The Citizenship Clause provides that "[a]ll 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."
American Samoa is certainly "subject to the jurisdiction" of the United States. But residents must also be born "in the United States" for the constitutional right to attach. Unfortunately, for 14th Amendment citizenship purposes, the Territories have never been considered "in the United States."
No federal court has ever recognized birthright citizenship as a guarantee in unincorporated Territories. In fact, federal courts have held on many occasions that unincorporated Territories are not included within the "United States" for purposes of the Citizenship Clause. Because these residents have no Constitutional, automatic right to citizenship, Congress can pick and choose how they become citizens. In fact, it has done just that: granting citizenship at birth to residents of other Territories.
For example, residents of Puerto Rico and the U.S. Virgin Islands are citizens if born there. But that citizenship does not flow from any constitutional right. Rather, Congress has chosen to pass independent legislation giving those residents citizenship.
Indeed, Justice Ruth Bader Ginsburg of the Supreme Court observed in one opinion that the only remaining noncitizen nationals are residents of American Samoa and Swains Island. When it comes to citizenship in the Territories, Congress can giveth or it can choose not to giveth, and the Constitution gives those residents no recourse.At NPR, Ari Shapiro writes of the unanticipated consequences of the Foreign Accounts Tax Compliance Act.
Most countries in the world don't tax their citizens living abroad. So, for example, a Spaniard living in Canada won't pay Spanish taxes. Instead, he'll pay Canadian taxes. But the U.S. taxes American citizens wherever they are in the world.
"If I can compare it to romance, I say the U.S. is like Fatal Attraction," says Suzanne Reisman, a lawyer in London who advises Americans abroad. "Once they've got you, they never let you go. You have to renounce your citizenship, or you have to die."
So today, Americans who don't like the Fatal Attraction relationship are giving up their U.S. citizenship in record numbers.
In Switzerland, so many people want to renounce their citizenship that the U.S. Embassy actually has a waiting list.
"I want to be clear: It's not about a dollar value of taxes that I don't want to pay," says Brian Dublin, a businessman who lives near Zurich. "It's about the headache associated with the regulations, filing in the U.S., and then having financial institutions in the rest of the world turn me away."
Dublin says he is ready to renounce, despite the ties he feels to the country of his birth. "I grew up in America. I love my country. But I just feel that the current regulations are onerous."
Officials from the Treasury Department, the State Department, the IRS and Congress spoke on background for this story. None would talk on tape.
They all generally agree on the facts of the situation. Even so, there is very little pressure to change it. As one Senate staffer pointed out, nobody in Congress represents overseas Americans. And government officials think this law is succeeding at catching the tax cheats. That may be worth the side effect of losing a few thousand American citizens every year.