[00:00:04] Speaker 02:
Case number 13-5272, La Nueva Tia, Fia Fia, Twa Ula Ha, excuse me, at L, Appellant, versus United States of America at L. Mr. Ware for the Appellants, Mr. Kelly for Appellate, United States of America at L, and Mr. Williams for Appellate, American Samoa Governance.

[00:00:33] Speaker 03:
May it please the court.

[00:00:34] Speaker 03:
This is a classic case of constitutional interpretation.

[00:00:38] Speaker 03:
The scope of the Citizenship Clause is answered by examining its text, structure, history, and purpose, which was to constitutionalize a preexisting common law rule and put the question of citizenship by birth on US soil beyond the political power.

[00:00:56] Speaker 03:
The court should follow the original meaning of the Citizenship Clause here, because this case presents issues of first impression not squarely answered by precedent.

[00:01:05] Speaker 03:
The original – and the original meaning here is clear, as the Supreme Court explained in Juan Kim Arc and the Slaughterhouse cases.

[00:01:12] Speaker 10:
Wait a minute.

[00:01:12] Speaker 10:
What about all the cases dealing with the Philippines and various circuits?

[00:01:19] Speaker 03:
So the cases addressing issues in the Philippines actually addressed a somewhat different question, which was what happens to issues of citizenship upon exit from U.S.

[00:01:29] Speaker 03:
sovereignty.

[00:01:31] Speaker 03:
So those cases – Upon what?

[00:01:32] Speaker 10:
What did you say?

[00:01:32] Speaker 03:
Exit from U.S.

[00:01:33] Speaker 03:
sovereignty.

[00:01:34] Speaker 03:
The critical factual difference between the Philippines cases in this case here is that those claims were brought decades after the Philippines had no longer been part of the United States.

[00:01:45] Speaker 03:
In 1946... So what?

[00:01:47] Speaker 10:
The legal question is exactly the same.

[00:01:49] Speaker 10:
Whether or not people born during the time the Philippines was a possession of the United States were entitled to birthright citizenship.

[00:02:01] Speaker 10:
Well, isn't that exactly the same issue?

[00:02:02] Speaker 03:
Well, the question, again, is slightly different.

[00:02:04] Speaker 03:
It was what was the status of these individuals many decades after independence, and upon independence, the people of the Philippines and the people of the United States, through a treaty that was ratified by the Senate, recognized that the people of the Philippines would become citizens of the Republic of the Philippines, surrendering their allegiance to the United States.

[00:02:24] Speaker 10:
But if your constitutional argument is correct,

[00:02:27] Speaker 10:
no legislation could have taken away their birthright citizenship, which they enjoyed by reason of being born during the time Philippines was a territory.

[00:02:39] Speaker 03:
Well, there would be a difference between involuntarily taking away the citizenship of those individuals versus what happened in the case of the Philippines, which was a voluntary surrender of citizenship.

[00:02:51] Speaker 03:
The Philippines had wanted to be independent from the United States for many decades.

[00:02:55] Speaker 10:
And so upon independence, there was a tree that was ratified by... So you mean the key here is what the political view is of the territory.

[00:03:04] Speaker 10:
That's your point.

[00:03:06] Speaker 10:
The Philippines had a different political view.

[00:03:09] Speaker 10:
And we should take that into account.

[00:03:11] Speaker 10:
That is your view, right?

[00:03:14] Speaker 03:
I would clarify a little bit more.

[00:03:15] Speaker 03:
I would say the political determination that was made was to exit from United States sovereignty.

[00:03:20] Speaker 10:
And so that was a decision... But you want to honor the political decision of the Philippines.

[00:03:24] Speaker 10:
That's your point.

[00:03:26] Speaker 10:
Yes, to that degree.

[00:03:27] Speaker 10:
So then the question is, why don't we honor the political view of Somalia?

[00:03:33] Speaker 03:
And here, the questions of political determination, we agree, are important on either the back end, as in the case of the Philippines, or on the front end, as in the case of American Samoa.

[00:03:43] Speaker 03:
So American Samoa's political leaders, through the Deeds of Session in 1900 and 1904, expressed unequivocally that they wanted to be part of the sovereign territorial jurisdiction of the United States.

[00:03:56] Speaker 03:
Those agreements were later ratified through congressional statute.

[00:04:00] Speaker 03:
And there was also a Senate treaty in 1900 recognizing U.S.

[00:04:03] Speaker 03:
territorial sovereignty over this area.

[00:04:05] Speaker 03:
And that's the important question with respect.

[00:04:07] Speaker 10:
But you know what I'm concerned about.

[00:04:09] Speaker 10:
I'm concerned about the position of the government of Samoa right this moment.

[00:04:16] Speaker 03:
Sure.

[00:04:19] Speaker 03:
Questions about the right of citizenship for someone born within the sovereign territorial limits is a question that's answered directly by the citizenship clause.

[00:04:29] Speaker 03:
The purpose of the citizenship clause was to remove these very questions from the legislative power so that future congresses, future majorities... That's inconsistent with your position on the Philippines.

[00:04:40] Speaker 03:
No, our position on the Philippines is simply what the Supreme Court held in Rabin versus Boyd, which is, upon independence, those born in the Philippines were aliens as to the United States.

[00:04:49] Speaker 03:
The question here is different.

[00:04:50] Speaker 03:
It's a question of people born on what is undisputed as sovereign U.S.

[00:04:55] Speaker 03:
soil and that continues to be sovereign U.S.

[00:04:58] Speaker 03:
soil today.

[00:04:59] Speaker 07:
But if it were granted independence tomorrow, their citizenship would vanish.

[00:05:05] Speaker 03:
Through an agreement between the people of America and the people of the United States, they could reach that agreement.

[00:05:12] Speaker 07:
The agreement between the people, the agreement between the nations.

[00:05:15] Speaker 03:
Correct, through the sovereign power of two powers.

[00:05:20] Speaker 07:
So if there were an agreement of independence tomorrow, then they would have been citizens until tomorrow and they would no longer be citizens?

[00:05:29] Speaker 07:
That's a question that could be answered through the political process.

[00:05:38] Speaker 03:
Yes, it would be open to political determination through the political process, what the two countries agreed to.

[00:05:44] Speaker 03:
And this is something that's consistent with a long-held Supreme Court precedent, looking at these, the common law principles of citizenship that were adopted and ratified in the citizenship clause.

[00:05:56] Speaker 03:
So the Supreme Court explained this general rule in a case, Boyd versus Nebraska in 1892, saying that the general rule was, quote, manifestly the nationality of the inhabitants of territory

[00:06:07] Speaker 03:
become that of a government of whose dominion they pass.

[00:06:10] Speaker 03:
Going back further, there were a number of Supreme Court cases examining these issues of what happens when there's a transfer of sovereignty with respect to the United States becoming independent from Great Britain.

[00:06:22] Speaker 03:
The cases of trustees of Sailor Snug Harbor in 1830 and Mckelvin versus Cox's Lacy, which recognizes principle that's consistent with our argument of the citizenship clause that

[00:06:33] Speaker 03:
transfers of sovereignty have consequences in terms of citizenship and status.

[00:06:38] Speaker 03:
The question here is much simpler than the question presented in

[00:06:43] Speaker 03:
in the Philippines cases insofar as the Citizenship Clause directly answers the question of citizenship by birth within the dominion and allegiance of the United States.

[00:06:55] Speaker 03:
This is the test that the Supreme Court looked to in Juan Kim Arc just two years before American Samoa became part of the United States.

[00:07:03] Speaker 03:
And that decision looked closely at

[00:07:05] Speaker 03:
the original meaning of the phrase the United States in the Citizenship Clause and the purposes of the Citizenship Clause.

