UPDATE: The Tenth Circuit has directed Appellants to file a response to the petition for rehearing en banc, due Monday, August 16th. 

Three Americans born on U.S. soil in American Samoa – a U.S. territory since 1900 – are seeking en banc review by the U.S. Court of Appeals for the Tenth Circuit after a fractured panel reversed an historic district court decision in Fitisemanu v. United States that recognized them as U.S. citizens.

Writing for a divided panel on the U.S. Court of Appeals for the Tenth Circuit, Judge Carlos Lucero ruled that the U.S. Constitution provides no guarantee of citizenship to people born in U.S. territories, reversing a 2019 district court decision holding that the Citizenship Clause of the Fourteenth Amendment applied in states and territories alike. Chief Judge Timothy Tymkovich wrote a short separate concurrence. Judge Robert Bacharach wrote a powerful 55-page dissent setting forth how the Constitution’s text, purpose, and history all “unambiguously” support recognizing that the Constitution’s guarantee of birthright citizenship extends to people born in U.S. territories.

On Monday, the U.S. Department of Justice filed a brief before the U.S. Supreme Court arguing that Congress has the power to deny otherwise eligible U.S. citizens in the territories access to Supplemental Security Income (SSI) benefits based solely on where they happen to live. This came after President Joe Biden issued an unusual statement that his own DOJ’s position was “inconsistent with my Administration’s policies and values.” Last September, the Trump DOJ sought review of United States v. Vaello Madero, a landmark decision from the U.S. Court of Appeals for the First Circuit that upheld a District Court ruling that the denial of SSI benefits to residents of Puerto Rico. In March, the Supreme Court granted review.

President Joe Biden released a statement today that federal law denying Supplemental Security Income (SSI) benefits to residents of the Territories based solely on where they happen to live is “is inconsistent with my Administration’s policies and values.” Calling on Congress to provide “legislative fixes” for SSI, Medicaid funding, and Supplemental Nutrition Assistance Program, Biden said “there can be no second-class citizens in the United States of America.” This comes in advance of the U.S. Department of Justice filing a brief before the U.S. Supreme Court in United States v. Vaello Madero that will continue to defend continued discrimination against residents of U.S. territories in federal programs.

In the hours leading to an historic congressional hearing today on the Insular Cases, President Biden nominated Chief Judge Gustavo A. Gelpí Jr., - an outspoken critic of the Insular Cases - to fill the vacancy on the U.S. Court of Appeals for the First Circuit left by Judge Juan Torruella’s passing last year. Judge Torruella was himself perhaps the most vocal opponent of what he labeled as the “separate and unequal” doctrine established by the Insular Cases, so this nomination was fitting. Judge Gelpí is the author of the book The Constitutional Evolution of Puerto Rico and Other U.S. Territories (1898-Present), and wrote in a 2011 article: “[The] undemocratic predicament within a federalist government is but the historical outcome of the Insular Cases — a doctrine of pure judicial invention, with absolutely no basis in the Constitution and one that is contrary to all judicial precedent and territorial practice.”  

This Wednesday Congress will hold an historic, first-ever congressional hearing focused exclusively on the Insular Cases, a series of Supreme Court cases grounded in racial discrimination that established a doctrine of "separate and unequal" for residents of U.S. territories.  The hearing will start at 1 p.m. EDT, with the House Natural Resources Committee considering House Resolution 279, which seeks to condemn the Insular Cases as both contrary to the Constitution and for their racist underpinnings.  Equally American's President, Neil Weare, is among the witnesses who have been invited to testify.