Court Case Shines Unexpected Spotlight on ‘Birthright Citizenship’
Organization files brief arguing against 14th Amendment interpretation in challenge to American Samoans’ status
A court case making its way through U.S. district court in Utah pits an American Samoan against the United States government over a quirk in the island territory’s status that denies full citizenship to its inhabitants.
John Fitisemanu and two other American Samoans who now live in Utah demand full American citizenship and voting rights. Under current law, American Samoans are U.S. nationals free to live anywhere in the United States. But they must go through the naturalization process to become citizens.
The case last week drew the involvement of the Immigration Reform Law Institute (IRLI), which filed a friend-of-the-court brief highlighting a larger debate over “birthright citizenship” that automatically confers citizenship on nearly every child born in the United States — even to parents who are in the country illegally.
The brief by IRLI, the legal arm of the Federation for American Immigration Reform (FAIR), does not take a position on the central issue in Fitisemanu’s case: whether American Samoa is part of the United States. Instead, it addresses whether the 14th Amendment grants automatic citizenship to the children of people who are not, themselves, citizens or legal permanent residents.
“In our view it’s pretty clear — it’s quite clear that they aren’t covered,” said Christopher Hajec, director of litigation at IRLI.
The judge in Fitisemanu’s case may well ignore that question. Instead, the focus is likely to be on whether U.S. law discriminates against American Samoa by denying voting rights to its residents when they move to one of the states.
American Samoa’s status dates to 1900, when the cluster of islands in the Pacific Ocean became a U.S. territory. Its residents, in addition to being unable to vote, also cannot run for federal office, sponsor relatives for immigration or apply for certain government jobs. They get special passports that say: “This bearer is a United States national and not a United States citizen.”
Congress has granted full citizenship to residents of Puerto Rico, Guam, the U.S. Virgin Islands and the Northern Mariana Islands, but not to American Samoa.
Equal Rights Now, an advocacy organization that represents the plaintiffs, argues that Congress impermissibly created second-class citizens. Attorneys argue that the 14th Amendment automatically grants citizenship.
That’s where IRLI comes in. It argues that notwithstanding how the court comes down on Fitisemanu’s challenge, the 14th Amendment has been read too broadly. It generally has been interpreted to apply to the children of illegal immigrants, tourists on vacation — any foreigner other than diplomats.
The government in America Samoa has expressed concerns in court filings that the territory’s life and culture “would be jeopardized if subjected to scrutiny under the 14th Amendment.”
Some scholars have challenged that notion of birthright citizenship over the years, and President Donald Trump raised the issue on the campaign trail out of concern that it acts as a magnet to illegal immigrants who use American-born babies to gain a foothold in the country.
Others have raised concerns that “birth tourists” from countries like China and Russia travel to the United States to give birth so that their children can obtain U.S. passports.
But the Supreme Court never has ruled directly on the issue. The closest it came was in 1898 when it ruled that the government could not bar a man named Wong Kim Ark from entering the United States under the Chinese Exclusion Act. The justices ruled that the plaintiff, who was born in America to Chinese nationals, had traveled to China to visit his parents and then tried to return home.
The IRLI argues that a proper reading of United States v. Wong Kim Ark and a case called Elk v. Wilkins 14 years earlier makes it clear that birthright citizenship applies more narrowly.
“Both cases were decided by the same justice, Justice [Horace] Gray, and read carefully and properly, together stand for the following rule: If, and only if, one was born in the United States to a United States resident who, at that time, both had permission to be in the United States and owed direct and immediate allegiance to the United States, one is a United States citizen by virtue of the Citizenship Clause,” the IRLI brief states.
Some scholars argue that a 1982 Supreme Court case, Plyler v. Doe, settled the issue. The high court ruled that Texas could not deny public education to illegal immigrants. A footnote in the majority opinion cited the Wong Kim Ark case and noted that illegal immigrants are “subject to the jurisdiction” of the United States just like citizens and legal residents.
But Hajec said the case did not deal squarely with birthright citizenship.
“This footnote is not part of the holding in Plyler vs. Doe,” he said.
Hajec said it’s erroneous to interpret the Wong Kim Ark case as guaranteeing U.S. citizenship for the children of illegal immigrants with no right to be in the country.
“What you can’t do, I think, is make nonsense of the court’s ruling,” he said.
The majority opinion states that the plaintiff’s parents at the time of his birth “were domiciled residents of the United States and had established and enjoyed a permanent domicile and residence therein at said city and county of San Francisco.”
Hajec said the “domiciled residents” language is significant.
“Being a resident means something more … It does exclude tourists, as we know them today,” he said.