A group of current and former elected officials and judges from U.S. territories has submitted an amicus curiae (friend of the court) brief to the U.S. Supreme Court in Trump v. Barbara, the birthright citizenship case the Court heard on April 1.
The legal brief, filed on February 26, urges the Court to rule that U.S. citizenship in the U.S. territories should be covered by the U.S. Constitution’s 14th Amendment Citizenship Clause, explaining that:
“For 125 years, this Court’s unjustifiable deference has permitted the Executive Branch and Congress to try and impermissibly narrow the geographic reach of the Citizenship Clause to exclude those born in island Territories. Because of this, those born in most Territories are recognized by the political branches as only ‘statutory’ U.S. citizens, with those born in American Samoa labeled U.S. nationals but not U.S. citizens. The consequences are far from abstract. Those born in Territories that enjoy statutory citizenship live under the looming specter of pronouncements by Congress and the U.S. Department of Justice (“DOJ”) asserting that their citizenship can be revoked by Congress, even retroactively.”
Summary of Argument
The officials begin by noting that, “[t]he experience of those born in the U.S. Virgin Islands, Puerto Rico, American Samoa, Guam, and the NMI—where U.S. citizenship turns on political whim rather than constitutional right—demonstrates what goes wrong when this Court allows the Executive Branch and Congress to improperly define for themselves the scope and meaning of the Citizenship Clause.”
Explaining the current situation in historical context, the brief observes that “there are troubling parallels between how the Executive Branch is acting today and how the Executive Branch acted unilaterally following the 1898 Spanish-American War to try narrow the scope of the Citizenship Clause to exclude people born in newly acquired island territories.”
Bringing their argument to the present, the officials state that “[t]he political branches have for decades incorrectly insisted that citizenship in the Territories exists solely at Congress’s discretion and can be restricted, modified or even withdrawn at will.”
“At a time when denaturalization has become an enforcement priority for the federal government, the political branches’ incorrect view that Congress can unilaterally deny citizenship in the Territories because it is ‘statutory’ is deeply concerning,” the brief’s summary concludes.
How We Got Here
The territorial officials argue in their brief that the U.S. Constitution’s Citizenship Clause provides a “bright-line rule” that should not be subject to political manipulation. The brief concludes that the Supreme Court “has improperly allowed the political branches to redefine the Citizenship Clause to exclude people in the territories,” and urges the Court to assert its rightful power.
The legal brief submitted by the territorial official provides four examples of how current day “statutory” citizenship in the territories remains under threat due to the political branch’s assertion of power that it does not actually possess. The four examples are: (1) the 2021 State Department Foreign Affairs Manual, (2) a 2001 Letter to Congress from the U.S. Department of Justice, (3) the 1996 House Report on United States-Puerto Rico Political Status Act, and (4) a 1989 Congressional Research Service (CRS) memorandum to Congress.
- 2021 State Department Foreign Affairs Manual
Of special relevance to American Samoa, whose residents are, by birth, U.S. nationals but not U.S. citizens, the manual explains that “[h]istorically, Congress, through statutes, granted U.S. non-citizen nationality to persons born or inhabiting territory acquired by the United States through conquest or treaty.” Further, the manual states that such nationals “owe allegiance to the United States” even though they “are not entitled to voting representation in Congress and, under most state laws, are not entitled to vote in Federal, State, or local elections except in their place of birth.”
- 2001 Department of Justice (DOJ) Letter to Congress
“During the waning days of the Clinton Administration,” the amicus brief explains, “DOJ sent a letter to the Chair of the Senate Committee on Energy and Natural Resources—which has jurisdiction over the Territories—to address legal issues relating to Puerto Rico’s political status, including questions about citizenship.”
The territorial officials explain in their brief that:
“As a starting point, DOJ recognized that those born in Puerto Rico were ‘statutory United States citizens’ rather than ‘persons whose citizenship is based on the Fourteenth Amendment.’ Assuming continued U.S. sovereignty over Puerto Rico, DOJ concluded it was ‘unclear’ whether Congress could ‘withhold prospectively non-Fourteenth Amendment citizenship from those born in an area subject to United States sovereignty, when persons previously born in that area received statutory citizenship by birthright.’ And DOJ similarly described as ‘unclear whether Congress could revoke the U.S. citizenship of persons already holding such citizenship’ if a U.S. territory became independent.
