Last week, on Twitter, I wrote a 687 tweet superthread reviewing the briefs filed by all the parties and amici in the PROMESA case that the Court is hearing on 10/15. I have lightly edited and condensed that thread into a document for easier consumption. While it is quite voluminous, it’s still easier to digest than nearly 30 briefs covering two fairly complex issues of law. As such, I offer it here for easier reading.Read More
I’m a bit late to this, but during its last week of the term, the Supreme Court granted cert in five petitions seeking to review the First Circuit’s decision striking down PROMESA, the Puerto Rico Oversight, Management, and Economic Stability Act. The First Circuit held that the members of the Oversight Board created by the Act were “Officers of the United States” and that the scheme for appointing said officers violated the Appointments Clause of Article II. Specifically, it held that they were principle officers, subject to appointment by the President and confirmation by the Senate.
This decision appears to fly in the face of the text of the statute. First, Congress notes that it is exercisign its power under Article IV, Sec. 3, to make needful rules for the territories of the United States. Second, Section 101(b) expressly declares that the Oversight Board is created as an entity within the territorial government and shall not be considered to be a federal entity. It is funded entirely from territorial funds.
Furthermore, the implications of the holding are quite sweeping. If the members of the Oversight Board are Officers of the United States, it is hard to understand why the Governor of Puerto Rico would not be. Thus, under the First Circuit’s argument, he or she could not be popularly elected, but would have to be appointed by the President and confirmed by the Senate. (In fact, prior to 1947 this is precisely how the Governor was selected).
The First Circuit also relies on the argument that PROMESA is a federal law. It attempts to distinguish between the Governor and the Oversight Board by arguing that the Governor exercises authority arising from the laws of the territory, specifically the Puerto Rican Constitution. However, it rightfully acknowledges that the Constituton itself stems from a congressional grant of power from the federal government, citing the Supreme Court’s recent double jeopardy decision, Puerto Rico v. Sanchez-Valle, 136 S. Ct. 1863 (2016). It’s only answer is that if all Puerto Rican laws were federal laws, then every claim brought under Puerto Rico’s laws would pose a federal question, and that can’t possibly be right. Color me unconvinced by this argument, which the Court spends only one paragraph on.
There is truly no cabining the First Circuit’s decision to just the Oversight Board. If allowed to stand, it creates truly grave questions for the future of self-government not just in Puerto Rico, but in all of the territories currently governed by Congress under Article IV.
Judge Royce Lamberth of the District Court of the District of Columbia recently issued a ruling in Al-Hela v. Trump, a case arising out the post-9/11 detention of an alleged enemy combatant at Guantanamo Bay, Cuba. Al-Hela, having been captured in 2002 and transferred to Guantanamo in 2004, challenges the legality of his detention. Among other arguments, Al-Hela argued that his detention violated the Due Process Clause of the Fifth Amendment.
