Gehrke: This Utah lawsuit involving Samoans could complicate Trump’s plan to stop birthright citizenship

Francisco Kjolseth | The Salt Lake Tribune The Salt Lake Tribune staff portraits. Robert Gehrke.

As the rest of us were voting earlier this month, John Fitisemanu was left out in the cold.

Fitisemanu has lived in Woods Cross for 18 years, works in the health care industry, sent his four kids to public schools and is, by any standard, American. But he is, by law, a second-class American.

That’s because he was born in American Samoa and, like tens of thousands of others, is denied full citizenship because of a peculiar, racially biased provision that has existed in U.S. immigration law put in place in the U.S. Nationality Act of 1940.

Last week, Fitisemanu was in U.S. District Court in Utah, along with Pale and Rosavita Tuli, his fellow plaintiffs in a lawsuit seeking to overturn the discriminatory act, arguing it violates the 14th Amendment to the U.S. Constitution.

That amendment states that anyone born in the United States and “subject to the jurisdiction” of its laws is considered a citizen. It was a formal enshrinement of an English Common Law concept that predates the founding of the nation. When it was debated, members of Congress stated clearly the amendment was intended to apply to the territories.

There is no dispute Samoa is part of America. It has been a U.S. territory since 1900. It’s just like Guam, Puerto Rico and the U.S. Virgin Islands.

But Samoan-born Americans are singled out and excluded in a way that those from other territories are not. Under laws passed by Congress, a person born in Guam who moves to Utah, for example, becomes eligible to vote in local, state and federal elections. Those born in Samoa were never extended the same legal recognition.

Samoan-born residents are also excluded from getting certain law enforcement jobs and their passports include a disclaimer noting that they are Americans, but not citizens.

Justice Department attorneys argue that Congress is at liberty to define citizenship as it sees fit and the 14th Amendment doesn’t apply. They rely on a 1901 U.S. Supreme Court case, Downes v. Bidwell, in which the court ruled that citizenship was not bestowed on those born in the territories who are “absolutely unfit to receive it.”

It’s the kind of racist mentality that underpinned the Dred Scott decision that said black people had no constitutional rights and the Korematsu ruling that Japanese-Americans were not to be trusted — both of which have been repudiated by the court.

Neil Weare, the attorney for Fitisemanu, said the government tried to downplay the discriminatory underpinnings of their case in arguments last week, but Judge Clark Waddoups was skeptical.

Attorneys for American Samoa filed a brief with the court opposing Fitisemanu’s case, contending that forcing citizenship on the people of Samoa — “whether they like it or not” — violates their right of self-determination, and it is a job for Congress, not the courts.

There is a much larger issue at the heart of Fitisemanu’s challenge with implications for millions of Americans, and that is President Donald Trump’s push to end birthright citizenship.

At the end of last month, Trump told reporters with “Axios on HBO,” that not only did he want to end the practice, but White House lawyers were reviewing a proposal for him to end it with an executive order.

“They're saying I can do it just with an executive order,” Trump said. “We’re the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States.” Actually, a 2010 study identified 30 other nations that grant birthright citizenship.

There aren’t many who think he can actually make such a change with an executive order. But it renewed talk — right before the midterm election, conveniently — about Congress stepping in and revoking birthright citizenship. It’s an idea Sen. Mike Lee has supported for years.

Lee and others believe Congress has the authority to define the meaning of the 14th Amendment to change what the Supreme Court has interpreted it to mean for nearly 150 years.

And that’s where the Fitisemanu case comes in. Weare said they are asking the courts to determine whether a president or Congress can “redefine a constitutional guarantee, which is the whole reason we have a Constitution and the whole reason the citizenship clause was included in the Constitution.”

Weare fought a similar case in the Washington, D.C., courts and lost. The courts ruled it’s unclear if the amendment applied to the territories and it would not be for the courts to impose citizenship on Samoa. The Supreme Court declined to hear the appeal. This case, Weare said, could ultimately offer the high court another opportunity to decide the issue.

If it does, it could mean full U.S. citizenship for Utah’s sizable Samoan community, and that’s good. More importantly, the courts can — and should — reaffirm that presidents and Congress cannot rewrite the rights enshrined in the 14th Amendment.