Clark Waddoups, United States District Judge.
Before the court are three motions— Plaintiffs' Motion for Summary Judgment, (ECF No. 30), Defendant United States of America's (the Government) Motion to Dismiss, (ECF No. 66), and Intervenors American Samoa Government and the Honorable Aumua Amata's (the Intervenors) Motion to Dismiss, (ECF No. 89). As explained below, the court GRANTS Plaintiff's Motion for Summary Judgment and DENIES the Government's and the Intervenors' Motions.
Plaintiffs are three individuals born in American Samoa and a nonprofit corporation based in St. George, Utah. The three individual plaintiffs are John Fitisemanu, Pale Tuli, and Rosavita Tuli. The nonprofit corporation is the Southern Utah Pacific Island Coalition.
Unlike those born in the United States' other current territorial possessions, who are statutorily deemed American citizens at birth, 8 U.S.C. § 1408(1) designates the individual plaintiffs as non-citizen nationals. Plaintiffs argue that their designation as nationals, and not citizens, violates the Fourteenth Amendment. Their position is that because American Samoa is "in the United States," and "subject to the jurisdiction thereof," they are entitled to birthright citizenship under Section 1 of the Fourteenth Amendment.
As explained below, resolution of this case requires the court to choose between two Supreme Court cases and their respective lines of precedent—Wong Kim Ark and Downes v. Bidwell.
The first Supreme Court case is United States v. Wong Kim Ark, 169 U.S. 649, 18 S.Ct. 456, 42 S.Ct. 890 (1898). In Wong Kim Ark, the Supreme Court held that a man of Chinese descent, who was born in the state of California to parents who were never employed in any diplomatic capacity by the Chinese government, and who had never renounced his allegiance to the United States, became a citizen at the time of his birth in the United States—by virtue of the Citizenship Clause of the Fourteenth Amendment. In reaching this conclusion, the Supreme Court discussed at length the importance of the English common law rule of citizenship by birth in determining the meaning of the Citizenship Clause. The Court traced the United States' reliance on the common law rule from its origins in Calvin's Case.
Calvin's Case, decided in 1608, established a two part rule for acquisition of subject status at birth—(1) birth within the King's dominion and (2) allegiance to the King. The Supreme Court in Wong Kim Ark ultimately concluded that "[t]he fourteenth amendment affirms [this] ancient and fundamental rule of citizenship...." Wong Kim Ark, 169 U.S. at 693, 18 S.Ct. 456. Plaintiffs argue that Wong Kim Ark requires this court to hold that because American Samoa is within the territory of the United States, it is "in the United States" under Section 1 of the Fourteenth Amendment.
The second Supreme Court case, and its line of precedent, which may also provide this court with an answer to the question presented, is Downes v. Bidwell, 182 U.S. 244, 21 S.Ct. 770, 45 S.Ct. 1088 (1901). The line of cases following Downes are known as the Insular Cases.
Downes did not concern the Fourteenth Amendment. The question in Downes was whether—for purposes of the Tax Uniformity Clause of Article I, Section 8 of the Constitution—Puerto Rico is part of the United States. A splintered majority of the Court ultimately held that Puerto Rico is not part of the United States within the meaning of that provision of the Constitution.
Apart from its holding, Downes is relevant here because it represents the origin of the doctrine of "territorial incorporation," "under which the Constitution applies in full in incorporated Territories surely destined for statehood but only in part in unincorporated Territories." See Boumediene v. Bush, 553 U.S. 723, 757, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008) (citation omitted). The Government argues that "the Citizenship Clause confers citizenship on those born `in the United States,'" and argues that the Supreme Court's "decision
As explained below, this court holds that Downes, and the Insular Cases more generally, do not control the outcome of this case. Wong Kim Ark is binding on this court, however.
The Supreme Court in Wong Kim Ark held that the Fourteenth Amendment follows the "established" and "ancient rule of citizenship"—birth within the dominion and allegiance of the sovereign. Because the Supreme Court adopted this rule, and because it has never abrogated it, vertical stare decisis requires this court to apply the rule in this case. As explained below, application of this rule requires the court to hold that American Samoa is "in the United States" for purposes of the Fourteenth Amendment.
Plaintiffs filed their Motion for Summary Judgment on March 30, 2018. (ECF No. 30.) They seek summary judgment on all five claims for relief asserted in their Complaint. (ECF No. 30 at 17.)
First, they seek "[a] declaratory judgment that persons born in American Samoa are citizens of the United States by virtue of the Citizenship Clause of the Fourteenth Amendment, and that 8 U.S.C. § 1408(1) is unconstitutional both on its face and as applied to Plaintiffs." (ECF No. 30 at 17.)
Second, they seek "[a]n order enjoining Defendants from enforcing 8 U.S.C. § 1408(1), including enjoining Defendants from imprinting Endorsement Code 09
Third, they seek a "declaratory judgment that the State Department's policy that `the citizenship provisions of the Constitution do not apply to persons born [in American Samoa],' as reflected in 7 F.A.M. § 1125.1(b) and (d) violates the Fourteenth Amendment...." (ECF No. 30 at 18.)
Fourth, they seek "[a]n order enjoining Defendants from enforcing 7 F.A.M. § 1125.1(b) and (d)." (ECF No. 30 at 18.)
Fifth, they seek "[a]n order declaring that Defendants' practice and policy of enforcing 8 U.S.C. § 1408(1) and 7 F.A.M. § 1125.1(b) and (d) through imprinting Endorsement Code 09 in the passports of persons born in American Samoa is contrary to constitutional right and is not in accordance with law...." (ECF No. 30 at 18.)
On June 8, 2018, the Government filed its Motion to Dismiss, arguing that "this action should be dismissed in its entirety for failure to state a claim upon which relief can be granted." (ECF No. 66.)
On that same day, Intervenors filed their Motion to Intervene. (ECF No. 61.) On September 6, 2018, the court held oral argument on the Motion to Intervene. (ECF No. 86). On September 13, 2018, the court entered an order denying intervention of right, but granting permissive intervention. (ECF No. 92.)
In their Motion to Dismiss, Intervenors concurred with the Government's Motion to Dismiss. (ECF No. 89 at 2 n. 1.) They also argued that the court should dismiss the Plaintiff's complaint for two additional reasons. (ECF No. 89 at 7.) First, they argued that it would be impractical and anomalous for the court to impose citizenship
The court heard argument on the parties' motions on November 14, 2018. (ECF No. 100.)
Summary judgment is proper when the moving party demonstrates that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The court must "view the evidence and draw reasonable inferences therefrom in a light most favorable to the nonmoving party." Commercial Union Ins. Co. v. Sea Harvest Seafood Co., 251 F.3d 1294, 1298 (10th Cir. 2001).
Before addressing the arguments presented in this case, it is necessary to examine the historical evidence about the common-law underpinnings of the Citizenship Clause of the Fourteenth Amendment.
"With the end of the Tudor dynasty following the death of Elizabeth in 1603, James VI of Scotland inherited the throne of England as James I, thereby uniting the two kingdoms...." Polly J. Price, Natural Law and Birthright Citizenship in Calvin's Case (1608), 9 Yale J.L. & Human. 73, 80 (1997). "The most pressing question of political debate soon became the legal status of James's Scottish subjects in England. According to English law, were Scots aliens or were they subjects, capable of possessing and asserting at least some of the rights of English subjects, including holding land and suing in English courts?" Id. at 81.
That question was answered "[i]n June 1608" when "fourteen justices," id. at 82, "four lawyers," "and the lord chancellor participated in Calvin's Case." James H. Kettner, The Development of American Citizenship, 1608-1870, at 17 (1978). "Formally, the litigation involved a dispute over land titles." Id. at 16. "Two suits were
Although fourteen justices participated in the case, the "opinion of Lord Coke, chief justice of Common Pleas, emerged as the definitive statement of the law." Kettner at 17. "Coke's attention focused on the status of the natural-born subject—the individual who was born into the community of Englishmen." Id. "Broadly defined, this allegiance was the `true and faithful obedience of the subject due to his sovereign. This ligeance and obedience is an incident inseparable to every subject: for as soon as he is born, he oweth by birth-right ligeance and obedience to his sovereign.'" Id. at 17-18 (quoting Calvin's Case, 4b.) Ultimately, "Calvin's Case established a territorial rule for acquisition of subject status at birth:"
Price, 9 Yale J.L. & Human. at 83 (quoting Herbert Broom, Constitutional Law Viewed in Relation to Common Law 31 (London, W. Maxwell & Son, 2d ed. 1885)).
Calvin's Case "would exert a strong influence over the development of attitudes and doctrines concerning the constitutional character of the new imperial community in the eighteenth century." Kettner at 28. "Americans in particular would seize upon elements of Calvin's Case to explain and legitimize their special relationship with [England]." Id. Calvin's Case's "maxims and definitions would survive as guiding imperatives, serving as the source and inspiration for the ideas of future generations." Id.
"Englishmen who left their native country to settle on the far shores of the Atlantic remained subjects of the king." Kettner at 65. "The same common law principles that made subjects of the Scottish postnati applied equally well to persons in America." Id. "English emigrants lost neither their allegiance nor their status when they left their mother country, and all children born under the king's protection were nautral-born subjects in all the dominions." Id; see also Inglis v. Trustees of Sailor's Snug Harbor, 28 U.S. 99, 120-21, 3 Pet. 99, 7 S.Ct. 617 (1830) ("It is universally admitted, both in the English courts and in those of our own country, that all persons born within the colonies of North America, whilst subject to the crown of Great Britain, were natural born British subjects, and it must necessarily follow, that that character was changed by the separation of the colonies from the parent state, and the acknowledgement of their independence."). Indeed, that "same rule was in force in all the English colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the constitution as originally established." Wong Kim Ark, 169 U.S. at 658, 18 S.Ct. 456.