Judge Lamberth rejected the argument, holding that the Due Process Clause does not apply to Guantanamo Bay, relying heavily on the D.C. Court of Appeals' 2010 decision in Kiyemba v. Obama, 605 F.3d 1046, 1047-48 (D.C. Cir. 2010). Lamberth wrote as follows:
Petitioner argues that his detention is a due process violation.3 However, the due process clause does not apply to Guantanamo detainees. See Kiyemba v. Obama, 555 F.3d 1022, 1026-27, 384 U.S. App. D.C. 375 (D.C. Cir. 2009) (Kiyemba I), vacated and remanded, 559 U.S. 131, 130 S. Ct. 1235, 175 L. Ed. 2d 1070, reinstated in relevant part, 605 F.3d 1046, 1047-48, 390 U.S. App. D.C. 429 (D.C. Cir. 2010) (Kiyemba II). In Kiyemba I, the D.C. Circuit recited numerous Supreme Court cases for the proposition that 'the due process clause does not apply to aliens without property or presence in the sovereign territory of the United States." Kiyemba I, 555 F.3d at 1026-27 (citing Zadvydas v. Davis, 533 U.S. 678, 121 S. Ct. 2491, 150 L. Ed. 2d 653 (2001); United States v. Verdugo-Urquidez, 494 U.S. 259, 269, 274-75, 110 S. Ct. 1056, 108 L. Ed. 2d 222 (1990); Johnson v. Eisentrager, 339 U.S. 763, 783-84, 70 S. Ct. 936, 94 L. Ed. 1255 (1950)). Although the Supreme Court vacated Kiyemba I in order to afford the D.C. Circuit the opportunity to assess the' factual circumstances that had changed while the petition for certiorari was pending, see 559 U.S. at 131, the D.C. Circuit reinstated Kiyemba I's judgment and opinion in pertinent part in Kiyemba II, 605 F.3d at 1048. In subsequent cases, the D.C. Circuit has confirmed that Kiyemba II reinstated Kiyemba I's holding that detainees at Guantanamo do not possess constitutional due process rights. See Al-Madhwani v. Obama, 642 F.3d 1071, 1077, 395 U.S. App. D.C. 250 (D.C. Cir. 2011); see also Bahlul v. United States, 840 F.3d 757, 796, 426 U.S. App. D.C. 182 (D.C. Cir. 2016) (Millet, J., concurring); Al Bahlul v. United States, 767 F.3d 1, 33, 412 U.S. App. D.C. 372 (D.C. Cir. 2014) (Henderson, J., concurring). Applying Kiyemba II, district courts in this Circuit have refused to recognize due process claims by Guantanamo detainees. See Ali v. Trump, 317 F. Supp. 3d 480, 487-88 (D.D.C. 2018); Salahi v. Obama, Civ. No. 05-0569, 2015 U.S. Dist. LEXIS 168879, 2015 WL 9216557, at *5 (D.D.C. Dec. 17, 2018); Rabbani v. Obama, 76 F. Supp. 3d 21,25 (D.D.C. 2014); Ameziane v. Obama, 58 F. Supp. 3d 99, 103 n.2 (D.D.C. 2014); Bostan v. Obama, 674 F. Supp. 2d 9, 29 (D.D.C. 2009).
A deeper dive into Kiyemba will be the subject of a future blog post. However, it is interesting to note that the D.C. Circuit made its decision, and reaffirmed it, following the Supreme Court’s decision in Boumediene v. Bush, which held that the Suspension Clause of the Constitution applied in Guantanamo Bay. I can’t help but wonder what good providing habeas is, if there are no underlying rights to give content to the writ. The most likely source of any habeas relief would be a violation of the Due Process Clause, an avenue foreclosed by circuit precedent.
Just a reminder that nearly 18 years after September 11, we are still holding alleged enemies in detention, without trying them. Rather than being convicted of providing aid to our enemies, or engaging in hostilities toward the United States or our allies, his continued detention is based on a far lower standard that he :”more likely than not” supported al Qaeda and associated forces.
A copy of the redacted order is available here.
Today, the Ninth Circuit issued a published opinion in United States v. Torres, a case addressing whether 18 U.S.C. 925(g)(5)(A) violates the Second Amendment right of undocumented immigrants.
The court addressed an issue previously decided by five other circuits and deepened what is currently a 3-way split over whether undocumented immigrants have Second Amendment rights at all. The Fourth, Fifth, and Eighth Circuits have all held that there is no Second Amendment right in these circumstances. The Seventh Circuit found that undocumented aliens had such rights, and the Ninth Circuit joined the Tenth in avoiding the question by assuming such rights existed and then upholding the law under intermediate scrutiny review.
There are three problems with the court’s analysis in this case. First, it applied the test under United States v. Verdugo-Urquidez, which focused on the rights of aliens outside of the United States; second, it applied intermediate scrutiny under the Second Amendment, as opposed to strict scrutiny which typically applies when laws are based on alienage; and third, the analysis is circular and self-contradictory.
