When she is born in American Samoa. Under federal law, a person born in American Soma is not recognized as a full citizen, but is given a quasi-status of “non-citizen National.” Due to precedents stemming from the Insular Cases, Congress has taken the position that those born in a territory like American Somoa is not entitled to birthright citizenship under Section 1 of the 14th Amendment.

The We the People Project, lead by Neil Weare, is currently litigating this issue, arguing that the government’s policy is unconstitutional. The District Court of D.C. ruled against them. Here is the key analysis.

 

Thus, the key question becomes whether American Samoa qualifies as a part of the “United States” as that is used within the Citizenship Clause. The Supreme Court famously addressed the extent to which the Constitution applies in territories in a series of cases known as the Insular Cases.9 In these cases, the Supreme Court contrasted “incorporated” territories-those lands expressly made part of the United States by an act of Congress-with “unincorporated territories” that had not yet become part o f the United States and were not on a path toward statehood. …

While none of the Insular Cases directly addressed the Citizenship Clause, they suggested that citizenship was not a “fundamental” right that applied to unincorporated territories.

The Insular Cases, though good law, are not the best precedents to hang the deprivation of citizenship to about 5 million people.

Plaintiffs rightly note that Downes did not possess a singular majority opinion and addressed the right to citizenship only in dicta. Pls.’ Opp’n at 25-27. But in the century since Downes and the Insular Cases were decided, no federal court has recognized birthright citizenship as a guarantee in unincorporated territories. To the contrary, the Supreme Court has continued to suggest that citizenship is not guaranteed to people born in unincorporated territories.

This case may be a good vehicle for the Supreme Court to correct the Insular Cases, although the Court has chosen not to do so before when the issue came up indirectly.

For example, in a case addressing the legal status of an individual born in the Philippines while it was a territory, the Court noted-without objection or concern-that “persons born in the Philippines during [its territorial period] were American nationals” and “until 1946, [could not] become United States citizens. Barber v. Gonzales, 347 U.S. 637, 639 n.l (1954). Again, in Miller v. Albright, 523 U.S. 420, 467 n.2 (1998), Justice Ginsberg noted in her dissent that “the only remaining noncitizen nationals are residents of American Samoa and Swains Island” and failed to note anything objectionable about their noncitizen national status. More recently, in Boumediene v. Bush, the Court reexamined the Insular Cases in holding that the Constitution’s Suspension Clause applies in Guantanamo Bay, Cuba. 553 U.S. 723, 757- 59 (2008). The Court noted that the Insular Cases “devised … a doctrine that allowed [the Court] to use its power sparingly and where it would most be needed. This century- old doctrine informs our analysis in the present matter.” /d. at 759.

The case is currently on appeal to the D.C. Circuit.

Of course, when given the chance to correct the (obviously wrong) Slaughter-House Cases in McDonald v.Chicago, only Justice Thomas was game. Though, in that case the Court was able to incorporate the right to bear arms through the due process clause. So it was not necessary to disturb a century worth of precedent that no one really relied on. Here, the government does rely on the Insular Cases, and there is no way to avoid the issue.