Case: 08-5078 Document: 01215604058 Page: 1

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 5, 2009 Decided April 7, 2009

No. 08-5078

ROGER C.S. LIN, ET AL.,

APPELLANTS

v.

UNITED STATES OF AMERICA,

APPELLEE

Appeal from the United States District Court

for the District of Columbia
(No. 1:06-cv-01825)

Charles H. Camp argued the cause and filed the briefs for
appellants.

Melissa N. Patterson, Attorney, U.S. Department of Justice,

argued the cause for appellee. With her on the brief were
Gregory G. Katsas, Assistant Attorney General, Jeffrey A.
Taylor, U.S. Attorney, and Mark B. Stern, Attorney. R. Craig
Lawrence, Assistant U.S. Attorney, entered an appearance.

Before: HENDERSON, BROWN, and GRIFFITH, Circuit

Judges.
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Opinion for the Court filed by Circuit Judge BROWN.

BROWN, Circuit Judge: America and China’s tumultuous

relationship over the past sixty years has trapped the inhabitants
of Taiwan in political purgatory. During this time the people on
Taiwan have lived without any uniformly recognized
government. In practical terms, this means they have uncertain
status in the world community which infects the population’s
day-to-day lives. This pervasive ambiguity has driven
Appellants to try to concretely define their national identity and
personal rights.

Initially, the individual Appellants sought modest relief:

they wanted passports. More specifically, they wanted
internationally recognized passports. Now, however, Appellants
seek much more. They want to be U.S. nationals with all related
rights and privileges, including U.S. passports. Determining
Appellants’ nationality would require us to trespass into a
controversial area of U.S. foreign policy in order to resolve a
question the Executive Branch intentionally left unanswered for
over sixty years: who exercises sovereignty over Taiwan. This
we cannot do. Because the political question doctrine bars
consideration of Appellants’ claims, the district court had no
choice but to dismiss Appellants’ complaint for lack of subject
matter jurisdiction. Accordingly, we affirm.

At the end of the Sino-Japanese War, in 1895, China

relinquished the island of Taiwan (then Formosa) to Japan.
Treaty of Shimonoseki, China-Japan, art. 2(b), April 17, 1895,
181 Consol. TS 217. After its defeat in World War II, Japan
surrendered sovereignty over Taiwan to the Allied forces in
1945. See 91 CONG. REC. S8348–49 (1945) (Text of Japanese
Order). Specifically, General Douglas MacArthur ordered the
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Japanese commanders within China and Taiwan to surrender to
Generalissimo Chiang Kai-shek, id., leader of the Chinese
Nationalist Party, The Chinese Revolution of 1949,
http://www.state.gov/r/pa/ho/time/ cwr/88312.htm (last visited
March 4, 2009). In 1949, China’s civil war—a battle between
Chinese nationalists and communists—ended; mainland China
fell to the communists and became the People’s Republic of
China (“P.R.C.”), forcing Chiang Kai-shek to flee to Taiwan
and re-establish the Republic of China (“R.O.C.”) in exile. Id.

On September 8, 1951, Japan signed the San Francisco

Peace Treaty (“SFPT”) and officially renounced “all right, title
and claim to Formosa and the Pescadores.” Treaty of Peace
with Japan, art. 2(b), Sept. 8, 1951, 3 U.S.T. 3169, 136 U.N.T.S.
45. The SFPT does not declare which government exercises
sovereignty over Taiwan. It does generally identify the United
States as “the principal occupying Power,” but does not indicate
over what. Id. at art. 23(a).

In 1954, the United States recognized the R.O.C. as the

government of China, acknowledged its control over Taiwan,
and promised support in the event of a large-scale conflict with
the P.R.C. Mutual Defense Treaty Between the United States of
America and the Republic of China, U.S.-R.O.C., Dec. 2, 1954,
6 U.S.T. 433; The Taiwan Strait Crises: 1954–55 and 1958,
http://www.state.gov/r/pa/ho/time/lw/88751.htm (last visited
March 4, 2009). The ensuing decades, however, brought
improved diplomatic relations with the P.R.C. and the United
States’ posture on Taiwan’s sovereign changed. Starting in
1972, the United States recognized that the P.R.C. considered
Taiwan a part of China and specifically declined to challenge
that position. See DEP’T ST. BULL., Mar. 20, 1972, at 435, 437–
38 (setting forth the text of Joint Communiqué by U.S. and
P.R.C., the “Shanghai Communiqué,” issued on February 27,
1972). In 1979, President Carter recognized the P.R.C. as the
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sole government of China and simultaneously withdrew
recognition from the R.O.C. See DEP’T ST. BULL., January 1,
1979 (setting forth the text of Joint Communiqué on the
Establishment of Diplomatic Relations Between the U.S. and
P.R.C., issued on December 15, 1978); see also Goldwater v.
Carter, 617 F.2d 697, 700 (D.C. Cir.), vacated, 444 U.S. 996
(1979).

