At the end of June, President Donald Trump and his MAGA allies lost — for now — the Supreme Court fight over birthright citizenship. Vice President JD Vance said MAGA needed to keep fighting birthright citizenship after the ruling in Trump v. Barbara, but it’s set its sights on a different nativist victory, this time relying on a set of racist laws the high court approved back at the start of the 20th century.
Just two weeks after the ruling on June 30 didn’t go MAGA’s way, Rep. Morgan Griffith, R-Va., introduced H.R. 9724, the End Birthright Citizenship for Territories Act. The bill would deny children born on or after Jan. 1, 2027, in Puerto Rico, Guam, the U.S. Virgin Islands and the Northern Mariana Islands automatic citizenship unless at least one parent is already a U.S. citizen or a legal permanent resident. Griffith calls it a crackdown on “birth tourism,” and the bill doesn’t hide where its legal authority comes from.
“The application under the Barbara case of birthright citizenship in the U.S. territories differs from what is established in the 50 U.S. States according to Supreme Court cases,” Griffith noted in a July 16 e-newsletter about the bill. “The birthright discrepancy between the territories and the States dates to legal cases beginning in the early 20th century known as the Insular Cases.”
Those Insular Cases are generally considered so racist that even Trump-appointed Justice Neil Gorsuch called them “shameful” back in 2022.
No matter how many times this country calls me a U.S. citizen, Washington still isn’t sure what to do with the place where I was born.
For those unfamiliar with the Insular Cases, from 1901 to 1922, the Supreme Court issued a series of rulings on how much of the Constitution applies to places like Puerto Rico — which had become booty of war after the end of the Spanish-American War in 1898 — and other U.S. possessions. In the lead case, Downes v. Bidwell, the court ruled that Puerto Rico belonged to — but wasn’t part of — the United States in a constitutional sense, and used language like “alien races” and “savage tribes” to describe people living there. The doctrine’s author, Justice Edward Douglass White (a former Confederate soldier), built the reasoning explicitly on “differences of race,” warning against extending citizenship to “uncivilized race[s]” he deemed “completely unfit to receive it.” This year marks the 125th anniversary of that first ruling, and is a topic I cover in a new podcast about Puerto Rican colonialism, aptly titled “American Colony.”
“This bill is divisive, it is racist in its foundation, and it is corrosive of the principles of American law. It fits a broader pattern in Congressman Griffith’s record of measures that diminish Black and brown people,” Rep. Stacey Plaskett, a nonvoting member representing the U.S. Virgin Islands, said in a statement. “To be clear — this bill has not attracted a single cosponsor. It has no discernible path to consideration, particularly given the calendar of inaction the Majority has laid out, but we do not dismiss it. We do note that the Vice President has said this is an idea the Administration is ‘looking at,’ and we take that seriously.”
I was born in Puerto Rico, where U.S. citizens still have fewer rights, so when I saw Griffith’s bill for the first time, it raised the same feeling I have always had when it comes to my own birth certificate: that no matter how many times this country calls me a U.S. citizen, Washington still isn’t sure what to do with the place where I was born. For 125 years, the Insular Cases have viewed Puerto Rico as a second-class colonial possession, even when thousands of Puerto Ricans have fought and died for a country that has never fully accepted them.
Griffith’s bill is just the latest attempt to insult us by threatening the possibility of Puerto Ricans having no citizenship at all. Of course, the bill doesn’t explicitly say that, but the threat is there for anyone born next year in Puerto Rico — because the Insular Cases appear to provide some legal justification for it.
That’s not paranoia. Efrén Rivera Ramos, a law professor and former dean at the University of Puerto Rico School of Law, told “Democracy Now!” that the bill’s own drafting creates exactly this kind of ambiguity — the first part reads as if it strips citizenship from anyone born in Puerto Rico after 2027, and only in the bill’s very last provision does it narrow that down to children of noncitizens and non-permanent residents. That sloppiness, Rivera Ramos warns, “may cause problems in the future” if this bill ever becomes law.
But fighting Griffith’s bill clause by clause misses the point. The Insular Cases need to go entirely, a position Neil Weare, co-director of Right to Democracy, has been pushing in court for years.
“It’s not surprising. Two hundred fifty years after the U.S. rejected colonial rule, the federal government continues to rely on the racist Insular Cases for the idea it can do whatever it wants in U.S. territories regardless of founding principles like ‘consent of the governed’ and all ‘created equal,’” Weare said.
Such a resolution is highly unlikely in this political climate, as long as MAGA is involved. Just last week, the White House brought back the image of Trump tossing paper towels after Hurricane Maria, an image that continues to enrage Puerto Ricans nine years later. To him, Puerto Rico is reduced to a meme. Any prospects of statehood are laughed off whenever he says he wants other countries like Canada, Greenland and Venezuela to become states. In fact, according to Trump, he might cry if places like Puerto Rico were to become states.
So why would we expect anything different when it comes to birthright citizenship?
Trump already made this bet once and lost. The Insular Cases are the backup plan, a racist relic that gets dusted off when the nativists fear the end of a lost America. Colonies like Puerto Rico have lived with that excuse since 1901, and it shouldn’t have to keep proving, generation after generation, that its people deserve the citizenship they already have.
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