By Neil Weare and Sam Erman

Tomorrow, the Trump Administration will appear in federal court to defend restrictions on birthright citizenship that have no basis in the Constitution and stem from the unilateral actions of the executive branch. No, we’re not talking about President Trump’s plans to issue an executive order denying birthright citizenship to the children of unauthorized immigrants born on U.S. soil. We’re talking about Fitisemanu v. United States and the unconstitutional denial of birthright citizenship to Americans born in U.S. territories, a practice begun in 1898 that – many may be surprised to learn – continues within U.S. borders to this day.

Constitutional objections to President Trump’s plans has properly been swift and bi-partisan. Speaker Paul Ryan chastened that “you cannot end birthright citizenship with an executive order.” Prominent conservative attorney George Conway, husband to Trump advisor Kelly-Ann Conway, and Neal Katyal, who served as acting Solicitor General under President Obama, declared that Trump’s plans would be “dead on arrival” for judges who are cut from the mold of Justice Scalia, “who preached adherence to the text of the Constitution … in light of their original meaning.” That’s because the original understanding of the Citizenship Clause – not to mention an unbroken line of Supreme Court precedent – clearly supports recognizing all who are born on American soil as citizens. The only narrow exceptions are for the children of foreign diplomats, enemy soldiers, or Indian tribes not subject to U.S. law.

But before we get too comfortable that Trump’s plan is “indefensible as constitutional law,” as legal scholar Steve Vladeck lays out, America’s unsavory history of denying birthright citizenship to those born in overseas U.S. territories offers a cautionary tale.

To this day the federal government labels as “non-citizens” people born in American Samoa, a U.S. territory since 1900. Moreover, it holds that the citizenship of millions of Americans born in Puerto Rico and other territories is based on statute, not constitutional right, so could in theory be rolled back by Congress. Legal scholars from across the ideological spectrum have rejected the denial of birthright citizenship in U.S. territories as an “unconstitutional exception … invented by administrators and legislators operating under racialist presuppositions during America’s territorial expansion at the turn of the twentieth century.” But despite the Constitution’s clear command, this “unconstitutional exception” invented by the executive branch has persisted for well over a century.

Unconstitutional Carve Out to Birthright Citizenship in Territories the Result of Unilateral Executive Action

In 1898, following the Spanish-American War, the United States obtained Puerto Rico, Guam, and the Philippines as spoils of war. Americans were split down the middle on whether the United States should acquire overseas colonies to join the club of imperial powers. However, there was wide agreement, based on the prevailing racial attitudes of the time, that most native inhabitants of these recently acquired lands were entirely unfit to be recognized as American citizens.

This presented a problem for President McKinley and other “imperialists.” If imperialists were to win the day, they would have to find a way to expand American territory without expanding American citizenship.

At the time, President McKinley’s view that it was possible to extend American sovereignty without extending citizenship – much like President Trump’s understanding of birthright citizenship today – was clearly contrary to the well-settled understandings of the Citizenship Clause.

Less than nine months before the United States signed the 1898 Treaty of Paris with Spain to gain sovereignty over Puerto Rico, Guam, and the Philippines, the Supreme Court declared in United States v. Wong Kim Ark that the Citizenship Clause codified the “ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country.” 169 U.S. 649, 693 (1898) (emphasis added).  This was on top of Supreme Court’s direct statement following the ratification of the Fourteenth Amendment that the Citizenship Clause “put[] at rest” the proposition that “[t]hose who had been born and resided always in the District of Columbia or in the Territories, though within the United States, were not citizens.” Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 72-73 (1873) (emphasis added).

Whether birthright citizenship extends to U.S. territories was also specifically addressed during the congressional debate over the Citizenship Clause. Senator Lyman Trumbull, then-Chairman of the Senate Judiciary Committee, confirmed that while “[t]he second section [of the Fourteenth Amendment] refers to no persons except those in the States of the union . . . the first section refers to persons everywhere, whether in the States or in the Territories or in the District of Columbia.” Cong. Globe, 39^th Cong., 1st Sess. 2894 (1866) (statement of Sen. Trumbull) (emphases added). This makes complete sense. Territories constituted nearly half the land area of the United States in 1868, so their inclusion within the United States was highly salient. Plus, the Citizenship Clause aimed to overturn the infamous Dred Scott decision of 1857, which had denied that African Americans could be U.S. citizens.  That made the territorial issue particularly hard to ignore, given that one of the litigants in the case was arguably born in a territory.

