Bloomberg Law
July 12, 2022, 5:12 PM

Biden Urged to Help Fight Cases Treating Territories as Inferior

Kimberly Strawbridge Robinson
Kimberly Strawbridge Robinson

Civil rights and Latino groups are calling on the Biden administration to push the Supreme Court to overturn a series of oft-criticized cases they say make Puerto Ricans and others from US territories second-class citizens.

Dating to 1901, the so-called Insular Cases say the Constitution doesn’t apply in full force to “unincorporated territories” like American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the US Virgin Islands.

Critics say the time has come to overrule the rulings—and they want the administration to help.

“This year marks a century since the last of the Insular Cases was decided,” said Neil Weare, president and founder of Equally American and co-counsel in Fitisemanu v. United States, a petition seeking to overturn them.

“But unfortunately their legacy remains as real today in the lives of the 3.6 million residents of US territories as it ever has,” Weare said at a news conference on Tuesday with civil rights groups.

Birthright Citizenship

The Justice Department is the respondent in Fitisemanu, which asks whether those born in territories should automatically gain US citizenship under what’s known as birthright citizenship in the Civil Rights Amendments. A response from the Justice Department is due July 29.

John Fitisemanu was born in American Samoa and holds a US passport that notes he’s a non-citizen U.S. national.

“Some people assume I’m a foreigner,” Fitisemanu said. Others “even question if I’m telling the truth since it is so absurd to be a passport holding American, but somehow not a US citizen.”

In concluding that Fitisemanu was not entitled to birthright citizenship, the Denver-based US Court of Appeals for the Tenth Circuit relied on the Insular Cases in finding that the Citizenship Clause of the Fourteenth Amendment doesn’t automatically apply within the territories. It’s up to Congress to confer citizenship, the Tenth Circuit said—which it has for some territories but not American Samoa.

“Congress plays the preeminent role in the determination of citizenship in unincorporated territorial lands,” the court said.

Stark Choice

Civil rights groups are urging the Biden administration to join in calls for the court to take up Fitisemanu’s appeal, and to overturn the Insular Cases.

“The Insular Cases are grounded in the same discredited notions of white supremacy as were present in the infamous case of Plessy v. Ferguson,” said Lourdes M. Rosado, the president and general counsel of LatinoJustice and amicus in the Fitisemanu case.

Plessy “was overturned decades later in Brown v. Board of Education,” Rosado said. “Unlike Plessy though, these odious cases are still on the books,” she said.

David Cole, the National Legal Director of the ACLU, noted that the Supreme Court last term overturned its landmark abortion ruling, Roe v. Wade, saying it was “egregiously wrong.”

He urged the same here, saying that “if there is any paradigmatic example of what it means to be egregiously wrong, it is the Insular Cases,” Cole said. The ACLU also filed a amicus brief in support of Fitisemanu.

Weare said the Justice Department “is still more of the problem than the solution” by either relying on the cases or dissuading the Supreme Court from overruling them. “The Biden-Harris administration has an opportunity to change that when they file their response to our petition on July 29,” Weare said. “They face a stark choice: either join in the calls to overrule the Insular Cases or oppose them.”

‘Rotten Foundation’

Last year, more than 60 groups condemned the administration’s defense of a law that left out Puerto Rico and other US territories from supplemental Social Security benefits program. Critics said the administration’s defense was contrary to promises made by Joe Biden when running for president in 2020.

Ultimately, the Supreme Court in United States v. Vaello-Madero upheld the law but declined to rely on the Insular Cases. Writing separately, Justice Neil Gorsuch called for cases that would give the court the opportunity to tackle the precedents head on. T

The “time has come to recognize that the Insular Cases rest on a rotten foundation,” Gorsuch wrote.

October is the earliest the Supreme Court could decide to take up Fitisemanu.

The case is Fitisemanu v. United States, U.S., No. 21-1394.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at

To contact the editors responsible for this story: Seth Stern at; John Crawley at

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