Following Vice President Vance’s statements, a Virginia congressman introduced the End Birthright Citizenship for Territories Act, H.R. 9724, which challenges birthright citizenship in U.S. territories. Relying on the Insular Cases and Territory Clause, the proposed legislation explains “Congress has the power to legislate with respect to the United States territories, including citizenship status,” emphasizing that “Congress has the inherent authority to change statutes relating to citizenship of persons born in the territories.” In a release, Rep. Griffith claimed “the Barbara case leaves the door open for Congressional action on citizenship in the American territories.” He explained, “Just like Congress possesses the power to grant the territories Constitutional rights in statute, we have the power to take them away in statute.” 

More information is available here. 

Birthright citizenship is a longstanding common law rule, known as jus soli (right of the soil), adopted by the United States, establishing that all people born on U.S. soil and subject to U.S. law are U.S. citizens regardless who their parents might be. Not all countries follow this rule, with some following jus sanguinis (right of blood), which recognizes citizenship based on ancestry or parentage. The United States actually recognizes citizenship through both rules, with the Citizenship Clause of the Fourteenth Amendment guaranteeing a constitutional right to citizenship based on birth on U.S. soil, and Congress providing a statutory right to citizenship to the children of U.S. citizens born outside of the United States.

 The Constitution's Citizenship Clause, which is the first sentence of the Fourteenth Amendment, states clearly that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Under this provision, anyone (1) born “in the United States; and (2) born “subject to the jurisdiction” of the United States has a constitutional right to U.S. citizenship. At the time the Citizenship Clause was debated in Congress, Senator Lyman Trumbull, Chairman of the Senate Judiciary Committee, explained that the Citizenship Clause “refers to persons everywhere, whether in the States or in the Territories or in the District of Columbia.” Neither the President nor Congress has the power to change this constitutional provision. It can only be changed by another constitutional amendment.

In Trump v. Barbara, the Supreme Court recently reaffirmed a long series of decisions, holding that “[a] child born on American soil and subject to American law [is] an American citizen.” The Supreme Court previously held in the landmark 1898 decision United States v. Wong Kim Ark, that the Citizenship Clause codified the “ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country.” 

While no Supreme Court case has directly answered the question of whether someone born in a U.S. territory has a right to citizenship, just five years after the Citizenship Clause was ratified, the Court concluded in the Slaughter-House Cases that the Fourteenth Amendment “pu[t] at rest” any notion that “[t]hose … who had been born and resided always in the District of Columbia or in the Territories, though within the United States, were not citizens.”

Prior to 1898, it was well understood, as Justice Joseph Story explained in 1828, that “A citizen of one of our territories is a citizen of the United States.”  After all, as the famous Chief Justice John Marshall declared in 1820, “the United States” is “the name given to our great republic, which is composed of States and territories.” 

However, in the early 1900s, the McKinley administration wanted to expand U.S. sovereignty over places like Puerto Rico, Guam, and American Samoa, but it did not want to recognize the people living in those places as U.S. citizens. The reason? Explicit racism towards the people living in those islands.

Breaking from longstanding precedent, the Department of War argued in 1900 that while people in these new territories owed “allegiance” to the United States, they had no right to U.S. citizenship. Motivated by racism, high-ranking U.S. military officials expressed concern that these new territories were “largely peopled by an alien race, ignorant of our laws, customs, and institutions, unable to distinguish the difference between the Constitution of the United States and a map of the country.” 

In 1901, the U.S. Department of Justice argued to the Supreme Court that the Citizenship Clause of the Fourteenth Amendment “did not refer to” the people of island territories “who belonged to other races in other climes in the distant islands of the sea, uncivilized tribes in Sulu or Panay [in the Philippines, or], uncivilized tribes in Tutuila [American Samoa].” The United States, DOJ explained, “never intended to make these tropical islands, with their savage and half-civilized … people, a part of the United States in the constitutional sense.”

 

The Supreme Court echoed the racist sentiments of the McKinley Administration. Justice Brown, who authored Plessy v. Ferguson (which upheld racial segregation) expressed concerns in Downes v. Bidwell, the most prominent of the Insular Cases, that acquisition of the new territories would mean that “children thereafter born, whether savages or civilized, are . . . entitled to all the rights, privileges and immunities of citizens.” Justice White worried that the acquisition of overseas territory “peopled with an uncivilized race, yet rich in soil, and valuable to the United States” would not be possible if annexation meant “the immediate bestowal of citizenship on those absolutely unfit to receive it.” Ultimately, however, the Supreme Court’s decisions in the Insular Cases avoided any clear answer on whether people born in island territories have a right to U.S. citizenship, maintaining ambiguity and in effect giving leeway to the political branches to address a question the Constitution already answered.

