Twenty-three Democratic members of Congress sent a letter to President Joe Biden and Vice President Kamala Harris on Tuesday calling on them to support a legal bid to overturn a series of 100-year-old racist court precedents that still help to deny 3.6 million Americans equal rights and protections.
The letter, led by Arizona Rep. Raul Grijalva and US Virgin Islands Del. Stacey Plaskett, urges Biden and Attorney General Merrick Garland to “call on the Supreme Court to grant review” of Fitisemanu v. US, a case brought by three American Samoans and an American Samoan nonprofit challenging court precedents known as the Insular Cases.
“[T]he Insular Cases represent a shameful legacy that simply cannot be squared with the core values of racial justice and equity that we share with your administration,” the lawmakers wrote.
These precedents, decided between 1898 and 1922, created the category of “unincorporated territory” to enable US colonial expansion from Puerto Rico to the Philippines while denying the rights and privileges of citizenship to their residents solely because of their race. The court decisions called the residents of these territories “savage tribes” and “alien” and “uncivilized race”[s]”who were “absolutely unfit to receive” the rights granted to American citizens.
The residents of Puerto Rico, Guam, the Northern Marianas Islands, US Virgin Islands and American Samoa all still lack equal rights and privileges to US citizens under these court precedents. And the deprivation of rights for American Samoans is even more acute, as they are categorized as “American nationals,” and therefore cannot be eligible for citizenship rights if they move to the US mainland as other territorial residents can.
John Fitisemanu and the other plaintiffs, Pale Tuli and Rosavita Tuli, who are all currently residents of Utah, argue that the 14th Amendment’s Citizenship Clause, which grants birthright citizenship to persons “born or naturalized in the United States, and subject to the jurisdiction thereof ,” covers anyone born in the US-controlled territories.
The lawyer for Fitisemanu and the Tulis also sent a letter to Solicitor General Elizabeth Prelogar on Tuesday calling on her to “join petitioners in asking the Supreme Court to finally and formally overturn the Insular Cases.”
Despite Biden’s pledge to root out systemic racism and white supremacy, the lawyer’s letter notes that the Biden Justice Department has “relied on and vigorously defended the Insular Cases to sustain the conclusion that petitioners are not entitled to birthright citizenship under the Citizenship Clause.”
The Justice Department declined to comment. The White House did not immediately respond to a request for comment.
Civil rights groups backing the Fitisemanu case previously called on Garland and Prelogar to stop relying on the Insular Cases in their court arguments.
Both letters from Fitisemanu’s lawyer and the Democratic lawmakers call on Biden, Garland and Prelogar to publicly renounce and apologize for the reliance of the Insular Cases as the Obama administration did with regards to the 1944 decision in Korematsu v. US that approved of the Japanese removal and internment.
“I was proud of what we did in the Korematsu cases when I was acting Solicitor General, and I hope that the Justice Department today uses legal judgment, uses its conscience and does the right thing,” Neal Katyal, former Obama administration acting solicitor general , said at a press conference announcing the letters that were sent to Biden, Garland and Prelogar.
Katyal was joined by the civil rights groups pushing to overturn the Insular Cases and Fitisemanu and other US territorial residents, who continue to be denied equal rights and privileges based on where they live or were born.
David Diamadi, a resident of Guam, spoke about how his daughter Haley Nicole Diamadi, who has Down’s Syndrome, will not be able to access Social Security Supplemental Income benefits when she turns 18 years old solely because of where she lives.
“This presents my wife and I with a terrible choice, either we move Haley away from the only place she’s ever really known — a community of family and friends who love and support her here as well as supporting my wife and I — or deny her the access to the financial benefits that would ensure her long-term care,” Diamadi said.
“This ongoing discrimination against residents of US territories is the legacy of the Insular Cases and the doctrine of separate and unequal that they created,” Diamadi added.
The push to get the Supreme Court to overturn the Insular Cases comes after Justices Neil Gorsuch and Sonia Sotomayor both called for the court to take up a case to do just that in their separate opinions in the case of Vaello-Madero v. US, which resulted in the continued denial of Social Security Supplemental Income benefits to residents of Puerto Rico.
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,” Gorsuch wrote in a concurring opinion. “They deserve no place in our law.”
Gorsuch pointed to the 10th Circuit Court of Appeals decision in the Fitisemanu case, which explicitly relied on the Insular Cases to continue to deny American Samoans equal rights as Americans, as a reason for the court to overrule the Insular Cases. He called the 10th Circuit’s decision one of the “recent attempts” by lower courts “to repurpose the Insular Cases [by] mere sickle[ing] the worst of their logic in new garb.”
Sotomayor noted her agreement with Gorsuch’s call to overturn the Insular Cases in her dissenting opinion in Vaello-Madero while noting that the 100-year-old precedents were “both odious and wrong.”
The Justice Department has until July 29 to file a response to the Supreme Court to state whether they support or oppose the court hearing the Fitisemanu case.