The Supreme Court has struck down President Trump’s executive order to end birthright citizenship – the guarantee of U.S. citizenship to virtually everyone born in the United States. The decision written by Chief Justice John Roberts ruled that Trump’s order was not consistent with the 14th Amendment to the Constitution.
The 14th amendment says simply, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Early in his presidency, Trump issued an order denying birthright citizenship to babies born to people either temporarily or unlawfully present in the United States at the time of the birth.
The Supreme Court decision referred to the intentions of the founding fathers and those of the framers of the 14th amendment, saying that “Citizenship, then and now, was the right to have rights—to freely participate in our political community. The Framers of the Fourteenth Amendment extended that promise to ‘every free-born person in this land.’ We keep that promise today.”
Does the 14th amendment apply in Puerto Rico?
A group of 20th century Supreme Court decisions known as the Insular Cases determined that U.S. territories were not automatically protected by the U.S. Constitution in its entirety. Establishing the new category of unincorporated territories, these decisions held that some fundamental rights were applicable to the island territories, but that the entire Constitution did not “follow the flag.” Among the parts off the Constitution that did not apply was the 14th amendment.
Since the 14th amendment says that people born in the U.S. “are citizens of the United States and of the State wherein they reside,” the 14th amendment has been interpreted as applying only to people born in states. As noted in an amicus brief submitted to the Court and signed by a majority of congressional Democrats, including every Democrat serving on the House and Senate Judiciary Committees, birthright U.S. citizenship in Puerto Rico is based on the 1917 law conferring citizenship on the people of Puerto Rico.
Justice Kavanaugh picked up on this line of thinking in his concurrence. He reasoned that although the executive order does not violate the 14th Amendment, the order does contravene a federal statute (8 U. S. C. §1401(a)). He wrote that “Congress could – consistent with the Fourteenth Amendment – amend §1401(a) or otherwise enact new legislation establishing exceptions to birthright citizenship for children born to foreign citizens unlawfully or temporarily in the country. But Congress has not yet done so.”
Mention of the Insular Cases
Trump v. Barbara did not focus on questions of statutory as opposed to constitutional citizenship, and the Court was not required to revisit the Insular Cases to make its decision. Yet while the case was under consideration, a group of current and former elected officials and judges from the U.S. Virgin Islands, Puerto Rico, Guam, the Northern Mariana Islands (‘NMI’), and American Samoa submitted an amicus curiae brief urging the Court to state that U.S. citizenship in the U.S. territories should be covered by the U.S. Constitution’s 14th Amendment Citizenship Clause. The Court disregarded this request.
“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,” the elected officials from the U.S. territories wrote. “Because of this, those born in most Territories are recognized by the political branches as only ‘statutory’ U.S. citizens.” The brief further examined a range of previous Supreme Court decisions and consequences of the Insular Cases and the resulting statutory citizenship for residents of the territories. “Until this Court enforces the constitutional guarantee of birthright citizenship for those born in the Territories,” the authors concluded, “federal, state, and local governments will continue unconstitutionally harming [territory residents] caught in the confusion.”
Trump v. Barbara essentially presented an opportunity for the Supreme Court to look again at the Insular Cases and assert that the 14th amendment applies to Puerto Rico. The Court did not do so.
Justice Jackson’s inclusion of the Insular Cases in a footnote of her concurring opinion was their only mention.
“It is common ground that the Fourteenth Amendment was ‘enacted . . . with the one pervading purpose of securing equal citizenship for the freed slaves,'” she wrote. “Also true is the fact that this Court ‘has time and again denied Americans that promise,'” she continued, providing the Insular Cases as such an example of the Court denying the promise of equal citizenship for all Americans.