"Americans repudiated the authority of Great Britain not as individuals, but as
On July 4, 1776, the Continental Congress voted to adopt the Declaration of Independence. The Declaration stated, in part, that "the Representatives of the United States of America ... in the Name, and by the Authority of the good People of these Colonies," declared those colonies "Absolved from all Allegiance to the British Crown...." The Declaration of Independence para. 32 (U.S. 1776). It also famously provided that "all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness." Id. para. 2.
After the American Revolution, a "perplexing" "question" remained. See Kettner at 209. Did the Revolution create "one community of allegiance or many?" Id. During the Revolution "[i]t was enough to decide that one was a subject or a citizen." Id. "To consider whether [`citizen'] meant membership in a state or in a nation of states seemed unnecessary" at the time. See id. "The question would become a critical one in the years after the Revolution." Id. "It would appear in many different contexts and in many different guises," including "the status of inhabitants of the American territories, in conflicts between nationalists and advocates of states' rights, and ultimately in the soul-searing crisis of slavery." Id.
America's first constitution, the Articles of Confederation, was ratified in 1781. At that time, the nation was a loose confederation of states, each operating like independent countries. On September 3, 1783, Great Britain formally recognized the independence of the United States in the Treaty of Paris. Soon after America won its independence, it became increasingly evident that the young republic needed a stronger central government to remain stable. In 1786, Alexander Hamilton called for a constitutional convention to discuss the matter. The Confederation Congress, which in February 1787 endorsed the idea, invited all 13 states to send delegates to a meeting in Philadelphia. The Constitutional Convention took place from May 25 to September 17, 1787.
"The framers of the Constitution failed to grapple with the relationship of state and national citizenship, but they did concern themselves with problems involving citizenship status that had become apparent since independence." Kettner at 224. The framers had "debates over the citizenship qualifications for office...." See id. at 224-30. "The delegates assumed that citizenship was a prerequisite for high political office and closely contested the length of time that one had to be a citizen, but at no time did they discuss the relationship between state and national citizenship." Id. at 230.
The United States Constitution was signed on September 17, 1787, by delegates to the Constitutional Convention. On June 21, 1788, New Hampshire became the ninth and last necessary state to ratify the Constitution. It came into effect on March 4, 1789, by agreement of the Confederation Congress.
The term "citizen" is used in the Constitution. For example, Article IV of the Constitution provided that "[t]he Citizens of each State stall be entitled to all Privileges and Immunities of Citizens in the several States." U.S. Const. art. IV, § 2, cl. 1. Article III gave the federal judiciary jurisdiction in disputes "between a State and
But the Constitution did not define "citizen." See William Rawle, A View of the Constitution of the United States of America 85 (2d ed. 1829) ("It cannot escape notice, that no definition of the nature and rights of citizens appears in the Constitution."). Indeed, "the Constitution in its final form left critical questions relating to citizenship unanswered." Kettner at 231. "There was an implicit assumption that birth within the United States conferred citizenship—the president was to be a `natural born citizen' resident in the United States—but did this encompass all persons born within the states and territories of the new nation, or could the states or federal governments distinguish among natives, accepting some as birthright citizens while rejecting others?" Id. Questions regarding "the exact relations among the states and between the states and the nation as a whole would remain problematical until the ultimate question of the nature of individual citizenship was confronted directly." Id. at 232. "The framers dealt with the question tangentially, and, in consequence, the constitutional provisions involving citizenship contained profound ambiguities that would become apparent only long after the new government went into operation." Id.
"Judicial rulings on the meaning of the privileges and immunities and of the diversity jurisdiction clauses helped clarify the peculiarly dualistic character of American citizenship." Kettner at 264. "However, they by no means fully determined the political questions that might arise from the definition of that status." Id. "Considerable ambiguity thus remained at the heart of [the] notion of dual citizenship." Id. "Perhaps the most crucial unresolved question was whether the individual citizen owed his primary loyalty to his state or to the United States as a whole, and this determination involved the issue of whether the state citizenship flowed from national citizenship or vice versa." Id at 264-65.
The Supreme Court issued its notorious Dred Scott decision on March 6, 1857. "The opinion of the Court by Chief Justice Taney took the occasion to rule that free blacks could never become citizens of the United States, that Congress lacked the power to limit slavery in the territories, and that federal legislation limiting slavery anywhere would violate the Due Process Clause." Daniel A. Farber, A Fatal Loss of Balance: Dred Scott Revisited, 39 Pepp. L. Rev. 13, 14 (2011); see also Kettner at 326 ("Taney's majority opinion denied that Scott or any other black man could be a citizen of the United States within the meaning of the Constitution.").
According to Taney, "`every person and every class and description of persons who were at the time of the Constitution recognized as citizens in the several states,' became national citizens with the creation of the Union; but those locally admitted after 1789 enjoyed no national status." Kettner at 326 (quoting Dred Scott v. Sandford, 60 U.S. 393, 406, 19 How. 393,15 S.Ct. 691 (1857)). In other words, according to Taney, those who were citizens of a state prior to the constitution coming into effect in 1789 became national citizens after that date. But for Taney, free blacks were not state citizens before the ratification of the Constitution, so, according to him, they were not entitled to any national status as citizens thereafter.
In short, Dred Scott "held that there was a racial exception to the normal rule of birthright U.S. citizenship," Farber, 39 Pepp. L. Rev. at 24, an exception that was entirely inconsistent with the rule reported by Coke in Calvin's Case.
The American Civil War was fought from 1861-1865. "The outbreak of war removed obstacles that had long prevented Americans from achieving a consistent concept of citizenship." Kettner at 334. In many ways, "the Civil War was a struggle over the nature of the community created in 1789—a bloody contest over allegiance." Id. at 340. "The lines were ... drawn between those who stressed the primacy of
"In the moment of triumph," "the North sought to impose its own ideas of citizenship and community upon the nation." Id. As discussed below, a "succession of laws and constitutional amendments was passed over the objections of the recalcitrant President Johnson and forced upon the southern states as a condition of their readmission to the privileges forfeited by their disloyalty." Id. at 340-41.
"On December 18, 1865, the Secretary of State certified that the Thirteenth Amendment had been ratified and become part of the Constitution." Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 713-14, 109 S.Ct. 2702, 105 L.Ed.2d 598, (1989) (plurality opinion). The Thirteenth Amendment abolished slavery and involuntary servitude. Section 1 of the Thirteenth Amendment provided: "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." U.S. Const. amend. XIII, § 1.
"Less than three weeks" after the Thirteenth Amendment was ratified, "Senator Lyman Trumbull," of Illinois, "Chairman of the Senate Judiciary Committee, introduced S. 61, which was to become the Civil Rights Act of 1866." Jett, 491 U.S. at 713-14, 109 S.Ct. 2702 (citing Cong. Globe, 39th Cong., 1st Sess., 129 (1866)). "In March 1866 Congress passed and sent to ... [P]resident [Johnson] the Civil Rights Act, based explicitly upon the principle that citizenship derived from birth within the allegiance and entitled persons enjoying the status to basic rights throughout the nation." Kettner at 341. "Johnson vetoed the act." Id. at 342. "He ... pointed out that the proposed rights to be guaranteed by the national government had traditionally fallen within the jurisdiction of the states—a claim that many supporters of the bill would have denied...." Id. "But Congress was in no mood for arguments tinged with the stain of antebellum states' rights doctrine." Id. "The Senate and the House overrode the president's veto, and on April 9, 1866, the Civil Rights Act became law." Id.
"The 1866 Act represented Congress' first attempt to ensure equal rights for the freedmen following the formal abolition of slavery effected by the Thirteenth Amendment." Gen. Bldg. Contractors Ass'n, Inc. v. Pennsylvania, 458 U.S. 375, 389, 102 S.Ct. 3141, 73 L.Ed.2d 835 (1982). "As such, it constituted an initial blueprint of the Fourteenth Amendment...." Id. The Act "declared," in part, that "all persons born in the United States and not subject to any foreign power ... are hereby declared to be citizens of the United States; and such citizens, of every race and color," "shall have the same right, in every State and Territory in the United States, ... to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens...." Ch. 31, § 1, (1866).
But "[w]hat one Congress enacted another could repeal, and the surest guarantee that the view of citizenship embodied in the Civil Rights Act would survive lay not in statutes but in constitutional amendment." Kettner at 342. So, "on April 30, [1866,] the draft of the Fourteenth Amendment was introduced in the House and
The Senate held debates regarding the Fourteenth Amendment in May, 1866. See United States v. Wong Kim Ark, 169 U.S. 649, 698, 18 S.Ct. 456, 42 S.Ct. 890 (1898) ("When it came before the senate in May, 1866....). "The fourteenth amendment of the constitution, as originally framed by the house of representatives, lacked the opening sentence." Wong Kim Ark, 169 U.S. at 698, 18 S.Ct. 456. Senator "Howard, of Michigan, moved to amend by prefixing the sentence in its present form (less the words `or naturalized'), and reading: `All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.'" Wong Kim Ark, 169 U.S. at 698, 18 S.Ct. 456. After introducing the proposed language, Senator Howard continued:
Cong. Globe, 1st Sess. 39th Cong. 2890.
