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Three American Samoans, in ask for birthright citizenship, answer Gorsuch’s call for a chance to overturn Insular Cases

This week we highlight cert petitions that ask the Supreme Court to consider, among other things, whether people born in United States territories are entitled to birthright citizenship under the 14th Amendment.

Under a series of cases decided over 100 ago, people who are born in “unincorporated” territories of the United States, such as American Samoa, are not entitled to all constitutional protections, including U.S. citizenship. Those cases, known as the Insular Cases, have come under recent scrutiny by Justice Neil Gorsuch. In a 10-page concurrence last month in United States v. Vaello Madero, Gorsuch called the cases fundamentally flawed and “shameful.” A decision in one case from 1901, Downes v. Bidwell, which excluded Puerto Rico from Article I tax law, refers to “an uncivilized race” and the danger of “incorporat[ing] an alien and hostile people into the United States.”

“The Insular Cases,” Gorsuch wrote, “have no foundation in the Constitution and rest instead on racial stereotypes. They deserve no place in our law.”

Gorsuch said he hoped the court would overturn those cases soon in “an appropriate case.” He cited Fitisemanu v. United States multiple times in the concurrence.

A week later, John Fitisemanu and other individuals who were born in American Samoa filed their petition with the court. A divided U.S. Court of Appeals for the 10th Circuit panel found that “unincorporated” U.S. territories are not considered “in the United States” under the 14th Amendment’s citizenship clause. That decision was based on an interpretation of the Insular Cases. Fitisemanu v. United States asks the justices to overrule the Insular Cases and grant birthright citizenship to people born in American Samoa and the other U.S. territories. (People born in the other territories — Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands — do have birthright citizenship through an act of Congress, but not under the Constitution.)

Fitisemanu writes that courts look to English common law to interpret terms not defined in the Constitution. Common law said citizens must be born where the sovereign exercises power. They add that all people within the North American colonies were naturally born British citizens. This was the understanding in early U.S. law. Then in Dred Scott v. Sandford the court ruled that Black Americans born in the U.S. were not citizens. The 14th Amendment, adopted after the Civil War, was a repudiation of that ruling and constitutionalized earlier common law understanding of birthright citizenship.

“Few questions are more important to our constitutional system than who is entitled to United States citizenship,” the petitioners write. “Our Nation fought a civil war over that very question, and in the aftermath enshrined the answer in the Fourteenth Amendment’s Citizenship Clause.” 

This case and other petitions of the week are below: 

Spireon, Inc. v. Procon Analytics, LLC
Issues: (1) What the appropriate standard is for determining whether a patent claim is “directed to” a patent-ineligible concept under step 1 of the Supreme Court’s two-step framework for determining whether an invention is eligible for patenting under 35 U.S.C. § 101; and (2) whether patent eligibility (at each step of the Supreme Court’s two-step framework) is a question of law for the court based on the scope of the claims or a question of fact for the jury based on the state of the art at the time of the patent.

Audubon Imports, LLC v. Bayerische Motoren Werke Aktiengesellschaft (BMW AG)
Issue: Whether, to determine if plaintiffs have met their burden to plead a plausible claim under Section 1 of the Sherman Act, the district court may weigh whether an inference of an unlawful conspiracy is more likely than an inference of lawful conduct.

Florida v. United States
Issue: Whether Title II of the Americans with Disabilities Act, which grants any “person alleging discrimination” certain “remedies, procedures, and rights,” authorizes the United States to sue the states in its own name.

Fitisemanu v. United States
Issue: Whether persons born in United States territories are entitled to birthright citizenship under the 14th Amendment’s citizenship clause, including whether the Insular Cases should be overruled.

Recommended Citation: Ellena Erskine, Three American Samoans, in ask for birthright citizenship, answer Gorsuch’s call for a chance to overturn Insular Cases, SCOTUSblog (May. 13, 2022, 5:50 PM),