First, despite refusing the address the underlying question of whether the Second Amendment applied to undocumented immigrants, the court went through an analysis under Verdugo-Urquidez. While it is true that Verdugo-Urquidez examined the meaning of the term “the people” in the Fourth Amendment, a phrase which is repeated in the Second Amendment, the Supreme Court was examining the question in the context of the extraterritorial application of the Constitution. The Supreme Court has previously found that undocumented immigrants have certain rights under the Constitution (see, e.g. Plyler v. Doe, 457 U.S. 202 (1982)). Typically, presence within the United States has been enough to extend rights to anyone within our territory.
Second, the Ninth Circuit upheld the restriction as consistent with intermediate scrutiny, providing a reasonable fit designed to protect an important government interest. Here, the Court noted that the Supreme Court had not indicated what level of scrutiny was applicable to claims the Second Amendment was being burdened, but noted the near unanimity of courts in applying that level of scrutiny. However, the court ignored the other half of the equation. 18 USC 922(g)(5)(A) makes it a crime for an alien who is illegally in the United States to possess a firearm. Statutes that target individuals based on their alienage are typically subjected to strict scrutiny, the level of scrutiny sought by Torres here. See e.g. Graham v. Richardson, 403 U.S. 365 (1971). To be fair, Graham dealt with legal aliens and state laws.
Finally, the logic of the Court is circular and self-contradictory. The court assumes for purposes of the decision that undocumented aliens have Second Amendment rights, but upheld 18 USC 922(g)(5)(A)’s total ban on such aliens possessing firearms. It is hard to see how aliens can have a right to possess firearms under the Second Amendment if it is a permissible restriction, consistent with that Amendment, to totally deny them the ability to possess said firearms. The end result is the same as denying the right in the first place. It is impossible to imagine what content the right has if it does not prevent the Government from enacting 922(g)(5)(A).
It has often been said that the conventional view of the extraterritorial application of the Constitution begins in 1891, with In re Ross. But that is not actually the first time the Court addressed the question of whether the Constitution follows the flag. Furthermore, the Court remarked in Johnson v. Eisentrager that the extraterritorial application of the Constitution was unknown to the Founders. However, several earlier cases only make sense if one believes that the Constitution follows US forces wherever they may be found. I will briefly discuss four cases today.
First are a pair of cases from early in the days of the republic, during the quasi-war with France, when US naval forces routinely captured French ships on the high seas. Under the law of prize, ships captured on the high seas from pirates or enemies were to be libelled and sold as salvage, with a portion of the proceeds going to the ship’s captain and crew who captured the vessel. Libel and salvage did not apply to vessels from neutral states, not at war with the United States. In 1801 and 1804 two cases made their way to the Supreme Court, challenging actions by U.S. forces which made captures on the high seas.
In Talbot v. Seeman, 5 US 1, 1 Cranch 1, (1801), a question arose as to whether the neutral owners of a vessel, recaptured from a French prize crew, were liable to pay salvage to Captain Talbot, who had recaptured the vessel. The vessel, the Amelia, was an armed vessel of Hamburgh, captured by a French prize crew and sailing to a French port. Captain Talbot and his crew recaptured the Amelia and sailed her to New York, where he was awarded half of her value as salvage. The Circuit Court of New York reversed this judgment, because Hamburgh was not a beligerant nation in regards to the United States. On appeal, the Supreme Court examined several statutes passed by Congress pursuant to its war powers and held that they would have prevented the capture here. However, becuase Captain Talbot had probable cause to believe the vessel was French at the time of her capture, he was entitled to salvage (although of a lesser amount). It is true, the Court does not rely explicitly upon the Constitution, but the reliance on probable cause is familiar under the Fourth Amendment.
