San Francisco Chronicle - (Sunday)
Citizenship cases ‘archaic,’ but U.S. rejects 1 change
Early in the 20th century, the Supreme Court issued a series of rulings known as the Insular Cases, saying residents of U.S. territories had no rights under the U.S. Constitution — as the court explained it in 1901, Puerto Rico, one of the territories, was “inhabited by alien races.”
The Insular Cases remain on the law books today, but the court is facing increasing pressure to overrule them. In April, when the court upheld the government’s denial of some Social Security benefits to Puerto Ricans — who were granted U.S. citizenship, but not all the rights of U.S. residents, by Congress in 1917 — conservative Justice Neil Gorsuch wrote that the cases “have no foundation in the Constitution and rest instead on racial stereotypes.”
As the justices ponder whether to take up a lawsuit by natives of American Samoa challenging the denial of their voting rights under the Insular Cases, the Biden administration is asking the court to reject the appeal and leave the cases intact.
The government’s argument “in no way relies on the indefensible and discredited aspects of the insular cases’ reasoning and rhetoric,” Justice Department lawyers said in their court filing.
Instead, they said the Constitution’s provision that people born “in the United States” are U.S. citizens means that people born elsewhere are entitled only to the rights Congress grants them. And in this case, they noted, the government of American
Samoa, a group of islands in the South Pacific, opposes granting full U.S. constitutional rights to its 50,000 residents, in part because the islands’ current land-owning laws limit outside ownership and favor native inhabitants.
The filing did not explicitly endorse the Insular Cases but said the American Samoa case was not the right forum to reconsider them. That position has angered some civil rights groups.
“It is shocking that the Biden-Harris administration and the (Justice Department) continue to breathe life into the Insular Cases, which were grounded in a vision of white supremacy that has no place in our society,” said Neil Weare, president of Equally American, a nonprofit that represents the plaintiffs in the case before the court.
“The archaic and offensive Insular Cases ... have been used to prop up the colonial status quo in U.S. territories,” said Lourdes Rosado, president of LatinoJustice, which filed a brief asking the court to take up the case and discard its former rulings. In the term that begins next month, the justices will decide whether to hear the case or leave intact a lower-court ruling against the Samoans.
The plaintiffs, who live in Utah, are not allowed to vote in U.S. elections because they were born in American Samoa, whose inhabitants are classified as “U.S. nationals,” rather than American citizens.
Utah has a substantial population of American Samoans, over 9,000 by one recent estimate, many of them affiliated with the Mormon Church, and their classification as
A poll worker in Carolina, Puerto Rico, turns away voters in 2020 because the voting center lacked ballots, frustrating those who who braved a spike in COVID-19 cases to show up.
non-citizens bars them from some government jobs as well as the ballot. The Biden administration has recommended federal legislation that would speed up the process of allowing them to become naturalized U.S. citizens.
Residents of other territories — Puerto Rico, Guam, the Northern Marianas and the U.S. Virgin Islands — have been granted citizenship by Congress but not all the legal rights of U.S. residents. Marianas residents, for example, have lower minimum wages, and their business transactions with the U.S. are regulated differently.
All five territories, like Washington, D.C., elect delegates to the U.S. House of Representatives, but the delegates cannot vote. And, unlike D.C. residents, those who live in the territories have no right to vote in U.S. presidential elections.
Five years ago, when Puerto Rico’s 3.4 million residents were reeling from Hurricane Maria, President Donald Trump visited the island, boasted about the then-low
death toll — which later reached nearly 3,000 — and tossed rolls of paper towels into a crowd at a church yard. Gabriela Meléndez of the American Civil Liberties Union commented afterward that Trump’s “underwhelming response” reflected the historical reality that “second-class citizens get second-class aid.”
President Biden showed more urgency this week, ordering emergency aid for Puerto Rico as Hurricane Fiona battered the Caribbean.
The absence of constitutional rights for the territories was even more glaring in the Insular Cases. A 1903 ruling denied the Fifth Amendment right against self-incrimination to a resident of Hawaii, then a U.S. territory, who was charged with murder. A 1922 decision denied a jury trial to a Puerto Rican journalist who was charged with criminal libel — Congress, the court explained, had determined that Puerto Ricans were not “citizens trained to the responsibilities of jurors.”
It’s not a simple question, in either law or policy, said
Bartholomew Sparrow, a professor of government studies at the University of Texas at Austin who has studied the issue.
If the court overrules the Insular Cases and grants full constitutional rights to residents of the territories, “I don’t see how they can be denied full representation in the House and Senate,” Sparrow said. “I agree that it’s wrong that they don’t have equal representation.”
On the other hand, he said, it’s not clear that leaders of American Samoa, or most of their constituents, “want the Anglo-Saxon rule of law to apply to a South Pacific island nation.”
In accord with the Biden administration’s argument, Sparrow said, “I think this is a political question that should best be handled by Congress and the executive.”
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