Tuaua v. United States

788 F.3d 300

Leneuoti Fiafia TUAUA, et al., Appellants

v. UNITED STATES of America, et al., AppelleesAmerican Samoa Government and Aumua Amata, Intervenors.

No. 13–5272.

United States Court of Appeals, District of Columbia Circuit.

Argued Feb. 9, 2015.

Decided June 5, 2015.

Rehearing En Banc Denied Oct. 2, 2015.

Neil C. Weare argued the cause for appellants. With him on the briefs were Robert J. Katerberg, Murad S. Hussain, Elliott C. Mogul, and Dawn Y. Yamane Hewett.

Jessica Ring Amunson and Erica L. Ross were on the brief for amicus curiae David B. Cohen in support of appellants.

David J. Debold and Molly M. Claflin were on the brief for amici curiae Citizenship Scholars in support of appellants.

Eugene D. Gulland was on the brief for amici curiae Certain Members of Congress and Former Government Officials in support of appellants.

Krim M. Ballentine, filed the brief as amicus curiae in support of appellant.

Wynne P. Kelly, Assistant U.S. Attorney, argued the cause for appellees. With him on the brief were Ronald C. Machen Jr., U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.

Michael F. Williams argued the cause and filed the brief for intervenors for appellee American Samoa Government and Congresswoman Aumua Amata.

Paul R.Q. Wolfson, Dina B. Mishra, and Adam I. Klein were on the brief for amici curiae Scholars of Constitutional Law and Legal History in support of neither party.

Before: BROWN, Circuit Judge, and SILBERMAN and SENTELLE, Senior Circuit Judges.

Opinion

BROWN, Circuit Judge:

In our constitutional republic, Justice Brandeis observed, the title of citizen is superior to the title of President. Thus, the questions “ [w]ho is the citizen[?]” and “what is the meaning of the term?” Aristotle, Politics bk. 3, reprinted in part inReadings In Political Philosophy 55, 61 (Francis W. Coker ed., 1938), are no less than the questions of “who constitutes the sovereign state?” and “what is the meaning of statehood as an association?” We are called upon to resolve one narrow circumstance implicating these weighty inquiries. Appellants are individuals born in the United States territory of American Samoa. Statutorily deemed “non-citizen nationals” at birth, they argue the Fourteenth Amendment's Citizenship Clause affords them citizenship by dint of birthright. They are opposed not merely by the United States but by the democratically elected government of the American Samoan people. We sympathize with Appellants' individual plights, apparently more freighted with duty and sacrifice than benefits and privilege, but 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,” see Reid v. Covert, 354 U.S. 1, 75, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957), to impose citizenship by judicial fiat—where doing so requires us to override the democratic prerogatives of the American Samoan people themselves. The judgment of the district court is affirmed; the Citizenship Clause does not extend birthright citizenship to those born in American Samoa.

I

The South Pacific islands of American Samoa have been a United States territory since 1900, when the traditional leaders of the Samoan Islands of Tutuila and Aunu'u voluntarily ceded their sovereign authority to the United States Government. See Instrument of Cession by the Chiefs of Tutuila Islands to United States Government, U.S.-Tutuila, Apr. 17, 1900. Today the American Samoan territory is partially self-governed, possessing a popularly elected bicameral legislature and similarly elected governor.¹ Complaint at 13 ¶ 27, Tuaua v. United States, 951 F.Supp.2d 88 (D.D.C.2013) (No. 12–cv–01143). The territory, however, remains under the ultimate supervision of the Secretary of the Interior. See Exec. Order No. 10,264 (June 29, 1951) (transferring supervisory authority from the Secretary of the Navy to the Secretary of the Interior).

Unlike those born in the United States' other current territorial possessions—who are statutorily deemed American citizens at birth—section 308(1) of the Immigration and Nationality Act of 1952 designates persons born in American Samoa as non-citizen nationals.² See 8 U.S.C. § 1408(1). Below, Appellants challenged section 308(1), as well as State Department policies and practices implementing the statute, see, e.g., 7 FAM § 1125.1(b), on Citizenship Clause grounds and under the Administrative Procedure Act. The district court rejected Appellants' arguments and dismissed the case for failure to state a claim upon which relief can be granted. Tuaua v. United States, 951 F.Supp.2d 88, 94 (D.D.C.2013) ; see also Fed.R.Civ.P. 12(b)(6). On appeal Appellants reassert only their constitutional claim. Our review is de novo. Atherton v. D.C. Office of Mayor, 567 F.3d 672, 681 (D.C.Cir.2009).

