Yesterday, the Obama Administration filed a brief before the DC Circuit arguing that Americans born in U.S. territories have no constitutional right to citizenship.

Relying on a series of controversial Supreme Court decisions known as the Insular Cases that have been compared to Plessy v. Ferguson, the Obama Administration defended a federal statute that expressly creates two classes of Americans: those who enjoy the protections of U.S. citizenship and those who do not.

Tuaua v. United States considers whether the Constitution’s guarantee of birthright citizenship in the Fourteenth Amendment extends to people born on American soil in a U.S. territory. The plaintiffs in the case were born in American Samoa, a U.S. territory since 1900. Among the plaintiffs are three veterans - American Samoa is distinguished as having the highest casualty rate in Iraq and Afghanistan of any U.S. jurisdiction. By statute, these plaintiffs and others born in American Samoa are recognized as “nationals, but not citizens, of the United States,” meaning that these passport-holding Americans must naturalize in order to be considered citizens by the federal government.

“It’s hard to believe that in the 21st century the Obama Administration is defending two separate classes of Americans,” said Neil Weare, President of co-counsel We the People Project, a non-profit that fights for the day the nearly 5 million residents of U.S. territories and the District of Columbia are treated as full and equal members of We the People.

“The Obama Administration’s position ignores not only the history of the Fourteenth Amendment, but the history of American Samoa,” said co-counsel Charles V. Ala’ilima, a prominent American Samoan attorney.

The Tuaua plaintiffs filed their opening brief before the DC Circuit in April – they will have the opportunity to file a reply brief in the coming weeks. Filing amicus briefs in support of the plaintiffs in May were citizenship scholars represented by Gibson, Dunn & Crutcher LLP, Members of Congress and former government officials represented by Covington & Burling LLP, and David Cohen, the first American Samoan political appointee to lead the U.S. Department of Interior’s Office of Insular Affairs, represented by Jenner & Block LLP. Scholars of constitutional law and legal history, represented by Wilmer Cutler Pickering Hale and Dorr LLP, filed on behalf of neither party, but pushed back against the Government’s reliance on the Plessy-era Insular Cases. Oral argument in the case is expected this fall.

In February, the D.C. Circuit denied an earlier motion by the federal government to dispose of the appeal before full briefing. In June 2013, the D.C. District Court dismissed the Tuaua lawsuit, setting up this appeal.

For an overview of the constitutional arguments in Tuaua v. United States, please see Neil Weare’s Op-Ed on CNN.com, “Citizenship is a Birthright in U.S. Territories,” published to coincide with a Harvard Law School conference titled “Reconsidering the Insular Cases,” held in February.

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