[00:07:13] Speaker 03:
If I could just turn to those now.

[00:07:14] Speaker 07:
Can the framers contemplate the existence of territories that would be unincorporated territories?

[00:07:24] Speaker 07:
You're talking about the original meaning, and I'm trying to focus on whether the original meaning in fact would have been company.

[00:07:31] Speaker 07:
territory within the category of American Samoa today or the Philippines.

[00:07:38] Speaker 07:
Do you have evidence that the linguistic evidence that the phrase at the time would have encompassed such a territory for a United States?

[00:07:51] Speaker 03:
So this distinction between incorporated and unincorporated territories didn't develop until the 1900s.

[00:07:56] Speaker 07:
I didn't invent that distinction today that's out there in the

[00:08:00] Speaker 03:
It was developed in the 1900s, many decades after the Citizenship Clause was ratified.

[00:08:07] Speaker 07:
Are you really arguing from the original definition, original meaning of the United States at the time or not?

[00:08:14] Speaker 07:
I'm not saying you're not, I'm asking you.

[00:08:16] Speaker 07:
If there is linguistic evidence for the inclusion of such territory in the term at the time of the Dutch.

[00:08:24] Speaker 03:
So the textual evidence of the citizenship clause is that in section one of the citizenship clause, they use the language in the United States.

[00:08:33] Speaker 03:
While section two uses a more narrow phraseology, section two is with respect to apportionment, they use the phrase in the several states.

[00:08:41] Speaker 03:
And so the significance of this textual distinction is highlighted by looking to the constitutional history around the drafting debates of the 14th Amendment.

[00:08:49] Speaker 03:
And during that time, discussion about the application of

[00:08:53] Speaker 03:
Citizenship and the application of congressional power in the territories was in the forefront of the drafter's minds, coming just on the heels of the Civil War and shortly after the Dred Scott decision was answered.

[00:09:09] Speaker 03:
And within that context, Senator Trumbull, who was the chairman of the Senate Judiciary at the time and one of the primary advocates of the 14th Amendment, explained with respect to this structural distinction, quote, the second section refers to no persons except those in the states of the union.

[00:09:25] Speaker 03:
But the first section refers to persons everywhere, whether in the states or in the territories or in the District of Columbia.

[00:09:32] Speaker 03:
Just a few years after the 14th Amendment was ratified,

[00:09:37] Speaker 03:
The Supreme Court embraced this view and its decisions in the slaughterhouse cases.

[00:09:42] Speaker 03:
In the slaughterhouse cases, the court examined the meaning of the citizenship clause and said, quote, that it put at rest the argument that those who had been born and resided always in the District of Columbia or in the territories, though within the United States, were not citizens.

[00:09:59] Speaker 03:
This was a central question for the reconstruction to Congress to consider at the time, because when the 14th Amendment was ratified, nearly half the land of the United States was part of a US territory.

[00:10:11] Speaker 03:
Of the 20 largest states today, 12 of them were actually territories in 1868.

[00:10:17] Speaker 03:
And of the 37 states that existed at the time, nearly half of them had used to be a US territory.

[00:10:24] Speaker 03:
And so the government's argument that

[00:10:28] Speaker 03:
the scope of the 14th Amendment would either not apply to territories or would not apply to certain territories but not others, defies the purpose that the founders or the framers of the 14th Amendment were looking at.

[00:10:42] Speaker 00:
Let me ask you about a different part of this language.

[00:10:46] Speaker 00:
Because you've said several times that it's unambiguous, that you think the text is clear.

[00:10:54] Speaker 00:
But we've been talking about two things.

[00:10:56] Speaker 00:
One, what it means in the United States.

[00:11:00] Speaker 00:
And the other is within the jurisdiction, which seems to have something to do with a notion of allegiance.

[00:11:06] Speaker 00:
And I ask that because a little before the court decided the Wong Kim Ark case,

[00:11:13] Speaker 00:
it decided a case dealing with an Indian and whether or not such a person who was clearly born within the continental United States was also a citizen.

[00:11:27] Speaker 03:
Yes, so the subject of the jurisdiction language, looking at the constitutional history of the Fourth Amendment, pretty clearly refers to two groups of people.

[00:11:37] Speaker 03:
One of them, as the court recognized in Elk versus Wilkins, is

[00:11:43] Speaker 03:
they called wild Indian tribes not subject to US authority, the other one being children of ambassadors.

[00:11:51] Speaker 03:
And so those two distinctions were drawn.

[00:11:53] Speaker 03:
But what's actually very interesting about how ALC informs this case is that the petitioner there

[00:11:59] Speaker 03:
was actually born in what at the time was a U.S.

[00:12:02] Speaker 03:
territory.

[00:12:03] Speaker 03:
This was not a point that was contested and argued by the parties in the case or addressed and contested by the court.

[00:12:11] Speaker 03:
And surely if they had not understood birth within a territory to denote citizenship, that would have been a much easier grounds to decide the case than looking at where exactly the petitioner fell on the line of

[00:12:23] Speaker 03:
of his allegiance.

[00:12:26] Speaker 03:
But the important, the other important point made in Alck versus Wilkins and certainly reaffirmed in the Juan Camarque decision is really what is the touchstone of the citizenship clause and how do you go about answering questions that fall within its ambit?

[00:12:42] Speaker 03:
And in Juan Camarque and in cases decided subsequently, the Supreme Court made very clear that

[00:12:50] Speaker 03:
The citizenship clause is, quote, to be interpreted in light of pre-existing common law principles governing citizenship.

[00:12:57] Speaker 03:
And as in Elk and as in Wangtai Mark, the principles that come forth are birth within the dominion and birth within the allegiance.

[00:13:04] Speaker 03:
In terms of the language of

[00:13:06] Speaker 03:
the Citizenship Clause.

[00:13:07] Speaker 03:
This is really understood as a birth within the de jure territorial sovereignty, as opposed to ideas of de facto sovereignty or something else, as this Court and the Supreme Court is recognized in other cases, and then allegiance being tied to the question of subject to the jurisdiction.

[00:13:23] Speaker 03:
And it's uncontested here in this case that American Samoa is subject to the jurisdiction of the United States.

[00:13:30] Speaker 03:
And it's also uncontested that American Samoa is subject to the full de jure sovereignty of the United States.

[00:13:36] Speaker 03:
With those... I'm sorry.

[00:13:39] Speaker 03:
Go ahead.

[00:13:39] Speaker 00:
But the question that seems to arise here, and that's what I think is the difficult question, is American Samoa also has this long tradition of self-governance.

[00:13:49] Speaker 00:
In your view, does that impact at all on this question of allegiance?

[00:13:55] Speaker 00:
In other words, if you are dealing with a territory that has its own government and has a long history of self-government, does the language of the 14th Amendment just override that?

[00:14:13] Speaker 03:
So I would draw a bit of a distinction in terms of what the nature of government is in American Samoa.

[00:14:19] Speaker 03:
So American Samoa's government really is a creation of federal action, primarily through the Department of Interior and as well through other executive and presidential actions.

[00:14:35] Speaker 03:
So if anything, territories, as with the District of Columbia, are even more subject to the jurisdiction of the United States than the states are because Congress exercises plenary power over American Samoa as it does all these other territories.

[00:14:50] Speaker 03:
So it's certainly undisputed that Congress could pass laws regarding their territorial structure, pass criminal statutes that can be enforced by the courts,

[00:14:59] Speaker 03:
And the history of American Samoa from 1900 to today demonstrates an increasing amount of ties between the United States and American Samoa, as well as contributions from the American Samoan people to the United States.

[00:15:14] Speaker 10:
So you do not wish to bring our attention to how the Supreme Court dealt with the outlying possessions of the United States after the Spanish-American War?