Senator Doolittle, of Wisconsin, then moved "to amend [Howard's] amendment," "by inserting after the word `thereof' the words `excluding Indians not taxed.'" Cong. Globe, 1st Sess. 39th Cong. 2890. A debate thereafter ensued regarding whether to add the words "excluding Indians not taxed" to Section 1 of the Fourteenth Amendment.
Senator Trumbull, of Illinois, was the "chairman of the Committee on the Judiciary... who ... investigated the civil rights bill." Cong. Globe, 1st Sess. 39th Cong. 2893 (Sen. Fessenden). Senator Trumbull opposed Senator Doolittle's proposed amendment, believing that Native Americans were not subject to the complete jurisdiction of the United States because they did not owe allegiance to the United States. See Cong. Globe, 1st Sess. 39th Cong. 2893 (Sen. Trumbull) ("What do we mean by `subject to the jurisdiction of the United States?' Not owing allegiance to anybody else. That is what it means."); see also Cong. Globe, 1st Sess. 39th Cong. 2894 (Sen. Trumbull) ("I have already replied to the suggestion as to the Indians being subject to our jurisdiction. They are not subject to our jurisdiction in the sense of owing allegiance solely to the United States....").
Senator Johnson, of Maryland, then joined in the debate. See Cong. Globe, 1st Sess. 39th Cong. 2893. He was in favor of adding the language "excluding Indians not taxed" to Section 1 of the Fourteenth Amendment. See Cong. Globe, 1st Sess. 39th Cong. 2893 (Sen. Jonson) ("The amendment proposed by my friend from Wisconsin ... should be adopted."). Before addressing that proposed amendment, however, he stated the following:
Cong. Globe, 1st Sess. 39th Cong. 2893 (Sen. Jonson) (emphasis added).
Senator Johnson then expressed disagreement with Senator Trumbull regarding whether Native Americans are subject to the jurisdiction of the United States. Cong. Globe, 1st Sess. 39th Cong. 2893 (Sen. Johnson) ("and he supposes and states very positively that the Indians are not subject to the jurisdiction of the United States. With due deference to my friend from Illinois, I think he is in error."). Senator Johnson then pointed out that Senator Trumbull did not oppose the "excluding Indians not taxed" language in Section II of the (proposed) Fourteenth Amendment. Cong. Globe, 1st Sess. 39th Cong. 2894 (Sen. Johnson) ("I suppose that my friend from Illinois agreed to the second section of this constitutional amendment, and these terms are used in that section."). The following exchange between Senator Trumbull and Senator Johnson then occurred:
Cong. Globe, 1st Sess. 39th Cong. 2894 (emphases added).
U.S. Const. amend. XIV § 1. Section 2 provides:
U.S. Const. amend. XIV § 2.
The Supreme Court has interpreted the Citizenship Clause of the Fourteenth Amendment three times—in (1) the Slaughter-House Cases, 83 U.S. 36, 16 Wall. 36, 21 S.Ct. 394 (1872); (2) Elk v. Wilkins, 112 U.S. 94, 5 S.Ct. 41, 28 S.Ct. 643 (1884); and (3) United States v. Wong Kim Ark, 169 U.S. 649, 18 S.Ct. 456, 42 S.Ct. 890 (1898).
"Four years after the adoption of the Fourteenth Amendment," the Supreme Court "was asked to interpret the Amendment's reference to `the privileges or immunities of citizens of the United States.'" McDonald v. City of Chicago, Ill., 561 U.S. 742, 754, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010). The Slaughter-House Cases "involved challenges to a Louisiana law permitting the creation of a state-sanctioned monopoly on the butchering of animals
Justice Miller noted that "[t]he first section of the fourteenth article ... opens with a definition of citizenship—not only citizenship of the United States, but citizenship of the States." Slaughter-House Cases, 83 U.S. 36, 72, 16 Wall. 36, 21 S.Ct. 394 (1872). He then noted that prior to the Fourteenth Amendment, the Constitution did not define citizenship. See id. ("No such definition was previously found in the Constitution, nor had any attempt been made to define it by act of Congress."). He noted that historically, one view of citizenship was that one had to be a citizen of a state in order to be a citizen of the nation. See id. ("It had been said by eminent judges that no man was a citizen of the United States, except as he was a citizen of one of the States composing the Union."). Justice Miller then commented that, under this view of citizenship, those born in the District of Columbia or in the Territories were not citizens. See id. ("Those, therefore, who had been born and resided always in the District of Columbia or in the Territories, though within the United States, were not citizens."). He continued, "[w]hether this proposition was sound or not had never been judicially decided." Id. at 72-73. He then commented that the "first clause of the first section" of the Fourteenth Amendment "was framed" in response to the Dred Scott decision to "establish a clear and comprehensive definition of citizenship." Id. at 73.
Justice Miller concluded with two observations about the first clause of the first section of the Fourteenth Amendment. See id. First, the clause "puts at rest ... questions which [the Court] ha[d] stated to have been the subject of differences of opinion." Id. Relevant here, he stated that "[i]t declares that persons may be citizens of the United States without regard to their citizenship of a particular State...." Id. Second, he noted that "the distinction between citizenship of the United States and citizenship of a State is clearly recognized and established." Id. That is because "a man" "may" "be a citizen of the United States without being a citizen of a State"— "it is only necessary that he should be born or naturalized in the United States to be a citizen of the Union." Id. at 74. He then noted that it is "quite clear" "that there is a citizenship of the United States, and a citizenship of a State," and noted this distinction's "explicit recognition in" the Fourteenth Amendment. See id.
In Elk v. Wilkins, the Supreme Court dealt "with the question [of] whether a native-born American Indian was made a citizen of the United States by the Fourteenth Amendment of the Constitution." Fed. Power Comm'n v. Tuscarora Indian Nation, 362 U.S. 99, 80 S.Ct. 543, 4 L.Ed.2d 584 (1960); see also Elk v. Wilkins, 112 U.S. 94, 5 S.Ct. 41, 28 S.Ct. 643 (1884) ("The question then is, whether an Indian, born a member of one of the Indian
In Wong Kim Ark, the question before the Supreme Court was "whether a child born in the United States, of parents of Chinese descent, who at the time of his birth are subjects of the emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the emperor of China, becomes at the time of his birth a citizen of the United States, by virtue of the first clause of the fourteenth amendment of the constitution." United States v. Wong Kim Ark, 169 U.S. 649, 653, 18 S.Ct. 456, 42 S.Ct. 890 (1898). The Court separated its opinion into seven sections. This court discusses Wong Kim Ark extensively in its analysis.
The Spanish-American War was an 1898 conflict between the United States and Spain that ended Spanish colonial rule in the Americas and resulted in U.S. acquisition of territories in the western Pacific and Latin America. On December 10, 1898, the Treaty of Paris was signed. As a result, Spain renounced all claims to Cuba, ceded Guam and Puerto Rico to the United States, and transferred sovereignty over the Philippines to the United States.
On February 16, 1900, "[i]n a treaty ratified by the United States," "Germany and Great Britain renounced any claims over the eastern Samoan islands, including Tutuila, in favor of the United States." (ECF No. 55 at 11-12; see also Cession of Tutuila and Aunu'u, ECF No. 55-2 at 16.
"On July 14, 1904, the Tui Manua' (King of Manu'a) and the chiefs of the eastern Samoan island group of Manu'a ... granted sovereignty to the United States, `placing the Island's of Manu'a ... under the complete sovereignty of the United States of America to enable said Islands, with Tutuila and Aunuu, to become a part of the territory of said United States.'"
According to the Samoan Federation of America, "[i]n the 1920's, U.S. Naval officers informed the American Samoan people for the first time that they were not recognized as U.S. citizens by the federal government." (ECF No. 55 at 15 (citations omitted).) According to the Samoan Federation of America, "[i]n response, prominent American Samoans organized a new political movement known as the Mau to press for recognition of U.S. citizenship and greater rights to self-government." (ECF No. 55 at 15-16; see also David A. Chappell, The Forgotten Mau, 69 Pac. His. Rev. 217 (2000), ECF No. 55-2 at 117 ("Gray," a naval historian, "dates the start of the Mau, to February 1920....").) According to the Samoan Federation of America, "[t]he American Samoan Mau movement was separate and distinct from the more well-known Mau movement that formed around the same time in Western Samoa, which laid the foundation for Western Samoa's eventual independence." (ECF No. 55 at 16 n. 4.)
According to the Samoan Federation of America, "[t]he Mau pushed for recognition of U.S. citizenship, organized public demonstrations, petitioned President Coolidge, and drew significant attention from Congress." (ECF No. 55 at 16; see also The Forgotten Mau, ECF No. 55-2 at 136 ("Repeated Samoan protests and petitions to the governor and U.S. President....").) As a result of these efforts, "a U.S. senator from Connecticut," "Hiram Bingham," "introduced a bill in Congress that resulted in Public Resolution No. 89 in February 1929, which ratified at long last the Deeds of Cession of American Samoa.")
48 U.S.C. § 1661(a), passed on February 20, 1929, provides: "[t]he cessions by certain chiefs of the islands of Tutuila and Manua and certain other islands of the Samoan group ... herein referred to as the islands of eastern Samoa, are accepted, ratified, and confirmed, as of April 10, 1900, and July 16, 1904, respectively."
