The Supreme Court declined Monday to take up a case asking whether those born in American Samoa are entitled to birthright citizenship under the Constitution’s 14th Amendment.
The court’s decision to stay out of the matter will come as a disappointment to many who wanted the justices to take the case and overturn a series of opinions from a century ago – the so-called Insular Cases – that have been widely discredited as odious remnants of a colonial past because they were grounded in racism towards the residents of territories.
John Fitisemanu, the lead plaintiff in the case, was born in American Samoa but now lives in Utah. He holds a US passport and pays his taxes, but he is considered a “non-citizen US National” under immigration law. He has sought to vote in federal and state elections but has never been able to do so.
Notably, the government of American Samoa as well as the American Samoa’s non-voting delegate in the US House of Representatives believed the Supreme Court should not take up the case because “establishing birthright citizenship by judicial fiat could have unintended and potentially harmful impact upon American Samoa society.”
The petitioners point to the Citizenship Clause of the Constitution that says that those born in the “United States, and subject to the jurisdiction thereof, are citizens of the United States.” They were asking the Supreme Court to overturn federal immigration law that strips them of all the benefits of US citizenship.
“Those born in American Samoa,” they argue in court papers, “are labeled second-class by the government. They are precluded from running for office at the federal and state levels, they are barred from serving on juries and they are denied the right to vote.”
They won at the district court level, but a divided panel of the 10th US Circuit Court of Appeals reversed, citing the Insular Cases.
Critics of the Insular Cases include Justice Neil Gorsuch, who wrote in a separate case last April that the cases have “no foundation in the Constitution” and that courts have “devised a workaround” to avoid officially overturning them. Justice Sonia Sotomayor, whose parents were both native Puerto Ricans, has also been a critic of the cases.
The Biden administration advised the justices to stay out of the dispute, stressing that there was no reason to invoke the Insular Cases. Instead, the government pointed out that Congress has always “wielded plenary authority” over the citizenship status of unincorporated territories. It noted that residents of Puerto Rico, Guam, the Northern Mariana Islands and the US Virgin Islands all enjoy birthright citizenship due to an act of Congress.
“That longstanding congressional practice confirms that the Citizenship Clause does not confer citizenship upon people born in territories such as American Samoa,” Solicitor General Elizabeth Prelogar said in court papers. She called the Insular Cases “indefensible” but said that the case would be a poor vehicle to consider their legality because the government is not relying upon them.
This is the second time in recent years that the justices declined to take up a case concerning birthright citizenship for American Samoans. In 2016, the court denied a request from an American Samoan, Leneuoti Fia Fia Tuaua, to hear his appeal of a ruling by from the US Court of Appeals for the District of Columbia Circuit that the Constitution does not confer citizenship on those born in American Samoa.