Update: Fed court issues new directive in citizenship lawsuit

The appeals court in Washington D.C. has denied the U.S. State Department’s motion to affirm the lower court’s decision in the citizenship lawsuit case, while a “merits panel” is to convene to receive and review briefs by Congressman Faleomavaega Eni and the American Samoa Government.


Last October, Assistant U.S. Attorney, Wynne P. Kelly, representing the U.S. State Department, the federal government, and two officials of the U.S. State Department asked the appeals court to affirm the lower court's decision— which held that the Citizenship Clause “did not guarantee birthright citizenship” —to the plaintiff-appellants based on the plain language of the Constitution.


However, the plaintiffs, five American Samoans and a Samoan organization based in California had opposed the Justice Departments request to affirm the lower court's decision, arguing—among other things— that this case presents the first opportunity for any appellate court to consider whether people born in American Samoa are U.S. citizens by virtue of the Fourteenth Amendment of the Constitution.


In a one-page order released Tuesday, the three-panel appeal judges — David Tatel, Janice Rogers Brown, and Cornelia Pillard - denied the affirmation motion, saying that the merits of the parties’ positions are not so clear as to warrant summary action.


Local attorney and co-counsel for the plaintiffs, Charles V. Alailima, along with lead plaintiff, Leneuoti Tuaua are pleased with the appeals court decision to deny the defendant’s motion. Both look forward to their day in court.


“By this ruling, the federal appeal judges have shown that they intend to give their full legal attention to a serious US constitutional issue of why an American Samoan born person is given a lesser status in the eyes of the United States government than people born in all the other territories and states,” Alailima said yesterday in a media statement.


“So long as we are a part of the United States, each individual born in American Samoa is entitled by the Constitution to full recognition of his or her U.S. citizenship,” he said.


Tuaua said in a national statement issued by the Washington based “We the People Project” working on this case that he looks forward to having his day in court. (See yesterday’s online edition of Samoa News for full details of the national news release.)


There has been no immediate reaction from the State Department or the U.S. Attorneys Office — representing the defendants — on the court’s ruling.


The court is expected to issue sometime soon a schedule of dates to file briefs, and when oral arguments will be heard, as this case — closely watched by local officials and off-island constitutional scholars — moves forward.


As to ASG and Faleomavaega’s motion to intervene or, in the alternative, to participate as amicus curiae (friend of the court), the judges referred this matter “to the merits panel” for review and the parties involved are directed to address in their briefs the issues presented in the motion, rather than incorporate those arguments by reference. The court clerk has been ordered to schedule a date for the presentation of those briefs to the merits panel.


Meanwhile, the appeals court granted yesterday a joint motion by Prof. Christina Duffy Ponsa and Prof. Gary S. Lawson to participate as amici curiae. The motion states the pair have expertise in constitutional law and American legal history.


Ponsa is a Professor of Law at Columbia Law School, while Lawson is the Philip S. Beck Professor of Law at Boston University School of Law.


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