Testing who is a “birthright citizen”

President Trump has started a new debate about what the Constitution’s “Citizenship Clause” means, but the final answer no doubt will have to come from the courts. The next word from that sector could come in a matter of weeks, from a federal trial judge in Salt Lake City.

U.S. District Judge Clark Waddoups is to hold a hearing two weeks from now on a case providing a basic test of who is entitled to “birthright citizenship” – that is, the automatic right, guaranteed by the 14th Amendment, to become a citizen if born in the United States, no matter where the parents are from.

The November 14 hearing will be on a series of motions to bring to a quick end, one way or the other, to a case that directly tests who can qualify for that kind of citizenship. Judge Waddoups is facing dueling demands to resolve the case without a full trial; the case is only about the 14th Amendment, with no dispute over the facts so there is no need for a trial to gather evidence.

That case, Fitisemanu v. United States, focuses on the specific words of that Amendment’s Citizenship Clause, and those phrases are still much debated, in politics, in the legal academy, in legislatures, and in the courts. Even though the Clause was written into the Constitution in 1868, there is still no final ruling by the Supreme Court that settles fully what that wording covers – and, thus, who can become a “birthright citizen.”

The Clause provides the opening words of the 14th Amendment. Here is what it says, with the disputed words in italics: “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.”

Three people who live in Utah – John Fitisemanu of Woods Cross, and Pale Tuli and Rosavita Tuli, a young couple living in Kearns – filed the lawsuit in Salt Lake City last March. They are not U.S. citizens, for one reason: all three were born in American Samoa, a U.S. island community in the Pacific, and as a result of that fact, both Congress and the federal Executive Branch do not recognize them as “birthright citizens.” The three individuals have moved to Utah, and note that they pay taxes but do not have a right to vote. Their lawsuit seeks to have their exclusion from citizenship struck down.

The Samoan government and the Trump Administration (just as the Obama Administration did in an earlier case) argue that American Samoa is not “in” the United States in a technical legal sense and is mostly self-governing though it clearly is not outside of the U.S. government’s jurisdiction. Because it is a territory, the Constitution allows Congress to write laws governing Samoa, and it is currently under the authority of a federal Cabinet agency, the Department of the Interior.

A case very much like this one reached the Supreme Court two years ago, but the Justices denied review, without comment and with no Justice noting a dissent from the denial. That order left intact a decision by the U.S. Court of Appeals for the District of Columbia Circuit that rebuffed a challenge by people born in American Samoa to their exclusion from citizenship.

The appeals court relied upon a series of decisions by the Supreme Court in the early 1900s spelling out when the Constitution does, or does not, reach U.S. territories.  Those rulings (grouped under the title the Insular Cases) did not involve the Citizenship Clause, turning instead on what the Constitution means about federal government power over territories. Not all of the Constitution, according to those rulings, follows the America flag when the U.S. government takes over an area and establishes it as a U.S. territory.

The Samoan government and the Trump Administration have relied heavily upon that Circuit Court ruling in urging Judge Waddoups to dismiss the Fitisemanu lawsuit without a trial. The Samoans also want to avoid a trial, but they are asking that the judge rule summarily that their exclusion from citizenship is unconstitutional under the 14th Amendment.

One issue not in the case is one that President Trump raised this week as part of his new opposition to “birthright citizenship” for children born in the U.S. whose parents are foreign nationals who have no legal right to be in the country.  The President has said that some of his advisers have told him that he could end that kind of citizenship just by issuing an Executive Order doing so, and did not need to wait for Congress to do so.

The documents filed in the new Utah case by Administration lawyers do not raise that presidential power question, but do make an argument that seems to refute it. Their filings say that Congress has “plenary authority” over who may enter the U.S. from elsewhere and who will be eligible for citizenship. And they note that Congress has used that authority to confer U.S. citizenship on people born in other territories – such as Puerto Rico and Guam.  Congress also did so for Alaskans and Hawaiians before those states joined the Union.

But Congress has explicitly chosen not to do so for Samoans, instead granting them the status of “nationals” of this country. Passports issued to Samoan-born individuals label them only as “nationals.”

The Utah lawsuit complains that the denial of U.S. citizenship is unconstitutional as a direct contradiction of the 14th Amendment, and seeks a court order that explicitly declares that they are U.S. citizens because of their birth in Samoa. It also seeks a court order striking down the federal law labeling them as non-citizen “nationals” and a court order blocking the State Department from issuing passports that do not recognize them as citizens.

The three individuals contend that their inability to claim citizenship seriously interferes with their daily lives, with job opportunities, with their performance of civic duties such as serving on juries, and with their travel.  They also contend that federal policy also makes it more difficult for them to even apply for citizenship.

To decide those legal and constitutional claims, Judge Waddoups must give his understanding of what “in” the United States actually means, and what the nature of the relationship is between the federal government and Samoa. There are some long-ago Supreme Court precedents that provide some guidance, but those do not decide the issue for the judge.

The case in his court has attracted a group of professors who specialize in citizenship law and a separate group of constitutional law scholars, supporting the Utah residents in the lawsuit.

Once the judge has held the November 14 hearing, he will then move to decide whether the case is to go forward to a trial and, if not, which side should win at this point.  The judge has the option of ruling from the bench at the scheduled hearing, but is more likely to take time to write a full-scale opinion because of the importance of the case.

Because the Utah federal court is not in the same federal region as the D.C. Circuit, Judge Waddoups is not required to follow that Circuit Court’s ruling as a precedent against citizenship for those born in Samoa.  

Any ruling by the judge could be appealed to the U.S. Court of Appeals for the Tenth Circuit, which also is not bound by the D.C. Circuit Court decision. The fact that the Supreme Court chose not to review the D.C. Circuit Court did not create a precedent that binds other courts.

Lyle Denniston has been writing about the Supreme Court since 1958.  His work has appeared here since mid-2011.