The Supreme Court rejects a challenge to discriminatory citizenship laws.


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Getty Images/Chip Somodevilla On Monday, the Supreme Court declined to take another look at the so-called “Insular Cases,” a group of cases from the early 1900s that are now notorious for their racial underpinnings.

The court’s decision destroys the hopes of American Samoans who were vying for citizenship by birth. Additionally, it upholds a Tenth Circuit ruling that has been credited with “breathing new life” into the nation’s constitutional inequalities between the states and territories, which according to the late Neal Katyal, former Acting Solicitor General, create “a second-class of unequal Americans.”

The Supreme Court’s decision to not revisit the Insular Cases today reflects that “Equal Justice Under Law” does not apply equally to the 3.6 million citizens of U.S. territories as it does to everyone else, according to attorney Neil Weare, president of the group representing the plaintiffs in this case.

QUI EST UN CITIZEN? The legal treatment of individuals born in various U.S. territories with regard to citizenship was at question in this case. Anyone who is “born or naturalized in the United States” is considered a citizen, according to the Constitution. However, birthright citizenship in U.S. territory is not legally guaranteed and is instead within the sole jurisdiction of Congress.

The Immigration and Nationality Act classifies people who live in Puerto Rico, Guam, the U.S. Virgin Islands, and the Northern Mariana Islands as deemed U.S. citizens . American Samoans, however, are not. Residents of American Samoa and Swains Island, both of which are simply referred to as “outlying possessions,” are not entitled to birthright citizenship.

Three American Samoans living in Utah challenged the Immigration and Nationality Act, arguing that the statutory denial of citizenship violates the Citizenship Clause of the Fourteenth Amendment. The court was then presented with the issue of this uneven treatment.

The main reason the Citizenship Clause was created after the Civil War was to defend Black Americans’ right to citizenship by birth, which the Supreme Court had previously rejected. The validity of constitutional safeguards in the territories as a whole, as well as the interpretation of the clause for residents, have been debated historically. The American Samoans in this case, Fitisemanu v. U.S., argue that for citizenship purposes, all residents of the territories should be regarded as being “in the United States.”

American Samoans residing in the United States are eligible to seek for citizenship, but many of the privileges that come with it, such as the ability to vote, run for office, and serve on juries, are withheld from them before they are granted it. According to the plaintiffs in this case, their professional options have been limited and they are unable to sponsor immigration visas for their families because they are not citizens. The process of applying for citizenship is laborious, lengthy, and not always successful.

A SUMMARY OF THE INSULAR CASES’ HISTORY But the scope of the Citizenship Clause was not the only issue at stake in this case. The Insular Cases, a set of cases decided in the early 1900s following the Spanish-American War, established the Constitution’s fundamental inequality in treatment of the 50 states and the U.S. territories. These rulings, which were given that name due to their “insular” (island-related) concentration, concluded that ‘unincorporated’ territories, which at the time included Puerto Rico, Guam, and the Philippines, are not entitled to the same constitutional protections as ‘incorporated’ territory like Hawaii. Notably, the divide between incorporated and unincorporated territories was based on overtly racist caricatures about people who lived in those territories. For instance, a senator who opposed Filipino statehood described Filipinos as “unruly and disobedient.” One person described them as “mongrels.”

The Supreme Court affirmed this dubious “incorporated versus. unincorporated” framework of rights in the Insular Cases, which were largely concerned with tariffs and jury trials in the territories. The language and reasoning of the Court were hardly any more persuasive than that of Congress. According to one example, “differences of race, habits, laws, and customs” in the territories may need congressional action that would not be necessary if the region was “inhabited entirely by persons of the same race.” One more mentioned “savage tribes” that might be “incapable of self-government.”

Both liberal and conservative justices have denounced the pernicious premise of the Insular Cases. Justice Neil Gorsuch issued a 10-page concurrence in Vaello-Madero, a case from the previous term that dealt with Puerto Ricans’ eligibility for disability payments, urging for the Insular Cases to be overruled, which is currently unlikely to happen anytime soon.

A disagreement with Monday’s decision was not noted by Gorsuch.

The decision made on Monday by LAW benefits both the Biden administration and the American Samoan government, even though neither side condones the derogatory language used in the Insular Cases. Additionally, the US does not actively oppose citizenship in American Samoa. Instead, the United States bases its defense on the text of the Citizenship Clause, which it claims purposefully exempts the territories from the Constitution’s guarantee of birthright citizenship. The United States contends that American Samoans can get birthright citizenship through the legislative process, and that if there is widespread support for it, they should seek it through their congressional representative. However, the US claims that it will not interfere with American Samoans’ right to self-government in any other way.

To that purpose, the American Samoan government intervened in the case, claiming that granting American Samoans birthright citizenship would jeopardize their ability to self-govern and uphold their cultural autonomy.