[00:15:27] Speaker 10:
the insular cases and their reference in subsequent Supreme Court cases.

[00:15:32] Speaker 10:
You don't want us to focus on that at all.

[00:15:35] Speaker 10:
But isn't it fair to conclude that the Supreme Court, beginning then, recognized a sharp distinction, as Judge Santel mentioned earlier, between incorporated and unincorporated territories, and particularly unincorporated territories which had different culture.

[00:15:57] Speaker 03:
We don't dispute that distinction as being the law with respect to certain questions.

[00:16:02] Speaker 03:
So the insular cases address questions of territorial governance, which makes sense given that Congress has exercised under the Property Clause a plenary power, and it also addressed questions of criminal procedure.

[00:16:16] Speaker 03:
And it addressed these in the context, in the historical context, of areas that had been acquired through military conquest and emphasized that this was a transition into the United States.

[00:16:32] Speaker 03:
And so to a degree, the cases weren't about the Citizenship Clause, they certainly weren't about American Samoa.

[00:16:40] Speaker 03:
So to the degree that the individual justices in the Downs opinion did talk about citizenship, they talked about it primarily as from the perspective of entry into the United States sovereignty.

[00:16:54] Speaker 03:
And so when the United States

[00:17:00] Speaker 07:
at least a distinction between incorporated and unincorporated is whether there's going to be an anticipated transition.

[00:17:06] Speaker 07:
Twice in your response to Judge Silverman, you made the assumption that they deal with transitioning into American sovereignty.

[00:17:14] Speaker 07:
In fact, the distinction is based on, at least in part, on whether we expect that

[00:17:25] Speaker 03:
No, that's not quite correct, Your Honor.

[00:17:27] Speaker 03:
The questions of the insert cases and the distinction between incorporated and unincorporated did not draw distinctions between the exercise of U.S.

[00:17:39] Speaker 03:
sovereignty and not exercising U.S.

[00:17:41] Speaker 03:
sovereignty.

[00:17:41] Speaker 07:
So actually another decision that was— What do you see as being the distinction between incorporated and unincorporated if it isn't based on the

[00:17:52] Speaker 07:
the Supreme Court making that distinction, both in downs and in those cases that have sat it down.

[00:17:59] Speaker 03:
Well, the incorporated, the territorial incorporation doctrine addresses issues of territorial governance and criminal procedure in these newly acquired areas where they're what it does.

[00:18:10] Speaker 07:
I want you to tell me what the distinction is between the two kinds of territory.

[00:18:15] Speaker 07:
If it's not based on the transition.

[00:18:19] Speaker 03:
Well, so maybe if I could approach it in another way.

[00:18:21] Speaker 07:
Okay, sure.

[00:18:26] Speaker 03:
So the distinction is not one based on the exercise of U.S.

[00:18:31] Speaker 03:
sovereignty or the U.S.

[00:18:32] Speaker 05:
exercise jurisdiction.

[00:18:38] Speaker 03:
It's simply allowing for playing the joints for the application of certain

[00:18:42] Speaker 03:
constitutional rights where the application of those rights can raise practical considerations that may require kind of interest balancing to reach the result in the case.

[00:18:53] Speaker 03:
And so that's what happened in the insular cases and that's what this court did in the King v. Morton decision which applied this insert cases framework to questions of

[00:19:05] Speaker 03:
the jury trial in American Samoa.

[00:19:07] Speaker 10:
And what's notable among... Is it fair to say, excuse me for interrupting, is it fair to say that the principle of constitutional law that applies here, coming from the Supreme Court in our own cases, is whether or not it's anomalous to recognize a particular constitutional right in an unincorporated territory.

[00:19:28] Speaker 03:
So that's the Supreme Court's test and answer cases and this court's test in King v. Morton.

[00:19:33] Speaker 03:
So that is the law, is it not?

[00:19:35] Speaker 10:
It is the law, but whether or not that... If that's the law, whether it's anomalous or not, isn't it fair to say that here is the one situation we have before us where an unincorporated territory does not want their citizens to be recognized as citizens of the United States?

[00:19:58] Speaker 10:
Doesn't that create an obvious anomaly?

[00:20:02] Speaker 03:
So if I could just contest a few points.

[00:20:06] Speaker 03:
That is the law, but whether the territorial incorporation doctrine answers the question of this case is something I'd like to talk about more.

[00:20:14] Speaker 03:
But to directly answer your question, whether the political decisions of a transitory majority today in Americans should answer this question.

[00:20:22] Speaker 03:
Transitory majority.

[00:20:24] Speaker 10:
You know what?

[00:20:25] Speaker 10:
That's what happens in all democracies.

[00:20:26] Speaker 10:
We have transitory majorities.

[00:20:29] Speaker 10:
The permanent majorities exist only in dictatorships.

[00:20:32] Speaker 03:
Well, and the purpose of the citizenship clause was to remove this question of citizenship by birth on U.S.

[00:20:38] Speaker 03:
soil from the legislative power for these kinds of majorities to change.

[00:20:42] Speaker 03:
This was after the Civil War.

[00:20:44] Speaker 10:
This is the one constitutional provision which you say can't be judged as whether it's anomalous or not.

[00:20:52] Speaker 10:
Well, and just to give you a little more historical context, Your Honor.

[00:20:54] Speaker 10:
To answer your question, this one constitutional provision is superior to all other constitutional provisions, and therefore we do not judge it as whether it's anomalous or not to extend it to an unincorporated territory, which is inconsistent with what you said earlier.

[00:21:10] Speaker 03:
I don't think it is.

[00:21:11] Speaker 03:
I think that there's a question of constitutional interpretation here that we believe is guided by original meaning.

[00:21:17] Speaker 03:
There may also be a question to the degree that this case is answered by the territorial incorporation doctrine that this court's framework and King V. Morton would govern.

[00:21:26] Speaker 03:
That court's framework requires a factual, on the first point, it requires a holding that the right of citizenship is not a fundamental right, which we argue that it is.

[00:21:35] Speaker 03:
If the court disagrees with that, then you get to, and you're applying the territorial incorporation doctrine, you get to the question of whether it would be impractical or anomalous.

[00:21:43] Speaker 10:
Well, stop, stop.

[00:21:44] Speaker 10:
Forgive me.

[00:21:45] Speaker 10:
Yeah, because why isn't it a matter of law?

[00:21:48] Speaker 10:
What's the factual determination here?

[00:21:51] Speaker 10:
Why isn't it a matter of law that it would be anomalous to regard citizens of Samoa as birthright citizens of the United States when Samoa objects to it?

[00:22:04] Speaker 03:
So I'm just saying what this court's precedent is in King v. Morton, which is that it requires a factual determination to... But why is there a factual... What factual determination is appropriate in this case?

[00:22:15] Speaker 10:
Why wouldn't... Isn't this a question of law?

[00:22:16] Speaker 03:
Well, it's a balancing test, an interest-balancing test between many different interests.

[00:22:20] Speaker 03:
Perhaps one of those interests is the position of the American Samoan government.

[00:22:23] Speaker 03:
Other interests certainly need to be balanced against individuals such as the plaintiffs in this case who do want to be recognized as citizens.

[00:22:29] Speaker 07:
This right is so basic.

[00:22:57] Speaker 03:
So I think that in answering that question, you can look at the example of other territories where they are recognized as birthright citizens, and it's not contested that the territorial incorporation doctrine continues to apply in those places.

[00:23:12] Speaker 03:
By legislation?

[00:23:13] Speaker 03:
Sure, by legislation.

[00:23:15] Speaker 03:
The constitutional questions of equal protection are distinct from the questions of the citizenship clause.

[00:23:21] Speaker 03:
The citizenship clause is unique and different.

