If upheld on appeal, an unprecedented ruling will confuse territorial status law, but won’t delay and could even expedite statehood for Puerto Rico.
Majority in Puerto Rico prefer nothing less than permanent U.S. citizenship
In 1952 a large majority of voters in the unincorporated U.S. territory of Puerto Rico approved the current territorial constitution in a federally sponsored referendum. Its preamble declared birthright U.S. citizenship as “paramount” to the political identity and aspirations of the people in seeking greater local self government.
Ironically, the aspiration to make U.S. citizenship in Puerto Rico permanent under the U.S. Constitution could take a giant step forward due to a recent federal court order in another U.S. territory. That court decision declared U.S. citizenship permanent under the U.S. Constitution in another U.S. territory in the same unincorporated status as Puerto Rico.
U.S. territory of American Samoa test case
American Samoa is a tiny U.S. territorial possession located below the equator in the South Pacific over 1,200 miles from Hawaii. It has a population of 55,000 Americans, living on islands with a total land area of 76 square miles.
On December 12, 2019, a federal judge in Utah ruled that persons born in American Samoa should no longer be classified under federal territorial law as “national but not citizens” of the United States. That is the status residents of Puerto Rico, the Philippines and Guam had until Congress conferred U.S. citizenship in those and other territories, based on petitions for classification as citizens from the people and governments in the territories.
American Samoa never petitioned for U.S. citizenship, seeking greater cultural and political autonomy than federal territorial law and policy allowed in unincorporated territories that were granted birthright U.S. citizenship. However, the judge in the case of Fitisemanu v. United States ruled that it was discriminatory to classify the U.S. nationals in the U.S. territories of Puerto Rico, Guam, U.S. Virgin Islands and the Northern Mariana Islands as citizens, while continuing to classify U.S. nationals in American Samoa as “nationals but not citizens.”
The federal judge in Utah recognized as a matter of constitutional law that the present birthright U.S. citizenship in those other four territories was conferred under federal territorial statutes enacted by Congress in the exercise of its Article IV (Territory Clause) power over territories.
Birthright nationality and citizenship
To better understand the unprecedented ruling in the Utah case, it is important to note that Congress has exercised its power under Article I, Sec. 8 to confer birthright nationality and citizenship for persons who do not acquire it under the citizenship clause in the 14th Amendment by birth in a state of the union.
The categories of persons not born in a state under the 14th Amendment for whom Congress has granted statutory birthright citizenship include children born in a foreign country to a United State citizen parent, as well as children born in the four current unincorporated territories of the United States. That includes Puerto Rico, Guam, U.S. Virgin Islands and the Northern Mariana Islands, but not American Samoa.
Nationality law applied by court
Since the judge could not order Congress to enact a federal territorial law re-classifying American Samoans born in the territory as U.S. citizens, the court’s ruling held that it was unconstitutional to limit conferral of U.S. citizenship under the 14th Amendment to persons born in a state of the union. Instead, the court ordered that the birthright citizenship clause of 14th Amendment applies to American Samoa as an unincorporated territory in the same way it applies in states of the union.
The judge based his ruling on the 1898 case of U.S. v. Wong Kim Ark, which held that a person born in a state to non-citizen parents lawfully present in the U.S. has birthright U.S. national citizenship under the 14th Amendment, as well as citizenship of any state in which they are legal residents.
The Wong case did not apply to U.S. territories governed under federal territorial laws. However, even if it had, at that time all U.S. citizen populated U.S. territories organized and governed under federal territorial law permanently were incorporated into the union under the U.S. Constitution.
That meant from 1868 when the 14th Amendment was adopted until 1898 when the Wong case was decided, the birthright citizenship provision of the 14th Amendment applied in all U.S. territories, along with most other provisions of the U.S. Constitution not applicable only to states (e.g. federal voting rights for Congress under Article I and for President under Article II).
Territorial law not applied
Three years after the Wong case, the members of the U.S Supreme Court – most of whom participated in the Wong ruling – decided in the 1901 case of Downes v. Bidwell that the U.S. could govern non-citizens in some newly acquired territories that included Puerto Rico. In that ruling the Court decided these non-citizen populated territories were not incorporated into the U.S. like the 27 U.S. citizen populated territories admitted to the union as states by 1900.