"The American Samoan Commission [was] created by act of Congress, Public Resolution No. 89," and approved by the President on February 20, 1929...." (American Samoa: Hearings Before the Comm'n Appointed by the President of the
According to the Samoan Federation of America, "[t]hroughout the hearings, American Samoans repeatedly and uniformly stated their desire to be recognized as U.S. citizens." (ECF No. 55 at 17.) In support, the Samoan Federation of America cites to numerous quotes from the hearing that support their position. (See ECF No. 55-2 at 68-79.)
On October 7, 1930, "the Governor of Samoa," "the high chiefs, the talking chiefs, and the chiefs of Tutuila-Manua," assembled "on the shore" of the bay "of Pago Pago" to hear "the preliminary report of the American Samoan commission." (See American Samoa: Hearings Before the Comm'n Appointed by the President of the United States (1931), ECF No. 55-2 at 87.) "The seven commissioners ... unanimously agreed" to "make a report to the Congress of the United States" which would contain, among other things, a recommendation that "full American citizenship be granted to the inhabitants of Tutuila-Manua as of February 20, 1929, and to their children; and also to those inhabitants of Tuituila-Manua who were residing on the mainland of the United States or in the Territory of Hawaii." (ECF No. 55-2 at 87.)
On January 6, 1931, Senator Bingham sent President Hoover, "for transmission to the Congress of the United States, the official report of the American Samoan Commission...." (S. Doc. No. 71-249 (1931), ECF No. 55-2 at 154.) On January 9, 1931, the President sent the official report to Congress. (S. Doc. No. 71-249 (1931), ECF No. 55-2 at 153.)
The official report recommended American citizenship for American Samoans. The report stated that the commission had heard "the opinions of all elements making up the community of American Samoa, the chiefs in particular.... No one who expressed a desire to address the commission was denied." (S. Doc. No. 71-249 (1931), ECF No. 55-2 at 159.) The official report further provided:
(ECF No. 55-2 at 160.) The official report concluded that "the Samoans are capable of accepting and should receive full American citizenship." (ECF No. 55-2 at 160.) This conclusion was based, at least in part, on the following:
(ECF No. 55-2 at 162.)
According to the Samoan Federation of America, Inc, "[i]n 1931, the U.S. Senate unanimously passed a bill to recognize American Samoans as citizens. (ECF No. 55 at 21 (citing ECF No. 55-2 at 180
The Samoan Federation of America argues that "House Opposition to recognizing American Samoans as U.S. citizens was fueled by archaic claims of racial inferiority." (ECF No. 55 at 22.) In support, the Federation cites to the statements of Representative Jenkins, who, on the House floor, opposed granting citizenship to American Samoans when he stated: "What I am opposed to is taking American citizenship and flinging it halfway around the world, flinging it out to a group of people who are absolutely unqualified to receive it, who cannot espouse it fully, who do not need it as a prerequisite to their happiness, and who cannot maintain it honestly. This will bring trouble to them and bring trouble to us." (ECF No. 55-3 at 9.) He continued later:
(ECF No. 55-3 at 14.)
According to the Samoan Federation of America, "[t]he legislation was again defeated in the House." (ECF No. 55 at 22 (citation omitted). According to the Federation, "[i]n 1934 the Senate again unanimously passed legislation to recognize American Samoans as U.S. citizens," but the "legislation again failed to clear House, and similar bills also failed in 1936 and 1937." (ECF No. 55 at 22-23.)
According to the American Samoan Federation of America, the "Statutory recognition of American Samoans as `nationals but not citizens, of the United States' did not occur until 1940." (ECF No. 55 at 15 n. 3 (citing Nationality Act, Pub. L. No. 76-853, 54 Stat. 1137, 1139 (1940)
The Insular Cases were a "series of opinions" wherein the Supreme Court "addressed whether the Constitution, by its own force, applies in any territory that is not a State." Boumediene v. Bush, 553 U.S. 723, 756, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008). The court discusses those opinions that are most relevant to the question presented.
In Downes v. Bidwell, 182 U.S. 244, 21 S.Ct. 770, 45 S.Ct. 1088 (1901) the Court was called on to interpret the Uniformity Clause of Article I, Section 8 of the Constitution. "The Downes case arose out of a dispute over duties charged on a shipment of oranges from Puerto Rico to New York under the Foraker Act, an organic act passed by Congress in 1900 to establish a civil government on the island." Christina Duffy Burnett, United States: American Expansion and Territorial Deannexation, 72 U. Chi. L. Rev. 797, 807 (2005). "The plaintiffs argued that the duty, which applied specifically to goods from Puerto Rico, violated the Uniformity Clause of the Constitution, which provides that all `Duties, Imposts and Excises shall be uniform throughout the United States.'" Id. (emphasis added) (quoting US Const Art I, § 8, cl 1)). A fractured majority agreed that that provision did not apply to Puerto Rico.
Justice Brown delivered the judgment of the court in an opinion in which no other Justice joined. Justice White authored a concurring opinion and was joined by Justices Shiras and McKenna. Justice Gray also authored a concurring opinion. These Justices agreed that Puerto Rico is not part of the United States for purposes of the Tax Uniformity Clause.
Justice Brown described the question of the case as "whether the revenue clauses of the Constitution extend of their own force to [the United States'] newly acquired territories." 182 U.S. at 249, 21 S.Ct. 770 (opinion of Brown, J.). Justice Brown ultimately provided that Puerto Rico is "not a part of the United States within the revenue clauses of the Constitution...." 182 U.S. at 287, 21 S.Ct. 770 (opinion of Brown, J.).
In reaching this conclusion, Justice Brown made many statements about citizenship that are relevant to the question presented in this case. Relevant here, Justice Brown wrote that "it can nowhere be inferred that the territories were considered a part of the United States." 182 U.S. at 250-51, 21 S.Ct. 770 (opinion of Brown, J.). He continued: "The 13th Amendment to the Constitution, prohibiting slavery and involuntary servitude `within the United States, or in any place subject to their jurisdiction,' is also significant as showing
In Justice Brown's view "the Constitution is applicable to territories acquired by purchase or conquest, only when and so far as Congress shall so direct." 182 U.S. at 279, 21 S.Ct. 770 (opinion of Brown, J.). Justice Brown was of the opinion that "the power to acquire territory by treaty implies, not only the power to govern such territory, but to prescribe upon what terms the United States will receive its inhabitants, and what their status shall be in ... the `American empire.'" 182 U.S. at 279, 21 S.Ct. 770 (opinion of Brown, J.). He continued:
182 U.S. at 279-80, 21 S.Ct. 770 (opinion of Brown, J.). Perhaps most relevant here was Justice Brown's view that "there is an implied denial of the right of the inhabitants [of territories] to American citizenship until Congress by further action shall signify its assent thereto." 182 U.S. at 280, 21 S.Ct. 770 (opinion of Brown, J.).
Justice White's concurring opinion in Downes was the origin of the doctrine of territorial incorporation. See Christina Duffy Burnett, United States: American Expansion and Territorial Deannexation, 72 U. Chi. L. Rev. 797, 806-07 (2005) ("In the most important of these cases, Downes, a concurring opinion by Justice Edward Douglass White set forth the doctrine of territorial incorporation.").
At the outset of Justice White's concurring opinion, he wrote: "Mr. Justice Brown, in announcing the judgment of affirmance, has in his opinion stated his reasons for his concurrence in such judgment. In the result I likewise concur." 182 U.S. at 287, 21 S.Ct. 770 (White, J., concurring). He continued: "As, however, the reasons which cause me to do so are different from, if not in conflict with, those expressed in that opinion, if its meaning is by me not misconceived, it becomes my duty to state the convictions which control me." 182 U.S. at 287, 21 S.Ct. 770 (White, J., concurring) (emphasis added). Thus, at the outset of his concurring opinion, Justice White made clear that his reasoning for reaching the Court's ultimate result was "different from, if not in conflict with" those of Justice Brown.
Like Justice Brown, Justice White ultimately concluded that the Uniformity Clause did not apply to duties charged to shipments from Puerto Rico. 182 U.S. at 342, 21 S.Ct. 770 (White, J., concurring) ("the impost in question assessed on coming from Porto Rico into the United States after the cession was within the power of Congress, and that body was not, moreover, as to such impost, controlled by the clause requiring that imposts should be
In his concurring opinion, Justice White also expressed his view on the right of the government of the United States to acquire territory, and to enjoy the "beneficial existence" of its acquisitions—for "commercial and strategic reasons"—without the risk of "incorporat[ing] an alien and hostile people into the United States." See 182 U.S. at 305-08, 21 S.Ct. 770 (White, J., concurring). In Justice White's view, the government of the United States' "right" "to acquire" "territory" "could not be practically exercised if the result would be to endow the [territory's] inhabitants with citizenship of the United States...." 182 U.S. at 306, 21 S.Ct. 770 (White, J., concurring).
Justice Gray "concurr[ed] in the judgment of affirmance in" the case, and "in substance agree[d] with the opinion of Mr. Justice White...." 182 U.S. at 345, 21 S.Ct. 770 (Gray, J., concurring).
In Balzac a unanimous Supreme Court provided that "the opinion of Mr. Justice White of the majority, in Downes v. Bidwell, has become the settled law of the court." Balzac, 258 U.S. at 305, 42 S.Ct. 343.
