This morning, the D.C. Circuit decided Tuaua v. United States, a case I previewed here back in February that raises the question of whether American Samoans are entitled to birthright American citizenship by dint of the Citizenship Clause of the Fourteenth Amendment, which provides that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” In a nutshell, the three-judge panel (Brown, Silberman, & Sentelle, JJ.) unanimously answered that question in the negative. As Judge Brown summarized her 23-page opinion for the court,  “the Citizenship Clause is textually ambiguous as to whether ‘in the United States’ encompasses America’s unincorporated territories and we hold it ‘impractical and anomalous,’ to impose citizenship by judicial fiat—where doing so requires us to override the democratic prerogatives of the American Samoan people themselves.”

As I hope to explain in more detail later, there are reasons to quibble with both lines of reasoning, especially the resort to functionalist considerations (such as the wishes of the American Samoan territorial government) in deciding whether the Citizenship Clause’s reference to “in the United States” ought to encompass “unincorporated territories” like American Samoa. (And that’s to say nothing of whether the Citizenship Clause even ought to be governed by the antiquated and deeply problematic “incorporated” / “unincorporated” framework of the Insular Cases.) But the larger point for present purposes is to flag how interesting a test case this now could become for the “new” D.C. Circuit. Given the concerns I raised in my earlier post and the shortcomings of Judge Brown’s analysis, it strikes me that there’s a non-frivolous possibility that the plaintiffs’ claims could find support from at least seven of the court’s 11 current active judges (senior judges are allowed to participate in en banc rehearings when they were on the original panel, but they don’t vote on whether to go en banc in the first place). And so, whatever one thinks of this morning’s opinion, it may well not be the last word from the D.C. Circuit on the fascinating and fraught question of birthright citizenship for American Samoans.