But just as President Trump has not been swayed by the overwhelming consensus that exists today on birthright citizenship, President McKinley’s administration was undeterred by any of this. His administration simply proceeded on the flawed premise that the extension of U.S. sovereignty did not mean anything for citizenship in the resultant territories.

Like President Trump today, President McKinley assumed the Supreme Court would resolve any disputes that might arise over new limits placed on birthright citizenship. The Supreme Court would soon get its chance. But its response should leave us feeling queasy.

Supreme Court Dodges Question of Citizenship in U.S. Territories

In the 1900 presidential election, President McKinley and the imperialists faced off again against William Jennings Bryan and the anti-imperialists. McKinley and his running mate Theodore Roosevelt prevailed, giving momentum to America’s push to expand overseas. As avowed an imperialist as McKinley, Roosevelt remained committed to the cause after becoming president as a result of McKinley’s assassination.

Almost immediately, questions over whether the Constitution “follows the flag” to overseas territories reached the Supreme Court. Citizenship was at the center of everyone’s minds. But the first big case, Downes v. Bidwell, concerned duties on oranges shipped from Puerto Rico to New York and whether Puerto Rico was part of “the United States” for purposes of the Constitution’s Uniformity Clause.

In a deeply controversial, deeply divided decision that constituted a clear break from prior precedent, a bare majority of five Justices (writing three separate opinions) ruled that the Uniformity Clause did not apply to Puerto Rico. While the Downes case had nothing to do with citizenship on its face, several Justices in the majority didn’t miss the opportunity to weigh in. Justice Henry Billings Brown – the author of Plessy v. Ferguson – relied on racial stereotypes to reject the idea that territorial inhabitants’ “children thereafter born, whether savages or civilized,” would be “citizens of the United States . . . and entitled to all the rights, privileges and immunities of citizens.” Justice Edward Douglas White expressed concern that America’s right to acquire territory “could not be practically exercised if the result would be to endow the inhabitants with citizenship of the United States” because it would lead to “the immediate bestowal of citizenship on those absolutely unfit to receive it.”

Dissenting in Downes, Justice John Marshall Harlan – famous for his lone dissent in Plessy – wrote powerfully that “[t]he idea that this country may acquire territories anywhere upon the earth … and hold them as mere colonies or provinces – the people inhabiting them to enjoy only such rights as Congress chooses to accord to them – is wholly inconsistent with the spirit and genius, as well as with the words, of the Constitution.”

Reacting to the Court’s result in Downes and other decisions that would become known as the Insular Cases, one political humorist famously quipped, “no matter whether the constitution follows the flag or not, the Supreme Court follows the election returns.” When one of the Justices who was part of the majority in Downes resigned in 1902, President Roosevelt sought assurances that nominating Oliver Wendell Holmes would not disrupt the five vote majority in the Insular Cases. When another resigned in 1903, Roosevelt replaced him with Justice William Day, an avowed imperialist who had negotiated the treaty to acquire Puerto Rico, Guam, and the Philippines. It was apparent as much then as it is today that elections have consequences, and that Presidents pick Supreme Court Justice they think will back them up on hot button legal issues. Roosevelt’s picks paid off.

In 1904, a case providing an opportunity to resolve the question of citizenship reached the Supreme Court in the form of Gonzales v. Williams. Officials at Ellis Island had prevented Isabel Gonzales, who was born in Puerto Rico, from entering New York based on immigrations laws that excluded certain “aliens” who were considered undesirable. The government argued that the Court should keep Gonzales out by ruling she was not a citizen, while Gonzales and Puerto Rico’s non-voting representative in Washington argued she could not be excluded because she was a citizen. The Supreme Court blinked, expressly avoiding the question of citizenship. Instead it unanimously reached a narrow ruling that Gonzales was not an “alien” while saying nothing about her citizenship status.

