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Court filing deadline looms: Will the Biden administration nix Insular Cases?

By Mar-Vic Cagurangan


The deadline looms for the Solicitor General's Office to file a legal brief stating its position on Insular Cases amid growing calls for the Biden administration to cast off the century-old series of Supreme Court decisions that two justices renounced as "shameful", "ugly" and "rotten."


“President Biden and the Department of Justice have a chance here to be on the right side of history, to stand true to the values they profess – we hope they take it,” said Neil Weare, president and founder of Equally American, a nonprofit that advocates for equal rights in U.S. territories.

John Fitisemanu

Equally American represents the plaintiffs in Fitisemanu v. United States, a case led by John Fitisemanu and two others who are challenging the constitutionality of the federal law that designates persons born in American Samoa as “non-citizen U.S. nationals.”


“The Insular Cases should not be relied on as the basis for denying birthright citizenship in U.S. territories, or any other right," Weare said.


The Supreme Court has given the solicitor general until Aug. 29 to respond to the plaintiffs' petition, which addresses the question of whether Congress can deny birthright citizenship in U.S. territories and “whether the Insular Cases should be overruled.”

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In a joint statement published today on The Hill, national civil rights groups urged the Biden administration, "in the name of liberty, democracy and racial equity, to finally condemn the Insular Cases."


"Constitutional rights must be guaranteed to all persons in the United States regardless of race and geography," reads the statement issued by Anthony Romero, executive director of the American Civil Rights Union; Lourdes Rosado, president of Latino Justice; and Janai Nelson, president of the

NAACP Legal Defense and Educational Fund.


"Each territory should have the ability to self-govern if they so choose, but as long as they remain subject to our governance, a resident of Guam, the U.S. Virgin Islands or the Northern Mariana Islands should have the same rights as someone living in Wyoming, Texas or New Jersey," reads the statement.


"The notion that territories could be 'foreign in a domestic sense' was cribbed from European colonialists to serve American interests without regard for the islands’ residents," the civil rights groups' leaders said.


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Fitisemanu and the two other plaintiffs, Pale Tuli and Rosavita Tuli, who were all born in American Samoa, are currently residing in Utah where they have been denied the right to vote because they are not considered U.S. citizens.


"Every day, upwards of 3.5 million Americans are living as second-class citizens. Their representatives can’t vote in Congress. They themselves are unable to vote in presidential general elections, even though many are veterans or active U.S. military members. Some don’t even have the right to a trial by a jury of their peers," Sherry Levin Wallach, president of the New York State Bar Association, wrote in a blog published on Aug. 3 on Bloomberg Law.


"These individuals are guilty of nothing other than living in one of five U.S. territoriesPuerto Rico, Guam, American Samoa, the U.S. Virgin Islands, and the Northern Mariana Islandswhich are considered less than equal under the U.S. Constitution," Wallach wrote.


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The Fitisemanu petition was filed a week after the U.S. Supreme Court released its decision on United States v. Vaello Madero, which held that Congress can exclude residents of Puerto Rico and other U.S. territories from some federal programs, such as the Supplemental Security Income, that are available to those who live in the 50 states.


While giving a concurring vote, Associate Justice Neil Gorsuch expressed his discomfort with the courts' persistent reliance on the Insular Cases, which he said "rest on a rotten foundation" and are filled with fundamental flaws that "are shameful."


Associate Justice Sonia Sotomayor was the sole dissenter. "Equal treatment of citizens should not be left to the vagaries of the political process," she wrote in a dissenting opinion.


"In the coming days, the U.S. Solicitor General’s Office will have to answer a question it has to date tried hard to avoid," Weare said.


Also on Fitesemanu's legal team alongside Equally American are attorneys at Gibson, Dunn & Crutcher LLP and American Samoan Attorney Charles V. Ala’ilima.


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