This change in policy prompted Congress to pass the

Taiwan Relations Act of 1979 (“TRA”), 22 U.S.C. § 3301 et
seq., in order to spell out the United States’ new, unofficial
relationship with “the people on Taiwan.” See id. § 3301
(“[T]he Congress finds that the enactment of this Act is
necessary to help maintain peace, security, and stability in the
Western Pacific; and . . . authoriz[e] the continuation of
commercial, cultural, and other relations between the people of
the United States and the people on Taiwan.”). The TRA
established the American Institute in Taiwan (“AIT”) as the
unofficial U.S. representative for relations with Taiwan. Id. §
3305. The AIT, inter alia, “processes visa applications from
foreign nationals and provides travel-related services for
Americans.” United States ex rel. Wood v. Am. Inst. in Taiwan,
286 F.3d 526, 529 (D.C. Cir. 2002). There is no indication the
Congress or the Executive gave the AIT any responsibility for
processing passport applications for the people on Taiwan.

The TRA also outlined the United States’ “expectation that

the future of Taiwan will be determined by peaceful means” and
its intention “to provide Taiwan with arms of a defensive
character.” Id. § 3301(b); see also id. § 3302 (describing the
provision of defense articles and services to Taiwan). Despite
the executive renunciation of ties with the R.O.C., Congress
pledged to maintain relations with the people on Taiwan and
supply the government with weapons. Id. Thus began decades
of “strategic ambiguity” with respect to sovereignty over
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Taiwan. CRS Issue Brief IB98034, Taiwan: Recent
Developments and U.S. Policy Choices, by Kerry B. Dumbaugh,
Foreign Affairs, Defense, and Trade Division, January 24, 2006.

In 2006, Appellants, residents of Taiwan and members of

the Taiwan Nation Party, attempted multiple times to submit
applications for U.S. passports to the AIT for processing. The
AIT refused to accept the applications and, ultimately, prevented
Appellants from delivering further submissions. Appellants
filed a complaint in the district court seeking essentially two
declarations: (1) the AIT’s refusal to process the individual
Appellants’ passport applications wrongfully deprived them of
their status as U.S. nationals and attendant rights; and
(2) Appellants are U.S. nationals entitled to all associated rights,
particularly those flowing from the First, Fifth, Eighth, and
Fourteenth Amendments. Am. Compl. 18–19. The district
court dismissed the case for lack of subject matter jurisdiction
under the political question doctrine. On appeal, Appellants
admit Taiwan does not currently have a recognized sovereign,
but argue that until it does, the SFPT established the United
States as Taiwan’s “principal occupying power,” effectively
giving the United States temporary de jure sovereignty.
According to Appellants, no subsequent treaty or law abrogates
this aspect of the SFPT. When permanent sovereignty is
ultimately decided, they concede the United States’ supposed de
jure sovereignty will cease; but, in the meantime, Appellants
consider themselves non-citizen U.S. nationals.

II

We review the district court’s dismissal of Appellants’

claims de novo. Piersall v. Winter, 435 F.3d 319, 321 (D.C. Cir.
2006). Under the political question doctrine, a court must
decline jurisdiction if there exists “a textually demonstrable
constitutional commitment of the issue to a coordinate political
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department.” Baker v. Carr, 369 U.S. 186, 217 (1962).
“[D]ecision-making in the fields of foreign policy and national
security is textually committed to the political branches of
government.” Schneider v. Kissinger, 412 F.3d 190, 194 (D.C.
Cir. 2005). Because deciding sovereignty is a political task,
Appellants’ case is nonjusticiable. Jones v. United States, 137
U.S. 202, 212 (1890) (“Who is the sovereign, de jure or de
facto, of a territory, is not a judicial, but a political[] question . .
. .”); Baker, 369 U.S. at 212 (“[R]ecognition of foreign
governments so strongly defies judicial treatment that without
executive recognition a foreign state has been called ‘a republic
of whose existence we know nothing . . . .”).

