Case Summary: Boumediene v. Bush

Terror.  Boumediene sought a writ of habeas corpus seeking to challenge his detention and the military commissions used to determine his status as an enemy combatant.  The Court split 5-4.

[Disclosure: I worked to co-author an amicus brief on the applicability of the Geneva Conventions to these prisoners in this case - AM-T].

Factual Background:  Boumediene and others were aliens designated as enemy combatants and held by the United States at the Naval Station in Guantanamo Bay, Cuba.  They sought a writ of habeas corpus, alleging that aspects of Military Commissions Act, which sought to strip the courts of jurisdiction, were unconstitutional violations of the Suspension Clause.

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Third Circuit holds Suspension Clause applies to Special Immigrant Juveniles

Last week, the Court of Appeals for the Third Circuit decided Osorio-Martinez v. Attorney General, 17-2159, a challenge by several Honduran and El Salvadoran children and their mothers to an order of expedited removal.  The Court held that the children, who had been granted Special Immigrant Juvenile (SIJ) status, could not challenge their expedited removal orders, because 8 U.S.C. 1252(e)(2) deprives the courts of jurisdiction to determine anything other than whether an expedited removal order was issued and whether it applies to the petitioners.

This was a follow-on to the Third Circuit's earlier decision in Castro v. Department of Homeland Security, 835 F.3d 422 (3rd Cir. 2016) cert denied 137 S. Ct. 1581 (2017).  There, the Court had made a similar holding regarding these same plaintiffs, prior to their achieving SIJ status.  In Osorio-Martinez, the court confronted the question left open by Castro, whether the jurisdiction-stripping statute violated the Suspension Clause of Article I, Section 9.

In Castro, the court did not reach the question because it determined the juveniles lacked sufficient ties to the United States to invoke the Suspension Clause, relying on Verdugo-Urquidez.  Here, however, the court determined that SIJ status created a sufficient legal relationship between the United States and the juveniles in question to allow them to invoke the Suspension Clause.

The court then used the Supreme Court's test in Boumediene v. Bush, 553 U.S. 723 (2008), to determine that nothing in the juveniles' status prevented them from invoking the Suspension Clause and that the jurisdiction-stripping provision provided no adequate and effective alternative means of challenging their detention and removal.  Therefore, the jurisdiction-stripping provision was unconstitutional as applied to these plaintiffs.

In my opinion, the decision by the Third Circuit here is correct.  However, I take issue with its earlier decision in Castro.  Simply put, the "substantial connections" test of Verdugo-Urquidez has no place in an analysis of whether an alien can invoke the Suspension Clause.  The Suspension Clause has no reference to "the people," and its placement in Article I, Section 9 makes clear it is a limit on Congress' power, not a right granted to individuals.

Finally, the reliance on substantial connections in Castro conflicts with Boumediene itself, which did not examine the connections between the detainees in Guantanamo Bay, Cuba and the United States.  The only connections the detainees had was their presence in military custody, yet the majority still found they had the ability to invoke the Suspension Clause.

This is yet another example of lower courts reading Verdugo-Urquidez to apply far beyond both its facts and its reasoning.  Hopefully, advocates can start pointing out that the substantial connections test, by its very terms, is limited to only those Amendments that reference "the people" and courts will start agreeing.  Beyond that, in a future blog post, I plan to explain why it is time to revisit the reasoning of Verdugo-Urquidez, even if we ultimately decide to keep its holding.

Some brief thoughts on Trump v. Hawaii

Today, the U.S. Supreme Court decided Trump v. Hawaii, a challenge to the President's "travel ban."  The majority upheld the ban 5-4, ruling that banning individuals from certain countries was within his statutory power under the Immigration and Nationality Act.

For the most part, the decision does not touch on the extraterritorial application of the Constitution.  But I wanted to briefly address a statement by Justice Thomas in his concurring opinion.

The plaintiffs had challenged the travel ban on both statutory and constitutional grounds.  They argued that the ban violated the First Amendment's protection against the establishment of religion, because it was the policy implementation of the President's long-promised "Muslim Ban."

The majority found standing to address this question based on the First Amendment rights of the plaintiffs, U.S. citizens, to associate with their relatives.  (Slip op. at 25-26).

Justice Thomas, in his concurrence, notes that the Establishment Clause does not create a right to be free from all laws that a "reasonable observer" views as religious or antireligious.  He then states:  "The plaintiffs cannot raise any other First Amendment claim, since the alleged religious discrimination in this case was directed at aliens abroad. See United States v. Verdugo-Urquidez, 494 U. S. 259, 265 (1990)."

