The D.C. Circuit, Samoan Citizenship, and the Insular Cases

Much has already been written about next Tuesday’s D.C. Circuit argument in In re al-Nashiri, an important case arising out of the Guantánamo military commissions. The day before (next Monday), a different D.C. Circuit panel (Brown, Silberman, & Sentelle, JJ.) will hear argument in a case that has nothing at all to do with Guantánamo, but the constitutional implications of which could easily be felt there (and elsewhere). The specific question in Tuaua v. United States is elegantly simple: Are individuals born in American Samoa–a U.S. territory–entitled to American citizenship under the plain language of the Citizenship Clause of the Fourteenth Amendment (“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.”)? And perhaps the most important thing to understand about this question–as I explain in detail below the fold–is that, whatever its answer, it is, perhaps remarkably, a question of first impression.

I.  Background

American Samoa is one of six populated U.S. territories (the others are the Commonwealth of the Northern Mariana Islands; the District of Columbia; Guam; Puerto Rico; and the U.S. Virgin Islands; there are also 10 uninhabited territories). As Judge Leon explained in the background to the ruling under appeal, “The United States claimed this territory in a 1900 treaty with Great Britain and Germany, and Samoan leaders formally ceded sovereignty to the United States in 1900 and 1904. American Samoa was administered by the Secretary of the Navy until 1951, when President Truman transferred administrative responsibility to American Samoa’s current supervisor, the Secretary of the Interior.” (One of American Samoa’s many claims to legal fame is that it’s the only U.S. jurisdiction without a federal court–but more on that weirdness in a future post.)

Federal law classifies American Samoa as an “outlying possession” of the United States, which means that, according to the State Department, those born in American Samoa are U.S. nationals but not U.S. citizens at birth. (Individuals born in each of the other inhabited territories are entitled to birthright citizenship at least by statute–mooting the constitutional question as applied to them.) To that end, the State Department categorizes American Samoa as an unincorporated territory and assumes that “the citizenship provisions of the Constitution do not apply to persons born there.”

As non-citizen U.S. nationals, American Samoans are, among other things, unable to obtain jobs requiring U.S. citizenship; ineligible for federal work-study programs in college; ineligible for firearm permits; unable to obtain a range of travel and immigration visas; and unable to pursue certain immigration relief for their spouses and children that would be available to U.S. citizens. And although American Samoans are entitled to pursue naturalization, they can only do so from elsewhere in the United States (that is, from somewhere where the government concedes that birthright citizenship applies), and only after going through a laborious and expensive process.

Enter the plaintiffs in Tuaua–Leneuoti Tuaua, the Samoan Federation of America, and eight other individuals born in American Samoa–who sued for declaratory and injunctive relief to the effect that they are entitled to birthright citizenship by dint of the Citizenship Clause of the Fourteenth Amendment. In June 2013, the district court rejected the plaintiffs’ claims. In a 17-page opinion, Judge Leon concluded that birthright citizenship for American Samoans was effectively precluded by a series of early-twentieth century Supreme Court decisions known as the “Insular Cases,” each of which had addressed the extent to which specific constitutional provisions applied to the United States’ “insular” possessions. Although the Insular Cases cannot easily be summarized, the basic framework they articulated was to distinguish between “incorporated” (e.g., territories “destined for statehood”) and “unincorporated” territories–and to only apply the Constitution en toto in the former. Whether specific provisions applied to the “unincorporated” territories turned on whether the constitutional provision at issue was sufficiently “fundamental”–although, to be clear, the answer was usually no. And in Judge Leon’s words,

in the century since . . . the Insular Cases were decided, no federal court has recognized birthright citizenship as a guarantee in unincorporated territories. To the contrary, the Supreme Court has continued to suggest that citizenship is not guaranteed to people born in unincorporated territories. For example, in a case addressing the legal status of an individual born in the Philippines while it was a territory, the Court noted—without objection or concern—that “persons born in the Philippines during [its territorial period] were American nationals” and “until 1946, [could not] become United States citizens.”

Thus, Judge Leon concluded, “federal courts have held over and over again that unincorporated territories are not included within the Citizenship Clause, and this Court sees no reason to do otherwise.” In other words, the plaintiffs’ claims were doomed by prior precedent.

