Supreme Court declines to consider challenge to racist citizenship laws

The Supreme Court on Monday refused to reconsider the so-called “Insular Cases,” a series of cases decided in the early 1900s that are infamous today for their racist foundation.

The court’s action dashes hopes of American Samoans who were seeking birthright citizenship. It also leaves intact a Tenth Circuit decision that has been seen as “breathing new life” into constitutional distinctions between U.S. states and territories — which former Acting Solicitor General Neal Katyal said establish “a second-class of unequal Americans.”

Attorney Neil Weare, president of the organization representing the plaintiffs in this case, echoed the sentiment: “The Supreme Court’s refusal to reconsider the Insular Cases today … reflect[s] that ‘Equal Justice Under Law’ does not mean the same thing for the 3.6 million residents of U.S. territories as it does for everyone else.”

Who is a citizen?

At issue in this case was the way that people born in various U.S. territories are treated under law when it comes to U.S. citizenship. The Constitution says that anyone “born or naturalized in the United States” is a citizen of the country. But for U.S. territories, eligibility for birthright citizenship in the territories is controlled only by Congress – it is not constitutionally guaranteed.

Residents of Puerto Rico, Guam, the U.S. Virgin Islands, and the Northern Marianas Islands are deemed U.S. citizens under the Immigration and Nationality Act. But American Samoans are not. Congress has not granted birthright citizenship to residents of American Samoa or Swains Island, both of which are classified only as “outlying possessions.”

It is this disparate treatment that was before the court, after three American Samoans living in Utah brought a challenge to the Immigration and Nationality Act, contending that the statutory denial of citizenship is unconstitutional under the Fourteenth Amendment’s Citizenship Clause.

The Citizenship Clause was adopted after the Civil War primarily to protect the birthright citizenship of Black Americans, which was rejected by the Supreme Court prior to the Civil War. However, the meaning of the clause for residents of the territories has historically been contested — as has the force of constitutional protections in the territories altogether. In this case, Fitisemanu v. U.S., the American Samoans contend that the residents of all the territories should be considered “in the United States” for the purpose of citizenship.

While American Samoans who live in the States may apply for citizenship, before they successfully do so they are denied many of the rights attached to citizenship, such as the right to vote, run for office, or serve on juries. The plaintiffs in this case say their career opportunities have been curtailed and that, as non-citizens, they are unable to sponsor immigration visas for their families. Applying for citizenship itself is onerous, can take several years, and is not guaranteed.

A brief history of the Insular Cases

But this case was not just about the reach of the Citizenship Clause. The Constitution’s underlying disparity in treatment between the 50 states and the U.S. territories was enshrined in the Insular Cases, a series of cases decided in the early 1900s after the Spanish-American War. These cases — so called because of their “insular” (island-related) focus — held that full constitutional rights apply only to “incorporated” territories destined for statehood, such as Hawaii, but not to “unincorporated” territories, which then included Puerto Rico, Guam, and the Philippines. Infamously, the distinction between incorporated and unincorporated territories rested on explicitly racist stereotypes about individuals from those territories. Opposing Filipino statehood, for example, one senator called Filipinos “unruly and disobedient.” Another called them “mongrels.”

Under the Insular Cases, which were primarily about tariffs and jury trials in the territories, the Supreme Court upheld this suspect “incorporated vs. unincorporated” framework of rights. The Court’s language and reasoning was hardly any better than that of Congress. One case emphasized that “differences of race, habits, laws and customs” in the territories might require action on the part of Congress that wouldn’t be required if the territory were “inhabited only by people of the same race.” Another referred to “savage tribes” which may be “[in]capable of self-government.”

It is this insidious foundation of the Insular Cases that has drawn the condemnation of both liberal and conservative justices. In Vaello-Madero, a case from last term about Puerto Ricans’ eligibility for disability benefits, Justice Neil Gorsuch wrote a 10-page concurrence calling for the Insular Cases to be overruled — something that is now unlikely to happen any time soon.

Gorsuch did not note any dissent from Monday’s action.

Monday’s action is a victory for both the Biden administration and the American Samoan government itself, though neither party defends the offensive language in the Insular Cases. Nor does the United States affirmatively oppose American Samoan citizenship. The United States rests its argument instead on the text of the Citizenship Clause, which it contends intentionally excludes the territories from birthright citizenship conferred by the Constitution. The U.S. argues that American Samoans have the legislative route to birthright citizenship available to them, and that if there is a consensus in favor of birthright citizenship, they should pursue that through their representative in Congress. Otherwise, however, the United States says it does not want to tread on the self-governance of American Samoans.

To that end, the American Samoan government intervened in the case to argue that U.S. birthright citizenship for American Samoans would undermine the island’s ability to self-govern and maintain cultural autonomy.

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