On April 1st, the U.S. Supreme Court will consider whether to defer to the Trump Administration’s attempts to redefine the long-settled understanding of the Citizenship Clause to exclude children born to parents who are temporary or unauthorized immigrants. As the Justices take up this question, 21 current and former elected officials and judges from the U.S. Virgin Islands, Puerto Rico, Guam, the Northern Mariana Islands, and American Samoa are asking the Court in an amicus brief not to repeat the same mistakes it has made in U.S. territories.

“Over the last 125 years, the Supreme Court has avoided answering whether people born under the sovereignty and jurisdiction of the United States have a right to be recognized as U.S. citizens under the Fourteenth Amendment. As a result, presidents and congresses from both parties have claimed the power to unilaterally deny people born in U.S. territories recognition as citizens - even people who have been recognized as U.S. citizens their entire lives,” said Neil Weare, Co-Director of Right to Democracy, a nonprofit focused on issues of democracy, equity, and self-determination, who served as Counsel of Record for the brief. “This troubling experience offers a stark object lesson for the Justices as they consider whether to allow the Trump Administration to alter the long-settled meaning of the Citizenship Clause.

“This is a question about the exercise of power under the U.S. Constitution - can the President or Congress simply decide to exclude groups of people they do not want to be considered U.S. citizens? The U.S. Constitution regulates the power of government and protects its subjects from abuse. Therefore, the  Supreme Court can and should answer that question in the negative,” said Adi Martínez Román, Co-Director of Right to Democracy. “The Supreme Court’s consistent avoidance of this issue in U.S. territories has created uncertainty and confusion when it comes to our own questions of self-determination and decolonization.”

Amici are also represented by Patricio G. Martínez Llompart and Paul M. Krieger at KKL LLP, a New York City-based litigation firm. 

As set forth in the brief: 

Amici are current and former elected officials and judges from the U.S. Virgin Islands, Puerto Rico, Guam, the Northern Mariana Islands (“NMI”), and American Samoa. They span the political spectrum and have diverse views on issues of political status. They each reject the idea that Congress or the President can—consistent with the Citizenship Clause of the Fourteenth Amendment—unilaterally deny U.S. citizenship to those born under the sovereignty and jurisdiction of the United States. At the same time, they each support the distinct issue of a right to self-determination and decolonization—whether that is towards a continuing or separate relationship with the United States. 

The amici include both Democrats and Republicans, and officials whose views on political status range from pro-Statehood to pro-Independence, to options in between. 

The Citizenship Clause of the Fourteenth Amendment guarantees U.S. citizenship to anyone born “in the United States” and “subject to the jurisdiction thereof.” On April 1, the Supreme Court will consider the meaning of “subject to the jurisdiction thereof” and address whether Executive Order 14,160 is constitutional. Whether the President or Congress can deny citizenship to people born in U.S. territories depends on the meaning of “in the United States” and is not addressed in the Executive Order.

“The Supreme Court’s ruling in Trump v. Barbara, will not likely answer the question of birthright citizenship in U.S. territories. But its reasoning could suggest how it might approach that question in the future,” Weare said. “So this is an important case to pay attention to.”

Right to Democracy hosted a virtual panel with legal experts discussing these issues last week, which is available for free here. 

Attorney Weare also wrote about these issues last week in a post on SCOTUSblog, the most widely read blog covering news and analysis at the U.S. Supreme Court.

Weare will be attending the oral argument at the Supreme Court on Wednesday.

The full amicus brief is available here, with a summary of the brief (in English and Spanish) available here. 

If you are interested in connecting with counsel or amici, please reach out to Neil Weare, [email protected], 202-365-7427.

The full list of amici include: 

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)