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Citizenship Laws Gorsuch Called ‘Racist’ Rejected for Review (1)

Oct. 17, 2022, 1:33 PMUpdated: Oct. 17, 2022, 2:10 PM

The Supreme Court refused to take a case that could undo a series of early 20th century rulings that shortchange residents of Puerto Rico and four other territories of their full constitutional rights.

The birthright citizenship appeal the justices declined to hear on Monday, Fitisemanu v. United States, concerns the so-called Insular Cases, and whether the series of decisions still hold legal weight, or remains good law.

The Insular Cases, the catch-all derived from the federal agency that oversaw territories not headed for statehood, the Bureau of Insular Affairs, have been widely criticized for leaving millions with only partial constitutional protections.

Justice Neil Gorsuch called the court’s precedents “rotten” and based on “ugly racist stereotypes.”

The court didn’t explain its decision to not review the case and no justice noted a dissent.

Civil rights groups urged the Biden administration to join them in calling for the Insular Cases to be overturned, but in asking the court to not take Fitisemanu, the Justice Department said the lower court decision being appealed could be affirmed without relying on that caselaw.

Utah resident John Fitisemanu was born in American Samoa and holds an American passport that notes he’s a non-citizen US national. He argues that individuals born in the unincoporated territory are entitled to “birthright citizenship,” which is automatic for those born on US soil. The US Court of Appeals for the Tenth Circuit, however, said it was for Congress to bestow that privilege.

The appellate ruling was inevitable as long as the Insular Cases remain good law, the Fitisemanu plaintiffs said.

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

(Updated to note there was no noted dissent in paragraph four.)

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com