II.  The Briefing on Appeal

Not surprisingly, the plaintiffs’ and government’s briefing on appeal labor mightily to explain why these prior precedents don’t (or do) compel the district court’s decision (the government’s brief also offers an incomprehensible statutory argument that, frankly, seems completely immaterial since the plaintiffs concede that the relevant statutes bar them from obtaining birthright citizenship). But perhaps the most interesting (and important) brief is an amicus brief filed by Wilmer’s Paul Wolfson in support of neither party, and on behalf of five scholars of constitutional law and legal history–Andrew Kent; Gary Lawson; Sandy Levinson; Christina Duffy Ponsa; and Bartholomew H. Sparrow. I think it’s safe to say that these five are the leading legal academics on the Insular Cases (if not on how constitutional law applies to the territories writ large), and their bottom line–that the Insular Cases simply don’t reach the question presented in Tuaua–is therefore especially compelling.

In a nutshell, the “Wilmer” amicus brief argues that

none of the Insular Cases resolved a claim under the Citizenship Clause. Nor does their reasoning logically extend to the question. Downes v. Bidwell, the landmark Insular Cases decision, concerned the materially different Uniformity Clause, and its divergent opinions in any event lack precedential import. Later Insular Cases concerned constitutional provisions that, unlike the Citizenship Clause, do not specify their own geographic reach.

The Insular Cases should not be considered even persuasive authority for analyzing the Citizenship Clause. That Clause differs in text, history, and function from the Clause at issue in Downes. More broadly, the Insular Cases’ approach to the constitutional status of the U.S. territories lacks any grounding in constitutional text, structure, or history. The Insular Cases, rather, reflected the assumptions of the time that the United States, like the great European powers of that era, must (despite being constrained by a written Constitution) be capable of acquiring overseas possessions without admitting their “uncivilized” and “savage” inhabitants of “alien races” to equal citizenship. That reasoning, even if it were constitutionally relevant, is the product of another age. It has no place in modern jurisprudence even if (as amici doubt) it had any validity in earlier times.

Thus, and simply put, nothing the Supreme Court or the D.C. Circuit has ever said about the unincorporated territories bears directly on the question of whether American Samoans are entitled to birthright citizenship–all the more so since, unlike each of the constitutional provisions at issue in those cases, the Citizenship Clause specifies its geographical scope: it applies to “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof.” To be sure, the Uniformity Clause of Article I (the provision at issue in Downes) also refers to “the United States,” but (1) it was written 80 years before the Citizenship Clause; and (2) at a time when a very different view of the meaning of the term “United States” prevailed. As the Wilmer brief concludes, “If that geographic phrase [in the Citizenship Clause] includes the U.S. territory of American Samoa, Plaintiffs-Appellants’ birthright citizenship cannot be negated on the atextual ground that American Samoa is “unincorporated.” And if that geographic phrase does not include American Samoa, nothing is added to that conclusion by the Insular Cases or any territoriality analysis therein.” Although other cases have suggested in passing that the Citizenship Clause may be covered by the Insular Cases‘ rather… insular… approach, none have ever specifically so held–and there are compelling reasons not to extend the Insular Cases beyond their direct application.

I must say that I found the Wilmer brief quite persuasive. If anything, the brief undersells two additional reasons why the district court may have overstated the Insular Cases‘ doctrinal value: First, the decisions in the Insular Cases generally predated the Supreme Court’s “selective incorporation” jurisprudence, which applied (most of) the Bill of Rights to the states on the ground that those rights were sufficiently “fundamental,” including provisions held to be not “fundamental” by various of the Insular Cases. It certainly might have made more sense to vary the applicability of constitutional provisions in the territories at a time when most of those same provisions did not apply to the states, but that’s just not true anymore. Second, and relatedly, the Citizenship Clause is not just any other constitutional provision, but a specific guarantee meant to overrule a Supreme Court decision that was itself about the relationship between citizenship and the federal territories (you know it better as Dred Scott). Thus, whatever may be true about other constitutional provisions, it’s hard to swallow the argument that century-old decisions about those provisions bear on the unique scope of the unique Citizenship Clause–any more so than they might bear on the unique scope of the unique Suspension Clause (but see Justice Kennedy’s dismissive treatment of the Insular Cases in Boumediene).