[00:23:23] Speaker 07:
Once you have brought in the citizenship clause,

[00:23:25] Speaker 07:
Why wouldn't the Equal Protection Clause apply with respect to all other constitutional rights?

[00:23:30] Speaker 03:
Well, the American Small Court has already held that equal protection in due process do apply.

[00:23:34] Speaker 07:
We haven't brought in the Citizenship Clause yet.

[00:23:37] Speaker 07:
If we brought it in, why would not the Equal Protection Clause bring in all the other pamphlet of constitutional rights?

[00:23:46] Speaker 03:
Well, this Court's doctrine in King v. Morton and the answer cases does require case-by-case determination of which race...

[00:23:58] Speaker 03:
Yeah, and it reached the conclusion that the right to jury trial exists in American Samoa that was a result that was actually different than the in-sort cases that had already helped based on these different factual circumstances.

[00:24:13] Speaker 10:
In that case, the American... In Hodel, excuse me, in Hodel, we didn't proceed as we did in King v. Morton.

[00:24:20] Speaker 03:
And in Hodel, it wasn't as much an issue of whether, you know, that case, and Your Honor certainly knows it better than I do, that that case didn't turn on the distinction between incorporated versus unincorporated.

[00:24:32] Speaker 03:
It's a question, a general question of whether Congress can create these kinds of courts

[00:24:37] Speaker 03:
in the territory.

[00:24:39] Speaker 03:
And so that was a question that was squarely within the property clause and the territorial clause of the Constitution, rather than turning on this distinction.

[00:24:47] Speaker 10:
But regardless... Well, there was a due process question there.

[00:24:50] Speaker 10:
Don't you remember?

[00:24:51] Speaker 10:
Yeah.

[00:24:51] Speaker 10:
And the argument there was that since the Secretary of Interior had control over the courts of Samoa, that violated due process.

[00:25:00] Speaker 10:
If, as Judge Santel suggests, if we recognize birthright citizenship, then I wonder how that case could have been decided the way it was.

[00:25:14] Speaker 10:
So, as the Court explained in that case... We don't normally allow the Secretary of Interior to have control over Article III courts.

[00:25:22] Speaker 03:
Yeah, there were administrative courts in American Samoa, as you know, and the question there was a similar question that had been presented by addressing the Supreme Court in the Cantor decision in Florida.

[00:25:33] Speaker 03:
This was simply an application of long-standing precedent that Congress has plenary powers in the territories with respect to questions of territorial governance.

[00:25:43] Speaker 10:
I would like to call your attention to something, because amicus, in this case, wish us to denigrate the insular cases on the grounds that there has a racist tinge.

[00:25:54] Speaker 10:
And I'm not unsympathetic to the argument, except for the fact that the latest case from the Supreme Court that's relevant is Boumediene.

[00:26:04] Speaker 10:
And in Justice Kennedy's opinion,

[00:26:07] Speaker 10:
He cites Downs approvingly with a quotation, it is obvious that in the annexation of outlying and distant possessions, grave questions will arise from differences of race, habits, laws, customs of people, and from differences of soil, climate, and production.

[00:26:25] Speaker 10:
So that's the Supreme Court in Boumediene approving the insular cases and approving the opinion that the amicus and to a certain extent you argue should be ignored because it was the opinion of one judge, Judge Brown.

[00:26:44] Speaker 10:
I have a view that anything written by Judge Brown is axiom.

[00:26:54] Speaker 03:
Well, I'll hate to criticize that point.

[00:26:56] Speaker 03:
But Boumediene also says some other things about the insert cases.

[00:27:00] Speaker 03:
And one of the critical points, I think, that addresses this conversation we've been having here is that the court in Boumediene explained that the insert cases, quote, held that the Constitution has independent force in these territories, a force not contingent upon acts of legislative grace.

[00:27:16] Speaker 03:
And if you look at the distinction between- What did you just say?

[00:27:20] Speaker 03:
The Constitution is an independent force in the territories, a force not contingent upon acts of legislative grace.

[00:27:29] Speaker 10:
And so... Yet it took note of the difficulties inherent in that position.

[00:27:34] Speaker 10:
You forgot the next sentence.

[00:27:37] Speaker 10:
And so... Did you see the next sentence?

[00:27:39] Speaker 10:
Yes.

[00:27:40] Speaker 10:
That's Justice Kennedy pointing out that that kind of position is not...

[00:27:45] Speaker 10:
necessarily.

[00:27:46] Speaker 10:
It's not acceptable.

[00:27:47] Speaker 10:
So in other words, the Supreme Court has come to the view that there are practical questions here.

[00:27:54] Speaker 10:
There are anomalies to be considered when one asks the question, what provisions of the Constitution, if any, extend to unincorporated territories?

[00:28:05] Speaker 03:
Well, and if I could just add, the Philippines cases, which, as you said, looked into some of these questions, they didn't look at the question of the Citizenship Clause's application of one of applying the Territorial Incorporation Doctrine.

[00:28:18] Speaker 03:
So the court in that case actually made expressly clear.

[00:28:22] Speaker 03:
Just a moment.

[00:28:23] Speaker 03:
that they said, quote, we rely on the insert cases only to determine the meaning of the phrase in the United States.

[00:28:31] Speaker 03:
And then they went on to say, we need not decide whether citizenship is a fundamental right which would extend of its own force to a territory under the territorial incorporation doctrine.

[00:28:39] Speaker 03:
So even in the Philippines cases, which I think, you know, went down a path that they didn't need to go down because the Supreme Court had answered the question of citizenship on exit from sovereignty.

[00:28:53] Speaker 07:
The particular holding of it is eventual holding deals only with the suspension clause.

[00:29:00] Speaker 07:
Is that not correct?

[00:29:01] Speaker 07:
Am I wrong in that?

[00:29:03] Speaker 07:
Oh, no.

[00:29:04] Speaker 03:
You're absolutely right, Your Honor.

[00:29:05] Speaker 07:
And the suspension clause, even under that case, is still subject to a three-part balancing test to determine whether it applies in different territories or not, is it not?

[00:29:16] Speaker 07:
Different United States.

[00:29:17] Speaker 07:
That is what the court held.

[00:29:29] Speaker 07:
strong evidence for the proposition that every constitutional provision has to apply everywhere, is it?

[00:29:36] Speaker 03:
Well, and the distinction, of course, is that Guantanamo is only subject to the de facto sovereignty of the United States, whereas the territories of the United States are subject to de jure sovereignty.

[00:29:47] Speaker 07:
Didn't we spread the claim, Michaela, that it's not a determination between de facto and de jure?

[00:29:52] Speaker 07:
Jurisdiction is not fundamental to that.

[00:29:55] Speaker 03:
With respect to extra-territorial application of the Constitution.

[00:29:57] Speaker 03:
The question in this case is territorial application within the United States' territorial boundaries.

[00:30:02] Speaker 07:
But if I could just go back to the earlier question of whether

[00:30:10] Speaker 07:
Thank you for introducing that clause, right?

[00:30:13] Speaker 03:
Yeah, and it's important to look at what the inster cases themselves said.

[00:30:16] Speaker 03:
So Justice White's opinion in Downs, and then as well as the court's eventual actual five-justice majority in Doar,

[00:30:26] Speaker 03:
Dorn made the point, quote, the exercise of the power expressly granted to govern the territories is not without limitations.

[00:30:33] Speaker 03:
It finds limits and express prohibitions on Congress not to do certain things.

[00:30:37] Speaker 03:
This was the decision of actually five justices in the answer cases.

[00:30:42] Speaker 03:
And it's a point that goes to the importance of the citizenship clause, which the Supreme Court has repeatedly described as being, quote, a limitation on the powers of the national government.