However, he provides no further rationale or explanation for his view that the plaintiffs are not in a position to raise a First Amendment challenge on behalf of the aliens being rejected based on their religion.  There is simply no basis in Verdugo-Urquidez for holding that the Establishment Clause does not protect aliens seeking entry to the United States.

Justice Thomas's citation to Verdugo-Urquidez cites to the Court's discussion of the term "the people" and notes that it is used in the Fourth, First, Second, Ninth, and Tenth Amendments.  But this does not answer the question.  First of all, the term "the people," while appearing in the First Amendment, does not appear until discussing the right of the people to peaceably assemble and petition their government for a redress of grievances.  There is nothing in the text to limit the right to free exercise to be limited to the people.  Indeed, the plain language of the Amendment makes clear it is a limit on Congress:  "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof...."  Nothing here implies any limit to "the people" of the United States.

Only one Court of Appeals has ever addressed the question of whether the Establishment Clause applies outside the United States - the Second Circuit in Lamont v. Woods, 948 F.2d 825 (2nd Cir. 1991).  Decided the year after Verdugo-UrquidezLamont involved a challenge to the State Department's use of public funds to build religious schools in foreign countries.  There, the Court relied on the Verdugo-Urquidez framework to strike down the expense of the money.  Unlike the Fourth Amendment, the court found that any violation of the Establishment Clause occured in the United States, when the money was granted by Appellants, not once it was spent.

Furthermore, an in support of the textual argument above, the court noted that "The Establishment Clause, unlike the Fourth Amendment, contains no limiting language. Indeed, the basic structure of the Establishment Clause, which imposes a restriction on Congress, differs markedly from that of the Fourth Amendment, which confers a right on the people."  948 F.2d at 835.  The Second Circuit then relied on the Supreme Court's holding in one of the first Insular CasesDownes v. Bidwell, which held that:

When the Constitution declares that "no bill of attainder or ex post facto law shall be passed," and that "no title of nobility shall be granted by the United States," it goes to the competency of Congress to pass a bill of that description. Perhaps, the same remark may apply to the First Amendment, that "Congress shall make no law respecting an establishment of religion. . . ." We do not wish, however, to be understood as expressing an opinion how far the bill of rights contained in the first eight amendments is of general and how far of local application.  182 U.S. 244, 277 (1901).  Thus, the Court itself had previously held that the Establishment Clause goes to the very root of Congress to act at all.

The court also looked to the history of the Establishment Clause and found it telling that both the drafting committee and the full House refused Madison's suggestion that the Clause address establishment of a "national" religion.

Finally, the court addressed whether there would be negative policy implications of applying the clause abroad.  There is likely a better argument from a policy perspective in finding application of the clause to be problematic in this case.  However, this alone is not enough to overcome the presumption that the Establishment Clause limits Congress's (and the Executive's) power to discriminate based on religion.  At the very least, if one wants to argue that the policy implications mitigate against the extraterritorial application of the Constitution, one need do more than make a passing citation to Verdugo-Urquidez as if the case definitively answered the question.

 

 

Case Summary: Johnson v. Eisentrager

Johnson v. Eisentrager, 339 U.S. 763 (1950) grew out of World War II and dealt with the question of what rights, if any, detained enemy aliens, who had never entered the United States, could claim.  The Court split 6-3.

The Facts: The case involved petitions of habeas corpus from 21 German nationals being held in Landsberg Prison in Germany, then under U.S. control.  They had been captured in China while supporting German forces following Germany's unconditional surrender on May 8, 1945, but prior to the surrender of Japan.  These prisoners were tried and convicted of war crimes by a military commission sitting in China with the express permission of the Chinese Government.  They were repatriated to Germany to serve their sentences.  The German prisoners claimed that their trial, conviction and imprisonment violated Articles I and III of the U.S. Constitutition, the Fifth Amendment, and other provisions of the Constitution and laws of the United States, as well as provisions of the Geneva Conventions. 

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The Fourth Amendment Abroad: U.S. Citizens

The majority opinion in Verdugo-Urquidez left two huge questions unanswered.  First, what constitutes "substantial connections" that would satisfy the majority's test?  They never say.  And second, assuming you have "substantial connections," what does that mean for the Fourth Amendment's application?  The majority did not rely on any of the practical problems identified by Justice Kennedy in its holding - it merely held Verdugo-Urquidez lacked any connections that would justify Fourth Amendment protections.

