Guest post by Howard Hills
Acquisition of U.S. citizenship by court order, as requested in the American Samoan citizenship case, may prove highly problematic. If the courts rule that the Citizenship Clause of the 14th Amendment applies in non-incorporated territories, that is tantamount to incorporation of all five current territories into the United States.
Incorporation has historically meant statehood for territories. That policy would doubtless change since only Puerto Rico among the five is a prospective State.
The Citizenship Clause of the 14th Amendment has never been applied in non-incorporated territories — which can become separate nations. That is why Congress has exercised its Uniform Naturalization Clause and Territory Clause powers to provide for citizenship by law for territories with non-citizen populations.
If the courts decide that the Citizenship Clause applies directly to non-incorporated territories, then Congress will be faced with two options.
Congress can put all five territories on the path to statehood — including two with far fewer than 100,000 people, one with a little more, and one with far less than 200,000 as well as 3.5 million population Puerto Rico — an extremely unlikely choice.
Or, Congress can enact a special territory status law — what ‘commonwealthers’ in Puerto Rico and Guam have sought and been denied. It would ostensibly provide all rights of citizenship, except as restricted by the Constitution only to the States. That’s a big exception: the rights to vote for voting members of Congress or in the election of the president and the vice president of the United States are based on citizenship in a State recognized in Citizenship Clause.
If Congress determined that statehood was not feasible for even one of the territories, incorporation would effectively become a permanent status for all five territories, including Puerto Rico. Incorporation would no longer be the path to statehood as it has been since enactment of the Northwest Ordinance.
So, instead of reversing the Balzac or earlier Insular Case Supreme Court decisions, indefinite incorporation would bring America Samoa and all the territories back full circle to the status quo for U.S. citizens denied full equality with citizens in the States.
Thus, application of the Citizenship Clause of the 14th Amendment to American Samoa without a commitment for eventual equality through statehood could constitute incorporation without a path to equal rights.
That is why a decision about citizenship for Americans Samoans is best made by Congress based on self-determination in the territory, rather than by an order of the Federal courts. Fortunately, the U.S. District Court that heard the case agreed. Now it is up to the Court of Appeals.
The author served as lead counsel on territory issues for the President’s National Security Council Reagan Administration.