Without asking or seeking the views of the people in any territory – the State Department and other federal agencies began relying on the Insular Cases to label people in Puerto Rico, Guam, American Samoa, and the U.S. Virgin Islands as so-called “non-citizen” U.S. nationals. Over time, Congress has recognized people born in Puerto Rico (1917), the U.S. Virgin Islands (1927), Guam (1950), and the Northern Mariana Islands (1976) as U.S. citizens through federal statutes. But Congress and federal agencies continue to label people born in American Samoa to non-citizen parents as “nationals, but not citizens, of the United States at birth.” 

A 1996 House Report, relying on past statements of the Justice Department, concluded “that the statutory citizenship which Congress has conferred on people born in Puerto Rico during the territory period is not full, equal citizenship protected by the Fourteenth Amendment to the Constitution.” As a result, it bluntly declared that “the current citizenship status of Puerto Ricans exists at the discretion of Congress.” 

Disturbingly, the House Report set forth the view that “the current statutory citizenship of people born in Puerto Rico can be regulated or even rescinded without violating the equal protection and due process rights which have been extended to Puerto Rico by Congress and the Federal courts …  as the fundamental rights test of the Insular Cases . . . is met,” meaning, in its view, “the existence of a legitimate Federal purpose achieved in a manner reasonably related to that purpose.”  The same principles would apply to people born in other territories. 

The Supreme Court has yet to either approve or reject the power of Congress to turn citizenship on and off in U.S. territories, leaving these questions unresolved as a constitutional matter.

The day the Supreme Court decided Trump v. Barbara, Fox News host Laura Ingram asked Vice President Vance about statements made by Roger Severino, a senior executive at The Heritage Foundation, who encouraged President Trump to limit birthright citizenship in U.S. territories based on the Insular Cases. Vance responded “I think it’s a great idea. I saw that point from Roger Severino. We're certainly looking at that.”

The bill is poorly drafted, so its impact is not entirely clear. But if it were to pass, it could put at risk the citizenship status for anyone born in Puerto Rico, Guam, the U.S. Virgin Islands, or the Northern Mariana Islands as U.S. citizens on or after “January 1, 2027.” The bill creates a “limitation on citizenship” by amending the federal statutes addressing citizenship in each territory (although it actually mis-cites the relevant statutes for the U.S. Virgin Islands and Guam!). Assuming those cites are corrected, the bill would amend those federal statutes to read (changes in bold):

• Puerto Rico:  “All persons born in Puerto Rico … before January 1, 2027, and subject to the jurisdiction of the United States, are citizens of the United States at birth.” 8 U.S.C. § 1402.

• U.S. Virgin Islands:  “[A]ll persons born in [the Virgin Islands of the United States] on or after February 25, 1927, and before January 1, 2027, and subject to the jurisdiction of the United States, are declared to be citizens of the United States at birth.” 8 U.S.C. § 1406.

• Guam: “[P]ersons born in the island of Guam on or after April 11, 1899, whether before or after August 1, 1950, and before January 1, 2027, subject to the jurisdiction of the United States, are declared to be citizens of the United States.”  8 U.S.C. § 1407.

• Northern Mariana Islands: “All persons born in the Commonwealth on or after the effective date of this Section and before January 1, 2027 are subject to the jurisdiction of the United States will be citizens of the United States at birth.  Section 303 of the Covenant, 48 U.S.C. § 1801.

The bill is poorly drafted, so it is not entirely clear. The final section of the bill includes an “applicability” section stating that the amendments it makes to federal statutes “shall not be construed to affect the citizenship or nationality of a person born in the United States territories, who is born as a child of a United States citizen or the child of an alien lawfully admitted for permanent residence in the United States.” 

However, because these limitations are not included in the actual statutory amendments, that language would not appear in the statutes themselves, and thus not be binding on the courts. Indeed, “textualist” judges, who limit their analysis to what the actual statutory text says, would be unlikely to follow this kind of “legislative intent.” This may especially be the case, because Congress has shown it knows how to recognize children born to U.S. citizen parents in a territory as citizens, while denying citizenship to those born to non-citizen parents - that is currently the law in American Samoa. Federal statutes currently recognize as a U.S. citizen “a person born in [American Samoa] of parents one of whom is a citizen of the United States.”  8 U.S.C. § 1401(e). Paradoxically, the legislation could mean the child of a U.S. citizen born in American Samoa would be recognized as a citizen while children born of U.S. citizens in other territories may not be.

