As precedent on US territories draws criticism, feds want high court to stay hands off

WASHINGTON (CN) — In a move certain to rile progressives in the base, the Biden administration urged the Supreme Court this week to pass on the opportunity to overrule a series of early 20th century decisions widely denounced as racist. 

The rulings — known as the Insular Cases — denied residents of U.S. territories full constitutional rights by concluding that the Constitution applies in full to incorporated territories but only in part to unincorporated territories. While the court has yet to overturn these rulings, it appeared the justices might be primed to do so if the right opportunity arose. In a concurring opinion this term, Justice Neil Gorsuch called for overturning the Insular Cases. 

“The time has come to recognize that the Insular Cases rest on a rotten foundation,” the Trump appointee wrote. “And I hope the day comes soon when the Court squarely overrules them.”  

Gorsuch was not the only justice to signal a need to overturn these rulings. Justice Sonia Sotomayor also criticized the cases this term. Gorsuch and Sotomayor stand on opposite sides of the ideological spectrum on the court, indicating that there might be wide support to overturn these rulings on the court. 

John Fitisemanu, Pale Tuli and Rosavita Tuli — who have all been denied citizenship because they were born in American Samoa — presented the court with an opportunity for the court to overturn these rulings next term. 

Fitisemanu was joined by the Southern Utah Pacific Islander Coalition — a nonprofit organization serving the Samoan community — in a lawsuit challenging the government’s denial of citizenship rights to residents of U.S. territories. Fitisemanu claims a section of the Immigration and Nationality Act denying residents from territories citizenship is unconstitutional under the 14th Amendment’s Citizenship Clause. 

U.S. District Judge Clark Waddoups said the Insular Cases should not apply in this case since they do not concern the 14th Amendment. The Utah judge then interpreted the 14th Amendment under common law following the court’s precedent and granted summary judgment in favor of Fitisemanu. 

At the 10th Circuit, however, a panel disagreed on the Insular Cases role in the case and reversed summary judgment. While the panel acknowledged the historical context of the Insular Cases, the judges said the rulings should apply in the case. A divided court denied Fitisemanu’s en banc rehearing request. 

Fitisemanu then petitioned the Supreme Court, asking the justices to use this case to overrule the Insular Cases. Fitisemanu claims text, history and precedent all support the argument that U.S. territories are entitled to birthright citizenship under the 14th Amendment, and that the statute denying resident citizenship is unconstitutional. 

“The choice for this Court, then, is clear: it can either give its sanction to the panel majority’s extension of the Insular Cases, or it can uphold the original meaning of and binding precedent interpreting the Citizenship Clause, and thereby safeguard the right to birthright citizenship for people born in U.S. Territories,” Matthew McGill, an attorney for Fitisemanu with Gibson, Dunn & Crutcher, wrote in the petition. 

Civil rights groups including the American Civil Liberties Union and Human Rights Campaign urged the court to take up what they characterized as a rare opportunity to address these problematic precedents. 

“The Insular Cases have long been a stain on this Court’s jurisprudence, poorly reasoned, unfounded in the text, and resting on racial stereotypes,” Alejandro Ortiz, an attorney with the ACLU, wrote in the group’s amicus brief. “This case presents an opportunity to repudiate the decisions once and for all.” 

Civil rights groups say the rulings represent bigotry and harm residents of U.S. territories. While the court has previously said the Insular Cases should not be extended, the groups say lower courts need a stronger statement from the justices on this point. 

“Despite the bigotry they represent, the Insular Cases remain on the books,” Ortiz wrote. “Their doctrine casts a pall on the rights of residents of the territories — including American Samoa. And notwithstanding the Court’s clear warnings against extending them, lower courts, including the Tenth Circuit here, continue to apply them to new contexts.” 

Despite some justices' interest in overturning these rulings and civil rights groups’ input, however the Biden administration urged the court not to take up the case. The Department of Justice said the 10th Circuit’s ruling did not improperly apply the framework from the Insular Cases, and that this case is not the appropriate vehicle for overruling those cases. 

“The government does not rely on the premise that citizenship is not ‘fundamental,’ or on the view that extending birthright citizenship to American Samoa would be ‘impracticable and anomalous,’” U.S. Solicitor General Elizabeth Prelogar wrote in the government’s brief. “And the government in no way relies on the indefensible and discredited aspects of the Insular Cases’ reasoning and rhetoric that petitioners highlight here.” 

Prelogar said the government’s argument instead concerns the text of the Citizenship Clause and the court’s precedents prior to the Insular Cases. The Citizenship Clause, Prelogar said, states that citizenship only applies to people born in the United States. 

“The ordinary tools of constitutional interpretation — including text, context, historical practice, and precedent — establish that the term ‘the United States,’ as used in that provision, does not include American Samoa,” Prelogar wrote. “The multi-step framework from the Insular Cases is therefore beside the point. As a result, this case would be an unsuitable vehicle for reexamining those cases — cases which, petitioners emphasize did not apply the Citizenship Clause.” 

The government also argues that the court should not take up the case because the people of American Samoa have not agreed that they are in favor of United States citizenship. Prelogar notes that, after the 10th Circuit issued its ruling in this case, the American Samoan Legislature unanimously passed a resolution respecting the decision and expressing opposition to imposing citizenship on them without their consent. Citizenship, the government argues, should be a result of legislation, not judicial decisions. 

“If this Court were now to accept petitioners’ invitation to hold that the Citizenship Clause imposes U.S. citizenship on all persons born in American Samoa, it would eliminate the opportunity for the American Samoan people to consider the issue democratically and to develop a consensus as to its proper resolution,” Prelogar wrote. 

The court is currently in its summer recess and will return to the bench next term on Oct. 3. 

Follow @KelseyReichmann

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