In July, Constitutional Accountability Center and our co-counsel, the law firm of Arnold & Porter and American Samoan attorney Charles V. Ala’ilima, filed a lawsuit in federal court — Tuaua v. United States — on behalf of persons born in American Samoa and the Samoan Federation of America, challenging the federal government’s refusal to recognize that persons born in the United States territory of American Samoa are U.S. citizens.  Contrary to the command of the Citizenship Clause of the 14th Amendment, which guarantees U.S. citizenship to anyone “born in the United States, and subject to the jurisdiction thereof,” the federal government classifies persons born in American Samoa as “non-citizen nationals,” the only Americans subjected to this inferior and subordinate status.  As shown by the personal stories of the Individual Plaintiffs in Tuaua, including decorated military veterans who have served our country with honor and distinction on the battlefield, this subordinate status is a harmful one that has prevented them from enjoying rights and opportunities that other Americans take for granted, including the right to vote, the right to hold many jobs, and the right to bear arms.

Predictably, the government has moved to dismiss Tuaua, contending that the Citizenship Clause does not apply to “the territories of the United States.”  On December 7, CAC and our co-counsel filed a brief in opposition to the motion to dismiss, explaining not only why that motion should be denied, but also why the Plaintiffs are entitled to judgment as a matter of law.

Through a detailed examination of the text and history of the Citizenship Clause, our brief demonstrates that birthright citizenship applies not only to persons born in the states, but also to persons born in the territories.  Quoting the legislative history of the 14th Amendment, the brief shows that the Framers of the Citizenship Clause explicitly understood its guarantees of citizenship at birth to “refer[] to persons everywhere, whether in the States or in the Territories or in the District of Columbia.”  Acting against the backdrop not only of Dred Scott, but also of constitutional disputes with the expansive western territories of Kansas and Oregon, the Amendment’s Framers explained that the Citizenship Clause “settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States,” putting the “question of citizenship . . . beyond the legislative power.” 

Supreme Court precedent supports the claim that the Citizenship Clause applies to U.S. territories, including American Samoa.  Four years after the 14th Amendment was ratified, the Supreme Court in the Slaughter-House Cases observed that the Citizenship Clause “put[] at rest” the notion that “[t]hose   . .  . who had been born and resided always in the District of Columbia or in the Territories, though within the United States, were not citizens.”  And in United States v. Wong Kim Ark, decided just before the United States’ acquisition of American Samoa, the Supreme Court stated that the Citizenship Clause “affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country,” emphasizing that “[t]he amendment, in clear words and in manifest intent, includes the children born within the territory of the United States.” 

Our brief also demonstrates that the government’s motion to dismiss depends on a flawed reading of judicial precedent.   In particular, the brief notes that the Supreme Court’s 2008 decision in Boumediene v. Bush undercuts the broad reading of a group of cases decided early in the 20th Century — the so-called “Insular Cases” —  on which the government heavily relies for its claim that the Citizenship Clause does not apply to “unincorporated” territories like American Samoa.  But none of the Insular Cases decided whether the Citizenship Clause applies in “unincorporated” territories, and the question thus remains an open one for the Court as well as for the D.C. Circuit, where Tuaua is being litigated.  Moreover, in clear language in Boumediene, the Court emphasized that the Insular Cases  were a product of their particular legal and historical context: “It may well be that over time the ties between the United States and any of its unincorporated Territories strengthen in ways that are of constitutional significance.”  In addition, the Court in Boumediene expressly rejected the notion that “the political branches have the power to switch the Constitution on or off at will.”

 As our brief demonstrates, the 14th Amendment put the question of birthright citizenship beyond the political process; Congress is not free to “switch off” the Citizenship Clause in American Samoa.  Persons born in American Samoa are entitled to birthright citizenship, and should no longer be relegated to the subordinate status of “non-citizen nationals.”

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Judge Richard Leon (D.D.C.) is scheduled to hear oral argument on the government’s motion to dismiss on Monday, December 17, 2012.