[00:30:51] Speaker 03:
This isn't the same kind of provision as some of these other issues that were considered in certain cases where these kinds of practical difficulties can be balanced and taken into account because the meaning of the citizenship clause is so clearly tied to this expressed notion of de jure sovereignty.

[00:31:11] Speaker 03:
It's important also to recognize that Downs wasn't the only case decided that day.

[00:31:15] Speaker 03:
The court also decided DeLima versus Bidwell.

[00:31:18] Speaker 03:
And in that case, the for-justice plurality from Downs was actually in the dissent in DeLima.

[00:31:24] Speaker 03:
DeLima looked at whether Puerto Rico was a foreign country for purposes of certain statutes.

[00:31:31] Speaker 03:
The court framed the case as examining there

[00:31:36] Speaker 03:
Let's frame the case in looking at this question of whether it's a foreign country by looking to language of Chief Justice Marshall as whether it is, quote, one exclusively within the sovereignty of a foreign nation and without the sovereignty of the United States.

[00:31:51] Speaker 03:
And the government's arguments in this case actually bear much more closely to the dissent in De Lima, which argued, quote, Puerto Rico occupied a relation to the United States between that of being a foreign country, absolutely, and of being domestic territory, absolutely.

[00:32:11] Speaker 03:
That was a view that was expressly rejected in DeLima v. Bidwell, which as with the other two cases, remains the law today.

[00:32:18] Speaker 03:
The language that the majority in DeLima looked to... Your phrase there is that the answer to the case is remain the law today.

[00:32:25] Speaker 07:
Is that correct?

[00:32:27] Speaker 03:
They are the law with respect to certain specific questions.

[00:32:31] Speaker 03:
They are the law when they're on your side, and they're not the law when they're against you.

[00:32:40] Speaker 03:
Well, as the Philippines cases said, they began the description of the cases saying, quote, no court has addressed whether a person is born in U.S.

[00:32:47] Speaker 03:
territory, born

[00:32:48] Speaker 03:
in the United States within the meaning of the Fourth Amendment.

[00:32:51] Speaker 03:
So the insert cases have never been used by a court, the territorial and corporation doctrine, to answer this specific question of what the scope of the citizenship clause is.

[00:33:04] Speaker 03:
And if I could go back to, in terms of this idea that the Citizenship Clause is a limitation on government power, Wong Kamar expressly stated, quote, the 14th Amendment, while it leaves the power where it was before in Congress to regulate naturalization, which is the government's argument, has conferred no authority upon Congress to restrict the effect of birth declared by the Constitution to be sufficient and complete right to citizenship.

[00:33:31] Speaker 03:
So the important test here, held by the court in Juan Camarque, embraced by the tax structure and constitutional history, as well as the context of the citizenship clause, is this idea, this common law rule, this pre-existing common law rule, which the Supreme Court has said is going to be the source of interpreting the application of these rights in areas, is

[00:33:54] Speaker 03:
de jure sovereignty and subject to the jurisdiction of the United States.

[00:33:59] Speaker 03:
When those two prongs are met as they are here, when there's a political decision to bring an area within the territorial sovereignty of the United States, that decision has consequences.

[00:34:09] Speaker 03:
And for those reasons, we believe the Court should recognize here that the original meaning of the Citizenship Clause as embraced by the Supreme Court should recognize that our plaintiffs have a right to birthright citizenship.

[00:34:24] Speaker 03:
Thank you.

[00:34:26] Speaker 03:
Thank you.

[00:34:45] Speaker 01:
Good morning, Your Honors.

[00:34:46] Speaker 01:
Good morning.

[00:34:46] Speaker 01:
And may it please the Court, my name is Wynn Kelly, appearing today on behalf of the Federal Appellees.

[00:34:52] Speaker 01:
Your Honors, the core issue in this case, as you've heard, is whether the plain language of the 14th Amendment extends birthright citizenship to non-U.S.

[00:35:01] Speaker 01:
citizens born on the unincorporated, outlying possession of American Samoa.

[00:35:06] Speaker 01:
Because American Samoa is not in the United States for purposes of the Amendment, automatic birthright citizenship can be extended only through Congressional action, which provides clear, defined parameters.

[00:35:21] Speaker 01:
In fact, this court need look no further than the actual text of the amendment at issue in this case, which we already heard about.

[00:35:28] Speaker 01:
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.

[00:35:38] Speaker 01:
Plaintiffs here arguably are subject to the jurisdiction of the United States, but were not born in the United States for purposes of the amendment, and have chosen not to naturalize the path available to them and provided by Congress.

[00:35:51] Speaker 10:
How do you get the plain language of the 14th Amendment to answer this question?

[00:35:55] Speaker 10:
The whole issue is what does the United States mean?

[00:36:00] Speaker 10:
Yes, Your Honor, and the United States... I was not terribly impressed by your brief in that respect and relying on the plain language.

[00:36:10] Speaker 01:
Yeah, the plain language indicates that the amendment should apply only to the United States.

[00:36:18] Speaker 07:
Each side says the plain language supports their position.

[00:36:21] Speaker 07:
And honestly, I remember something one of our former colleagues did well.

[00:36:25] Speaker 07:
He said when a lawyer says something is plain or clear, usually it's not.

[00:36:31] Speaker 07:
I'm like Judge Silverman.

[00:36:32] Speaker 07:
I want to know why it's clear that the plain language supports your side as opposed to the other side.

[00:36:38] Speaker 01:
The language here is clear, Your Honor, not only when you look to the amendment, but also when you look to the contemporaneous amendments that were passed, particularly the 13th, which chose to extend the abolition of slavery and involuntary servitude to not only the United States, but to any possession held by the United States.

[00:37:03] Speaker 01:
That difference should, the government argues, enforce... That gives you a little help.

[00:37:09] Speaker 01:
Yes, and that distinction informs.

[00:37:13] Speaker 10:
But aren't you really relying on the insular cases and the subsequent development of constitutional law?

[00:37:20] Speaker 01:
Yes, Your Honor.

[00:37:21] Speaker 01:
So if the court determines that the plain language is not adequate, then the insular cases, which still remain good law as plaintiffs must concede, and every federal court to address these issues, whether the 14th Amendment confers citizenship on an unincorporated outlying possession, has held that it does not.

[00:37:44] Speaker 01:
that that birthright citizenship can only be extended through congressional action.

[00:37:50] Speaker 10:
And as... Suppose Samoa took an opposite position here.

[00:37:57] Speaker 10:
Suppose the government of Samoa had come in and said, we support the plaintiffs on this.

[00:38:04] Speaker 01:
Obviously, that's a different case in... Thank you.

[00:38:11] Speaker 10:
You know, happened many years ago when Judge Scalia was sitting here and a lawyer said that he threw the brief at him.

[00:38:20] Speaker 01:
not happen here, Your Honor.

[00:38:23] Speaker 01:
If American Samoa had come in on the side of plaintiffs here, that would present a different question to the government.

[00:38:33] Speaker 01:
If that were the case, presumably American Samoa would, as every other territory... Would have had legislation.

[00:38:40] Speaker 01:
Yes, Your Honor.

[00:38:40] Speaker 10:
The only thing that's stopping legislation here is the government of Samoa.

[00:38:44] Speaker 10:
Yes, Your Honor.

[00:38:46] Speaker 00:
But why would that be a different case?

[00:38:50] Speaker 00:
In other words, if it's just the language, right, what is the, you know, if just changing their mind would make a difference?

[00:39:01] Speaker 01:
I'm sorry, if it's just the language of the amendment?

[00:39:04] Speaker 00:
No, yeah, in other words, you say, well, that would be a different case, you know, if they agree.

[00:39:11] Speaker 00:
But if it's driven by the language, then they're either within the United States and its jurisdiction or they're not.

