U.S. Justice Department Asserts Constitutional Citizenship Possible Only Under Statehood

The United States Department of Justice (DOJ) Monday strongly rejected a claim that individuals born in a U.S. territory like Puerto Rico have secure U.S. citizenship, protected under the U.S. Constitution.

The DOJ brief filed with the U.S. Court of Appeals for the District of Columbia Circuit instead makes the case that Constitutionally protected U.S. citizenship is possible for Puerto Ricans only by Puerto Rico becoming a State.  Today, people born in Puerto Rico do have U.S. citizenship, but it provided under a 1917 law and does not have the backing of the U.S. Constitution.

The Justice Department’s brief is consistent with a Library of Congress website describing the 1917 law that provides citizenship to Puerto Ricans today.  The legal brief also contradicts a claim made by ‘Commonwealth’ proponents over the years that Puerto Ricans already have protected U.S. citizenship under the Citizenship Clause of the Constitution’s 14^th Amendment.

The 14^th Amendment makes everyone born “in the United States” a U.S. citizen.

In a case concerning American Samoa, the Justice Department explained that 14^th Amendment citizenship does not apply in a territory that has not “been incorporated into the United States as a part thereof” but “is simply held . . . under the sovereignty of the United States as a possession or dependency,” using the words of the U.S. Supreme Court.

The U.S. brief identified Puerto Rico as another unincorporated territory.

U.S. Attorney for the District of Columbia Ronald Machen, Jr., an appointee of President Obama, filed the Justice Department brief.

Three American Samoans and a Los Angeles Samoan organization brought the case, Tuana v. U.S.

It was organized, however, by a lawyer from the territory of Guam, Neal Weare, who believes that Puerto Rico and the other U.S. territories and the District of Columbia should all have rights and representation in the Federal government equal to the States.

American Samoa’s Delegate to the U.S. House of Representatives, Eni Faleomavaega, a senior member of the committee with jurisdiction over the status of territories, and the territory’s government oppose the suit.

A U.S. District Court judge in the nation’s capital dismissed the case in 2013, leading to the appeal to the circuit court.

In its brief, the Justice Department told the court that those appealing “have not (and cannot) identify a single court ever having declared an entire territory’s citizens entitled to birthright citizenship under the Fourteenth Amendment, but instead, each court to have examined the issue has held that the Amendment cannot be read so broadly.”

No Birthright Citizenship in U.S. Territories

By contrast, the DOJ brief cited a 2012 decision by the U.S. Court of Appeals for the Ninth Circuit that denied a birthright citizenship claim of individuals born in the “unincorporated U.S. territory” of the Commonwealth of the Northern Mariana Islands.

Of even broader relevance for Puerto Rico’s territory status, the Obama Justice Department noted, again quoting the Supreme Court, that Congress “has full and complete legislative authority over” territories and “may do for the Territories what the people, under the Constitution of the United States, may do for the States.” (emphasis added)

The legal brief emphasized that, “the responsibility of Congress to govern this nation’s territories has long been recognized and respected by the Courts.”

Machen’s brief also pointed out that Congress has the “legislative discretion” to grant “privileges” to those born in “the outlying possessions” as it “sees fit,” recalling that “the Supreme Court has never found that the Congress must bestow all of the same panoply of privileges upon those born in the outlying possessions that the Constitution bestows on those born in the United States.”

U.S. citizenship is granted to individuals born in Puerto Rico, Guam, the Northern Mariana Islands, and the U.S. Virgin Islands by law. People born in American Samoa are automatically U.S. nationals but not citizens.

A law can be changed by another law. The Constitution can only be changed by two-thirds votes in each House of Congress or a convention called by tw0-thirds of the States followed by votes of three-fourths of the States.

Congress is unlikely, however, to discontinue granting U.S. identity to persons born in a territory unless it decides to make the territory a nation. Unincorporated territories are territories that Congress has not yet decided to make States and can make nations. Granting citizenship by law in an unincorporated territory makes nationhood possible.

The Justice Department used the example of the Commonwealth of the Philippines to explain this to the court; Congress discontinued the granting of U.S. nationality to Filipinos when the Philippines became an independent country.

Updated and edits on January 15, 2024 to clarify the 1917 statutory law that currently provides U.S. citizenship to people born in Puerto Rico, instead of the 14th Amendment of the Constitution.