Appellants argue this is a straightforward question of treaty

and statutory interpretation and well within the Article III
powers of the court. It is and it isn’t. The political question
doctrine deprives federal courts of jurisdiction, based on
prudential concerns, over cases which would normally fall
within their purview. National Treasury Employees Union v.
United States, 101 F.3d 1423, 1427 (D.C. Cir. 1996). We do not
disagree with Appellants’ assertion that we could resolve this
case through treaty analysis and statutory construction, see
Japan Whaling Ass’n v. American Cetacean Soc’y, 478 U.S.
221, 230 (1986) (“[T]he courts have the authority to construe
treaties and executive agreements, and it goes without saying
that interpreting congressional legislation is a recurring and
accepted task for the federal courts.”); we merely decline to do
so as this case presents a political question which strips us of
jurisdiction to undertake that otherwise familiar task. See
Gonzalez-Vera v. Kissinger, 449 F.3d 1260, 1264 (D.C. Cir.
2006) (“We need not quarrel with the plaintiffs’ assertion that
certain claims for torture may be adjudicated in the federal
courts as provided in the TVPA. We simply observe that such a
claim, like any other, may not be heard if it presents a political
question.”).
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Once the Executive determines Taiwan’s sovereign, we can

decide Appellants’ resulting status and concomitant rights
expeditiously. Baker, 369 U.S. at 212 (“[T]he judiciary
ordinarily follows the executive as to which nation has
sovereignty over disputed territory, once sovereignty over an
area is politically determined and declared, courts may examine
the resulting status and decide independently whether a statute
applies to that area.”). But for many years—indeed, as
Appellants admit, since the signing of the SFPT itself—the
Executive has gone out of its way to avoid making that
determination, creating an information deficit for determining
the status of the people on Taiwan. Appellants insist they do not
ask the court to determine Taiwan’s sovereign; however,
without knowing Appellants’ status, we cannot delineate
Appellants’ resultant rights.

Identifying Taiwan’s sovereign is an antecedent question to

Appellants’ claims. This leaves the Court with few options. We
could jettison the United States’ long-standing foreign policy
regarding Taiwan—that of strategic ambiguity—in favor of
declaring a sovereign. But that seems imprudent. Since no war
powers have been delegated to the judiciary, judicial modesty as
well as doctrine cautions us to abjure so provocative a course.

Appellants attempt to side-step this fatal hurdle by asserting

that, for the limited purpose of determining their status and
rights under U.S. law, the issue of sovereignty is already
decided under the SFPT. According to them, as the “principal
occupying power” under the treaty, the United States retains
temporary de jure sovereignty over Taiwan. Consequently,
Appellants urge us to remember recognizing that the
determination of sovereignty over an area is a political question
“does not debar courts from examining the status resulting from
prior action.” Vermilya-Brown Co. v. Connell, 335 U.S. 377,
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380 (1948). True enough. However, under the interpretation of
the political departments to whom we must defer in such
matters, Pearcy v. Stranahan, 205 U.S. 257, 265 (1907)
(deferring to “the interpretation which the political departments
have put upon [a] treaty” when resolving a question of
sovereignty), it remains unknown whether, by failing to
designate a sovereign but listing the United States as the
“principal occupying power,” the SFPT created any kind of
sovereignty in the first place. Therefore, the “prior action” on
which Appellants rely is not only an open question, but is in fact
the same question Appellants insist they do not require this
Court to answer: who is Taiwan’s sovereign? Appellants may
even be correct; careful analysis of the SFPT might lead us to
conclude the United States has temporary sovereignty. But we
will never know, because the political question doctrine forbids
us from commencing that analysis. We do not dictate to the
Executive what governments serve as the supreme political
authorities of foreign lands, Jones, 137 U.S. at 212; this rule
applies a fortiori to determinations of U.S. sovereignty.

Appellants query how the political question doctrine can

bar their claims in light of the Supreme Court’s recent decision
in Boumediene v. Bush, 128 S. Ct. 2229 (2008). They observe:

If the United States Supreme Court can, during open

hostilities, consider and rule on issues involving Congress,
the Executive Branch and the United States Constitution in
respect of the handling of alleged enemy aliens directly
threatening the United States mainland, surely the
interpretation of the SFPT and its legal effects upon
Appellants under U.S. laws are properly within the courts’
purview.