If the Wilmer brief is correct that this case comes to the D.C. Circuit on a clean slate, then that almost certainly favors the plaintiffs. After all, as they argue, the original understanding of the Citizenship Clause (and its predecessor–the Civil Rights Act of 1866) is actually quite clear that its drafters understood its sweep to encompass U.S. territories, regardless of their specific status (recall that the “incorporated” / “unincorporated” distinction was still 30-plus years away from showing up in the Supreme Court’s jurisprudence). And so, although the Wilmer amici take no position on the merits of the question presented, their brief may compel its answer.

III.  Potential Implications

The other especially fascinating amicus brief is the one filed in support of the federal government by then-Congressman Eni F.H. Faleomavaega–who, until January 3, was American Samoa’s non-voting delegate in Congress–and the territorial government of American Samoa (who have also sought to intervene in the appeal). Although it rehashes some of the federal government’s overbroad readings of the Insular Cases, the brief also argues more compellingly that judicial recognition of birthright citizenship would “undermine the American Samoan way of life and interfere with American Samoan cultural autonomy and sovereignty by effectively removing the resolution of American Samoa’s status from the democratic process.” As the brief explains, “The traditional way of life in American Samoa would likely face heightened scrutiny under the United States Constitution if the scope of the Citizenship Clause were read to reach American Samoa. Most problematically, the communal land system at the heart of the fa’a Samoa is protected by Samoan law restricting the sale of community land to anyone with less than fifty percent racial Samoan ancestry.” The implication appears to be that, if the Citizenship Clause of the Fourteenth Amendment applies to individuals born in American Samoa, it won’t be long before the Samoan government is also held to the other provisions of Section 1 of that Amendment–including the Equal Protection and Due Process Clauses. Thus, the brief concludes, the question of birthright citizenship in American Samoa should be left to the political branches–to Congress and the elected government and representatives of American Samoa.

To the latter point, it’s worth emphasizing that the only reason why birthright citizenship has historically been left to the political branches is because, with the equivocal exception of the Philippines, it’s never been denied to residents of any permanent U.S. territories. That is to say, courts have never had to intervene because Congress has clarified that individuals born in the territories are entitled to birthright citizenship at least as a matter of statute. That history hardly proves that, but for such legislative grace, courts wouldn’t have applied the Citizenship Clause to those territories, as well.

As for the concerns over subjecting American Samoa’s cultural traditions to constitutional constraints, even if that were a compelling reason to not apply the Citizenship Clause to American Samoa (and reasonable minds may well differ as to that conclusion), I don’t see how it follows from the relief the plaintiffs are seeking. Thanks in part to the Insular Cases (but also to, among other decisions, the notorious Slaughterhouse Cases), it’s just not a straight line from applying the Citizenship Clause to providing the full panoply of constitutional protections–or to doing so in a way that will upend long-settled (and constitutionally valid) Samoan cultural traditions. Indeed, it’s telling that the Faleomavaega brief doesn’t identify a single way in which birthright citizenship itself would interfere with these traditions; its concern seems to stem entirely from subjecting Samoan government practices to the heightened scrutiny demanded in some circumstances by the Due Process and Equal Protection Clauses (and other constitutional constraints).

If nothing else, the import of the Faleomavaega brief may well be to encourage limiting any decision in the plaintiffs’ favor to the unique context of the Citizenship Clause. But that’s as it should be; as the Wilmer brief underscores, whether the Insular Cases should be revisited (if not relegated to the dustbins of history) is not the question presented in Tuaua. Instead, the question is whether American Samoans should be the only individuals born on U.S. soil (and subject to the jurisdiction thereof) who are not entitled to birthright citizenship. If the D.C. Circuit answers that question in the negative, it can certainly do so narrowly and in a manner that won’t have broad implications elsewhere–other than to remind everyone of the modest scope of the Insular Cases.

But if the Court of Appeals agrees with the federal government and affirms the district court’s extension of the Insular Cases, that could have significant implications across a range of cases–from Guantánamo to American Samoa, and everywhere in between. After all, in the Guantánamo cases and in plenty of other contexts (including, inter alia, the pending en banc rehearing in the Fifth Circuit border-shooting case), we’re still debating the extent to which different constitutional provisions apply to non-citizens lacking substantial voluntary connections to the United States. The broader the Insular Cases are held to be (and the narrower the constitutional rights even of those individuals born in U.S. territories), the more that only serves to complicate these already complex contemporary disputes–and to turn such a decision into one worthy of en banc or certiorari review. 

About the Author(s)

Steve Vladeck

Co-Editor-in-Chief of Just Security and Professor of Law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).