Fordham Law Professor Andrew Kent has collaborated with four colleagues from other law schools to file an amicus brief in the case of Tuaua v. the United States of America, pending in the United States Court of Appeals for the District of Columbia.
The original complaint, filed in 2012 by residents of American Samoa, argued that people born there are U.S. citizens under the Citizenship Clause of the Fourteenth Amendment to the U.S. Constitution. The district court ruled against the plaintiffs, and they have now appealed.
The district court relied heavily on the Insular Cases to resolve the claim under the Citizenship Clause. The Insular Cases refer to a series of U.S. Supreme Court cases, from the first several decades of the 20th century, that dealt with territories acquired by the United States following the Spanish-American War, such as Puerto Rico and the Philippines. Professor Kent and the other amici are experts on the constitutional law and legal history of that era.
The amicus brief points out that none of the Insular Cases involved a claim under the Citizenship Clause and that any discussion of citizenship is therefore dicta. Furthermore, amici argued that there are good reasons why the Supreme Court has been in recent decades apprehensive about expansive readings of the Insular Cases. The comments found in the Insular Cases about the citizenship status of territorial inhabitants were often explicitly or implicitly based on then common views about the alleged racial inferiority of residents of the new island possessions. Indeed, the opinion of the Court in the most famous of the Insular Cases was issued just a few years after Plessy v. Ferguson and was written by the same Justice. Amici therefore argue that the Insular Cases should not be considered even persuasive authority on the question whether residents of U.S. territories are entitled to birthright citizenship under the Fourteenth Amendment.
The brief was prepared by Paul R.Q. Wolfson with Dina Mishra and Adam Klein of WilmerHale in Washington, D.C.