President Roosevelt and successive administrations took this as a wink and a nod that they did not have to recognize people born in overseas territories as citizens. In short order it became settled federal policy that, absent congressional action recognizing citizenship, people born in overseas U.S. territories were “non-citizen U.S. nationals.” As such, they would owe permanent allegiance to the United States, but be constitutionally guaranteed none of the rights that citizenship would bring.

Congress Provides Statutory Carveout Restricting Birthright Citizenship

The label non-citizen U.S. national – unprecedented in American history and clearly contrary to the Fourteenth Amendment – existed solely as a matter of executive policy until 1940. Only when Congress passed the Naturalization of 1940 did it finally become codified into federal law. By then, Congress had recognized by statute that people born in Puerto Rico and the U.S. Virgin Islands had a right to citizenship, later recognizing citizenship in Guam and the Northern Mariana Islands as well. Today, only people born in American Samoa are labeled as “non-citizen U.S. nationals,” required to go through the same costly and burdensome naturalization process as foreign nationals to enjoy the same rights at their fellow Americans.

These congressional actions reinforced the assumption first embraced by the McKinley Administration that, absent congressional action, people born in U.S. territories have no right to citizenship. While this assumption has no basis in the Constitution and runs contrary to the settled understanding of citizenship that had existed from the nation’s founding until 1898, today this “unconstitutional exception” to birthright citizenship is what governs the status of millions of Americans born in U.S. territories.

Federal Courts Have Not Yet Overturned the Denial of Birthright Citizenship U.S. Territories

Whether the executive branch or Congress can unilaterally redefine the meaning of the Citizenship Clause is currently being litigated in federal court by American Samoans living in Utah who are labeled as “non-citizen U.S. nationals.” Their status allows them to live and work anywhere in the United States, but they cannot vote in federal, state, or local elections, are ineligible for many desirable federal and state jobs, and are impacted in myriad other ways. (The question of citizenship has created some divisions in U.S. territories, with American Samoa’s non-voting Congresswoman and others arguing it is a question for Congress to decide while elected officials and retired judges from other territories along with the stateside-based Samoan Federation of America arguing it is a constitutional right.)

The legal challenge in Utah comes after the Supreme Court declined to review an appeal in an earlier lawsuit, Tuaua v. United States. In Tuaua, it was the Obama Administration, not the Trump Administration, defending the “unconstitutional exception” to birthright citizenship in U.S. territories. In ruling against the plaintiffs, D.C. Circuit Judges Janice Rogers Brown, Laurence Silberman, David Sentelle – all prominent “Originalists” – expressed deep skepticism towards the overwhelming evidence of original meaning and unbroken Supreme Court precedent interpreting the Citizenship Clause. Instead, they favored of an unprecedented expansion of the Insular Cases doctrine, expressly adopting Justice Brown’s view in Downes, which failed to receive support from even a single other Justice at the time.

So those who assume that a more progressive administration or judges who purport to adhere to original meaning will protect the Constitution’s guarantee of birthright citizenship may want to think twice.

Ultimately, we remain optimistic that federal judges will take what the Constitution says seriously and recognize that people born in U.S. territories have the same right to citizenship as those born in a state or the District of Columbia. But we shouldn’t casually dismiss the threat of the President or Congress unilaterally acting to change the meaning of the Citizenship Clause. It’s already happened once before, and we are still living with the consequences.  

Neil Weare is President and Founder Equally American, a nonprofit advocating for equal rights for the nearly 4 million Americans living in U.S. territories. He represents the plaintiffs in Fitisemanu v. United States.

Sam Erman is an associate professor of law at the University of Southern California Gould School of Law and author of the forthcoming book Almost Citizens: Puerto Rico, the U.S. Constitution, and Empire. He joined an amicus brief with other citizenship scholars supporting the plaintiffs in Fitisemanu v. United States.

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