that was first expressed by Supreme Court Justice Henry Brown in one of the Insular Cases, a series of much-criticized decisions from the early 1900s concerning American overseas territories.  The D.C. Circuit panels opinion anticipated concerns that the Insular Cases “doctrine rests on anachronistic views of race and imperialism,” and stated that “some aspects of the Insular Cases’ analysis may now be deemed politically incorrect.”  Nonetheless, the panel went on to conclude that even after an overseas territory has been sovereign U.S. soil for over a century, Congress has broad power over which constitutional rights apply there, including birthright citizenship.

The Tuaua case and the controversial Insular Cases doctrine was recently featured in a new book released in May that stems from a conference last year at Harvard Law School, “Reconsidering the Insular Cases.”  The Keynote Address given by First Circuit Judge Juan Torruella was titled “The Insular Cases: A Declaration of their Bankruptcy,” who has called the Insular Cases a doctrine of “separate and unequal.”

As discussed at Harvard, an expansive view of the Insular Cases is at odds with the Supreme Courts statement in its 2008 decision in Boumediene v. Bush that even though “[t]he Constitution grants Congress and the President the power to acquire, dispose of, and govern territory,” it does not give them “the power to decide when and where its terms apply.”  The Boumediene decision also rejected the idea that “the political branches have the power to switch the Constitution on or off at will,” explaining that “[i]t may well be that over time the ties between the United States and any of its territories strengthen in ways that are of constitutional significance.”

Neil_Weare.jpg“The panels reliance on the Insular Cases to deny recognition of citizenship by birth on U.S. soil is directly at odds with recent statements by the Supreme Court, so we are hopeful the decision wont be the last word,” said civil rights attorney Neil Weare, who argued the case in February and is President of We the People, a non-profit that advocates for equal rights and representation in U.S. territories. 

“The text, history, and purpose of the Citizenship Clause is clear: everyone born on American soil and subject to American law is an American citizen, whether in California, Hawaii, Washington D.C., or American Samoa,” said Murad Hussain, an attorney at Arnold & Porter LLP, who also represents the plaintiffs.

People born in American Samoa are currently labeled with the inferior status of “non-citizen national,” meaning that while they carry the responsibilities of citizenship – including casualty rates in Iraq and Afghanistan seven times the national average – they are not guaranteed the benefits and protections of citizenship.  A recent mini-documentary examined the impacts this has had on an American Samoan community based in Los Angeles, where these Americans are denied the right to vote and even access to certain jobs even as they are expected to pay the same taxes as everyone else.  To enjoy the same rights as other Americans, they are required to naturalize, which can cost around $700.  The denial of the right to vote is not just an individual harm, but dilutes the voting strength of American Samoan communities across the United States.

Three of the Tuaua plaintiffs are veterans, including a Vietnam veteran who received two Purple Hearts for his service in Vietnam.  Another veteran plaintiff who lives in Hawaii is not only denied the right to vote, but is also denied the right to own a firearm because he is only recognized as a national, but not a citizen.  The third veteran served on the front lines during the Liberation of Kuwait, but could only sit and watch as those he served alongside with voted in the 1992 Presidential election.  Another plaintiff lost her job in a government agency after it was discovered that her U.S. passport stated she was not a U.S. citizen. 

LeneTuaua_121412-27_600.jpg“We continue to believe that the Constitution guarantees citizenship to everyone born on U.S. soil.  So long as American Samoa is under the U.S. flag, with our sons and daughters fighting to defend that flag, we deserve the same right to citizenship enjoyed by every other American,” said Leneuoti Tuaua, lead plaintiff in Tuaua v. United States.  Mr.Tuaua was denied the opportunity to pursue a career in law enforcement in California, where citizenship is a job requirement. 

The panels decision relied on the fact that American Samoas government and non-voting Delegate to Congress have opposed the case based on the view that the question of citizenship in American Samoa is answered by Congress, not the Constitution.  But in a special filing after the oral argument, even the federal government disavowed that the territorial governments views on citizenship were dispositive of the constitutional question.

“The decision turns history on its head.  When American Samoas traditional leaders signed over sovereignty to the United States, they believed citizenship was part of the deal.  For almost fifty years they fought to have Congress recognize them as citizens, only to be rejected based on opposition from the U.S. Navy,” said Attorney Charles Alailima, who also represents the plaintiffs.  “Five generations of American Samoans have now been raised on U.S. soil with allegiance only to the United States. The concerns raised by American Samoas leaders today are misplaced—recognition of citizenship would not have any adverse effect on our land, culture, or political self-determination.”

Filing as amicus curiae in support of the plaintiffs were citizenship scholars represented by Gibson, Dunn & Crutcher LLP, Members of Congress and former government officials from other U.S. territories represented by Covington & Burling LLP, and David Cohen, an American Samoan who served as the highest ranking Pacific Islander in the George W. Bush Administration, represented by Jenner & Block LLP.  Scholars of constitutional law and legal history, represented by Wilmer Cutler Pickering Hale and Dorr LLP, filed on behalf of neither party, but argued that the Insular Cases should not answer this case.

Leaders of other U.S. territories have supported the case, which could have far-reaching consequences to the over 4 million U.S. citizens living in Puerto Rico, Guam, the U.S. Virgin Islands, and the Northern Mariana Islands.  While people born in these areas are recognized as citizens at birth by a federal statute, if the panel’s decision stands, a future Congress could decide to restrict birthright citizenship.  The panel’s narrow view of which rights are “fundamental” in U.S. territories might put other constitutional rights at risk as well.

The petition for rehearing en banc must be filed by July 20, 2015, with the full D.C. Circuit to decide whether or not to rehear the case sometime later this Summer or early Fall.  If the petition is granted, a new round of briefing will follow.  If the petition is rejected, then plaintiffs will consider whether to appeal the decision to the U.S. Supreme Court.

Prior to the decision, Tuaua v. United States was featured by the Wall Street JournalCNN.comMother JonesNBCnews.com, and on HBO’s Last Week Tonight with John Oliver, who did a segment criticizing the denial of equal citizenship and other rights in U.S. territories.  

To show your support for equal citizenship in U.S. territories, sign We the People Project's petition at www.EquallyAmerican.org.

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