Citizens of Nowhere?
After losing at the Supreme Court, Republicans are reviving a century-old racist legal doctrine to target babies born in Puerto Rico, Guam, the Virgin Islands and the Northern Mariana Islands.
On a Zoom call with a St. Croix television station last week, Rep. Morgan Griffith admitted something his own bill doesn’t account for. He said he has no evidence that birth tourism is happening in the U.S. Virgin Islands, one of the four territories his legislation targets. “My main concern is folks who are trying to take advantage of American laws to get folks in here, get citizenship, and have no real desire to join in the American dream,” the Virginia Republican told WTJX, without citing a single Virgin Islands case.
Griffith introduced H.R. 9724, the End Birthright Citizenship for Territories Act, on July 16. If passed, it would end automatic U.S. citizenship for children born on or after January 1, 2027, in Puerto Rico, Guam, the U.S. Virgin Islands and the Northern Mariana Islands, unless at least one parent already holds citizenship or a green card. American Samoa, where residents are already classified as U.S. nationals rather than citizens, is unaffected.
A Supreme Court Loss Becomes a Congressional Opening
Griffith’s bill arrived two weeks after his party lost a bigger fight. On June 30, the Supreme Court ruled 6-3 in Trump v. Barbara that President Donald Trump’s executive order denying birthright citizenship to children of undocumented or temporary immigrants violated the Fourteenth Amendment, reaffirming that citizenship for people born in the 50 states cannot be undone by anything short of a constitutional amendment.
Vice President JD Vance had already signaled where his party would look next. Appearing on Fox News after the ruling, Vance was asked about a proposal to limit territorial birthright citizenship through executive action and called it “a great idea,” saying the administration was “certainly looking at that,” according to Right to Democracy. Griffith cited the same opening in his own statement announcing the bill. “The Barbara case leaves the door open for Congressional action on citizenship in the American territories,” he said. “Just like Congress possesses the power to grant the territories constitutional rights in statute, we have the power to take them away in statute.”
The Citizenship Theory Built on Century-Old Racism
Griffith built his argument from a body of law almost as old as Puerto Rico’s relationship with the United States. Between 1901 and 1922, the Supreme Court decided a series of cases known as the Insular Cases on how much of the Constitution applies to territories the U.S. acquired after the Spanish-American War. In the lead case, Downes v. Bidwell, the Court ruled Puerto Rico belonged to the United States without being part of it. 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,” according to MS Now.
The doctrine has few defenders left. Justice Neil Gorsuch, a Trump appointee, called the Insular Cases “shameful” in a 2022 opinion, and the Justice Department has previously condemned them as well. They remain good law regardless, which is why Griffith’s bill is legally viable in a way an equivalent bill targeting the states would not be. Puerto Rico’s statutory citizenship traces back to a combination of laws passed by Congress between 1917 and 1941; the Virgin Islands received its own statutory grant in 1927. What Congress grants by statute, Griffith argues, Congress can take back the same way.
Citizens of Nowhere, by Accident or Design
Even people who take Griffith’s stated goal at face value say the bill’s text goes beyond. The operative language amending federal immigration law sets a hard cutoff: citizenship ends for anyone born in the territories after January 1, 2027, and only in the bill’s final provision is it carved out for children of citizens and permanent residents. Efrén Rivera Ramos, a law professor and former dean at the University of Puerto Rico School of Law, told Democracy Now! that reading just the bill’s opening section, “it says that people born in Puerto Rico from 1941 to 2027 would be considered U.S. citizens, but not after that,” with the exception buried in language that only surfaces at the very end.
Neil Weare, co-director of Right to Democracy, has made the same point to outlet after outlet since the bill dropped. “The actual text of the legislative amendments does not contain any limiting language and could deny citizenship to anyone born in a territory moving forward,” he said in a statement carried by Pacific Daily News and WTJX.
For her part, Rep. Stacey Plaskett, the nonvoting delegate representing the Virgin Islands, said, “Its sweeping language could leave children born in the U.S. territories citizens of nowhere.”
Four Territories, One Message to Congress
The reaction has produced rare bipartisan agreement in territories that don’t usually get Washington’s attention. Democratic Party of Guam Chairman Anthony Chargualaf wrote to his Republican counterpart, Sen. Shawn Gumataotao, requesting a joint declaration opposing the bill. “No child born under the American flag in Guam should ever be treated as less American than a child born in any state,” he wrote. Former Guam Sen. Mary C. Torres called the bill proof of the territories’ structural vulnerability: “Birthright citizenship should be a bright-line constitutional rule, not something that changes with congressional majorities, administrations, or political preferences.”
In the Virgin Islands, Usie Richards, president of the territory’s Sixth Constitutional Convention, called the bill “atrocious” and said adopting a local constitution, the Convention’s own project, would not shield residents from a Congress that can act on citizenship regardless. In Puerto Rico, Rivera Ramos said the bill would hit the island’s Dominican and Haitian immigrant communities hardest, creating what he called “a minority within a minority,” a group Congress could, in his words, treat as people “who can be discriminated against even more” and “simply disregarded.”
The Numbers Behind “Birth Tourism” Don’t Match the Bill
Griffith’s core argument is focused on birth tourism. “’Birth tourists’ and their babies later return to the parents’ country of origin,” he said in a statement. “But by providing U.S. citizenship to their child, one day their child can access the benefits that U.S. citizenship has to offer. That can take the form of work, education, voting in federal elections, and more. This is outrageous.” In a July newsletter, he cited a New York Post story claiming roughly 1,000 companies market birth tourism packages, and that 1.5 million American-born children are being raised in China by parents who used them, a figure relayed secondhand through Griffith’s own office rather than through any independent count.
His strongest actual data point involves a program he isn’t directly targeting. Under a visa waiver Barack Obama created in 2009 letting Chinese nationals visit the Northern Mariana Islands without a tourist visa, foreign visitor births in the CNMI climbed from fewer than 10 in 2009 to nearly 600 in 2018, the Washington Times reported in 2020, part of the same concern behind a related bill from Reps. Tom Tiffany and Chip Roy targeting the visa program itself. When WTJX pressed Griffith on evidence from the territory he was actually being interviewed about, he acknowledged he had none. He pivoted back to describing birth tourism operations in the Pacific.
One Cosponsor, an Uncertain Path
Plaskett noted in her initial statement that the bill had not attracted a single cosponsor. That changed the next day, when Rep. Ralph Norman of South Carolina signed on as Griffith’s sole cosponsor. The bill has been referred to the House Judiciary and Natural Resources committees, where Plaskett said her office is coordinating with members from both parties across the territories to track it. Adi Martínez Román, another Right to Democracy co-director, has raised a narrower but potentially fatal problem specific to the Northern Mariana Islands: the bill would amend citizenship terms written into the CNMI’s covenant with the United States, an agreement under Public Law 94-241 that requires mutual consent, not a unilateral act of Congress, to change.
Two Classes of Citizenship, Same Hospital
Former Virgin Islands Sen. Janelle Sarauw, now running for the territory’s congressional delegate seat, has been citing her own island’s history against the bill. Virgin Islanders have held statutory birthright citizenship since 1927, a century of precedent Griffith’s bill would end for some, not all, children born there next year.
“This legislation would create two classes of children born in the United States Virgin Islands,” Sarauw said in a statement. “One child would be born an American citizen because of the legal status of their parents, while another child, born in the same hospital, under the same American flag, could be denied that citizenship. That is not immigration reform. That is territorial discrimination.”