Justices will decide next month whether to hear Fitisemanu v. United States, which asks Court to recognize people born in U.S. territories as birthright citizens
On October 7th [rescheduled for October 14th], Supreme Court Justices will meet privately to consider whether or not to grant review in a case that presents an historic opportunity to reconsider the Insular Cases, a series of racist decisions that Justices on both sides of the ideological aisle have recently said should be overruled. The case, Fitisemanu v. United States, challenges the position of the federal government that birthright citizenship does not extend to people born in U.S. territories. The lead plaintiff, John Fitisemanu, was born on U.S. soil in American Samoa, but is not recognized as a U.S. citizen based on a discriminatory law passed in the wake of the Insular Cases.
The Insular Cases were decided in the same era as Plessy v. Ferguson, and established a doctrine of “separate and unequal” for residents of U.S. territories that, like Plessy’s doctrine of “separate but equal” for African Americans, was grounded in white supremacy. After the Insular Cases were decided, Congress claimed the power to turn citizenship on and off in U.S. territories, contrary to the Constitution’s guarantee of birthright citizenship laid out in the 14th Amendment.
Unlike Plessy, the Insular Cases remain “good law” today. But during last year’s Supreme Court Term, Justices from different ideological perspectives called on the Court to finally overrule the Insular Cases at the next opportunity. Justice Neil Gorsuch declared they “deserve no place in our law” owing to their reliance on “racial stereotype,” while Justice Sonia Sotomayor emphasized that the decisions “were premised on beliefs both odious and wrong.” The petition for certiorari in Fitisemanu - filed just a week after these Justices’ statements - squarely asks the Court “whether the Insular Cases should be overruled.”
“In Fitisemanu, the Supreme Court has an historic opportunity to turn the page on the Insular Cases and the colonial framework they established,” said Neil Weare, president and founder of Equally American, a nonprofit that advocates for equal rights in U.S. territories. Equally American represents the Fitisemanu plaintiffs, along with American Samoan Attorney Charles V. Ala’ilima and Gibson, Dunn, & Crutcher LLP. “The 3.6 million residents of U.S. territories deserve an answer from the Supreme Court on whether people born in these areas have the same right to citizenship as those born anywhere else in the United States.”
The U.S. Justice Department relied heavily on the Insular Cases in making its arguments before the Tenth Circuit, where a divided panel concluded it was bound to follow and apply “the Insular Cases’ framework.” Over the past months, civil rights groups, Members of Congress, and bar associations called on the Biden-Harris Administration to support rather than oppose calls to overrule the Insular Cases. Nonetheless, the Solicitor General’s filing opposed calls for the Court to take up Fitisemanu to overrule the Insular Cases, suddenly shifting to the argument that the Insular Cases have nothing to do with the case. At the same time, the Solicitor General continues to cite Downes v. Bidwell, the most prominent of the Insular Cases, and rely on the federal government’s practice following the Insular Cases of denying recognition of birthright citizenship in U.S. territories absent congressional action.
“The Biden-Harris Administration had an opportunity to confront the racist origins of the Insular Cases head-on. Instead, the Solicitor General tries to downplay the government’s reliance on these archaic precedents, and is asking the Supreme Court to allow these decisions grounded in white supremacy to remain on the books,” said Lourdes M. Rosado, President and General Counsel of LatinoJustice PRLDEF, which joined a civil rights amicus brief urging the Supreme Court to finally overrule the Insular Cases, and a letter calling on the Justice Department to support calls to overrule the Insular Cases. “The Justices should not acquiesce, and instead should follow the lead of Justices Sotomayor and Gorsuch to end the use of the Insular Cases.”
“The Insular Cases still impede millions of people - overwhelmingly people of color - from accessing certain constitutional rights and protections,” said Alejandro Ortiz, Senior Staff Attorney in the Racial Justice Program at ACLU, which has also encouraged the Supreme Court and Justice Department to jettison the Insular Cases. “It's long past time for the Supreme Court to take this opportunity to correct a historical wrong and strike down the Insular Cases once and for all."
Members of Congress, led by Virgin Islands Congresswoman Stacey Plaskett and House Resources Chair Raúl Grijalva, have also pressed all three branches of the federal government to condemn the Insular Cases.
“The legacy of the Insular Cases is that 3.6 million residents of U.S. territories remain without an equal voice in Washington and without equal participation in federal programs,” said Congresswoman Plaskett, who led an amicus brief filed by current and former elected officials from the U.S. Virgin Islands, Puerto Rico, Guam, and the Northern Mariana Islands that addressed concerns about the case raised by American Samoan officials. “This continuing discrimination is emphasized when disasters like Hurricane Fiona and Hurricane Maria strike, but the impact of this second-class treatment is felt by our residents every day in ways both big and small. It is time the Supreme Court rejects the Insular Cases and helps end this ‘separate and unequal’ treatment.”
“Where you live in the United States should not have any bearing on your constitutional rights,” said Chair Grijalva, who partnered with Congresswoman Plaskett to introduce H.Res. 279, a resolution condemning the Insular Cases, and called on President Joe Biden and Vice President Kamala Harris to do the same. “The Supreme Court should close the book on the Insular Cases and signal to all Americans that white supremacy and systemic racism do not belong in our court system.”
The Insular Cases and their doctrine of territorial incorporation were the culmination of early 1900s legal scholarship in the Harvard Law Review and Yale Law Journal that argued for the need to set traditional constitutional principles aside to allow for American imperialism following the Spanish-American War. More recently, Harvard Law School, the Yale Law Journal, the Columbia Human Rights Law Review, and the Fordham Law Review and others have published scholarship calling on the Supreme Court to reconsider the Insular Cases. Liberal and conservative scholars have joined together to file amicus briefs calling on the Supreme Court to overrule the Insular Cases and recognize a right to birthright citizenship in U.S. territories.
“The Supreme Court as an institution bears significant responsibility for the ongoing colonial status of U.S. territories,” said University of the District of Columbia Law Professor Rafael Cox-Alomar, who has written extensively about the Insular Cases. “Taking action now to finally overrule the Insular Cases would be a first step towards grappling with that shameful legacy.”
“The Insular Cases are an abomination that has no basis in the Constitution’s text or history,” said University of San Diego Law Professor Michael Ramsey, an Originalist scholar who is a frequent critic of the Insular Cases. “The time has come for the Supreme Court to correct this egregious error in our constitutional jurisprudence.”
The Supreme Court will consider whether to take up Fitisemanu and reconsider the Insular Cases at their October 7th conference [rescheduled to October 14th], with a decision announced in the days or weeks to follow.
For more information on Fitisemanu v. United States, including case materials and other resources, see here.
For more information on the campaign to overrule the Insular Cases, see here.