Biden Administration Asks Supreme Court Not to Take Up ‘Insular’ Citizenship Cases

The Supreme Court is seen on Capitol Hill in Washington on July 14, 2022. J. Scott Applewhite/AP Photo

The Biden administration has asked the U.S. Supreme Court to pass over the opportunity to overrule a series of century-old rulings called “Insular Cases.”

Insular Cases deny residents of U.S. territories full constitutional rights by stating that the Constitution applies in full to incorporated territories and only in part to unincorporated territories. In a brief filed on Monday (pdf) in response to the Fitisemanu v. United States case, U.S. Solicitor General Elizabeth Prelogar argued that the lawsuit would make a poor vehicle to reexamine Insular Cases.

The case, filed by John Fitisemanu, Pale Tuli, and Rosavita Tuli, challenges the denial of citizenship rights to residents of U.S. territories. The three individuals have been refused American citizenship as they were born in American Samoa, an unincorporated territory of the United States.

In the brief, Prelogar argued that the “ordinary tools of constitutional interpretation—including text, context, historical practice, and precedent—establish that the term ‘the United States’, as used in that provision, does not include American Samoa.”

“The multi-step framework from the Insular Cases is therefore beside the point. As a result, this case would be an unsuitable vehicle for reexamining those cases—cases which, petitioners emphasize, did not apply the Citizenship Clause.”

The administration is arguing that the court must not take up the case as the Legislature of American Samoa is not in favor of U.S. citizenship for its people. The American Samoan Legislature has passed a unanimous resolution stating that they oppose imposing American citizenship on them without consent.

In the government brief, Prelogar says that any court decision to accept the petitioner’s invitation to hold that the Citizenship Clause applies U.S. citizenship to all people born in American Samoa would “eliminate the opportunity for the American Samoan people to consider the issue democratically.”

Criticizing Insular Cases

Supreme Court Justices at both ends of the ideological spectrum have criticized the rulings of the Insular Cases, signaling that there might be widespread support to overrule them.

“A century ago in the Insular Cases, this Court held that the federal government could rule Puerto Rico and other Territories largely without regard to the Constitution,” Neil Gorsuch, a Trump appointee, wrote in a concurring opinion on Nov. 9, 2021 (pdf).

“It is past time to acknowledge the gravity of this error and admit what we know to be true: The Insular Cases have no foundation in the Constitution and rest instead on racial stereotypes. They deserve no place in our law,” the opinion said. Justice Sonia Sotomayer, who leans left, has also criticized Insular Cases.

The government’s stance has come under criticism from several human rights organizations. In a statement, David Cole, national legal director of the American Civil Liberties Union called the U.S. solicitor general’s decision to oppose overruling Insular Cases something that “simply cannot be squared with the values that underlie our Constitution, or for that matter, those professed by the Biden-Harris Administration.”

The court is presently in summer recess. It is expected to return to the bench on Oct. 3.