In June, a panel of the U.S. Court of Appeals for the D.C. Circuit rejected claims brought by five passport-holding Americans born on U.S. soil in American Samoa to be recognized as citizens. In July, these so-called “non-citizen U.S. nationals,” along with the Los Angeles-based Samoan Federation of America, petitioned the full D.C. Circuit for rehearing en banc.

Yesterday, the Obama administration responded to the petition, continuing to argue that birthright citizenship for Americans born in overseas territories is a privilege to be extended or withheld by Congress, rather than a constitutional right guaranteed by the Citizenship Clause of the 14th Amendment.

According to the Obama administration’s court filing, “birthright citizenship in an unincorporated territory is not a ‘fundamental right.’” It embraced the panel’s view that “‘[f]undamental’ has a distinct and narrow meaning in the context of territorial rights,” which calls into question whether other constitutional rights recognized as “fundamental” might be denied in the territories.

The Obama administration explained that its “interpretation of the Citizenship Clause flows directly from the Supreme Court’s Insular Cases,” a series of controversial decisions that have been criticized by First Circuit Judge Juan Torruella and others as creating a doctrine of “separate and unequal” status for residents of U.S. territories.

In the Obama administration’s view, American Samoa — a U.S. territory for more than 115 years, with a casualty rate in Iraq and Afghanistan more than seven times the national average — is merely an “outlying possession of the United States.”

“The decorated veterans we represent who were born on U.S. soil in American Samoa have a hard time understanding how they can be a passport-holding Americans but not be recognized as citizens. The Framers of the 14th Amendment certainly understood its guarantee of birthright citizenship to apply throughout the country — states, territories, and the District of Columbia alike,” said civil rights attorney Neil Weare, who argued the case in February and is president of We the People Project, a non-profit that advocates for equal rights and representation in U.S. territories. “It’s disappointing that the Obama administration continues to argue against a constitutional guarantee of birthright citizenship in the territories — home to more than 4 million Americans.”

People born in American Samoa are currently labeled with the inferior status of “non-citizen national,” meaning that while they carry the responsibilities of citizenship (and a U.S. passport) they are not guaranteed the benefits and protections of citizenship.

A recent mini-documentary examined the impact of this label on an American Samoan community based in Los Angeles, where these Americans are denied the right to vote and even access to certain jobs, even as they are expected to pay the same taxes as everyone else. To enjoy the same rights as other Americans, they are required to naturalize, which can cost around $700.

The denial of the right to vote is not just an individual harm, but also dilutes the voting strength of American Samoan communities across the United States. HBO’s Last Week Tonight with John Oliver also examined this injustice, criticizing any continued reliance on the Insular Cases, something that was cited in a recent decision by the Ninth Circuit.

Three of the Tuaua plaintiffs are veterans of the U.S. Armed Forces, including one who received two Purple Hearts for his service in Vietnam. Another veteran plaintiff who lives in Hawai’i is not only denied the right to vote, but is also denied the right to own a firearm because he is only recognized as a national, not a citizen. The third veteran served on the front lines during the Liberation of Kuwait, but could only sit and watch as those with whom he served voted in the 1992 presidential election. Another plaintiff lost her job in a government agency after it was discovered that her U.S. passport stated she was not a U.S. citizen. 

Notably, the Obama administration did not embrace concerns raised by the American Samoa government and cited by the panel that recognition of citizenship would have any impact on the preservation of land and culture in American Samoa.

“I was at least pleased to see that the Obama administration did not repeat the unsupported claim that recognition of citizenship would have any negative impact on our people’s land and culture,” said attorney Charles Ala’ilima, who also represents the plaintiffs. “Our forefathers who transferred sovereignty to the United States in 1900 and 1904 and fought to be recognized as full U.S. citizens correctly understood that we could enjoy the benefits of citizenship while still protecting what makes us unique as a people.” Also representing plaintiffs is Arnold & Porter, LLP.

Previously filing as amicus curiae in support of the plaintiffs were a group of prominent citizenship scholars represented by Gibson, Dunn & Crutcher LLP, Members of Congress and former government officials from U.S. territories represented by Covington & Burling LLP, and David Cohen, an American Samoan who served as the highest ranking Pacific Islander in the George W. Bush administration, represented by Jenner & Block LLP. A group of prominent scholars of constitutional law and legal history, represented by Wilmer Cutler Pickering Hale and Dorr LLP, filed on behalf of neither party, but argued that the Insular Cases should not govern this case.

It is expected that the D.C. Circuit will rule on the plaintiffs’ petition for rehearing en banc in the next several months. If the petition is granted, a new round of briefing may follow. If the petition is denied, then plaintiffs will consider whether to appeal the panel’s decision to the U.S. Supreme Court.

(Source: media release from We the People Project)