As a result, in the Downes case the high court ruled that, at least until Congress conferred citizenship or otherwise clarified the status of these new “unincorporated” territories, the U.S. Constitution did not apply directly and of its own force, as it did in the incorporated territories. That meant the birthright citizenship Clause of the 14th Amendment applied only in incorporated territories like Arizona, New Mexico, Hawaii and Alaska, but not Puerto Rico and four other small territories, including American Samoa once it was annexed.
In the 1904 case of Gonzales v. Williams the U.S. Supreme Court ruled that the non-citizens of unincorporated territories are not aliens under federal immigration laws, but were under the sovereignty and national protection of the United States. In the absence of a Congressional act conferring U.S. citizenship, the Gonzales case extended what became “national but not citizen” status.
In 1922 the high court held in Balzac v. Puerto Rico that conferral of U.S. citizenship in 1917 had not incorporated Puerto Rico. That set new precedent that Congress can grant U.S. citizenship in unincorporated territories without applying the Constitution.
In 1957 the Balzac ruling was upheld by the same U.S. Supreme Court in Reid v. Covert (same court members overturned Plessey v. Ferguson in 1954), and Balzac was also upheld in Bush v. Boumediene (2009) and Sanchez Valle (2016).
Yet, in Fitisemanu the federal judge in Utah chose not to apply the Downes or Gonzales case to the unincorporated territory of American Samoa, instead holding Wong applied to unincorporated territories with and without statutory nationality or citizenship.
More questions than answers
The federal judge in Utah recognized his ruling was unprecedented. After all, the Downes and Gonzales were two of the so-called Insular Cases decided after the Wong case. So the court members knew they were carving out an exception from Wong for non-citizen nationals in a territory to which the U.S. Constitution did not apply as it does in the incorporated territories and states.
That is why Congress exercised its power under Article I, Section 8 to confer citizenship on Puerto Rico and three small territories that asked for it. American Samoa has never asked for citizenship, to preserve “national” status and local autonomy. Samoans believe autonomy was lost in greater measure than for American Samoa in other unincorporated territories where citizenship as granted.
However, if the 14th Amendment applies to any unincorporated territories it arguably applies to all five. The current statutory citizenship in four territories arguably would be redundant and superseded by constitutional citizenship if the Utah case is upheld.
The Utah ruling would allow three nationals from American Samoa to get a standard U.S. citizen passport and vote in federal elections in Utah as U.S. citizens. Unlike the present law, American Samoans in Utah no longer will need to pay a fee and to acquire U.S. citizenship rights in a state.
It is not clear what if any impact it will have in American Samoa itself. Regardless of whether Congress grants citizenship or nationality the residents of all five territories are denied voting rights in federal elections for equal representation in national political process. Citizenship does not create a right to vote in any of the four territories, since only citizens in states can vote under Article I and Article II.
However, conferring U.S. citizenship in American Samoa by court edict without self-determination, and over the opposition the American Samoan elected government, is problematical.
Is this “incorporation” into the union?
What other provisions of the U.S. Constitution now apply directly as in incorporated territories? What is the impact on the other four territories?
Those questions no doubt are among reasons the judge in Utah stayed his order so the U.S. government can appeal it.
Puerto Rico watches with curiosity
The people of Puerto Rico have voted for statehood, which includes permanent 14th Amendment birthright citizenship. Whether this ruling is upheld or not, it does not change the current petitions of the Puerto Rico government for statehood based on majority rule.
Until a status plebiscite is conducted under federal sponsorship to confirm the will of the people and their leaders expressed in the 2012 majority vote for admission to the union, Puerto Rico will be curious but not distracted by the ruling of a federal judge in Utah.
Currently, Puerto Rico has birthright citizenship by statute, with the same limited rights as all five territories while residing in the territory itself. Unlike America Samoans, who must pay a fee and apply, U.S. citizens from Puerto Rico, Guam USVI, and NMI automatically are full citizens when residing in a state.
The Fitisemanu ruling does not even change anything in Utah since the judge stayed his order pending appeal. If upheld, the Utah case will just make the permanence of U.S. citizenship even more certain for Puerto Rico. But equal rights of U.S. citizenship can only come with statehood.