Today the Supreme Court will hear Hernandez v. Mesa, a case with potentially significant impact on the current immigration debate. The case involves the shooting and killing of Sergio A. Hernandez Guereca, 15, at the border on June 7, 2010. The family argues that Hernandez was simply playing a game with his friends in running to touch the U.S. border fence when Border Patrol agent Jesus Mesa, Jr. shot and killed him. The agents insist that Hernandez was a known illegal alien smuggler with two prior arrests and was throwing rocks at the agents. Since the government prevailed below before the United States Court of Appeals for the Fifth Circuit, the Court will only consider the facts asserted by the family in determining if dismissal was appropriate. At issue will be the right of a foreign national to assert constitutional rights — an issue that could have bearing on the ongoing debate over the Trump immigration executive order.
The case falls within an ambiguity created by the Supreme Court over the extraterritorial application of U.S. constitutional protections to foreign nationals. The family is asserting fourth and fifth amendment rights on behalf of Hernandez. However, the Fifth Circuit ruled that a foreign national cannot claim the protections of such rights outside of the United States. That is in accord with the 1990 decision in United States v. Verdugo-Urquidez. However, the family is relying on the decision in 2008 decision in Boumediene v. Bush where Justice Anthony Kennedy ruled against the formalist application of a sovereignty rule in considering claims of detainees of the U.S. Naval Station at Guantanamo Bay, Cuba. He held that the Constitution’s extraterritorial applications “turn on objective factors and practical concerns,” not a “formal sovereignty-based test.”
The result is a fight between formalist and functionalist analysis. The family is seeking to amplify the prior Kennedy ruling and establish that “de jure sovereignty” is not “the only relevant consideration in determining the geographic reach of the Constitution” because “ques- tions of extraterritoriality turn on objective factors and practical concerns, not formalism.” 553 U.S. 723, 764 (2008). However, the “practical” approach advocated by the family may be too fluid and uncertain for some of the justices. The agent is arguing that Boumediene dealt with the “great writ” and was narrow in its scope. Moreover, the Court has cases that expressly reject them application of fifth amendment rights to foreign nationals outside of the country. Johnson v. Eisentrager, 339 U.S. 763, 70 S.Ct. 936, 94 L.Ed. 1255 (1950) and United States v. Verdugo-Urquidez, 494 U.S. 259, 271, 110 S.Ct. 1056, 1064, 108 L.Ed.2d 222 (1990).
The vacancy on the Court raises an interesting problem. Judge Gorsuch is weeks if not months away from confirmation. If Kennedy were to continue his “practical” approach to the area, he could supply a fifth vote with Ginsburg, Breyer, Kagan, and Sotomayor (assuming that they all agree with the family). Otherwise, a 4-4 split would leave the Fifth Circuit ruling in place. Notably, if Kennedy did follow the line in Boumediene, even the addition of Gorsuch in a rehearing would not alter the result with a five justice majority. Moreover, the Court could still rule against the family on qualified immunity in finding that, given the conflict in these cases, there was no clear rule at the time of the shooting.
If Kennedy were to supply a critical vote in favor of extraterritorial application, the case would support challengers to the Trump immigration order. The new order expected to be released this week reportedly contained an express exemption for permanent visa holders. That would create a barrier to standing if foreign nationals are not allowed to invoke constitutional rights extraterritorially. Of course, a decision could limit such extraterritorial application to some types of rights or cases and still exclude a broader extraterritorial use by foreign nationals in areas like immigration.
The question for the adoption of a functionalist approach will be line drawing. It seems doubtful that the Court would embrace absolute extraterritorial application of constitutional rights. That begs the question of the basis and scope for selective extraterritorial application.
What do you think?