[00:39:20] Speaker 01:
I see your honor.

[00:39:22] Speaker 01:
For purposes of the amendment,

[00:39:25] Speaker 01:
American smough is not within the United States.

[00:39:27] Speaker 01:
However, Congress can extend birthright citizenship statutorily to unincorporated, outlying possessions, as it has done in the case of the Virgin Islands, Guam, Puerto Rico, the Mariana Islands, and pre-statehood Alaska and Hawaii.

[00:39:44] Speaker 01:
So that would present a slightly different question about what the plain meaning of in the United States is

[00:39:53] Speaker 01:
versus what Congress may statutorily do.

[00:39:56] Speaker 10:
Congress is free to... Well, but suppose there was a hostile attitude in Congress towards Somalia.

[00:40:04] Speaker 10:
of bringing Samoa in as, bringing, recognizing people born in Samoa as birthright citizens.

[00:40:13] Speaker 10:
Then what case?

[00:40:14] Speaker 10:
Then how would you handle this?

[00:40:16] Speaker 10:
If Samoa came in and said, we think our citizens are American citizens, and Congress, damn it, won't recognize it.

[00:40:32] Speaker 01:
I will not respond as I did before to your harsh question.

[00:40:35] Speaker 01:
That would be an issue where Congress, first there would need to be evidence of Congress's inability to act.

[00:40:53] Speaker 01:
It's possible that that would present an issue where the Department of the Interior would need to work with Congress to determine what the needs of the people of American Samoa in concert with the government of American Samoa.

[00:41:08] Speaker 10:
You would no longer be anomalous, would it?

[00:41:10] Speaker 01:
No, Your Honor.

[00:41:12] Speaker 10:
So Samoa would have a powerful argument, wouldn't they, in that event?

[00:41:17] Speaker 01:
And so would the plaintiffs.

[00:41:20] Speaker 01:
In particular, the government of American Samoa would have a powerful argument.

[00:41:24] Speaker 10:
And the plaintiffs would too.

[00:41:25] Speaker 01:
Yes, Your Honor.

[00:41:27] Speaker 10:
Would you concede that they would win in that event?

[00:41:38] Speaker 01:
Yes, your honor.

[00:41:39] Speaker 01:
We can see that they would win however.

[00:41:42] Speaker 06:
I see other people on your side of the courtroom shaking their heads no.

[00:41:45] Speaker 06:
Do you think you're authorized to express the opinion of the United States on that question?

[00:41:51] Speaker 01:
If the government of American Samoa were to attempt to

[00:42:00] Speaker 01:
obtain birthright citizenship for its people and it was unable to do so through obstruction of Congress and the executive.

[00:42:11] Speaker 01:
There would be a potential for a case for this court to investigate.

[00:42:25] Speaker 01:
However, that case is not present today.

[00:42:30] Speaker 01:
What is present is a situation where the Supreme Court's opinions and downs, as well as every other federal court to examine the issue, have determined that

[00:42:45] Speaker 01:
that birthright citizenship can only be extended to unincorporated, outlying possessions like American Samoa through congressional action.

[00:43:00] Speaker 01:
And for those reasons, Your Honors, we request that the judgment of the District Court be affirmed.

[00:43:19] Speaker 09:
I represent Congressman Amata, the elected representative of the American Samoan people to the United States Congress and the American Samoa government.

[00:43:29] Speaker 09:
I belabor that introduction a little bit because it really is relevant here for reasons that Judge Silberman brought out in the plaintiff's argument.

[00:43:37] Speaker 09:
This is a case where plaintiffs are urging on the court the anomaly of extending citizenship by judicial fiat over the wishes of the elected people of the territory.

[00:43:48] Speaker 09:
Now, I think that the United States government in their briefing at this argument have laid out all the reasons why plaintiff's request is literally unprecedented.

[00:43:56] Speaker 09:
That is, it's without any supporting precedent.

[00:43:59] Speaker 09:
In our briefs,

[00:44:01] Speaker 09:
on why this isn't just an academic exercise for the Samoan people, that as we understand that there are plaintiffs who are having rights abridged in this courtroom, and we think there are other avenues for those plaintiffs to obtain redress.

[00:44:14] Speaker 09:
But for purposes of the American Samoan government and the American Samoan people, this lawsuit really does represent what could be an existential threat to their way of life, to their culture.

[00:44:25] Speaker 10:
Yeah, that's important because... Now, amicus have argued that why are you worried about that?

[00:44:29] Speaker 10:
The Supreme Court would never jeopardize the land ownership practices in Samoa.

[00:44:38] Speaker 10:
Is your view that the Supreme Court can't be trusted?

[00:44:42] Speaker 09:
Well, it's two responses to that, Judge Sultman.

[00:44:44] Speaker 09:
The first... Judge Sultman.

[00:44:46] Speaker 09:
I'm sorry, Judge Sultman.

[00:44:47] Speaker 09:
Two responses to that, Judge Sultman.

[00:44:48] Speaker 10:
The first is... That's the first time I've ever been confused.

[00:44:53] Speaker 09:
We do look an awful lot alike.

[00:44:58] Speaker 09:
me, Judge Sintel, so I apologize to that sober man.

[00:45:02] Speaker 10:
It's really unforgivable since you were a student of mine in administrative law.

[00:45:06] Speaker 10:
I forgot all about that.

[00:45:12] Speaker 09:
responses to your question are, first and foremost, there's cold comfort in saying that the courts will protect this way of life when plaintiffs in this case, without any precedent to support them, are asking for what would probably be a sea change in the status of the Samoan people.

[00:45:28] Speaker 09:
And the second response, Your Honor, is

[00:45:30] Speaker 09:
American Samoan people shouldn't have to justify every aspect of their culture to the courts, having many years ago joined the United States, signed deeds of session, with this understanding that they would be allowed to preserve these paramount interests of Samoan culture.

[00:45:48] Speaker 09:
The Samoan system of land ownership was very important, but it's not the only unique aspect of Samoan culture that still survives today, that's still of critical importance to Samoan people in those islands.

[00:46:01] Speaker 09:
In the briefs, we've laid out some examples like mandatory prayer curfews, like things like having an upper house of legislature that's composed of Samoan sheeps.

[00:46:10] Speaker 09:
All of those things might not be consistent.

[00:46:14] Speaker 09:
But all of those things are very important to Samoan people.

[00:46:18] Speaker 09:
So even if we can say, don't worry about communal land ownership, and there are reasons why Samoans would be worried about that, it's no answer to say that from this point forward, you'll be defending each of your cultural practices in ports in Washington, D.C.

[00:46:30] Speaker 09:
And that's precisely what the Congresswoman and what the government of American Samoa are looking to avoid here.

[00:46:35] Speaker 09:
So I want to stress, Your Honors, we think on the law, whether it's a plain meeting argument, and I can understand the problems with that, or whether it's the practice that's subsisted for more than 100 years now, there's really no legal basis for extending birthright citizenship by fiat.

[00:46:51] Speaker 09:
Your Honor, Jeff Silverman, you talked about the case law since the Insular Cases, since the American government started taking territories.

[00:47:00] Speaker 09:
And really, the recognition there is almost unbroken.

[00:47:03] Speaker 09:
that the test is whether a territory is incorporated, that is predestined for statehood, Your Honor, or whether it is a possession or dependency of the United States.

[00:47:14] Speaker 09:
This is the case of American Samoa.

[00:47:16] Speaker 10:
Council seemed to recognize that the issue would be whether it's anomalous.

[00:47:24] Speaker 10:
And he argued, well, that's a factual issue that should be sent down to the district court.

