President Joe Biden’s administration faced a deadline Monday to notify the Supreme Court whether it will challenge the Insular Cases — a series of old Supreme Court decisions that critics say are highly racist and discriminatory. File Photo by Kevin Dietsch/UPI | License Photo
Aug. 29 (UPI) — President Joe Biden‘s administration faced a deadline on Monday to decide whether to challenge a series of decades-old Supreme Court decisions that deny certain constitutional rights and protections to residents in U.S. territories.
A challenge to the court’s Plessy vs. Ferguson-era decisions — which established a doctrine of “separate and unequal” for residents of U.S. territories — would be a response to the case Fitisemanu vs. United States. That case challenges the constitutionality of a federal law designating people born in American Samoa as “non-citizen U.S. nationals.”
John Fitisemanu, Pale Tuli and Rosavita Tula — who were all born in American Samoa — have joined with the Southern Utah Pacific Islander Coalition to challenge a federal law that denies them the right to vote because, technically, they are not considered U.S. citizens.
Advocates and residents of U.S. territories like American Samoa, Puerto Rico and the U.S. Virgin Islands are urging Biden to urge the Supreme Court to overturn the series of decisions made more than 100 years ago — known as the Insular Cases — that they argue made them second-class citizens.
Others have assailed the Insular Cases as overtly racist and say they disproportionally impact people of color.
“The Insular Cases are unabashedly racist, firmly rooted in white supremacy, and still haunt the day-to-day lives of millions of people,” the ACLU of Florida said in a statement early this year.
“In this string of cases decided from 1901 to 1922, the court described the territories’ inhabitants as ‘alien races’ and ‘savage tribes.’ The court based its views squarely on the presumed racial inferiority of the non-White people who lived there. In doing so, the Supreme Court showed obvious contempt for the predominately Asian, Black, Indigenous, Latinx, and Pacific Islander residents of these territories.”
The plaintiffs argue that the Citizenship Clause of the 14th Amendment unequivocally guarantees citizenship to people born on U.S. soil, whether in a state, territory, or the District of Columbia.
Further, they contend that Congress doesn’t have the power to redefine the Constitution’s guarantee of birthright citizenship and otherwise treat those born in U.S. territories as lesser American citizens.
“President [Joe] Biden and the Department of Justice have a chance here to be on the right side of history, to stand true to the values they profess — we hope they take it,” Neil Weare, president and founder of Equally American, a nonprofit advocating for equal rights in U.S. territories, said in a statement.
“The Insular Cases should not be relied on as the basis for denying birthright citizenship in U.S. territories, or any other right.”
In July, the plaintiffs sent a letter to U.S. Solicitor General Elizabeth Prelogar and called on her to urge the Supreme Court to overrule the Insular Cases. The high court then gave Prelogar the Aug. 29 deadline to respond to the plaintiffs’ petition — which will reveal whether Biden’s administration plans to challenge the cases.
The Fitisemanu petition was filed a week after the Supreme Court released a decision in United States vs. Valleo Madero, which held that Congress can exclude residents of Puerto Rico and other U.S. territories from Supplemental Security Income and other federal programs available to residents of all 50 U.S. states.
Justices Neil Gorsuch and Sonia Sotomayor expressed hope that the high court would “soon recognize that the Constitution’s application should never depend on … the misguided framework of the Insular Cases.”
The conservative Gorsuch further declared that the Insular cases “deserve no place in our law” because they “have no foundation in the Constitution and rest instead on racial stereotyping.” The progressive Sotomayor added that the rulings “were premised on beliefs both odious and wrong.”
During oral arguments earlier this year in United States vs. Vaello Madero, Gorsuch also repeatedly asked Deputy Solicitor General Curtis Gannon for the government’s position on the Insular Cases.
Gannon answered that “some of the reasoning and rhetoric is obviously anathema,” but declined to give a formal government position on the Insular Cases.
Anthony Romero, executive director of the American Civil Liberties Union; Lourdes Rosado, president of Latino Justice; and Janai Nelson, president of the NAACP Legal Defense and Educational Fund are calling on Biden’s administration to condemn the Insular Cases “in the name of liberty, democracy and racial equity.”
“Constitutional rights must be guaranteed to all persons in the United States regardless of race and geography,” they wrote in a joint letter, according to The Hill.
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