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. The Government concedes that "persons born in the territories are `subject to the jurisdiction' of the United States. (ECF No. 66 at 18.) The question is therefore whether American Samoa is "in the United States" for purposes of the Fourteenth Amendment.
Plaintiffs argue that "the phrase `in the United States' includes both States and Territories." (ECF No. 30 at 26 (emphasis in original).) The Government argues that "[t]he best reading of the Citizenship Clause is that U.S. territories are not `in the United States' within the meaning of the Clause because `in the United States' means in the 50 States and the District of Columbia." (ECF No. 66 at 19.) Both Plaintiffs and the Government argue—(I) that the Fourteenth Amendment's text, structure, and related historical evidence and (II) Supreme Court precedent—require this court to adopt their interpretation of the Citizenship Clause.
Whether American Samoa is "in the United States" under the Fourteenth Amendment requires this court to conduct a "careful examination of the textual, structural, and historical evidence" related to the Amendment. Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 201, 132 S.Ct. 1421, 182 L.Ed.2d 423 (2012).
Plaintiffs argue that "[i]n the 1860s, as now, the word `in' connoted `presence in place, time, or state' and was synonymous with `within' as opposed to `without.'" (ECF No. 30 at 29.) They further argue that "[t]here is no conceivable reading of
The Fourteenth Amendment text's alone is insufficient to determine the Citizenship Clause's geographic scope.
Plaintiffs contrast the language of Section 1 of the Fourteenth Amendment with Section 2 to support their argument that territories are "in the United States" for purposes of the Citizenship Clause. (See ECF No. 30 at 31-32.) They note that "[w]hile Section 1 of the Fourteenth Amendment ... uses the term `in the United States,' Section 2 ... uses the narrower phrase `among the several States' to provide that Representatives are to be apportioned only among States." (ECF No. 30 (emphasis in original) (citations omitted).) Plaintiffs argue that "the Framers' choice of different language in these adjacent, simultaneously adopted constitutional provisions is strong evidence that the provisions' geographic scopes are not coextensive" and argue that "`[i]n the United States' must therefore mean something more extensive than `among the several states.'" (ECF No. 30 at 31.)
Plaintiffs also argue that the Thirteenth Amendment supports their reading. The Thirteenth Amendment abolished slavery "within the United States, or any place subject to their jurisdiction." U.S. Const. amend. XIII, § 1, cl. 1. Plaintiffs argue that those areas that are not "within the United States," yet subject to U.S. jurisdiction, do not include Territories. (See ECF No. 30 at 32.) They argue that those words—"subject to their jurisdiction"—refer to "locations beyond the Nation's sovereign limits but nevertheless under U.S. control," like "vessels outside U.S. territorial waters, embassies abroad, and military installations on foreign soil...." (ECF No. 30 at 32.)
The Government argues that the Constitution's structure supports its position that American Samoa is not within the United States for purposes of the Citizenship Clause. It makes two primary arguments in support of its position.
First, the Government argues that "the general distinction drawn throughout the Constitution between `the United States'... and lands `belonging to the United States' ... supports the inference that territories are not `in the United States' for purposes of the Citizenship Clause." (ECF No. 79 at 8 (emphasis in original).) It compares the language of the Tenth Amendment
Both parties make persuasive arguments for their positions. But like the D.C. Circuit, this court finds that neither argument "is fully persuasive," and finds that neither argument "squarely resolve[s] the meaning of the ambiguous phrase `in the United States.'" Tuana v. United States, 788 F.3d 300, 303 (D.C. Cir. 2015). The Constitution's structure alone is "insufficient to divine the Citizenship Clause's geographic scope." See id.
Plaintiffs make four primary arguments in support of their position that "[n]umerous historical sources similarly align and show that the common-sense reading of the Citizenship Clause—that it extends to the Territories—is correct." (ECF No. 30 at 32.) The court discusses Plaintiffs' arguments, and the Government's responses to those arguments, in turn.
First, Plaintiffs argue that "the reason the phrase `the United States' was understood to encompass U.S. Territories was a result of the common law doctrine of jus soli." (ECF No. 30 at 32.) Jus soli is "the rule under which nationality is acquired by the mere fact of birth within the territory of a state." Polly J. Price, Natural Law and Birthright Citizenship in Calvin's Case (1608), 9 Yale J.L. & Human. 73, 77 (1997). Relying on Wong Kim Ark, Plaintiffs argue that "[b]ecause the Citizenship Clause was drafted and ratified under the common-law understanding of the term `citizen,' the Clause `must be interpreted in the light of the common law.'" (ECF No. 30 (emphasis in original) (quoting Wong Kim Ark, 169 U.S. at 654, 18 S.Ct. 456)). Plaintiffs, again relying on Wong Kim Ark, argue that "[t]he common-law rule regarding birthright citizenship was straightforward: `the party must be born within a place where the sovereign is at the time in full possession and exercise of his power, and the party must also at his birth ... owe obedience or allegiance to ... the sovereign.'" (ECF No. 30 at 33 (quoting Wong Kim Ark, 169 U.S. at 659, 18 S.Ct. 456).)
In response to Plaintiffs' argument that the Citizenship Clause ratified the common law doctrine of jus soli, the Government argues that Wong Kim Ark's statements about common law jus soli principles were dicta. (See ECF No. 79 at 21.) It further argues that Plaintiffs fail "to point to any jus soli precedent ... that speaks to birthright citizenship in unincorporated territories." (ECF No. 79 at 21.)
Second, Plaintiffs argue that "the Fourteenth Amendment's repudiation of the Supreme Court's notorious Dred Scott decision provides compelling evidence that jus soli governs citizenship by birth." (ECF No. 30 at 34.) As noted above, one of Dred Scott's holdings was that Congress lacked the power to limit slavery in the territories. Plaintiffs argue that "[i]t is inconceivable that Congress would have left the question of citizenship in U.S. territories to congressional whim, especially when Congress's power over the Territories had been a central issue in Dred Scott." (ECF No. 30 at 35 (emphasis in original).)
Third, Plaintiffs argue that "contemporaneous statements from the Fourteenth Amendment's Framers provide further evidence of the common understanding that the Citizenship Clause applies to Territories." (ECF No. 30 at 35 (citation omitted).) Plaintiffs point to the statements of three senators who took part in the May 1866 debate regarding the Fourteenth Amendment—Senators Trumbull, Howard, and Johnson—to support their argument. (See ECF No. 30 at 35-36.) Plaintiffs argue that "Senator Trumbull, for example, explained that `[t]he second section' of the Fourteenth Amendment—the Apportionment Clause—`refers to no persons except those in the States of the Union; but the first section'—the Citizenship Clause—`refers to persons everywhere, whether in the States or in the Territories or in the District of Columbia.'" (ECF No. No. 30 at 35-36 (emphasis in original) (quoting Cong. Globe, 39th Cong., 1st Sess. 2894).) Plaintiffs argue that two statements made by Senator Howard and Senator Johnson also support their position. (See ECF No. 30 at 36.)
The Government makes two arguments in response. First, it argues that "whatever the import of those statements with respect to territories that were destined for statehood, they do not address the application of the Constitution to unincorporated territories, because the United States had no such territories at the time." (ECF No. 66 at 32.) Second, relying on the D.C. Circuit, it argues that the "background to the Fourteenth Amendment `contains many statements from which conflicting inferences can be drawn,' ... and `scattered statements' from three legislators `are not impressive legislative history' and cannot determine the meaning of the [Citizenship] Clause...." (ECF No. 66 at 31-32 (citation omitted).)
Fourth, Plaintiffs argue that "the `initial blueprint' for the Amendment—Section 1 of the Civil Rights Act of 1866," further confirms that the original understanding of `in the United States' included States and Territories." (ECF No. 30 at 36 (quoting Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 721, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989).) Plaintiffs argue that because that statute indicates that persons born in both states and territories would be deemed citizens at birth, and because "[m]any of the Members of the 39th Congress viewed § 1 of the Fourteenth Amendment as `constitutionalizing' and expanding the protections of the 1866 [Civil Rights Act],' ... Section 1 of the Fourteenth Amendment cannot be understood to take a geographic reach narrower than `every State and Territory.'" (ECF No. 30 at 36).
The court addresses the parties' arguments in turn.
The court agrees with Plaintiffs that the historical evidence supports their position. Their strongest argument—that the Citizenship Clause must be interpreted in light of English common law—relies heavily on Wong Kim Ark. As discussed in Section II below, the court agrees with Plaintiffs that the historical evidence—as established by the Supreme Court—demonstrates that the Fourteenth Amendment must be interpreted in light of the doctrine of jus soli.
The court also agrees with Plaintiffs that the Fourteenth Amendment's repudiation of the Supreme Court's Dred Scott decision provides evidence that jus soli governs citizenship by birth. As discussed above, Justice Taney's opinion that blacks could never be national citizens created a racial exception to birthright citizenship. This exception was inconsistent with the rule of birthright citizenship as explained by Coke in Calvin's Case—which required only birth within the allegiance and dominion of the sovereign. The passage of the Fourteenth Amendment, when compared to the holding in Dred Scott, represents a change that brings the rule for citizenship in the United States closer to the English common law rule for birthright citizenship.