This blog post looks at the second question.  Regardless of what connections the majority would deem to be "substantial" it is unquestionable that citizenship would qualify.  After all, if a U.S. citizen is not among "the people" protected by the Fourth Amendment, who is?

But what does Fourth Amendment protection abroad look like for U.S. citizens?  The Supreme Court has never had occasion to say.  But numerous Courts of Appeals have addressed this question, and they have created a three-tier structure for examining the question.

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Case Summary: United States v. Verdugo-Urquidez

As promised in my inaugural post, here is the first of the in-depth examinations of the cases only briefly mentioned there.  I have decided to start with United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), for two reasons: first, it will likely play a large role in any commentary on recently decided cases that I review; and second, it is the starting point for many of the theoretical questions I intend to pose and discuss.  As such, having a familiarity with the case will be useful to readers.

The holding in Verdugo-Urquidez was 6-3, but the Court split 4-1-1-3 in the rationale, with both Justice Kennedy and Justice Stevens concurring for different reasons. [EDIT: Justice Kennedy did formally join the majority - as noted below, however, his concurrence rejects much of Rehnquist's rationale].   As I noted in my earlier post, there is some dispute over whether the Chief Justice’s opinion is a majority or a plurality, with both lower courts and scholars split on the issue.  (For the record, the reporter refers to Rehnquist’s opinion as the opinion of the Court).  On the one hand, Justice Kennedy stated in his concurrence that his views did not differ materially from the Chief’s opinion.  On the other, the rationale relied upon by Kennedy is starkly different.  Regardless, aspects of both opinions have been cited and relied upon by lower courts.

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Does the Constitution follow the flag?

This is the quintessential question this blog seeks to answer.  It is my hope and plan to cover developments in both the law and academia, by reviewing cases and interesting pieces of scholarship that shed light on this question, while also providing my own thoughts and insights, as someone who has been considering the question for over 15 years.

To help get a better grasp of the underlying issues, I thought it would be helpful to give a brief overview of some of the major cases in the area, to see where we've been and where we are going.  I will do more in-depth examinations of each of these cases (and others) in future posts.

One final note before we delve into this post - this is only the briefest of overviews and is far from comprehensive.  Think of it as a journey from Seattle to San Diego - we're not going to identify every little town along the way, but we'll note the major cities on the journey.

In re Ross, 140 U.S. 453 (1891) - Ross dealt with a seaman on an American-flagged vessel in Yokohama Harbor, Japan, who committed murder on board ship.  Under the terms of a treaty with Japan, Ross was tried and convicted in a consular court by the US Consular General.  He was sentenced to death and transferred to the United States. Ross challenged the conviction on two grounds - first, he argued that as a Canadian citizen, he was not subject to the jurisdiction of the consular court.  Second, he argued that he could not be held for the charge except upon presentment or indictment of a grand jury, under the terms of the Fifth Amendment.  The Court rejected both arguments.  As a sailor on an American-flagged vessel, Ross was subject to American law.  As to the claim under the Fifth Amendment, the Court held that "the Constitution can have no operation in another country."  Thus, no one could claim the protections of the Constitution outside the territorial boundaries of the United States.

The Insular Cases, (1901-1923) - The Insular Cases were a series of Supreme Court decisions dealing with the application of the Constitution to the so-called "insular territories," those acquired after the Spanish-American War.  These included, at the time, Puerto Rico, Cuba, and the Phillippines.  Today, they apply with equal force to Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands.  The cases covered multiple provisions of the Constitution, beginning with the Uniform Duty Clause of Article I, and encompassing the right to a jury trial under the Sixth Amendment.  The Court ultimately concluded that, while fundamental rights would apply of their own force to these territories, procedural rights, like the jury trial, would not apply unless Congress took some affirmative steps.