Ultimately, the sweeping language included in the bill would put at risk the citizenship of anyone born in the covered territories on or after January 1, 2027, including children whose parents are U.S. citizens or lawful permanent residents.

Under Section 105 of the Covenant, specified “fundamental provisions”--including Section 303 recognizing people born in the NMI as citizens–“may be modified only with the consent of the Government of the United States and the Government of the Northern Mariana Islands.” 48 U.S.C. § 1801. Thus, the proposed legislation challenges that negotiated agreement by seeking to unilaterally limit the Covenant’s guarantee of U.S. citizenship without the consent of the NMI Government. 

Whether or not Congress can unilaterally amend these “fundamental provisions” of the Covenant without the consent of the NMI government has not been resolved by the federal courts. Over the years, many have expressed concern that the Covenant was adopted as federal statute, part of the U.S. Code as opposed to ratified as a formal treaty.  This opens the possibility that Congress may be able to expand its powers by striking the language in Section 105 requiring mutual consent based on the generally-accepted principle that one Congress cannot bind a future Congress through a federal statute.

While some frame these issues as partisan, the reality is more complex. Guam’s Delegate to Congress and the NMI’s Delegate to Congress – both of whom are Republicans – have come out strongly against the proposed legislation, as has Guam’s Democratic Party and the NMI’s former Democratic Delegate to Congress. Indeed, no elected official in the territories, of any party, has expressed support for the legislation.  Even at a national level, while elected officials like Vice President JD Vance have spoken in favor of limiting birthright citizenship in U.S. territories, the proposed legislation has yet to receive support from a single co-sponsor from any party.   

Earlier this year, Right to Democracy filed an amicus brief on behalf of 21 current and former territorial officials, including both Democrats, Republicans, and most other parties in the territories, who argued neither the President nor Congress could, consistent with the Fourteenth Amendment, deny birthright citizenship in U.S. territories. 

Below is a complete list of officials who joined the brief:

1.  Stacey E. Plaskett: U.S. House of Representatives, U.S. Virgin Islands (2015-Present)

2.  Albert Bryan Jr.: Governor, U.S. Virgin Islands, (2019-Present)

3.  Tregenza Roach: Lieutenant Governor, U.S. Virgin Islands (2019-Present); Senator, U.S. Virgin Islands Legislature (2013-2018)

4.  B.J. Cruz: Public Auditor of Guam (2018-Present); Speaker, Guam Legislature (2017-2018); Senator, Guam Legislature (2005-2016); Chief Justice, Supreme Court of Guam (1999-2001); Associate Justice, Supreme Court of Guam (1997-1999); Judge, Superior Court of Guam (1984-1997)

5.  Aníbal Acevedo Vilá: Governor, Puerto Rico (2005-2009)

6.  Sila M. Calderón: Governor, Puerto Rico (2001-2005)

7.  Alejandro García Padilla: Governor, Puerto Rico (2013-2017)

8.  Kenneth E. Mapp: Governor, U.S. Virgin Islands (2015-2019) 

9.  Donna M. Christian-Christensen: U.S. House of Representatives, U.S. Virgin Islands (1997-2015)

10. Gregorio Kilili Sablan: U.S. House of Representatives, Northern Mariana Islands (2009-2025)

11. Sheila Babauta: Northern Mariana Islands House of Representatives (2021-2023)

12. Eduardo Bhatia: Puerto Rico Senate (2009-2021), President of the Senate (2013-2017)

13. Zoé Laboy: Puerto Rico Senate (2017-2019)

14. José Bernardo Márquez Reyes: Puerto Rico House of Representatives (2021-2025)

15. Ana Irma Rivera Lassén: Puerto Rico Senate (2021-2025)

16. Andra Samoa: American Samoa House of Representatives (2019-22)

17. Mary Camacho Torres: Senator, Guam Legislature (2015-2023)

18. Charles Ala'ilima:  High Court of American Samoa District Court Judge/Acting Associate Justice (1981-1985); District Court Judge Pro Tempore (1996-1998)

19. Adam G. Christian: Judge, Superior Court of the Virgin Islands (2010-2016)

20. Soraya Diase Coffelt: Judge, Superior Court of the Virgin Islands (1994-2000)

21. Liana Fiol Matta: Chief Justice, Supreme Court of Puerto Rico (2014-2016); Associate Justice (2004-2014); Judge, Puerto Rico Court of Appeals (1992-2002)