In examining the historical significance of the passage of the Fourteenth Amendment, this court cannot not overlook the amendment's relation to the American Civil War—and the differing views that the North and the South had regarding citizenship and the location of sovereign power in the United States. The predominant Southern theory was that "sovereignty, community, and citizenship should be defined with reference to the individual states...." Kettner at 335-36; see also id at 338 ("The South's position" was that "citizenship was properly defined with reference to the states....").) In contrast, "Unionists in the North" believed that "the Constitution was the creation of the sovereign people in their aggregate capacity and their national character." Id. at 339.
The North's victory of the Civil War "establish[ed] the Union's primacy over the individual states." Kettner at 334. Through that victory, the North was able to "impose its own ideas of citizenship ... upon the nation." Id. at 340. The theory that this nation is composed of a communal association of individuals bound in their allegiance to the national sovereign is obviously very different from the theory of reciprocal obligations discussed in Calvin's Case—where a king owed protection to his subject from the moment she was born, and she owed him corresponding allegiance. But the North's view—of both allegiance and citizenship rooted in a single national sovereign—is more similar to the theory of allegiance discussed in Calvin's Case than is the Southern theory.
The court next turns to Plaintiffs' arguments regarding the "contemporaneous statements from the Fourteenth Amendment's Framers...." (ECF No. 30 at 35.) The Supreme Court has already clarified that, when interpreting the meaning of the Fourteenth Amendment, courts must look first to the text of the Amendment to determine its meaning. See Wong Kim
The court agrees with Plaintiffs that the Framers' contemporaneous statements that they point to support their position that the Citizenship Clause applies with full force in the territories. Senator Trumbull's statement, that "the first section" of the Fourteenth Amendment "refers to persons everywhere, whether in the States or in the Territories or in the District of Columbia" directly supports Plaintiffs' interpretation. The court also finds it significant that, as the Plaintiffs argue, "the government fails to cite a single statement from any legislator supporting its view." (ECF No. 75 at 19 (emphasis in original).)
While the specific statements from the debates are persuasive evidence in favor of Plaintiffs' position, the court nevertheless holds, based on the Supreme Court's guidance in Wong Kim Ark, that those statements do not control the meaning of the Fourteenth Amendment.
As noted above, Plaintiffs argue that because the Civil Rights Act indicates that persons born in both states and territories would be deemed citizens at birth, and because "[m]any of the Members of the 39th Congress viewed § 1 of the Fourteenth Amendment as `constitutionalizing' and expanding the protections of the 1866 [Civil Rights Act],' ... Section 1 of the Fourteenth Amendment cannot be understood to take a geographic reach narrower than `every State and Territory.'" (ECF No. 30 at 36). The court is not persuaded by this argument. The decision of the 39th Congress to not include, in the Fourteenth Amendment, language related to territories —language that was present in the Civil Rights Act—may by itself constitute evidence that they did not intend for territories to be included within the Citizenship Clause's geographic scope. C.f. In re Town & Country Home Nursing Servs., Inc., 963 F.2d 1146, 1151 (9th Cir. 1991) ("As a general canon of statutory construction, where the final version of a statute deletes language contained in an earlier draft, a court may presume that the earlier draft is inconsistent with ultimate congressional intentions.").
On balance, the parties' arguments related to the text, structure, and historical evidence of the Citizenship Clause of the Fourteenth Amendment favor the Plaintiffs' position. But the resolution of this case is ultimately governed by the Supreme Court's controlling precedent in Wong Kim Ark.
The court proceeds in four steps: the court (A) explains why it is bound by Wong Kim Ark, (B) explains why Downes v. Bidwell does not control, (C) explains how these cases can be read harmoniously, and (D) addresses the Intervenors' arguments.
"Precedents contained in judicial opinions have traditionally been considered
"Of course, not all precedent is created equal: there is a hierarchy." Garner (2016) at 23. "Chief among the differences between precedents is that some bind future courts, while others merely persuade." Id. "Binding precedent is `very powerful medicine.'" Id. (citation omitted). "If it's on point, it `is the law' and `cannot be considered and cast aside,' even if a later court disagrees with it—unless and until it is overruled." Id. "All other precedent is merely persuasive or conditional." Id. "Lacking the coercive authority of binding precedent, it draws its power mainly from its coherence and logical force." Id.
"Judicial precedents come in two flavors: vertical and horizontal." Garner at 27. "Federal ... courts are absolutely bound by vertical precedents—those delivered by higher courts within the same jurisdiction." Id. "This binding tie is often said to be a matter of `owing obedience.'" Id. (citation omitted). "The rule is that courts must adhere not just to the result but also to any reasoning necessary to that result." Id.
"The Supreme Court has emphasized that `unless we wish anarchy to prevail within the federal judicial system, a precedent of this Court must be followed by the lower federal courts no matter how misguided the judges of those courts may think it to be.'" Garner at 28 (quoting Hutto v. Davis, 454 U.S. 370, 375, 102 S.Ct. 703, 70 L.Ed.2d 556 (1982). "[I]f a Supreme Court decision `is to be modified, overruled, or disregarded, that will have to be done by the Supreme Court.'" Id. (citation omitted). Indeed, "[l]ower courts are bound even by old and crumbling precedent —until the high court itself changes direction." Id. at 29.
But, "[n]ot all text within a judicial decision serves as precedent." Garner at 44. "That's a role generally reserved only for the holding: the parts of a decision that focus on the legal question actually presented to and decided by the court." Id. "A holding consists of the `court's determination of a matter of law pivotal to its decision.'" Id (citation omitted). "Everything else amounts to
"Generally, a dictum is a statement in a judicial opinion that is unnecessary to the case's resolution." Garner at 46. "It's a statement that `does not explain why the court's judgment goes in favor of the winner.'" Id. (citation omitted). "In the words of Posner J., it is `a statement in a judicial opinion that could have been deleted without seriously impairing the analytical foundations of the holding.'" Id. at 46-47 (citation omitted). "The distinction between a holding and a dictum doesn't depend on whether the point was argued by counsel and deliberately considered by the court... but instead on whether the solution of the particular point was more or less necessary to determining the issues involved in the case." Id. at 51
The Government argues that "Wong Kim Ark ... contains
Plaintiffs, in contrast, argue that the Supreme "Court unequivocally
As explained below, the court agrees with Plaintiffs that the Supreme Court's discussion in Wong Kim Ark that related to the English common-law rule for birthright citizenship was not simply dicta—the Court's discussion of the English common-law rule was a determination of a matter
In Wong Kim Ark, Justice Gray—joined by Justices Brewer, Brown, Shiras, White, and Peckham—delivered the opinion of the court. In the beginning of its opinion the Court discussed the facts that bore on the outcome of the case. See Wong Kim Ark, 169 U.S. at 652-53, 18 S.Ct. 456. The Court noted that Wong Kim Ark was born in the United States of America.
Wong Kim Ark, 169 U.S. at 653, 18 S.Ct. 456. The Court then separated its opinion into seven sections—concluding, in the seventh section, that Wong Kim Ark was a citizen by virtue of his birth within the United States.
In Section I, the Court emphasized that the Fourteenth Amendment must be interpreted in light of the history of this country —a history that is traced directly to the English common law. See Wong Kim Ark, 169 U.S. at 653-54, 18 S.Ct. 456 ("In construing... a constitution established by the people as the supreme law of the land, regard is to be had ... to the condition and to the
In Section II, the Court articulated the English common law rule of jus soli subjectship. See Wong Kim Ark, 169 U.S. at 655, 18 S.Ct. 456 ("The fundamental principle of the common law with regard to English nationality was birth within the allegiance...."). The Court noted that this rule applied not only to "natural-born subjects" but also to children born to "aliens in amity, so long as they were within the kingdom." Id. The Court then noted two exceptions to the common law rule—children of ambassadors and children of alien enemies. See id. ("But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the king's dominions, were not natural-born subjects....").
The Court then noted that "[t]his fundamental principle ... was clearly ... stated in the leading case known as `Calvin's
The Court then noted that "[t]he same rule was in force in all the English colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the constitution as originally established." Wong Kim Ark, 169 U.S. at 658, 18 S.Ct. 456. The Court then discussed case law that supported the position that the English common law rule of citizenship was the law in United States— both before and after the Constitution was signed.
In Section IV, the Court addressed an argument raised by the Government that "the rule of the Roman law, by which the citizenship of the child followed that of the parent ... had superseded the rule of the common law, depending on birth within the realm...." Wong Kim Ark, 169 U.S. at 666, 18 S.Ct. 456. After reviewing the citizenship laws of some European countries, the Court concluded that "[t]here is... little ground for the theory that at the time of the adoption of the fourteenth amendment of the constitution of the United States there was any settled and definite rule of law generally recognized by civilized nations, inconsistent with the ancient
The Court then discussed whether statutes conferring citizenship to children born abroad to American citizens affected the ancient rule of citizenship by birth within the dominion. See id. at 668, 18 S.Ct. 456. The Court concluded that "there is no authority ... in England or America which maintains or intimates that the statutes... conferring citizenship on foreign-born children of citizens have superseded or restricted, in any respect, the established rule of citizenship by birth within the dominion." Id. at 674, 18 S.Ct. 456.
The court then provided that "it is beyond doubt that, before the enactment of the civil rights act of 1866 or the adoption of the constitutional amendment, all white persons, at least, born within the sovereignty of the United States, whether children of citizens or of foreigners, excepting only children of ambassadors or public ministers of a foreign government, were native-born citizens of the United States." Wong Kim Ark, 169 U.S. at 674-75, 18 S.Ct. 456.
