Justices’ call to overrule Insular Cases is taken up in Supreme Court petition

Fitisemanu plaintiffs seek recognition of birthright citizenship in US territories

Last week in United States v. Vaello Madero, Supreme Court justices Neil Gorsuch and Sonia Sotomayor wrote to express a shared “hope [that] the court will soon recognize that the Constitution’s application should never depend on…the misguided framework of the Insular Cases,” a series of controversial Plessy-era decisions that created a doctrine of “separate and unequal” status for residents of U.S. territories.

Gorsuch declared that “[t]he Insular Cases have no foundation in the Constitution and rest instead on racial stereotypes. They deserve no place in our law.” And Sotomayor called the Insular Cases “both odious and wrong.”

Last year, a divided panel of the U.S. Court of Appeals for the 10th Circuit expressly relied on the Insular Cases to reverse an historic district court decision recognizing that the Citizenship Clause of the 14th Amendment guarantees birthright citizenship to people born in U.S. territories. Today, John Fitisemanu—who is denied recognition as a U.S. citizen based on his birth in American Samoa—petitioned the U.S. Supreme Court to take up his case, recognize him as a U.S. citizen, and overrule the Insular Cases.

“I was born on U.S. soil, have a U.S. passport, and pay thousands of dollars in taxes each year to the federal government. But based on a discriminatory federal law, I am denied recognition as a U.S. citizen. As a result, I am a citizen of nowhere, unable to vote in state, federal, or even local elections. This isn’t just wrong, it’s unconstitutional,” said Fitisemanu, who was born in American Samoa and for the past 20 years has lived in Utah. “I am shocked that federal courts and the U.S. Justice Department continue to rely on the racist Insular Cases to deny me citizenship. I am hopeful the Supreme Court will take up my case to turn the page on the Insular Cases and finally recognize that Congress can no longer deny citizenship to people born in U.S. territories.”

“The Insular Cases are a stain on the Supreme Court, and it is gratifying to see Supreme Court justices begin to acknowledge that directly,” said Neil Weare, president and founder of Equally American, which represents the Fitisemanu plaintiffs and advocates for equality and civil rights for the 3.6 million residents of U.S. territories, 98% of whom are people of color.


“Who is a U.S. citizen under the Constitution is a fundamental question for our democracy, and one the Citizenship Clause of the 14nth Amendment was intended to answer once and for all. That in 2022 there remains uncertainty over whether people born in U.S. territories are ‘born…in the United States’ for purposes of the Citizenship Clause and whether the racist Insular Cases remain good law highlights why the Supreme Court needs to finally answer these questions,” added Weare.

The central question in Fitisemanu is whether U.S. territories like American Samoa are “in the United States” for purposes of the Citizenship Clause. While the Supreme Court has not squarely resolved that question, last week in Vaello Madero the court acknowledged in its opening sentence that “The United States includes five territories: American Samoa, Guam, the Northern Mariana Islands, the U.S. Virgin Islands, and Puerto Rico.”

The Fitisemanu plaintiffs initially prevailed in their case, with District Court Judge Clark Waddoups ruling in 2019 that under the Citizenship Clause Congress has no power to deny citizenship to individuals born in U.S. territories. On appeal, a divided panel of the 10th Circuit expressly relied on the Insular Cases to reverse 2-1, with each judge writing separately. Plaintiffs’ petition for review by the full 10th Circuit was not granted, but two judges wrote a lengthy dissenting opinion on the “exceptional importance” of bringing resolution to these questions. Gorsuch specifically cited the 10th Circuit’s decision in Fitisemanu as a reason for the Supreme Court to finally overrule the Insular Cases, since “[l]ower courts continue to feel constrained to apply their terms.”


Last year, the Biden-Harris Department of Justice controversially continued to rely on the Insular Cases to argue against birthright citizenship for people born in U.S. territories, even after Members of Congress had called on the Justice Department to condemn the Insular Cases. Earlier this year the ACLU, NAACP LDF, LatinoJustice, Hispanic Federation and other prominent civil rights organizations issued a similar call. The U.S. House of Representatives is also considering a House resolution condemning the Insular Cases, holding the first-ever congressional hearing on the Insular Cases last year.

The Insular Cases have also received significant academic criticism in recent years. Earlier this month the Columbia Human Rights Law Review held a symposium on the “Future of the Insular Cases.” The Yale Law Journal will soon be publishing a Special Issue on the Law of the Territories, including an article by Columbia law professor Christina Ponsa-Kraus titled The Insular Cases Run Amok, which responds to what Gorsuch called in Vaello Madero “recent attempts” by lower courts and others “to repurpose the Insular Cases,” with Gorsuch specifically citing the 10th Circuit’s decision in Fitisemanu. In 2020, the Yale Law Journal Forum also held a symposium on the Insular Cases to honor the memory of Judge Juan R. Torruella, a chief critic of the Insular Cases.

The American Samoan government has joined federal defendants in embracing the Insular Cases and arguing that the question of citizenship in the territories is up to Congress. Meanwhile, current and former elected officials from Puerto Rico, Guam, the U.S. Virgin Islands, and the Northern Mariana Islands have argued as “friends of the court” in the case that the Insular Cases should be rejected and people born in U.S. territories recognized as birthright citizens.

The Supreme Court is expected to consider whether to grant review of Fitisemanu v. United States later this year. (PR)

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