Johnson v. Eisentrager, 339 U.S. 763 (1950) - Eisentrager addressed the question of whether foreign enemies, who had never set foot in the United States, could claim the protections of the Constitution.  Eisentrager was one of eight German prisoners of war, who were captured and tried by military commission in China and transferred to an American-run prison in Germany for incarceration.  They sought a writ of habeas corpus in the District Court for the District of Columbia, arguing that their trial and continued detention violated Articles I and III of the Constitution, as well as the Fifth Amendment.  The Court denied the claim.  It held that enemy aliens, with no ties to the United States, had no right to claim the protections of the Fifth Amendment.  Two key arguments come from this case: 1) "The alien, to whom the United States has been traditionally hospitable, has been accorded a generous and ascending scale of rights as he increases his identity with our society." 339 U.S. at 770. In other words, the more contact an alien has with the United States, the greater his claims on the protections of the Constitution; and 2) "Such extraterritorial application of organic law would have been so significant an innovation in the practice of governments that, if intended or apprehended, it could scarcely have failed to excite contemporary comment. Not one word can be cited. No decision of this Court supports such a view. None of the learned commentators on our Constitution has even hinted at it. The practice of every modern government is opposed to it." 339 U.S. 784-785 (internal citations omitted).

Reid v. Covert, 354 U.S. 1 (1957) - Reid actually consolidated two cases, both dealing with wives of servicemen who murdered their husbands while stationed overseas.  Both were tried by military courts martial and sentenced to life imprisonment.  They argued that such courts martial violated the Fifth and Sixth Amendments.  Here, the Court sided with the women.  In a four-justice plurality opinion, Justice Hugo Black wrote: "At the beginning, we reject the idea that, when the United States acts against citizens abroad, it can do so free of the Bill of Rights. The United States is entirely a creature of the Constitution.  Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution.  When the Government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land." 354 U.S. at 5-6 (footnotes omitted).  Thus, Justice Black would have emphatically protected the rights, at least of American citizens, to the protection of the Constitution, wherever the United States attempted to prosecute them.  In addressing Ross and The Insular Cases, Black believed they were relics of history and best left there.  "[W]e can find no warrant, in logic or otherwise, for picking and choosing among the remarkable collection of 'Thou shalt nots' which were explicitly fastened on all departments and agencies of the Federal Government by the Constitution and its Amendments."  354 U.S. at 9.  The second Justice Harlan concurred, but on much narrower grounds.  He argued that the proper way to judge when the protections of the Constitution should apply is when providing those protections would not be "impracticable or anomalous."  In this case, given that the women faced the penalty of death, the Government should be required to transport them home and try them before a civilian court.

United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) - Verdugo-Urquidez concerned a claim by a Mexican national that a search of his home, in Mexico, by U.S. Drug Enforcement Agency agents, violated the Fourth Amendment, because they lacked a warrant.  After the search of his home, he was arrested and brought to the U.S. for trial.  He argued that the evidence should be suppressed.  Chief Justice Rehnquist wrote an opinion for four justices holding that the Fourth Amendment did not apply to foreigners who lacked "substantial connections" with the United States.  Specifically, he wrote: "[The Fourth Amendment], by contrast with the Fifth and Sixth Amendments, extends its reach only to 'the people.' ... 'the people' seems to have been a term of art employed in select parts of the Constitution."  494 U.S. at 265.  Thus, because the Fourth Amendment protected only "the people" and since Verdugo-Urquidez's only connection to the United States was his presence for trial, he was not protected.  Justice Kennedy filed a concurring opinion, which provided the fifth vote.  While he stated that his opinion did not differ from Rehnquist's, he relied on Justice Harlan's "impracticable and anomalous" test in Reid, and held that it would be impractical to apply the Fourth Amendment's warrant requirement outside of the United States.  First, there were no judges with jurisdiction to issue such a warrant; second, Mexican notions of privacy might be so foreign to our own as to make a judgment about the reasonableness of the search impossible; and third, applying the Fourth Amendment could interfere with our relations with the Mexican government.

Boumediene v. Bush, 553 U.S. 723 (2008) - Most recently, the Court finally adopted the "impracticable and anomalous" test from Reid when it held that the writ of habeas corpus could not be denied to enemy aliens held in U.S. military custody in Guantanmo Bay, Cuba.  Under the Suspension Clause, the writ of habeas corpus may only be suspended by Congress during times of rebellion or civil unrest.  Furthermore, because the United States exercises de facto sovereignty over the naval base at Guantanamo Bay, the prisoners are, for all intents and purposes, within U.S. territory.  Given this U.S. control, it would not be impracticable or anomalous to extend the writ of habeas corpus to those imprisoned on the island.

This concludes our brief survey of the history of the extraterritorial application of the Constitution.  Thanks for reading this far.  As I noted above, I will be exploring each of these decisions, as well as others, in more depth in future posts.  For now, I welcome any questions or comments.