Twenty-three Democratic members of Congress sent a letter to President Joe Biden and Vice President Kamala Harris on Tuesday calling on them to support a legal bid to overturn a series of 100-year-old racist court precedents that also help to disclaim 3.6 million Americans equal rights and protections.
The letter, led by Arizona Rep. Raul Grijalva and U.S. Virgin Islands Del. Stacey Plaskett, urges Biden and Attorney General Merrick Garland to “call on the Supreme Court to grant review” of Fitisemanu v. U.S., a case brought by three American Samoans and an American Samoan nonprofit difficult court precedents referred to as the Insular Cases.
“[T]he Insular Cases represent a shameful legacy that simply can’t be squared with the core values of racial justice and equity that we share together with your administration,” the lawmakers write.
These precedents, decided between 1898 and 1922, created the category of “unincorporated territory” to enable U.S. colonial expansion from Puerto Rico to the Philippines while denying the rights and privileges of citizenship to their residents solely due to their race. The court decisions called the residents of those territories “savage tribes” and “alien” and “uncivilized race[s]” who were “absolutely unfit to receive” the rights granted to Americans.
The residents of Puerto Rico, Guam, the Northern Marianas Islands, U.S. Virgin Islands and American Samoa all still lack equal rights and privileges to U.S. residents under these court precedents. And the deprivation of rights for American Samoans is much more acute, as they’re categorized as “American nationals,” and subsequently cannot will not be even be eligible for citizenship rights in the event that they move to the U.S. mainland as other territorial residents can.
John Fitisemanu and the opposite plaintiffs, Pale Tuli and Rosavita Tuli, who’re all currently residents of Utah, argue that the 14th Amendment’s Citizenship Clause, which grants birthright citizenship to individuals “born or naturalized in america, and subject to the jurisdiction thereof,” covers anyone born within the U.S.-controlled territories.
The lawyer for Fitisemanu and the Tulis also sent a letter to Solicitor General Elizabeth Prelogar on Tuesday calling on her to “join petitioners in asking the Supreme Court to finally and formally overturn the Insular Cases.”
Despite Biden’s pledge to root out systemic racism and white supremacy, the lawyer’s letter notes that the Biden Justice Department has “relied on and vigorously defended the Insular Cases to sustain the conclusion that petitioners will not be entitled to birthright citizenship under the Citizenship Clause.”
Del. Stacey Plaskett (D-V.I.) sent a letter with 22 other Democratic lawmakers to the White House calling on Biden to support overturning Supreme Court precedents that deny equal rights to her constituents.
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The Justice Department declined to comment. The White House didn’t immediately reply to a request for comment.
Civil rights groups backing the Fitisemanu case previously called on Garland and Prelogar to stop counting on the Insular Cases of their court arguments.
Each letters from Fitisemanu’s lawyer and the Democratic lawmakers call on Biden, Garland and Prelogar to publicly resign and apologize for the reliance of the Insular Cases because the Obama administration did as regards to the 1944 decision in Korematsu v. U.S. that approved of the Japanese removal and internment.
“I used to be happy with what we did within the Korematsu cases once I was acting Solicitor General, and I hope that the Justice Department today uses legal judgment, uses its conscience and does the fitting thing,” Neal Katyal, former Obama administration acting solicitor general, said at a press conference announcing the letters that were sent to Biden, Garland and Prelogar.
Katyal was joined by the civil rights groups pushing to overturn the Insular Cases and Fitisemanu and other U.S. territorial residents, who proceed to be denied equal rights and privileges based on where they live or were born.
David Diamadi, a resident of Guam, spoke about how his daughter Haley Nicole Diamadi, who has Down’s Syndrome, is not going to have the ability to access Social Security Supplemental Income advantages when she turns 18 years old solely due to where she lives.
“This presents my wife and I with a terrible selection, either we move Haley away from the one place she’s ever really known — a community of family and friends who love and support her here in addition to supporting my wife and I — or deny her the access to the financial advantages that may ensure her long-term care,” Diamadi said.
“This ongoing discrimination against residents of U.S. territories is the legacy of the Insular Cases and the doctrine of separate and unequal that they created,” Diamadi added.
The push to get the Supreme Court to overturn the Insular Cases comes after Justices Neil Gorsuch and Sonia Sotomayor each called for the court to take up a case to just do that of their separate opinions within the case of Vaello-Madero v. U.S., which resulted within the continued denial of Social Security Supplemental Income advantages to residents of Puerto Rico.
It’s “past time to acknowledge the gravity of this error and admit what we all know to be true: The Insular Cases haven’t any foundation within the Structure and rest as an alternative on racial stereotypes,” Gorsuch wrote in a concurring opinion. “They deserve no place in our law.”
Gorsuch pointed to the tenth Circuit Court of Appeals decision within the Fitisemanu case, which explicitly relied on the Insular Cases to proceed to disclaim American Samoans equal rights as Americans, as reason for the court to overrule the Insular Cases. He called the tenth Circuit’s decision certainly one of the “recent attempts” by lower courts “to repurpose the Insular Cases [by] merely drap[ing] the worst of their logic in recent garb.”
Sotomayor noted her agreement with Gorsuch’s call to overturn the Insular Cases in her dissenting opinion in Vaello-Madero while noting that the 100-year-old precedents were “each odious and incorrect.”
The Justice Department has until July 29 to file a response to the Supreme Court to state whether or not they support or oppose the court hearing the Fitisemanu case.