Last week a district court in Utah ruled, in Fitisemanu v. United States, that people born in the U.S. territory of American Samoa are U.S. citizens. One might think this conclusion to be obvious, as the Fourteenth Amendment says that all persons born "in the United States" are U.S. citizens. But U.S. statutory law has long provided that American Samoans are "U.S. nationals," not U.S. citizens. The issue was litigated in the D.C. Circuit back in 2015 (I joined an amicus brief of citizenship scholars in support of the claimants), with the court ruling for the government.
In last week's decision, Judge Waddoups disagreed with the D.C. Circuit in a lengthy originalist-oriented opinion that starts with the historical background of citizenship (from Calvin's Case in 1608) and describes contemporaneous statements of the Amendment's framers, which make clear that "in the United States" was understood at the time of adoption to include territories of the United States. Ultimately the court says it is bound by the Supreme Court decision in United States v. Wong Kim Ark – but Wong Kim Ark did not purport to decide the issue of birth in the territories. (The issue there was the citizenship of a person born in California to lawful resident aliens.) So I think the text and history actually play a greater role in the decision than Judge Waddoups admits. And the outcome seems exactly right to me.
I assume the government will appeal, so it will be an interesting case at the Tenth Circuit and (if that court affirms), likely at the Supreme Court.
(Thanks to Jeremy Christiansen for the pointer).
RELATED: Mark Joseph Stern discusses the decision (favorably) in Slate: Federal Judge Rules American Samoans Are U.S. Citizens by Birth. Finally. He comments:
Frustrated by this predicament, three American Samoans living in Utah, along with the Southern Utah Pacific Islander Coalition, filed a lawsuit alleging that the government is violating the 14th Amendment by denying them birthright citizenship. (The plaintiffs are represented by the advocacy group Equally American, which fights for territorial rights.) And on Thursday, Waddoups, a George W. Bush appointee, ruled in their favor. His meticulous 69-page opinion begins with a lengthy exploration of the 14th Amendment’s text and history, both of which suggest that its framers intended it to apply to states and territories. For instance, Sen. Lyman Trumbell, who helped craft the amendment, declared that it “refers to persons everywhere, whether in the States or in the territories or in the District of Columbia.” (Emphasis added.)
I'm not sure Stern is so anxious to credit the text, history and framers' intent when they lead to results he doesn't like, but I agree with him here. And this case is a further example of how originalism does not always point in the same political direction.
Posted at 6:05 AM