Just when you think the fiery debate over birthright citizenship has exhausted itself for the moment, a court comes along and breathes a bit of new life into the embers.
This time, the subject involves the tiny territory of American Samoa, consisting of five small islands and atolls in the South Pacific that have a combined land mass of about 76 square miles and a population of 54,343. As for the economy? Next time you eat tuna salad, think American Samoa, which has processing plants that employ many of the islands' natives. The islands also do a thriving business in copra (dried coconut meat). Note also that American Samoa is to be distinguished from the Independent State of Samoa (the former Western Samoa).
American Samoa has been our territory since 1900, when it voluntarily entered into a compact with the United States. American Samoans are, by law, U.S. nationals, not citizens, and are apparently quite patriotic.
U.S. nationals are nearly indistinguishable from U.S. citizens. They even carry U.S. passports, although there is a legend on the back that says "The bearer is a United States national and not a United States citizen." Most people would be unable to articulate the difference between the two. But the lack of citizenship is clearly a significant impediment for the American Samoans who filed suit (see below) and want to fully take part in the country with which the territory has associated itself.
It probably also does not help assuage the U.S. nationals there to know that the native-born of other unincorporated American territories, including Guam, the U.S. Virgin Islands, and Puerto Rico, are citizens.
A group of American Samoans filed suit in U.S. District Court, arguing that based on the "birthright citizenship" language of Section 1 of the Fourteenth Amendment, they should be deemed citizens, not nationals. (My colleague David North has written about the lawsuit, most recently here.) Section 1 says, "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."
Readers will recall that the Fourteenth Amendment is at the heart of all the debate about whether children of illegal aliens or nonimmigrant citizens — especially tourists who come here for the express purpose of giving birth — should be entitled to citizenship. (See here and here.)
The suit was filed in Washington, DC, because American Samoan matters are overseen by the Department of Interior, headquartered there. They lost and the suit progressed to the Federal Circuit, as the appellate court for the District of Columbia is known. (That circuit does a thriving business insofar as it is responsible for virtually all federal government-related appeals of any sort.)
The circuit has published its decision in the case, which goes back to June of this year. Once again, the appellants have lost, leaving open the question of whether they will petition the Supreme Court to hear the case (no sure thing, but it would be interesting if they do).
The appellate judges have issued a nuanced, something-for-everyone decision, but here's my nutshell take, assuming they aren't reversed if the Supremes agree to take the case: As the Federal Circuit in this case said, "[W]e hold it 'impractical and anomalous,' to impose citizenship by judicial fiat." (Citation omitted.) Having exhausted their legal avenues, those seeking citizenship might consider taking the legislative route and pressing for Congress to enact a law granting them what they seek. This has happened several times previously with different populations, including their "cousins" in the other unincorporated territories:
- Native Americans, via the Indian Citizenship Act of 1924;
- Guamanians, via the Guam Organic Act of 1950, and a particularly apt parallel to the situation of American Samoans. (Like American Samoa, Guam was administered by the Department of the Navy due to its strategic military importance, and later transferred to the Department of Interior).
- Puerto Ricans, via the Jones-Shafroth Act of 1917 (which not only accorded citizenship, but even provided an "opt out" clause for natives born prior to the date on which the island became a U.S. territory who did not wish to accept that status).
- U.S. Virgin Islanders, via Public Law 414 of 1952 (66 Stat. 237, incorporated as 8 U.S. Code § 1406).
The court's decision and all of these laws suggest that Congress has plenary power within the constraints imposed by Section 1 of the Fourteenth Amendment. Those powers arise because what constitutes "subject to the jurisdiction thereof" or "in the United States" have been left open to legislative interpretation and prerogative (an argument made by Obama administration lawyers in briefs filed before the court in this case).
That being true, how can Congress not have the power to do likewise with the children of birth tourists and aliens illegally in the country?