The Court then provided that "[i]n the forefront ... of the fourteenth amendment of the constitution ... the fundamental principle of citizenship by birth within the dominion was reaffirmed in the most explicit and comprehensive terms." Wong Kim Ark, 169 U.S. at 675, 18 S.Ct. 456.
In addressing the first section of the Fourteenth Amendment, the Court provided, in relevant part, that: "[a]s appears upon the face of the amendment, as well as from the history of the times, this was not intended to impose any new restrictions upon citizenship, or to prevent any persons from becoming citizens by the fact of birth within the United States, who would thereby have become citizens according to the law existing before its adoption." Id. at 676, 18 S.Ct. 456.
The Court then discussed the Slaughter House Cases and Elk v. Wilkins. Id. at 676-82, 18 S.Ct. 456. The Court noted that the Fourteenth Amendment contained the same two exceptions to jus soli citizenship that existed at common law—that children of diplomats and children of alien enemies are not entitled to citizenship. See id. at 682, 18 S.Ct. 456.
The Court then provided a conclusion to Section V:
Wong Kim Ark, 169 U.S. at 693-94, 18 S.Ct. 456. (emphases added).
In Section VI the Court stated that the Fourteenth Amendment "contemplates two sources of citizenship, and two only,— birth and naturalization," and held that while the Constitution grants Congress the power to regulate requirements for naturalization, it has no power to restrict birthright
More specific to the facts before it, the Supreme Court held that "[t]he fact ... that acts of congress or treaties ha[d] not [at that time] permitted Chinese persons born out of this country to become citizens by naturalization, [could not] exclude Chinese persons born in this country from the operation of the broad and clear words" of the Fourteenth Amendment. See Wong Kim Ark, 169 U.S. at 703, 18 S.Ct. 456; see id. at 699, 18 S.Ct. 456 ("The acts of congress, known as the `Chinese Exclusion Acts,' the earliest of which was passed some 14 years after the adoption of the constitutional amendment, cannot control its meaning, or impair its effect, but must be construed and executed in subordination to its provisions.").
In short, Section VI of the opinion established the supremacy of the constitutional right of birthright citizenship over the ability of Congress to restrict that right—and confirmed the authority of the judiciary to give effect to that right. See Wong Kim Ark, 169 U.S. at 694, 18 S.Ct. 456.
In Section VII the Court held that Wong Kim Ark was a citizen of the United States. See Wong Kim Ark, 169 U.S. at 704-05, 18 S.Ct. 456. In reaching this holding, the Court discussed the specific facts of the case necessary to reach that conclusion. For example, the Court noted that Wong Kim Ark had been born within the United States. See id. at 704, 18 S.Ct. 456 ("Upon the facts agreed in this case, the American citizenship which Wong Kim Ark acquired
The Court then affirmed the question presented at the outset of the opinion:
In short, in Section VII the Court held that Wong Kim Ark was a citizen of the United States because (1) he was born within the United States; (2) he had never renounced his allegiance to the United States; and (3) one of the historical exceptions to birthright citizenship—a child's birth to foreign minister parents—did not apply because his parents were not Chinese diplomats.
The question for this court is whether the Supreme Court's "conclusion" that "[t]he fourteenth amendment affirms" the English common-law rule for birthright citizenship is dicta, as the Government argues, or a holding, as Plaintiffs argue. The Tenth Circuit has "defined dicta as `statements and comments in an opinion concerning some rule of law or legal proposition not necessarily involved nor essential to determination of the case in hand.'" United States v. Barela, 797 F.3d 1186, 1190 (10th Cir. 2015) (citation omitted). If the Supreme Court's discussion of the English common law rule for citizenship was reasoning that was essential to the question presented, it is not dicta, it is a holding.
The relevance of the English common-law to the Supreme Court's outcome in Wong Kim Ark cannot be overstated. In the introduction of its opinion, the Court provided the relevant facts necessary for Wong Kim Ark to satisfy his status as a citizen under the English rule: (1) he was born in the United States; (2) he had never renounced his allegiance to the United States; and (3) his parents were not diplomats. In Section I, the Court stated, in no uncertain terms, that the Fourteenth Amendment "
The Supreme Court's statement that our nation's Constitution "
This court cannot ignore the fact that the Supreme Court discussed the relevance of the English common-law rule to the meaning of the Fourteenth Amendment at length—in five of the opinion's seven sections. The Supreme Court's discussion was not simply "[a] witty opening paragraph." Garner at 44. The Court's discussion was not simply "background information on how the law developed." Id. It was not a "digression[] speculating on how similar hypothetical cases might be resolved" in the future. Id.
It was a dictate to future courts. A mandate that this court is duty-bound to follow. The Fourteenth Amendment constitutionalized the English common-law rule for birthright citizenship, and it must be interpreted in light of that rule. The holding of Wong Kim Ark was that the Fourteenth Amendment adopted the English common-law rule for citizenship.
"[O]nce a rule, test, standard, or interpretation has been adopted by the Supreme Court, that same rule, test, standard, or interpretation
The question is whether, under the Citizenship Clause—interpreting it in light of the English common rule for birthright citizenship as this court must—American Samoa is "in the United States." As discussed at length above, the English rule required birth within the dominion and allegiance of the sovereign. Thus, if American Samoa is within the "dominion" of the United States under the English rule, it is "within the United States" under the Fourteenth Amendment.
Relying on Calvin's Case, Amici Curiae Citizenship Scholars argue that "[u]nder the English common law rule that the Fourteenth Amendment codified, the doctrine extended beyond the boundaries of England to encompass any territory under the sovereignty of the King of England: `whosoever was born within the fee of the King of England, though it be another kingdom, was a natural-born subject."" (ECF No. 52 at 18 (quoting Calvin's Case, 77 Eng. Rep. at 403).) Plaintiffs similarly argue that "jus soli encompassed all of the sovereign's soil and nothing in the doctrine's history indicates that some territorial outposts counted and others did not." (ECF No. 75 at 23 (emphasis in original).) Plaintiffs argue that the Citizenship
Interpreting the Fourteenth Amendment in light of the English common-law, this court holds that American Samoa is within the dominion of the United States because it is a territory under the full sovereignty of the United States— that is, American Samoa is within the "full possession and exercise of [the United States'] power." Wong Kim Ark, 169 U.S. at 659, 18 S.Ct. 456. American Samoa is therefore "in the United States" for purposes of the Fourteenth Amendment.
As discussed above, Downes v. Bidwell represents the origin of the doctrine of territorial incorporation, "under which the Constitution applies in full in incorporated Territories surely destined for statehood but only in part in unincorporated Territories." See Boumediene v. Bush, 553 U.S. 723, 757, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008) (citation omitted). The Government argues that "the Citizenship Clause confers citizenship on those born `in the United States,'" and argues that the Supreme Court's "decision in Downes confirms that the language `in the United States' excludes unincorporated territories"—like American Samoa. (See ECF No. 66 at 22.)
The Government acknowledges that the Court in Downes was not interpreting the Citizenship Clause of the Fourteenth Amendment—it was interpreting the Uniformity Clause. (See ECF No. 79 at 11 ("To be sure, this case is not about the Tax Uniformity Clause."); see also ECF No. 66 at 22 ("The Court held that Puerto Rico is not part `of the United States' for purposes of" the Uniformity Clause.).) But the Government argues that "the Supreme Court recognized in Downes that the Constitution should not be read to automatically confer citizenship on inhabitants of U.S. territories" because "the Justices in the majority" "recognized that when the United States acquires various territories, the decision to afford citizenship is to be made by Congress." (ECF No. 66 at 23 (citations omitted).)
Plaintiffs
Because the Government relies so heavily on Downes—and because this court owes absolute obedience to Supreme Court holdings—this court must determine which opinion in Downes controls. "A plurality opinion is one that doesn't garner enough appellate judges' votes to constitute a majority, `but has received the greatest number of votes of any opinion filed,' among those opinions supporting the mandate." Garner at 195. The opinion of
"Ordinarily, where `a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgements on the narrowest grounds.'" United States v. Carrizales-Toledo, 454 F.3d 1142, 1151 (10th Cir. 2006) (quoting Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977)); see also Garner at 199 ("The prevailing approach for determining the rule that emerges from a plurality decision was established in the 1977 case of Marks v. United States."). This rule, known as the Marks rule, is important for lower courts because "vertical precedent is absolute, making it important that lower courts properly understand and apply this essential rule." Garner at 202.
But "[w]hen the plurality and concurring opinions take distinct approaches, and there is no `narrowest opinion' representing the `common denominator of the Court's reasoning,' then Marks becomes `problematic.'" United States v. Carrizales-Toledo, 454 F.3d 1142, 1151 (10th Cir. 2006) (citations omitted). As discussed above, at the outset of his opinion, Justice White noted that his reasons for concurring with Justice Brown were "different from, if not in conflict with those expressed in" Justice Brown's opinion. Downes, 182 U.S. at 287, 21 S.Ct. 770 (White, J., concurring). Determining Downes' narrowest opinion would be difficult in this case. But as explained below, the court need not determine which of Downes' opinions is the narrowest because the Supreme Court has, since Downes, provided authoritative guidance regarding which opinion controls.
The Marks rule is less important for the Supreme Court than it is for lower courts. See Garner at 202 ("The Marks rule is somewhat less important for the Supreme Court itself that it is for lower courts."). "The Supreme Court—applying horizontal precedent—has flexibility to interpret, clarify, or refashion its precedents...." Id. Approximately twenty-one years after Downes was decided, a unanimous Supreme Court clarified that "the opinion of Mr. Justice White of the majority, in Downes v. Bidwell, has become the settled law of the court." Balzac v. Porto Rico, 258 U.S. 298, 305, 42 S.Ct. 343, 66 S.Ct. 627 (1922).
