A lawsuit asking the U.S. Supreme Court to decide if Congress can turn off the Constitution’s guarantee of birthright citizenship in the insular territories recently got some high-powered help from former U.S. Solicitor General Ted Olson, according to Delegate Stacey Plaskett and activist/attorney Neil Weare.
Weare is president of We the People, a nonprofit that advocates for equal rights and representation in U.S. territories.
Olson argued more than a dozen cases before the Supreme Court before he represented then-candidate George W. Bush in Bush v. Gore, persuading the court to stop recounting votes in Florida in 2008 and instate Bush as president.
Olson was U.S. solicitor general under Bush from 2001 to 2004. Later he successfully litigated for same-sex marriage in California in a case that paved the way for the case that led the Supreme Court to overturn all state and federal bans on same-sex marriage in early 2015.Few attorneys have more authority or clout.
Olson has agreed to join the insular territories’ appeal of a circuit court decision that found residents of the insular territories do not have birthright citizenship.
On June 5, a three-judge federal appellate court for the Washington, D.C., circuit ruled in Tuaua v. United States that people born in the U.S. territory of American Samoa have no claim to U.S. birthright citizenship under the Citizenship Clause of the 14th Amendment to the U.S. Constitution.
Federal statutes currently classify American Samoans as “noncitizen nationals” of the United States, in contrast to the USVI, where residents are U.S. citizens by statute, but not necessarily by birthright.
Leneuoti Tuaua, the lead plaintiff in the case, was denied the opportunity to pursue a career in law enforcement in California, where citizenship is a job requirement.
The territories petitioned to have the full circuit hear the case but were turned down in October.
On Dec. 14, Olson filed a motion to the Supreme Court on behalf of the Tuaua petitioners requesting a 30-day extension to file a petition for certiorari seeking Supreme Court review of the United States Court of Appeals for the District of Columbia Circuit’s June decision holding that birthright citizenship is not a “fundamental right” in U.S. territories.
“The text and history of the Citizenship Clause definitively show that the Constitution’s guarantee of birthright citizenship applies in states and territories alike,”Olson said in a statement from Weare.
This is not Olson’s first foray into the question of birthright citizenship. In 2008, Olson wrote a letter with Harvard professor Laurence Tribe defending the eligibility of John McCain to run for president as a “natural-born citizen” based on his birth in a U.S. possession, among other reasons.
“We hope that the Supreme Court will take the case to once again make clear that Congress has no power to turn off or redefine the Constitution’s guarantee of birthright citizenship," Olson said in a statement.
The panel’s opinion, authored by Judge Janice Rogers Brown and joined by senior Judges Laurence H. Silberman and David Sentelle, adopted what Weare describes as a narrow view of constitutional rights that he said was first expressed by Supreme Court Justice Henry Brown in one of the insular cases, a series of much-criticized decisions from the early 1900s concerning American overseas territories.
It held that the meaning of the Citizenship Clause was “ambiguous” as to whether its guarantee of birthright citizenship applied in overseas U.S. territories. The panel’s opinion also broadly expanded the reach of the insular cases, a series of controversial decisions that have been criticized by First Circuit Judge Juan Torruella as creating a doctrine of “separate and unequal” status for residents of U.S. territories, according to Weare.
"In doing so, it held that rights recognized as “fundamental” in other parts of the United States need not be recognized as “fundamental” in so-called “unincorporated” U.S. territories, a controversial and unprecedented classification created by the Supreme Court at the turn of the 20th century to apply to newly acquired overseas territories, Weare said in a statement.
“Fundamental constitutional rights should mean the same thing throughout the United States, whether one lives in a state, territory or the District of Columbia,” Weare said.
Plaskett and other territorial delegates have supported the tenets and the issues of the plaintiffs in the case.
Plaskett said in a phone call Monday she worked with Olson when she worked in the U.S. Department of Justice under Attorney General John Ashcroft and introduced Weare to him, leading to Olson’s involvement.
"With precedential issues regarding birthright citizenship, I raised the idea it might be interesting to him and arranged a meeting, and he agreed to take it on pro bono, so we are really excited," she said.
"The case raises some really bright-line issues," she said. The Circuit Court’s decision "made some stark pronouncements related to the insular cases … which we believe makes the case really ripe for the Supreme Court to take up," she said. The circuit court’s discussion of Congress deciding who and when people can be citizens was intriguing to Olson, she said.
"Given the success Ted Olsen has had arguing cases with important civil rights implications before the Supreme Court, I thought he was the best chance we had in not only raising national awareness to this issue, but also in successfully reversing a century-old doctrine used to justify the benign neglect of the U.S. territories by the federal government," Plaskett said Monday.
"Today the insular cases continue to hinder the full enjoyment of America’s democratic and constitutional principles by the residents of the U.S. territories. I am thankful Ted accepted my request to join my office and the team at ‘We the People Project’ in filing an amicus brief to the Supreme Court,” Plaskett said.
She and other territorial delegates and governors will also be filing amicus briefs in the near future, Plaskett added.