Harvard Law Takes on Insular Cases

Conference Also Highlights Landmark D.C. Circuit Case About Citizenship in U.S. Territories

“Reconsidering the Insular Cases” was the theme yesterday at Harvard Law School in a conference addressing the constitutional rights of the over 4 million Americans who live in U.S. territories. The Insular Cases are a series of controversial and deeply divided Supreme Court decisions from the early 1900s that have been compared to Plessy v. Ferguson and criticized as establishing a “separate and unequal” status in U.S. territories. The conference featured presentations by leading academics and commentators and also highlighted We the People Project’s landmark case Tuaua v. United States, which directly addresses many of the flawed assumptions often attributed to the Insular Cases.

Sitting First Circuit Judge Juan Torruella headlined the conference with his keynote address: “The Insular Cases: A Declaration of Their Bankruptcy.” According to Judge Torruella: “the Insular Cases should be soundly rejected because they represent the thinking of a morally bankrupt era in our history that goes against the most basic precept for which this nation stands: the equality before the law of all of its citizens.“ Judge Torruella added, “The Insular Cases represent classic Plessy v. Ferguson legal doctrine . . . that should be totally eradicated from present day constitutional reasoning.” Click here to read Judge Torruella's remarks in their entirety.

“Judge Torreulla is correct that the Insular Cases are cut from the same cloth as Plessy v. Ferguson. Just as the color of your skin shouldn’t affect your rights as an American, neither should where you happen to live in the United States. It is exciting to see this national attention on the second-class treatment of Americans in U.S. territories,” said Neil Weare, President of We the People Project, an organization that works to achieve equal rights and representation for the nearly 5 million Americans living in U.S. territories and the District of Columbia through groundbreaking impact litigation.

The conference is timely as questions regarding the continuing relevance of the Insular Cases have been raised in a landmark case about citizenship in U.S. territories that is currently before the U.S. Court of Appeals for the District of Columbia Circuit. The plaintiffs in Tuaua v. United States argue that the Constitution, not Congress, answers the question of whether people born in U.S. territories are citizens. In doing so, the suit challenges many of the flawed legal assumptions that are often attributed to theInsular Cases.

“The Insular Cases are relics of another era. In any event, they did not decide the issue of citizenship. Citizenship for people born in U.S. territories is a fundamental right provided by the Fourteenth Amendment, not a congressional privilege. So long as the U.S. flag flies over these areas, the Constitution guarantees birthright citizenship,” said Weare, lead counsel in Tuaua v. United States. Weare represents Leneuoti Tuaua, the Samoan Federation, and others born in American Samoa who are labeled by federal law as “nationals, but not citizens,” of the United States.

In June 2013, a D.C. district court judge issued an opinion in Tuaua that “citizenship is not guaranteed to people born in unincorporated territories.” Although the decision acknowledged that “none of the Insular Cases directly addressed the Citizenship Clause,” it relied on an overly broad reading of the Insular Cases’ flawed logic.

The Supreme Court has expressed skepticism of this kind of broad reading of the Insular Cases and questioned their continuing significance in U.S. territories today. In 2008, the Supreme Court inBoumediene v. Bush concludedthat“[t]he Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply.”

The D.C. Circuit recently denied a motion by the federal government to summarily affirm the district court decision in Tuaua. When the D.C. Circuit considers the merits of the case, it will have the opportunity to follow Boumediene’s guidance and embrace the Constitution’s text to protect birthright citizenship in U.S. territories.

Serving as co-counsel in Tuaua v. United States is Arnold & Porter LLP, an international law firm, and Charles V. Ala’ilima, a prominent American Samoan attorney.

Case materials in Tuaua, including the D.C. Circuit’s order and the District Court’s decision below,are available here. More information about the Tuaua plaintiffs is available here.

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