Academic journal article Centro Journal

Citizenship in U.S. Territories: Constitutional Right or Congressional Privilege?

Academic journal article Centro Journal

Citizenship in U.S. Territories: Constitutional Right or Congressional Privilege?

Article excerpt

I.Introduction

Would people born in Puerto Rico today be U.S. citizens absent the 1917 Jones Act? Put another way, is citizenship for people born in Puerto Rico and other presentday U.S. territories a right guaranteed by the Constitution, or a mere privilege to be extended (or withheld) by Congress? While the question of citizenship in U.S. territories has loomed large ever since the United States began its territorial expansion overseas in 1898, the U.S. Supreme Court has yet to provide a definitive ruling on whether the answer to this question is provided by the Constitution or Congress. A constitutional challenge to the federal government's denial of citizenship to people born in the U.S. territory of American Samoa may finally provide an opportunity to resolve this important question, and in the process, for the Court to reconsider the controversial Insular Cases doctrine of "separate and unequal" status for residents of U.S. territories.

In 2012, five passport-holding Americans born in the U.S. territory of American Samoa filed Tuaua v. United States,1 a federal lawsuit challenging the federal government's denial of citizenship to those born in the Territory, which has been part of the United States since 1900. Their status as "nationals, but not citizens, of the United States" (U.S. Code 1994, § 1408(1)) is comparable to the status of Puerto Ricans prior to congressional recognition of citizenship in Puerto Rico through the 1917 Jones Act. The U.S. passports of these Americans, which allow them to travel freely throughout the United States but not to enjoy such basic rights as the right to vote (even as a resident of a State), bear the ignominious disclaimer "THE BEARER IS A UNITED STATES NATIONAL AND NOT A UNITED STATES CITIZEN." To be treated the same as other Americans, they are required to go through the costly and burdensome naturalization process, which costs $680 in fees alone, includes an English language/civics test, a determination of good moral character, and has no guarantee of success. No one else born on U.S. soil faces these obstacles to citizenship. While Congress has long recognized citizenship by birth in every other U.S. territory, those born in American Samoa remain stigmatized and injured by the inferior label of "non-citizen U.S. national."

In 2013, D.C. District Court Judge Richard Leon dismissed the Tuaua plaintiffs claims (Tuaua v. United States 2013). On appeal, the D.C. Circuit upheld the District Court, ruling in 2015 that there is no "fundamental right to citizenship for persons born in the United States' unincorporated territories" (Tuaua v. United States 2015). The panel, which consisted of Judge Janice Rogers Brown and Senior Judges Laurence H. Silberman and David B. Sentelle, reached this result by first holding that the Citizenship Clause of the Fourteenth Amendment is "ambiguous" as to whether its guarantee of birthright citizenship applies to people born in U.S. territories. Next, the panel relied on a broad and unprecedented interpretation of the controversial Insular Cases doctrine to conclude that people born in overseas U.S. territories have no constitutional right to citizenship absent congressional action.

In February 2016, the Tuaua plaintiffs-represented by former Solicitor General Theodore Olson-filed a petition for certiorari to the U.S. Supreme Court asking for it to finally answer whether the question of citizenship in U.S. territories is resolved by the Constitution or Congress. Filing in support of Supreme Court review were seven separate amicus briefs on behalf of prominent law professors, civil rights organizations, retired judges, current and former government officials from Puerto Rico, Guam, and the U.S. Virgin Islands, and the Puerto Rican Bar Association, represented by some of the most high profile members of the Supreme Court Bar. The United States and American Samoa's non-voting Delegate to Congress both opposed Supreme Court review, arguing the question of citizenship in U. …

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