Likewise in Little v. Barreme, 6 U.S. 170, 2 Cranch 170 (1804), Captain Little captured a Danish vessel, the Flying Fish, believing it to be an American vessel which had violated the non-intercourse law. The trial court determined that the vessel was improperly seized, but held that Captain Little could not be held to damages because he had probable cause to think the vessel was American. The Supreme Court reversed because it held that, even had the vessel been American, her capture would have been unlawful under the applicable acts of Congress, because she was not bound to a French port, but rather from one. Particularly telling in Chief Justice Marshall’s opinion is the line that he was first inclined to draw a distinction between “proceedings within the body of the country and those on the high seas[,]” but that he was convinced to take a different position by his brethren.
The second pair of cases deal with the rights of U.S. citizens abroad as they are impacted by the actions of U.S. officers. These cases were decided in the middle of the ninteenth century and arose out of American military adventures in Mexico and Nicaragua.
In 1851, the Court decided Mitchell v. Harmony, 54 U.S. 115 (1851). There, a naturalized citizen was traveling in Mexico selling goods and after the declaration of war between the US and Mexico fell in with a U.S. Army convoy. He attempted to leave the convoy, but was prevented by Lieutenant Mitchell. After a confrontation with the Mexican Army, Harmony lost all his property and brought an action against Mitchell. Mitchell defended in part on the grounds that the taking of Harmony’s property was for public use.
The Court sided with Harmony, holding that an Army officer’s power over the property of a citizen cannot be enlarged because of his distance from home. Even when private property can be taken to prevent it from falling into the hands of the enemy, full compensation must be made to the owner. While the Court did not mention the Fifth Amendment specifically, this is the source of law which requires just compensation for a taking for public use. Interestingly, the state of war between the United States and Mexico did not cause the Court to hesitate in applying the Fifth Amendment’s requirements.
The final case is Wiggins v. United States, (The Wiggins’s Case), 3 Ct. Cl. 412 (1867). This case was decided by the Court of Claims. Boston merchants had shipped a large quanitty of gun powder to San Juan, Nicaragua. The town was overtaken by “mauraders and freebooters” which damaged a great deal of property and even attacked a U.S. foreign minister. Commander Hollins was dispatched to retake the town. He did so, and after being warned of potential acts of retribution, cast the gunpowder into the bay, destroying it. The merchants sued, seeking resitution. The court ordered damages in the amount of $6000, holding that the gunpowder was private property taken for public use. Once again, the fact that the taking occurred outside the United States was no hinderence to the court’s conclusion.
At the end of last month, the Eastern District of NY decided U.S. v. Loera, denying two motions to suppress by Joaquin Loera, better known as El Chapo. Loera argued that the U.S. Government violated his Fourth Amendment rights when it searched servers containing his information in the Netherlands, as well as evidence contained in spyware accounts on U.S. servers owned by Amazon.
The Court decided that Loera lacked standing, because he refused to acknowledge the seized data was his (a Catch-22 the Court recognized), but went on to state that even if he possessed Fourth Amendment standing, it would have ruled against him regardless. This is where the Court’s discussion of the extraterritorial application of the Constitution appeared.
The Court relied on Verdugo-Urquidez, noting that much like Verdugo-Urquidez himself, Loera is accused of being a high ranking member of a Mexican drug cartel. While the searches at issue in Loera took place in the Netherlands, as opposed to Mexico, the Court held that the search was outside the United States of property owned by a Mexican citizen, which is exactly the situation the Supreme Court faced in Verdugo-Urquidez.
Loera argued that he had sufficient connections to the United States, as demonstrated by the Government’s affidavits, alleging his wide-ranging criminal conspiracy to import drugs to the United States. The Court rejected this argument for two reasons: 1) the Defendant bears the burden of demonstrating a substantial connection to the United States and may not rely on Government affidavits to meet that burden; and 2) this is not the sort of connection that the Supreme Court envisioned when it discussed the community of people covered by the Fourth Amendment. Rather, purely criminal acts do not entitle a defendant to the Fourth Amendment’s protections.
The Court also made other findings as to why, even if the Fourth Amendment applied, the evidence would not need to be suppressed.