[00:47:31] Speaker 09:
your honor i think that's that suggestion again the american simoans will need to bring i suppose someone cultural experts and present to judge leon on remand that would be even more of an incursion into someone's self-determination and sovereignty than having to defend this lawsuit in the first place and on that point your honor i know that there were there was testimony given in king versus morton but that case is from nineteen seventy-five and you think hotel uh...

[00:47:59] Speaker 10:
sort of changed our approach to this question?

[00:48:06] Speaker 09:
I don't think, I think Hodel recognized changes in the approach to the question because between 1975 when King v. Morton... Should we pay any attention to the fact that was written by Judge Ginsburg?

[00:48:18] Speaker 09:
written opinion, Your Honor, and it got the support of all the judges on the panel, which was also important.

[00:48:27] Speaker 09:
It's very well written opinion, and I'll say that, Your Honor.

[00:48:31] Speaker 10:
You didn't help on that, did you?

[00:48:32] Speaker 10:
That was the 8th grade, Your Honor.

[00:48:33] Speaker 10:
That was a conflict of interest.

[00:48:35] Speaker 04:
No conflict of interest here.

[00:48:37] Speaker 04:
You may have some other conflict of interest.

[00:48:39] Speaker 04:
I assume that there's like a confluence of interests in other regards.

[00:48:45] Speaker 04:
That's absolutely right, Your Honor.

[00:48:46] Speaker 09:
And that's why I'm proud to say that I can stand here and represent the Samoan people in a case like this.

[00:48:51] Speaker 09:
And our briefs lay out all the ways putting to one side any conflicts of interest, why this is so important for their culture, and why even though there are people who are claiming harm here, they do view this as a threat.

[00:49:03] Speaker 09:
And they're urging these plaintiffs, for example, to seek other ways of addressing their injury.

[00:49:09] Speaker 09:
There are legislative options available.

[00:49:11] Speaker 09:
You know, Congressman Amata, who's newly elected.

[00:49:13] Speaker 10:
So your view is the anomaly issue would not be amenable to a factual determination.

[00:49:19] Speaker 10:
We can assume that as a matter of law that every anomalous

[00:49:23] Speaker 10:
to recognize birthright citizenship over the objections of the government of Samoa.

[00:49:30] Speaker 09:
That's right, Your Honor.

[00:49:32] Speaker 10:
What about the question I asked counsel, suppose the government of Samoa was on the side of the plaintiffs here?

[00:49:39] Speaker 09:
Couldn't be dispositive, Your Honor.

[00:49:40] Speaker 09:
If the government of American Samoa was on the side of the plaintiffs, that would be a factor.

[00:49:45] Speaker 09:
It's anomalous to grant citizenship over the government's wishes, but there are conceivably circumstances, I think,

[00:49:51] Speaker 09:
where people within American Samoa could say, for whatever reason, and this isn't the case here, that the government is non-representative, that there is oppression.

[00:50:01] Speaker 09:
It would be a different case, as Council for the United States said, but I don't want to close the door on the fact that the government's views would be dispositive.

[00:50:09] Speaker 09:
So there are other remedies, though, Your Honor.

[00:50:11] Speaker 09:
And as Council for the United States pointed out, every time

[00:50:15] Speaker 09:
citizenship has been extended to people in the outlying territories.

[00:50:18] Speaker 09:
It's been by statute, and that option's available here.

[00:50:22] Speaker 10:
In addition, Congress... What do you make of the fact that the number of the other territories, such as Puerto Rico, have filed an amicus brief on the side

[00:50:31] Speaker 10:
of the planets in this case.

[00:50:34] Speaker 09:
I don't know what to make of that fact, Judge Silverman.

[00:50:36] Speaker 09:
The fact is the status of Puerto Rico with four million people and its history with the United States is very different from that of American Samoa in the South Pacific with 55,000 people.

[00:50:48] Speaker 09:
American Samoa is different culturally.

[00:50:50] Speaker 09:
Its history is different.

[00:50:52] Speaker 09:
There was Congressman Falio Mavenga, who initially got involved in this lawsuit, was fond of saying that American Samoa is the only U.S.

[00:50:59] Speaker 09:
territory that wasn't taken by conquest.

[00:51:02] Speaker 09:
That is that this is a voluntary association.

[00:51:05] Speaker 09:
So there are different histories and different cultures.

[00:51:07] Speaker 09:
And I'll add to that, Judge Silverman, there are a lot of amici in this case.

[00:51:10] Speaker 09:
I saw a lot of law professors.

[00:51:12] Speaker 09:
I saw a lot of people who were very interested in this topic.

[00:51:14] Speaker 09:
But I hope that by standing here as an intervener for the American Samoa government,

[00:51:18] Speaker 09:
we can point out that this isn't just an academic exercise.

[00:51:21] Speaker 09:
This would be interesting as a law authority.

[00:51:24] Speaker 09:
But it's not.

[00:51:25] Speaker 09:
It's something that affects people's day-to-day lives in Samoa.

[00:51:29] Speaker 09:
And for all of these reasons, Your Honors, we ask you to affirm the judgment of the district court for all of the reasons laid out by Judge Leon.

[00:51:35] Speaker 09:
And we thank you for your time.

[00:51:39] Speaker 00:
Thank you.

[00:51:45] Speaker 00:
Council, I know that you did not have any time left, but we will give you some additional time if you think you need it.

[00:51:52] Speaker 00:
Two minutes.

[00:51:59] Speaker 03:
We would certainly agree with our colleagues that this is not an academic issue for our plaintiffs who have been denied the right to vote because of their status, who have lost their jobs because of their status, who we represent one veteran who has been denied the right to bear arms because of his status.

[00:52:17] Speaker 03:
So it's not an academic question for us either.

[00:52:20] Speaker 03:
Going back to what you had said about

[00:52:24] Speaker 03:
the history of American Samoa support for these questions.

[00:52:29] Speaker 03:
They haven't painted a clear picture of how that support has changed over time, so historical records actually demonstrate that at the time American Samoa signed the Deeds of Session, they believed that they were going to have

[00:52:41] Speaker 03:
full recognition of US citizens.

[00:52:43] Speaker 03:
When they were later told that that was not to be the case, they fought for several decades to have that full recognition of citizenship that they thought had been part of the initial agreement.

[00:52:53] Speaker 03:
In fact, this legislation went so far as to be approved by the US Senate twice unanimously

[00:52:58] Speaker 03:
only to fail in the U.S.

[00:53:00] Speaker 03:
House because of opposition for the Navy.

[00:53:02] Speaker 03:
So it's not for a lack of trying that the American Samoan people have not been recognized as citizens.

[00:53:08] Speaker 03:
It's because the U.S.

[00:53:10] Speaker 03:
government has denied them that through the political process.

[00:53:13] Speaker 10:
Well, you see their position today.

[00:53:16] Speaker 03:
Yeah, and so their position has changed, and so I guess we should have just brought our case 50 years ago.

[00:53:21] Speaker 04:
I've got a good idea.

[00:53:24] Speaker 03:
But that highlights the challenges of using these kinds of practical considerations and interest balancing when interpreting the meaning of a constitutional provision that was specifically designed in text and purpose to remove those kinds of questions from political determination.

[00:53:41] Speaker 10:
You agreed that now the issue is whether it's anomalous.

[00:53:44] Speaker 10:
The Supreme Court has

[00:53:46] Speaker 10:
change the plain language kind of inquiry, haven't they?

[00:53:52] Speaker 10:
I agree with the outset.

[00:53:54] Speaker 03:
As a general matter, I don't think they have.

[00:53:55] Speaker 03:
With respect to specific questions, like the right to jury trial that fall within the answer cases, perhaps so.

[00:54:00] Speaker 03:
But even then, the question of what is anomalous has turned on the kind of practical considerations of how something can practically or logistically be handled, how it's different from other areas.