Most troubling, although DOJ remarked that ‘we think Congress could not revoke the United States citizenship of persons who already possess that citizenship by virtue of their birth in Puerto Rico,’ it still entertained the ‘counter-argument’ that Congress could unilaterally revoke the citizenship of those born in Puerto Rico, whether U.S. sovereignty continued or Puerto Rico became independent. (emphasis added). In support of this counter-argument, DOJ cited Rogers v. Bellei, 401 U.S. 815 (1971), where this Court allowed Congress to strip the citizenship of someone who had ‘non-Fourteenth Amendment citizenship.’ Moreover, DOJ’s apparent basis for distinguishing between ‘statutory’ and ‘Fourteenth Amendment’ citizenship in Puerto Rico was the Insular Cases, which it expressly cited for the dangerous and constitutionally ungrounded notion that ‘not all provisions of the United States Constitution are fully applicable to Puerto Rico.'”
- 1996 House Report on United States-Puerto Rico Political Status Act
This 1996 report issued by the U.S. House of Representatives Natural Resources Committee as part of consideration of the U.S.-Puerto Rico Political Status Act, legislation that would be passed by the House of Representatives in a later Congress, included a significant discussion on the question of citizenship in U.S. territories. The legal brief submitted to the Supreme Court by the territorial officials described the report in detail:
“The House Report declared that it was ‘self-evident’ that ‘the current U.S. citizenship of persons born in Puerto Rico during the territorial period is restricted and less-than-equal,’ on the basis that Puerto Rico was ‘an unincorporated territory’ and ‘the U.S. Supreme Court has ruled that Congress can exercise its Territorial Clause powers’ to discriminate against its residents. The House Report cited Gonzales v. Williams for the principle that ‘the specific citizenship status of the population of the territory is subject to the discretion of Congress under the Territorial Clause,’ even as that decision expressly avoided answering the question of citizenship in Puerto Rico. In doing so, the House Report emphasized that ‘the U.S. citizenship granted [Puerto Ricans] by statute since 1917 is limited, restricted and less-than-equal citizenship.’ That is, according to the House Report, ‘the statutory right of U.S. citizenship based on birth in Puerto Rico as it is today . . . is not full Constitutionally-protected citizenship.’ In support of this view, the House Report emphasized that DOJ ‘has long taken the position, and is on record before Congress, that the statutory citizenship which Congress has conferred on people born in Puerto Rico during the territory period is not full, equal citizenship protected by the Fourteenth Amendment to the Constitution.’
The House Report then bluntly declared that ‘the current citizenship status of Puerto Ricans exists at the discretion of Congress.’ While conceding that Congress ‘cannot exercise its discretion in an arbitrary and irrational way,’ the House Report stated ‘that the current statutory citizenship of people born in Puerto Rico can be regulated or even rescinded without violating the equal protection and due process rights which have been extended to Puerto Rico by Congress and the Federal courts.” (emphasis added). Citing Rogers v. Bellei, the House Report concluded that ‘the statutory citizenship of the residents of Puerto Rico . . . could be restricted, modified or even withdrawn by Congress as long as the fundamental rights test of the Insular Cases . . . is met,’ meaning, in its view, ‘the existence of a legitimate Federal purpose achieved in a manner reasonably related to that purpose.'”
- 1989 Congressional Research Service (CRS) Memo
The forth and final example given by the territorial officials of Congress overstepping its powers is a 1989 memo by CRS that, using Supreme Court precedent, determined that Puerto Ricans “are not ‘Fourteenth Amendment citizen[s],” and that Puerto Rico, “whatever its exact status and relationship to the United States is not itself in the United States.” Citing the Insular Cases, CRS concluded that the Citizenship Clause does “not restrain Congress’ discretion in legislating about the citizenship status of Puerto Rico,” and that any “denaturalization provision” need “only to be reasonable and not arbitrary.”
Elected Officials Who Signed the Brief
The amicus brief was signed by 21 current and former officials and judges representing all five territories, including the current Delegate from the United States Virgin Islands (USVI), Stacey Plaskett, and Governor Albert Bryan, Jr. Signers from Puerto Rico included three former governors: Aníbal Acevedo Vilá, Sila M. Calderón, and Alejandro García Padilla.