This was a straightforward application of Verdugo-Urquidez and as such, is fairly uncontroversial. I also find the Court’s additional rationales for allowing the searches to be convincing and thus I agree the evidence should not be suppressed. However, as noted elsewhere, I have issues with Verdugo-Urquidez itself. But one aspect of this case bears special mention.
It is odd to argue that purely criminal activities do not establish the “substantial connections” required to render the Fourth Amendment applicable to someone like Loera, when the Fourth Amendment is largely concerned with protecting the rights of criminal defendants. Surely, criminals are a part of the American community, otherwise there would be no basis for finding even American citizens within the ambit of “the people” protected by the Fourth Amendment. Furthermore, courts have regularly found that the Fourth Amendment applies to undocumented immigrants who are found within the United States, and yet their very presence is often described as a criminal act.
Given that, it is hard to credit the Court’s rationale on this particular issue.
Earlier this month, the Ninth Circuit issued its decision in Rodriguez v. Swartz, 15-16149, affirming the denial of qualified immunity to a Border Patrol officer in the United States who shot and killed a Mexican citizen walking down a street in Mexico. This is only one of a host of cross-border shooting incidents, the most famous of which was recently heard by the Supreme Court in Hernandez v. Mesa. However, Hernandez did not reach the underlying constitutional question, vacating and remanding to the Fifth Circuit to determine if a Bivens remedy was available, in light of the Supreme Court's decision in Ziglar v. Abassi.
The Ninth Circuit's decision addresses the case in its earliest phases. Swartz had moved to dismiss the complaint on the basis of qualified immunity. The District Court denied the claim. Swartz appealed. On appeal, the Court took the facts as pled, which it described as "simple and straightforward murder." J.A., a minor, was walking along a street in Nogales, Mexico. Agent Swartz, unprovoked, fired his weapon across the border at J.A., firing between 14 and 30 bullets, hitting J.A. about 10 times, mostly in the back. At the time of the shooting, Swartz had no way of knowing whether J.A. was an American or Mexican citizen, or whether he had any ties to the United States.
In addressing whether the Fourth Amendment applied, the Ninth Circuit relied on Boumediene v. Bush and distinguished United States v. Verdugo-Urquidez to find that J.A. was entitled to the protections of the Fourth Amendment.
The Court held as follows:
But this case is not like Verdugo-Urquidez for several reasons. For one, Verdugo-Urquidez addressed only “the search and seizure by United States agents of property that [was] owned by a nonresident alien and located in a foreign country.” That type of search and seizure implicates Mexican sovereignty because Mexico is entitled to regulate conduct in its territory. But unlike the American agents in Verdugo-Urquidez, who acted on Mexican soil, Swartz acted on American soil. Just as Mexican law controls what people do there, American law controls what people do here. Verdugo-Urquidez simply did not address the conduct of American agents on American soil. Also, the agents in Verdugo-Urquidez knew that they were searching a Mexican citizen’s property in Mexico, but Swartz could not have known whether J.A. was an American citizen or not.
The practical concerns in Verdugo-Urquidez about regulating conduct on Mexican soil also do not apply here. There are many reasons not to extend the Fourth Amendment willy-nillyto actions abroad, as Verdugo-Urquidez explains. But those reasons do not apply to Swartz. He acted on American soil subject to American law.
The Court noted it was creating a circuit split with the Fifth Circuit, but attempted to (unconvincingly, in my opinion) distinguish the case.
Finally, the Court held that a Bivens remedy was appropriate, drawing a dissent from Judge Smith, who would have followed the Fifth Circuit's finding that a Bivens remedy was inappropriate in light of Abassi.
The Ninth Circuit, at the request of Swartz, has stayed its mandate pending a petition for certiorari.
The case is available here.
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.Read More
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.
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-Urquidez, Lamont 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 Cases, Downes 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.
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.Read More
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.Read More
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.Read More
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.