This Lawfare essay by Irina Manta and Cassandra Burke Robertson discusses a pending cert petition that raises the issue of who exactly is entitled to birthright citizenship and offers the Court an opportunity to overrule the Insular Cases.

In the summer of 2021, the issue arose again in Fitisemanu v. United States. This time, a three-judge panel on the U.S. Court of Appeals for the Tenth Circuit issued three separate writings on the question, with two judges concluding that the Constitution did not extend citizenship to residents of the territories, and one concluding that it did. A cert petition is currently pending before the Supreme Court.

Will the Supreme Court grant cert in the Fitisemanu case? It is likely to. And it should. 

This problem is not going away. Citizenship is an issue of extreme importance to many American Samoans. And they deserve certainty about whether they are protected by the Constitution’s grant of birthright citizenship.

Also this constitutional question extends beyond American Samoa. Congress has already extended statutory citizenship to the other territories. But if citizenship is only a matter of “legislative grace,” then Congress could choose to retract it at will, in whole or in part. For example, many residents of Puerto Rico are questioning whether their citizenship is secure or whether only statehood can guarantee their status. Courts have so far not allowed residents to seek a declaratory judgment to determine their status, finding the claim to be unripe until Congress takes affirmative steps to limit the status of Puerto Ricans’ citizenship. Depending on the political winds, that could become a reality. 

Some of the justices have expressed an interest in reconsidering the Insular Cases with an eye toward overruling them. In a recent concurrence to United States v. Vaello Madero, Justice Neil Gorsuch called for the Insular Cases to be overturned. He explained that he joined the majority opinion upholding the government’s decision to exclude residents of Puerto Rico from full participation in the Supplemental Security Income program “[b]ecause no party asks us to overrule the Insular Cases to resolve today’s dispute.” However, he condemned the Insular Cases in strong terms, writing that “[t]he flaws in the Insular Cases are as fundamental as they are shameful” and that “they have no home in our Constitution or its original understanding.” Gorsuch concluded that “the time has come to recognize that the Insular Cases rest on a rotten foundation” and that he “hope[s] the day comes soon when the Court squarely overrules them.” Justice Clarence Thomas, in a separate concurrence, suggested that “the Fourteenth Amendment’s Citizenship Clause” might have offered a stronger argument against the government’s differential treatment of Puerto Rico and the states. Finally, Justice Sonia Sotomayor, writing separately in dissent, explicitly noted that she agreed with Gorsuch’s view that it “‘is past time to acknowledge the gravity’ of the error of the Insular Cases.” 

The cert petition in Fitisemanu offers the Court that chance.