II

The Citizenship Clause of the Fourteenth Amendment 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.” U.S. CONST. amend. XIV, § 1, cl. 1. Both Appellants and the United States government³ agree the text and structure of the Fourteenth Amendment unambiguously leads to a single inexorable conclusion as to whether American Samoa is within the United States for purposes of the clause. They materially disagree only as to whether the inescapable conclusion to be drawn is whether American Samoa “is” or “is not” a part of the United States. See generallyJohn Bartlett, Bartlett's Familiar Quotations S (17th ed.2002) (“The devil is in the detail[s].”).

A

Appellants rely on a comparison of the first and second clauses of the Fourteenth Amendment—the Citizenship and Apportionment Clauses, respectively. They argue the former is framed expansively through use of the overarching term “in the United States,” U.S. Const. amend. XIV, § 1, cl. 1, while the latter speaks narrowly in terms of apportionment of representatives “among the several States, ” U.S. Const. amend. XIV, § 1, cl. 2 (emphasis added). In contrast, the Appellees look to differences between the Thirteenth and Fourteenth Amendment.⁴ Partly relying on dictum from Justice Brown's judgment for the Supreme Court in Downes v. Bidwell, 182 U.S. 244, 21 S.Ct. 770, 45 L.Ed. 1088 (1901), the United States Government argues the Thirteenth Amendment prohibits slavery “within the United States, or any place subject to their jurisdiction, ” id. at 251, 21 S.Ct. 770 (emphasis added), while the Fourteenth Amendment's Citizenship Clause applies to persons “born ... in the United States, and subject to the jurisdiction thereof,” id. (emphasis added). According to the Government the Thirteenth Amendment's phraseology contemplates areas “not a part of the Union, [which] [a]re still subject to the jurisdiction of the United States,” while the Fourteenth Amendment incorporates a “limitation to persons born or naturalized in the United States, which is not extended to persons born in any place ‘subject to their jurisdiction.’ ” Id.

Neither argument is fully persuasive, nor does it squarely resolve the meaning of the ambiguous phrase “in the United States.” The text and structure alone are insufficient to divine the Citizenship Clause's geographic scope. The difference between the Citizenship and Apportionment Clauses could suggest the former has a broader reach than the latter. See United States v. Diaz–Guerrero, 132 Fed.Appx. 739, 740–41 (9th Cir.2005) (“It is a well-established canon of statutory interpretation that the use of different words or terms within a statute demonstrates ... [intent] to convey a different meaning for those words....”). But, even if this is the case, Appellants' argument does not resolve the question at issue because both text and structure are silent as to the precise contours of the “United States” under the Citizenship Clause. Even if “United States” is broader than “among the several States,” it remains ambiguous whether territories situated like American Samoa are “within” the United States for purposes of the clause. The Government's argument is similarly incomplete. While the language of the Thirteenth Amendment may be broader than that found in the Citizenship Clause, this comparison yields no dispositive insight as to whether the Citizenship Clause's use of the term “United States” includes American Samoa or similarly situated territories.

Appellants rely on scattered statements from the legislative history to bolster their textual argument. See, e.g.,Cong. Globe, 39th Cong., 1st Sess. 2890, 2894 (1866) (“[The Citizenship Clause] refers to persons everywhere, whether in the States, or in the Territories or in the District of Columbia.”) (statement of Sen. Trumbull). “[T]he legislative history of the Fourteenth Amendment ... like most other legislative history, contains many statements from which conflicting inferences can be drawn....” Afroyim v. Rusk, 387 U.S. 253, 267, 87 S.Ct. 1660, 18 L.Ed.2d 757 (1967). Here, and as a general matter, “[i]solated statements ... are not impressive legislative history.” Garcia v. United States, 469 U.S. 70, 78, 105 S.Ct. 479, 83 L.Ed.2d 472 (1984).

B

Appellants and Amici Curiae further contend the Citizenship Clause must—under Supreme Court precedent—be read in light of the common law tradition of jus soli or “the right of the soil.” See United States v. Wong Kim Ark, 169 U.S. 649, 654, 18 S.Ct. 456, 42 L.Ed. 890 (1898) (“The constitution nowhere defines the meaning of ... [the word “citizen”], either by way of inclusion or of exclusion, except in so far as this is done by the affirmative declaration that ‘all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.’ In this, as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the constitution.”) (internal citation...