Based on the Supreme Court's guidance in Balzac, this court accepts that Justice White's opinion has been elevated to the controlling opinion of the splintered Downes decision. See Garner at 233 ("Approval by a higher court can enhance the authority of an opinion that probably wouldn't otherwise be followed, such as... an opinion that simply appears weak in its reasoning."); see id. ("To justify reliance on a case, a court may note that other courts have cited it approvingly."). This court finds it unnecessary to engage in the Marks analysis. The court therefore examines Justice White's concurring opinion to determine if it controls the outcome of this case.
In his concurring opinion, Justice White articulated the "sole and only issue:" "whether the particular tax in question was levied in such form as to cause it to be repugnant to the Constitution. This is to be resolved by answering the inquiry, Had Porto Rico, at the time of the passage of the act in question, been incorporated into and become an integral part of the United States?" Downes, 182 U.S. at 299, 21 S.Ct. 770
Justice White's holding was limited to the specific Constitutional provision at issue —the Uniformity Clause. See Downes, 182 U.S. at 341-42, 21 S.Ct. 770 (White, J. concurring). He held that because Puerto Rico "had not been incorporated into the United States," it was within Congress' authority to pass an act taxing goods coming from Puerto Rico because Congress was not bound by the Uniformity Clause. See id. This is so, he held, because that specific "provision of the Constitution"— the Uniformity Clause "was not applicable to Congress in legislating Porto Rico." Id. at 342, 21 S.Ct. 770.
Despite the limited question presented, and Justice White's limited holding, the Government relies on Justice White's statements related to citizenship.
Justice White's statement relating to citizenship must be read in context. Justice White was addressing an argument that all territory acquired by the United States is automatically fully incorporated into the United States—meaning "every provision" of the Constitution would apply in full. See Downes, 182 U.S. at 305-06, 21 S.Ct. 770
Downes, 182 U.S. at 305-06, 21 S.Ct. 770 (White, J. concurring) (emphases added).
Justice White's "illustration" relating to citizenship was a digression concerning a "legal proposition not necessarily involved nor essential to determination of the case in hand." United States v. Barela, 797 F.3d 1186, 1190 (10th Cir. 2015). Justice White's "illustration" was dicta. It was "merely [a] remark[] made in the course of a decision, but not essential to the reasoning behind that decision." Garner at 44. As dicta, it is not binding on this court.
To be sure, the Tenth Circuit has "previously held" that it is "`bound by Supreme Court dicta almost as firmly as by the Courts' outright holdings, particularly when the dicta is recent and not enfeebled by later statements.'" Bonidy v. U.S. Postal Serv., 790 F.3d 1121, 1125 (10th Cir. 2015) (emphasis added) (citation omitted). But this court is not bound by Downes' dicta because the principles of vertical stare decisis require this court to give priority to the Supreme Court's holdings over its dicta—and, explained above, Wong Kim Ark's holding is binding. Second, Downes' dicta do not squarely relate to the holding itself and are therefore "assuredly... gratuitous." See id. Third, the Supreme Court has, since Downes, thoroughly rejected the bigoted premise upon which Justice White's dicta is founded— that some groups are inferior to others based simply on their race. See e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 272, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995) ("the Constitution and [the Supreme] Court ... abide no measure `designed to maintain White Supremacy.'") (citation omitted).
To summarize, because Downes did not construe the Citizenship Clause, and because the controlling opinion's statements
At oral argument Plaintiffs did not dispute that, under the Insular Cases, American Samoa is considered an unincorporated territory. Justice White's controlling opinion in Downes that Puerto Rico, having "not been incorporated into the United States," could not be considered to be "an integral part of the United States" for purposes of the Uniformity Clause is a persuasive argument that American Samoa, as an unincorporated territory, is not "in the United States" for purposes of the Citizenship Clause.
But as explained above, under Wong Kim Ark this court must apply the English common law rule for citizenship to determine whether American Samoa is "in the United States" for purposes of the Citizenship Clause. And, as explained above, the application of that rule requires this court to hold that American Samoa is in the United States. This outcome results in an incongruity that the Government has identified in its briefing. (See ECF No. 79 at 11 ("Plaintiffs have provided no principled justification for holding that unincorporated territories are `in the United States' for purposes of the Citizenship Clause, even though the Supreme Court has held that unincorporated territories are not a part of `the United States,' for purposes of the Tax Uniformity Clause.") (emphasis in original).) It is not for this court to explain this incongruity. That is a task for the Supreme Court. This court's role is simply to faithfully apply binding precedent.
"A court considering discordant decisions must first determine whether the perceived conflict between them is real." Garner at 300. "If at all possible, the opinions should be harmonized." Id. "Lower courts almost uniformly adhere to the rule that the most recent opinion of the high court within the jurisdiction is to be followed." Id. at 301. "The lower court will examine whether the later case overruled all or part of an earlier case." Id. "If the overruling was express, then its task is easy." Id. "If the overruling was thought to be tacit, things get more difficult." Id. "Before a lower court makes the assumption of a tacit overruling, it will want to exhaust all possibilities of reconciling the two decisions—perhaps even assuming that the highest court may not adopt just one of the decisions if confronted with the question but may instead reconcile the decisions by thoughtfully distinguishing them." Id. at 301-02.
None of the Insular Cases ever expressly overruled Wong Kim Ark. This court declines to assume that Wong Kim Ark was tacitly overruled. Instead, this court, in pursuit of its duty-bound obedience to Supreme Court precedent, harmonizes Wong Kim Ark and the Insular Cases. This court concludes that whether an unincorporated territory is "in the United States" for purposes of the Citizenship Clause is a different question than whether an unincorporated territory is "part of the United States" for purposes of the Uniformity Clause.
This outcome is not foreclosed by the Insular Cases. "The Constitution of the United States is in force in [unincorporated territories] as it is wherever and whenever the sovereign power of that government is exerted." See Balzac v. Porto Rico, 258 U.S. 298, 312, 42 S.Ct. 343, 66 S.Ct. 627 (1922). "The Constitution, however, contains grants of power, and limitations which in the nature of things are not always and everywhere applicable and the real issue in the Insular Cases was not
American Samoans owe permanent allegiance to the United States. They are therefore "subject to the jurisdiction" of the United States. American Samoa is a territory that is within the dominion of the United States. It is therefore "in the United States." Plaintiffs, having been born in the United States, and owing allegiance to the United States, are citizens by virtue of the Citizenship Clause of the Fourteenth Amendment.
Because the Citizenship Clause applies to Plaintiffs, Congress has no authority to deny them citizenship. C.f. Wong Kim Ark, 169 U.S. at 703, 18 S.Ct. 456 ("The fourteenth amendment, while it leaves the power, where it was before, in congress, to regulate naturalization, has conferred no authority upon congress to restrict the effect of birth, declared by the constitution to constitute a sufficient and complete right to citizenship.").
As discussed above, in addition to the arguments the Government makes, Intervenors argue that this court "should dismiss the complaint for at least two additional reasons...." (ECF No. 89 at 7.) First, Intervenors argue that "imposition of citizenship by judicial fiat would fail to recognize American Samoa's sovereignty and the importance of the fa'a Samoa. (ECF No. 89 at 15.) Fa'a Samoa is "the Samoan way of life." (ECF No. 89 at 7.) Second, they argue that "imposition of citizenship over American Samoan's objections violates fundamental principles of self-determination." (ECF No. 89 at 15.) They argue that the "imposition of a compact of citizenship, directly conflicting with the will of the American Samoan people," would intrude upon the autonomy of American Samoa. (See ECF No. 89 at 21.)
In response, this court is not imposing "citizenship by judicial fiat." The action is required by the mandate of the Fourteenth Amendment as construed and applied by Supreme Court precedent. Further, Plaintiffs are American Samoans. They brought this action seeking to realize their rights to citizenship under the Fourteenth Amendment. Intervenors cannot be said to represent the will of all American Samoans. Additionally, in its amicus brief, the Samoan Federation of America, Inc. argues that the American Samoan government's "elected officials' concerns that birthright citizenship presents a threat to American Samoan self-determination or cultural preservation are misplaced." (ECF No. 55 at 29.)
It is not this court's role to weigh in on what effect, if any, a ruling in Plaintiffs' favor may have on Fa'a Samoa. This court must apply binding precedent. As explained in length above, Wong Kim Ark's holding is binding on this court. This court has no choice but to deny Intervenors' Motion.
SO ORDERED this 12th day of December, 2019.
Mr. Lozier: "What is the status of the Senate bill, has it passed the Senate at this session?" Senator Bingham: "It has passed. It is the second time that it has passed."
see also United States v. Duvall, 740 F.3d 604, 609 (D.C. Cir. 2013) (Kavanaugh, J., concurring in the denial of rehearing en banc) ("Vertical stare decisis applies to Supreme Court precedent in two ways." Id. "First, the result in a given Supreme Court case binds all lower courts. Second, the reasoning of a Supreme Court case also binds lower courts. So once a rule, test, standard, or interpretation has been adopted by the Supreme Court, that same rule, test, standard, or interpretation must be used by lower courts in later cases.") (emphasis in original).
