A panel of federal judges are considering whether to uphold a landmark ruling that granted birthright citizenship to those born in U.S. territories following oral arguments Wednesday by attorneys for the U.S. Justice Department, the government of American Samoa, and lead plaintiff John Fitisemanu.
Samoans are considered U.S. nationals, not citizens, and Fitisemanu sued in an effort to obtain voting rights and other privileges he was denied despite spending 20 years as a resident of Utah.
In December, a district court recognized that he is a natural-born U.S. citizen and Fitisemanu registered to vote the following day. That ruling was later stayed, and Fitisemanu will be unable to vote in November unless the district court’s decision is affirmed.
While those born in the U.S. Virgin Islands and other territories are considered citizens by birth, that right is granted by Congress, and residents cannot vote for president and are represented by a nonvoting delegate to Congress. Virgin Islanders serving abroad in the U.S. military or residing in the states, however, can vote in federal elections.
Such intricacies are inherent to the nature of territorial governance, an attorney for the U.S. Justice Department argued Wednesday, and the status quo give Congress flexibility in how it “acquires, governs, and relinquishes territory,” and enables the government to take “different or innovative” approaches to each possession. “It is for Congress to determine whether and under what circumstances individuals born in American Samoa and other territories are citizens,” and the government maintains that “when Congress acquires territory it is for Congress to decide how to receive their inhabitants and what their status shall be.”
Birthright citizenship granted by the Constitution “would really be a pretty dramatic shift of our understanding of the relationship between the United States and the territories,” the attorney argued.
Michael Williams, an attorney representing the elected leaders of American Samoa, said the territory’s residents are not in consensus on whether they want full U.S. citizenship, and it should be left to them to decide their status, not the courts.
Sixty years ago, the people of American Samoa promulgated a Constitution that included “particular protections for the Samoan way of life,” but did not insist upon citizenship or greater federal recognition, and there’s no evidence a majority of Samoans want to be U.S. citizens, Williams said.
The issue of citizenship is a hotly contested one and “there are people listening to this argument on the radio right now because it’s that important to them in American Samoa,” he added.
He also noted that Samoans currently “have an expedited path to U.S. citizenship if they choose to take it” once they move to a state.
But McGill said the status quo is based on the Insular Cases, 100-year-old court decisions that took a racist view of territorial residents’ ability to self-govern and fully participate in American democracy.
Whether Samoans want citizenship or not, McGill argued that territorial residents are automatically citizens as soon as the federal government acquires a possession.
The purpose of the Constitution’s citizenship clause is to take everyone born or naturalized in the U.S. and “bind them together as American citizens,” McGill said. “The ebbs and flows of ongoing debates in the territories simply cannot disturb that Constitutional command.”
The panel of three judges will consider the arguments and issue a ruling at their discretion.