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US Justice Dept: Constitutional Citizenship Requires Statehood; Commonwealth Unincorporated Territory

The U.S. Department of Justice Monday strongly rejected a claim that individuals born in a jurisdiction like Puerto Rico have U.S. citizenship by virtue of the U.S. Constitution.

A brief filed with the U.S. Court of Appeals for the District of Columbia Circuit essentially means that Puerto Ricans can only obtain citizenship through the Constitution — versus through law — by Puerto Rico becoming a State or by being put on the path to statehood by Congress.

The position also contradicts a claim that the ‘Commonwealth’ party has made that Puerto Ricans have U.S. citizenship under the Citizenship Clause of the Constitution’s 14th Amendment in addition to citizenship from laws.

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

In a case concerning American Samoa, the Justice Department explained that 14th 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.

It 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 without statehood.

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.”

By contrast, it 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.”

It 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, another unincorporated territory, by law.

Law makes people born in American Samoa U.S. nationals instead of 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 in the Commonwealth in making the islands an independent country.


6 thoughts on “US Justice Dept: Constitutional Citizenship Requires Statehood; Commonwealth Unincorporated Territory”

  1. By definitions of Un-Incorporated and Incorporated Territories, for what I have read, Puerto Rico STOPPED been an Un-Incorporated Territury AFTER Congress STARTED INCLUDING Puerto Rico in all kind of thing LIMITED for States and Incorporated Territories. In essence, Puerto Rico by ACTION of the US CONGRESS has become an Incorporated Territory DE FACTO. I am NO lawyer but I believe I am right. Would love to hear from some lawyers . . .

  2. And is true thaat no territory wich is not propelled to a statehood have a right ,but ordered by congress.I stand clesr on the subject here recalled from the constitucion of USA.Since we aproaned a statehood elecion and in the way for the Obama plan and the congress to declare on the subject,I thing we in the way to Statehood.

  3. This is crazy. Why did the Puerto Ricans fight for this country if they are not citizens??? My husband and many other Puerto Ricans fought for the USA in Korea, Vietnam, Gulf War, Iraq and Afghanistan. This is totally unacceptable!

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