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Trump and Obama Are On The Same Side Of The Law When It Comes To The 14th Amendment

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NEW YORK – Media-magnet billionaire Donald Trump and the Obama administration agree: The 14th Amendment does not grant birthright citizenship to everyone born in the U.S.

They do not, of course, agree on the details.

Trump, the front-runner for the Republican presidential nomination, has consistently said that he doesn’t believe the amendment grants citizenship to children of people living illegally in the country, whom he calls “anchor babies.” Most scholars and the Obama administration disagree.

But as Trump pines for a legal effort to overturn the mainstream interpretation of the amendment’s citizenship clause, the Obama administration already is fighting in court to limit the number of people enjoying birthright citizenship from it, saying the amendment doesn’t grant the status to a small number of Americans born in the United States.

The people of American Samoa, a U.S. possession in the South Pacific for more than 100 years, are U.S. nationals. But unlike residents of all other major, populated American territories, they do not gain U.S. citizenship if born there.

The Obama administration and some Samoans want to keep the status quo. Others, including the plaintiffs on a pending lawsuit, say so-called noncitizen U.S. nationals face absurd hoops when trying to gain basic rights to employment, gun ownership and voting if they join the diaspora in the states.

More than three times as many Samoans live in the states than in the territory, which has a population of about 55,000 (though some in the U.S. may be from the independent nation of Samoa or of multiple ancestries).

American Samoans often serve in the U.S. military and are among its casualties. Nine residents died in the Iraq War, compared to five troops from the District of Columbia, which has more than 10 times as many people.

Fanuatanu Mamea, who fought in the Vietnam War during his 20 years in the military, and Emy Afalava, whose 15-year military career included participation in the Gulf War, are among the plaintiffs in the pending lawsuit, Tuaua v. United States.

Mamea lives in the territory with his foreign-born wife, who faces citizenship-related difficulties traveling with him to Hawaii for medical care at a veterans hospital. Another plaintiff, Va’aleama Fosi, served in the U.S. Army Reserve for a decade and now lives in Hawaii, where his lack of citizenship means he can’t legally own a gun or vote.

The plaintiffs say the 14th Amendment to the U.S. Constitution means they should gain citizenship at birth, but the Obama administration has thus far beaten them in court, pointing out there’s no precedent for that proposition.

The legal groundwork the administration is relying upon includes dated court rulings from the so-called Insular Cases that drew a line between white-settled territories likely to become states and mostly nonwhite possessions taken at the turn of the last century, affording a special status to them with fewer constitutional rights.

Over time, residents of other U.S. territories have gained citizenship through legislation, including Puerto Rico in 1917, the Virgin Islands in 1927 and Guam in 1950. Most recently, Congress in 1976 approved a law granting people of the Northern Mariana Islands automatic citizenship.

The suing Samoans say congressional action is unnecessary – that they’re Americans by virtue of birth within the U.S. – and that a plain reading of the 14th Amendment backs their position. It says: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”

But in June, a federal appeals court panel in the nation’s capital handed a win to the Obama administration.

“We sympathize with Appellants’ individual plights, apparently more freighted with duty and sacrifice than benefits and privilege, but the Citizenship Clause is textually ambiguous as to whether ‘in the United States’ encompasses America’s unincorporated territories,” the three judges said.

Neil Weare, an attorney who argued on behalf of the plaintiffs, says, “I’m not surprised by anything Trump would say, but it is surprising to see the Obama administration itself opposing birthright citizenship in U.S. territories.”

Weare says the attention Trump has lent birthright citizenship is welcome, and he says the GOP contender may in fact agree with the American Samoans suing for citizenship.

“This attention is good from our plaintiffs’ perspective, at least insofar as it raises this issue that shouldn’t Americans born on U.S. soil have a right to citizenship,” Weare says. “And I think that’s something Donald Trump may even agree with.”

Trump was not immediately available to comment.

Weare, president and founder of the We the People Project, which works to uphold constitutional rights in the territories, says the reach of the appeals panel decision may help his case.

“It’s really a troubling decision by the D.C. Circuit that puts the constitutional rights of millions of Americans living in U.S. territories in jeopardy,” Weare says. “This D.C. Circuit opinion has opened up a pandora’s box to, ‘What other rights don’t apply in the territories?'”

In an unrelated matter that also hinges on the 14th Amendment, the government of American Samoa is holding out against the Supreme Court’s June decision legalizing same-sex marriage nationwide, which may spur a parallel lawsuit about the applicability of amendment-derived rights.

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The Author

John McCarthy

John McCarthy

John McCarthy is primarily known for his investigative reporting on the U.S. Virgin Islands. A series of reports beginning in the 1990's revealed that there was everything from coliform bacteria to Cryptosporidium in locally-bottled St. Croix drinking water, according to a then-unpublished University of the Virgin Islands sampling. Another report, following Hurricane Hugo in 1989, cited a Federal Emergency Management Agency (FEMA) confidential overview that said that over 40 percent of the U.S. Virgin Islands public lives below the poverty line. The Virgin Islands Free Press is the only Caribbean news source to regularly incorporate the findings of U.S. Freedom of Information Act requests. John's articles have appeared in the BVI Beacon, St. Croix Avis, San Juan Star and Virgin Islands Daily News. He is the former news director of WSVI-TV Channel 8 on St. Croix.

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