Birthright citizenship petition filed with Supreme Court

Leneuoti Tuaua is the lead plaintiff in Tuaua v. United States. (Contributed Photo)

Does the Citizenship Clause entitle persons born in American Samoa, a U.S. territory for more than a century, to birthright citizenship?

This is the question raised by prominent Supreme Court attorney Theodore B. Olson in a petition for certiorari filed today on behalf of a group of passport-holding Americans denied recognition as U.S. citizens because they were born in American Samoa.  Tuaua v. United States makes the case that Congress cannot legislate an exception to the Citizenship Clause of the Fourteenth Amendment to exclude persons born on U.S. soil, whether born in a State or Territory.

“My passport says I am a U.S. national, but not a U.S. citizen. As someone born on U.S. soil who signed up for the draft during the Vietnam War, my family should not be treated as second-class Americans. I am hopeful that the Supreme Court will agree the Constitution does not allow Congress to create two separate classes of Americans,” said Leneuoti Tuaua, lead plaintiff in Tuaua v. United States. Three of the five Tuaua plaintiffs are veterans; American Samoa has among the highest rates of U.S. military service in the nation, with casualty rates in Iraq and Afghanistan more than seven times the national average.

“The text and history of the Citizenship Clause definitively show that the Constitution’s guarantee of birthright citizenship applies in States and Territories alike,” said Mr. Olson, who in 2008 wrote a letter with Harvard Professor Laurence Tribe defending the eligibility of John McCain to run for President as a “natural-born citizen” based on his birth in a U.S. possession, among other reasons.  “We hope that the Supreme Court will take the case to once again make clear that Congress has no power to turn off or redefine the Constitution’s guarantee of birthright citizenship.”

“After more than a century, it is time for the Court to clarify whether people born in America’s overseas territories have a constitutional right to citizenship or if citizenship can be denied to them based on the whim of Congress,” said Neil Weare, who argued the case before the D.C. Circuit, and is President and Founder of We the People Project, a non-profit organization that advocates for equal rights and representation for the over 4 million Americans living in U.S. territories.

The D.C. Circuit’s June opinion, authored by Judge Janice Rogers Brown and joined by Senior Judges Laurence H. Silberman and David B. Sentelle, held that the meaning of the Citizenship Clause was “ambiguous” as to whether its guarantee of birthright citizenship applied in overseas U.S. territories.  The panel’s opinion also broadly expanded the reach of the Insular Cases, a series of controversial decisions that have been criticized by First Circuit Judge Juan Torruella as creating a doctrine of “separate and unequal” status for residents of U.S. territories.

The Tuaua case and the controversial Insular Cases doctrine were examined in a recently published book, “Reconsidering the Insular Cases,” which is the result of a major conference sponsored last year at Harvard Law School.

As discussed at Harvard, the Supreme Court explained in 2008 that although “[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 Court’s decision in Boumediene v. Bush 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.”

“This case represents an historic opportunity for the Supreme Court to clarify what the Insular Cases mean in U.S. territories today and to reject the idea that Congress has any power to simply turn constitutional rights in these areas on and off as it sees fit,” Mr. Weare said.

“The D.C. Circuit’s decision is in tension with recent Supreme Court pronouncements that Congress cannot pick and choose which constitutional rights apply in U.S. territories today. Tuaua provides the Court an opportunity to review these important constitutional questions, which affect the lives of more than 4 million Americans who live in U.S. territories,” Mr. Olson said.

A recent mini-documentary examined the impact the inferior status of “non-citizen national” status has had on the American Samoan community in Los Angeles – the largest in the continental United States – who are denied the right to vote and even access to certain jobs, even as they are expected to pay the same taxes as other Americans.

Loa Pele Faletogo, President of the L.A.-based Samoan Federation of America, a plaintiff in the case, explained, “American Samoans living in Los Angeles and throughout the United States are denied voting rights and job opportunities because they are labeled with the second-class status of ‘non-citizen national.’  It is time the Supreme Court finally resolves this injustice.”

HBO’s Last Week Tonight with John Oliver also examined this injustice in a segment that was cited by the Ninth Circuit for its sharp critique of the Obama Administration’s continued reliance on the Insular Cases to deny equal rights in U.S. territories.

A decision by the Supreme Court on whether it will take up the case is expected by the end of the Term, which ends in June.

The D.C. Circuit’s decision below is attached, court filings (including four amicus briefs filed below) are available here, and an FAQ about the case is available here.

For interviews with plaintiffs or attorneys, please contact Neil Weare at nweare@equalrightsnow.org or 202-304-1202.