The circumstances of the birth of Republican presidential candidate Ted Cruz put constitutional citizenship into the headlines. Also in the news: A federal judge in Puerto Rico ruled last week that the U.S. Supreme Court’s gay-marriage decision doesn’t follow the flag to the island. What would happen if you mashed the two issues together, mixing birthright citizenship with the Constitution’s applicability to U.S. territories? The answer to this otherwise random-seeming question is in fact before the Supreme Court right now. At issue is whether it’s constitutional for Congress to deny birthright citizenship to people born in American Samoa, which has been a U.S. territory since 1900. In June, a conservative panel of the U.S. Court of Appeals for the D.C. Circuit upheld the congressional rule, which uniquely applies to American Samoa and no other U.S. territory. Now the Samoan-born plaintiffs are asking the Supreme Court to review the D.C. Circuit’s decision — and asking Congress to change the rules.
American Samoa, a group of five islands and two atolls in the South Pacific, became a U.S. possession in 1899 as the result of a treaty between Germany, the U.K and the U.S. Western Samoa, which went to Germany under the treaty, eventually became the independent country of Samoa in 1962 after many years as a protectorate of the League of Nations and then a United Nations trust territory.
The eastern part, now called American Samoa, has been part of the U.S. ever since, as an unorganized territory. The label “unorganized” means that Congress has never passed a law called an “organic act” that would function as the constitution of the territory. American Samoa has a constitution of its own, enacted in 1960 and redone in 1967. But that constitution begins by relying on the authority of Congress. The UN considers American Samoa a non-self-governing territory.
About 55,000 people live in American Samoa. Unless they become naturalized, they aren’t U.S. citizens. Their passports read, “The bearer is a U.S. national and not a U.S. citizen.”
The lawsuit, which features some plaintiffs who’ve served the U.S. in the military without ever becoming citizens, arises from the 14th Amendment, which says that “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.”