[00:54:14] Speaker 03:
And on that point, certainly American Samoa stands out as the only

[00:54:18] Speaker 03:
U.S.

[00:54:19] Speaker 03:
territory where citizenship is not recognized.

[00:54:22] Speaker 03:
And so, and as this court, I think the holding in King v. Morton still is clear.

[00:54:26] Speaker 03:
I think it's still this court's test in applying that insular cases doctrine in King v. Morton that to the degree, the insular cases doctrine comes into play.

[00:54:37] Speaker 03:
The question is, is it a fundamental right?

[00:54:40] Speaker 03:
We argue it is.

[00:54:42] Speaker 03:
Wong Kye Mark has recognized and courts have since recognized that birthright citizenship is indeed a fundamental right.

[00:54:47] Speaker 03:
And even if not, then the test is whether it's impractical or anomalous and that requires

[00:54:53] Speaker 03:
According to the court, fact-finding, which would require remand to the district court, where, as occurred on remand in King v. Andrus, there was an opportunity for testimony from leaders on both sides of the issue in American Samoa.

[00:55:09] Speaker 03:
and ultimately the court there sided with the plaintiffs in the case in saying that it would not be impractical anomalous to exercise or to recognize the right to trial by jury in American Samoa, despite fierce opposition from American Samoa's elected officials.

[00:55:25] Speaker 10:
That case never came up on appeal.

[00:55:28] Speaker 03:
It did not.

[00:55:29] Speaker 03:
But I think that King Viandras was very diligent in following the commands of this court, even to the degree that those raised some challenges in terms of how the court proceeded.

[00:55:40] Speaker 03:
But they followed the edict of this court in those cases, which was that there is a factual determination required of whether that right would be impractical and anomalous in American Samoa today.

[00:55:50] Speaker 03:
And they did not find despositive the fact that the leaders of the territory at the time opposed recognizing a right to jury trial.

[00:55:59] Speaker 00:
I understand your position that this is not an academic exercise.

[00:56:05] Speaker 00:
But I think there's a question that Judge Sintel asked, and I wasn't sure if we ever got an answer to that question, and I think it's important.

[00:56:13] Speaker 00:
And that is, if we were to agree with you and found that birthright citizenship applied automatically here,

[00:56:22] Speaker 00:
Wouldn't that bring in all of the Constitution?

[00:56:27] Speaker 00:
I mean, we would stop talking about whether anything was practical or anomalous, whether there were concerns about the Samoan way of life.

[00:56:37] Speaker 00:
The Constitution would simply apply in its entirety.

[00:56:41] Speaker 00:
Is that correct?

[00:56:43] Speaker 03:
So to answer that question, I would say that the concerns that have been raised by the interveners, those concerns have existed and been expressed repeatedly prior to our case being brought forward.

[00:56:54] Speaker 03:
So those concerns are related to what the Constitution means and what the Constitution requires.

[00:57:00] Speaker 03:
They don't turn on issues of citizenship or non-citizen national.

[00:57:06] Speaker 03:
So our position is that in recognizing reverse right citizenship,

[00:57:10] Speaker 03:
the application of the Constitution as a general matter will really be what it was before our case was even brought to the court, which these rights, as the American Sumo High Court had recognized in Craddock, equal protection and due process already apply in American Sumo, regardless of whether they're recognized as citizens or non-citizen nationals.

[00:57:31] Speaker 03:
These other concerns they raise, there's already been constitutional questions raised.

[00:57:36] Speaker 07:
within American Samoa as opposed to equal protection vis-a-vis the rest of the United States?

[00:57:44] Speaker 07:
I'm sorry, I'm not quite clear on that.

[00:57:46] Speaker 07:
When you say that the prior precedent was that equal protection did apply in American Samoa, are you looking to law that deals with rights within American Samoa or in American Samoa vis-a-vis the other citizens of the United States?

[00:58:01] Speaker 03:
So the question in that case was whether their land alienation laws were constitutional.

[00:58:07] Speaker 03:
And so I guess I'm not sure quite where on your line that would fall.

[00:58:12] Speaker 03:
But the court did expressly recognize that regardless of whether it was an incorporated or unincorporated territory, the fundamental rights of equal protection and due process require strict scrutiny of laws that create these kinds of racial determinations.

[00:58:28] Speaker 03:
Nonetheless, the court in that case appell them based on a compelling interest that it found.

[00:58:31] Speaker 07:
Now, would the court be able to do that if you won today and got birthright citizenship?

[00:58:39] Speaker 07:
Would the court then be able to parse out whether that ethnic-based property history could still apply when it doesn't apply anywhere else in the United States?

[00:58:52] Speaker 03:
Yeah, so the distinction the court drew was there was the compelling interest in preserving Simone culture that doesn't turn on whether they're citizens or non-citizen nationals.

[00:59:00] Speaker 07:
Indeed, those laws... Could that still be the case?

[00:59:02] Speaker 07:
Could that still be the case, if we had birthrights?

[00:59:05] Speaker 03:
Yes.

[00:59:06] Speaker 07:
And, uh... Could that still be anonymous?

[00:59:09] Speaker 10:
Yeah, I don't follow that.

[00:59:10] Speaker 10:
Suppose it was the same statutory arrangement in Arkansas.

[00:59:15] Speaker 10:
Would you say it would pass equal protection?

[00:59:20] Speaker 03:
Well, the defenders of the law would have to say what the compelling interest is there.

[00:59:23] Speaker 03:
And if it can't pass a compelling interest test, then it would be unconstitutional.

[00:59:28] Speaker 03:
In American Samoa, the court there recognized that there is a compelling interest.

[00:59:32] Speaker 03:
But our point is simply that these questions about equal protection in due process are separate questions from the question of the citizenship clause, which

[00:59:41] Speaker 03:
really is a unique right, because it's the only enumerated right which is specifically tied to whether an area is subject to the de jure sovereignty of the United States.

[00:59:49] Speaker 03:
These other issues do not have that express geographical and sovereignty-based determination in whether or not they apply.

[01:00:01] Speaker 03:
And so it may be proper to subject those kinds of rules under

[01:00:07] Speaker 03:
under this kind of interest balancing or practical considerations.

[01:00:12] Speaker 03:
But where the constitutional command here is clear, we believe that it is answered by the original meaning of the citizenship clause.

[01:00:21] Speaker 03:
And to the degree that those practical considerations are warranted, this court's still, we believe, precedent in King v. Morton requires determination of first, is citizenship a fundamental right?

[01:00:33] Speaker 03:
And if it is not, second, would that right be a practical and nonless?

[01:00:37] Speaker 03:
I don't think we're ignoring Hodel.

[01:00:41] Speaker 03:
We're simply looking at, you know, and even in that case the court examined is this a fundamental right or not.

[01:00:46] Speaker 10:
We didn't remand.

[01:00:49] Speaker 03:
There was no remand in that case because it wasn't disputed that this was, you know, was not... The plaintiffs argued for a remand.

[01:00:56] Speaker 10:
We didn't do it.

[01:00:58] Speaker ?:
Okay.

[01:00:59] Speaker 03:
The court did cite approvingly to King B. Morton in that case.

[01:01:03] Speaker 03:
I think that it was as different in kind insofar as the questions really were one squarely about territorial governance under the Territory Clause, regardless of whether it was an incorporated or unincorporated territory.

[01:01:16] Speaker 03:
really, and King B. Morton, you know, had American Samoan been recognized as incorporated territory, the question would have been absolutely clear that, of course, the right to jury trial applies there.

[01:01:28] Speaker 03:
It didn't fall into, you know, the territorial clause in that same way.

[01:01:35] Speaker 03:
If there are further questions, thank you.