Pago Pago, AMERICAN SAMOA — In his dissenting opinion, U.S Circuit Court Judge Robert E. Bacharach contends that the US Tenth Circuit Court of Appeals, “should have granted” plaintiffs’ request for “rehearing en banc” or the full-panel of the U.S. Tenth Circuit Court of Appeals to review the decision made in June of this year by the three-judge panel of the same appeals court, where the majority ruled that citizenship birth on U.S. soil is not applicable to those born in American Samoa.

“We rarely convene en banc, but do so for questions of exceptional importance,” wrote Judge Bacharach a 27-page dissenting opinion, in which he was joined by Circuit Court Judge Nancy L. Moritz. And one of those questions, he said, pertains to Citizenship context.

The plaintiffs are three American Samoans who reside in Utah and the defendants include the U.S State Department and its officials. Intervenors in the case are the American Samoa Government and Congresswoman Uifa’atali Amata.

Judge Bacharach notes in the written dissent that this case “involves a discrete question”: Does the Fourteenth Amendment’s Citizenship Clause extend to individuals born in American Samoa? The plaintiffs say yes: having been born in American Samoa, they allege birth “in the United States.”

On the other hand, the defendants — the United States, American Samoa government and the Congresswoman says “no” and they contend that unincorporated territories, including American Samoa, are not “in the United States.”

He said a three-judge panel reversed the summary judgment of the Utah federal court for the plaintiffs “without determining the meaning of the constitutional text”.

“Instead, the panel majority characterizes the constitutional text as ambiguous and rests on other grounds,” wrote Judge Bacharch, who noted that one panel member relies on the Insular Cases and the other relies on a congressional practice that didn’t begin until roughly a half-century after ratification of the Citizenship Clause.

“Both approaches skirt our obligation to determine the meaning of the constitutional language,” said Judge Bacharach, who also wrote the dissent opinion from the majority of judges who had agreed with the defendants and the intervenors and issued a decision in the summer

“Because of the exceptional importance of this obligation and the issue of citizenship, we should have granted the plaintiffs’ request for en banc consideration,” he declared.

Judge Bacharach provided extensive arguments in the written dissent. Several of the arguments, provided details on contemporary dictionaries, maps, atlases, and censuses, which show the territories as part of the United States.

“Together, contemporary judicial opinions, dictionaries, maps, atlases, and censuses provide convincing proof that nineteenth-century Americans considered the U.S. territories to lie “in the United States”, he argued. “Given the uniformity of that proof, I see nothing uncertain or ambiguous about the intent to apply the Citizenship Clause to the territories.”

“So when the United States acquired American Samoa as a territory, everyone born in the territory became a U.S. citizen. We thus need not stray beyond the text of the Citizenship Clause to determine the plaintiffs’ citizenship,” he further argued.

Also covered in detail by Judge Bacharach is the controversial Insular Cases, which were covered by Samoa News in the past based on arguments from both plaintiffs and defendants. There has also been separate news coverage of it from Congresswoman Uifa’atali.

CONCLUSION

“We bear an obligation to interpret the geographic scope of the Citizenship Clause based on the text and its historical context,” wrote Judge Bacharach. “When we do, there is only one answer: The Territory of American Samoa lies within the United States.”

“Despite the unambiguous, uniform historical meaning of the term “in the United States,” our country has denied constitutional citizenship for over a century to virtually everyone born in U.S. territories like American Samoa,” he said.

“The right of constitutional citizenship for these fellow Americans is deserving of en banc consideration. I thus respectfully dissent from the denial of en banc consideration,” he concluded.

(See yesterday’s edition on other details from this case as well as comments from attorneys for the plaintiffs.)