Appellants’ Br. 28. At first blush, it is difficult to challenge

Appellants’ reasoning. In truth, one can understand the
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perception that the Court in Boumediene went far beyond its
historically limited role with respect to national security and
foreign policy. See Schneider, 412 F.3d at 195 (Article III
“provides no authority for policymaking in the realm of foreign
relations or provision of national security. . . . [D]ecision-
making in the areas of foreign policy and national security is
textually committed to the political branches.”). Under
precedent both de jure and de facto sovereignty are political
questions—indeed, archetypal political questions. Oetjen v.
Central Leather Co., 246 U.S. 297, 302 (1918). Still, to read
Boumediene as Appellants suggest would call into question the
continuing viability of the entire political question doctrine. We
do not read Boumediene so broadly, particularly as the majority
merely held it had authority to review enemy detentions under
the Suspension Clause in those cases where de facto sovereignty
is “uncontested.” Boumediene, 128 S. Ct. at 2247, 2252–53,
2262.

Even if we concluded (which we do not) that Boumediene

abrogated sub silentio the political question doctrine as it relates
to de facto sovereignty, no valid argument can be made that it
did so in relation to determining de jure sovereignty, which is at
issue here. The majority in Boumediene explained, “to hold that
the present cases turn on the political question doctrine, we
would be required first to accept the Government’s premise that
de jure sovereignty is the touchstone of habeas corpus
jurisdiction,” and then rejected that premise as “unfounded.”
Boumediene, 128 S. Ct. at 2253. As counsel for the Government
aptly put it at oral argument, the gravamen of the Court’s
decision centered not on the de jure reach of the Constitution,
but on the limitations that adhere to the United States’ actual
exercise of power over non-citizens detained in a foreign
territory. Appellants do not assert, nor could they, that the
United States exercises actual control over the people on
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Taiwan. Thus, to the extent relevant in this case, Boumediene
left the political question doctrine intact.

Finally, Appellants attempt to analogize the United States’

former relationship with the Philippines, after Spain ceded the
Philippine Islands to the United States in 1898, to its current
relationship with Taiwan. The comparison is inapposite.
Congress, not a court, declared the Filipino population was
“entitled to the protection of the United States” based on the
United States’ sovereignty over the Philippines. See Rabang v.
Boyd, 353 U.S. 427, 429 (1957). Later, Congress acknowledged
“the final and complete withdrawal of American sovereignty
over the Philippine Islands” and stripped the Filipino people of
their non-citizen national status. Id. at 429–30. Therefore,
unlike here, courts confronting claims involving the rights
enjoyed by Filipinos had no need to determine sovereignty over
the Philippine Islands.

Appellants argue that, as in the Philippines, the people on

Taiwan owe the United States “permanent allegiance” and,
consequently, meet the definition of U.S. nationals. See 8
U.S.C. § 1101(a)(22) (“The term ‘national of the United States’
means . . . a person who, though not a citizen of the United
States, owes permanent allegiance to the United States.”). We
join the majority of our colleagues and conclude manifestations
of “permanent allegiance” do not, by themselves, render a
person a U.S. national. See Marquez-Almanzar v. INS, 418 F.3d
210, 218–19 (2d Cir. 2005) (holding “one cannot qualify as a
U.S. national under 8 U.S.C. § 1101(a)(22)(B) by a
manifestation of ‘permanent allegiance’ to the United
States. . . . [T]he road to U.S. nationality runs through
provisions detailed elsewhere in the Code, see 8 U.S.C. §§
1401–58, and those provisions indicate that the only ‘non-
citizen nationals’ currently recognized by our law are persons
deemed to be so under 8 U.S.C. § 1408.”); see also Abou-
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Haidar v. Gonzales, 437 F.3d 206, 207 (1st Cir. 2006) (“The
overwhelming majority of circuit courts to consider the question
have concluded that one can become a ‘national’ of the United
States only by birth or by naturalization under the process set by
Congress.”); Sebastian-Soler v. U.S. Att’y Gen., 409 F.3d 1280,
1285–87 (11th Cir. 2005); Salim v. Ashcroft, 350 F.3d 307, 309–
10 (3d Cir. 2003); Perdomo-Padilla v. Ashcroft, 333 F.3d 964,
972 (9th Cir. 2003). Moreover, Congress precisely defined a
non-citizen national as, inter alia, a person “born in an outlying
possession of the United States on or after the date of formal
acquisition of such possession.” 8 U.S.C. § 1408. The term
“outlying possessions of the United States” means American
Samoa and Swains Island. Id. § 1101(a)(29). The definition
does not include Taiwan. Id. Thus, attitudes of permanent
allegiance do not help Appellants.

III

Addressing Appellants’ claims would require identification

of Taiwan’s sovereign. The Executive Branch has deliberately
remained silent on this issue and we cannot intrude on its
decision. Therefore, as the district court correctly concluded,
consideration of Appellants’ claims is barred by the political
question doctrine. Accordingly, we affirm.
So ordered.