Court grants cert in PROMESA case

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.

DC District Court rejects application of Due Process at Guantanamo Bay

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 remanded559 U.S. 131, 130 S. Ct. 1235, 175 L. Ed. 2d 1070reinstated in relevant part605 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.

Two Theories of Constitutional Rights

Today, I wish to discuss two theories of constitutional rights and what they mean for the extraterritorial application of the Constitution. There are other theories, some of which are examined in Professor Gerald Neuman’s excellent article “Whose Constitution?,” 100 Yale L.J. 909 (January 1991).

This post, however, focuses on two such theories: the social compact theory and the mutuality theory.

Social compact theory views the Constitution as a compact or contract between those who drafted it. Under this theory, based on the writings of political philosophers like Locke, Hobbes, and Rousseau, the Constitution is a compact which only applies to those members of society who have entered the compact. Under this view, the Constitution only applies to those who are members of the compact - namely citizens of the United States and those who have chosen to reside among them. This theory will be familiar to readers who have followed posts on United States v. Verdugo-Urquidez, in which Chief Justice Rehnquist relied heavily on this theory to justify his findings that aliens have no claim to the protections of the Fourth Amendment regarding searches of their property abroad.

Mutuality theory focuses on the idea that if the United States Government wishes to impose its will on individuals, it is obliged to provide the concommitment protections located in the document. Under this theory, if the U.S. wishes to bind individuals to its criminal laws, it would be required to provide all the protections that are designed to limit those laws, including, for example, the Fourth, Fifth, and Sixth Amendments. This theory animated Justice Brennan’s dissent in Verdugo-Urquidez.

Personally, I prefer mutuality theory. It only seems right that if we expect individuals to abide by our laws, we should extend them the protections that are meant to cabin government power. While it is true that aliens, particularly those living abroad, are not part of our political community, the question arises as to why they should be bound by our laws if that is the case. Under a strict reading of social compact theory, such governments were not entitled to extend their laws to cover aliens, as they were not a part of the compact.

Furthermore, there are numerous problems with social compact theory that would need to be addressed. Under a strict reading of the theory, even aliens present in the United States, but not seeking to become citizens, would not receive protections under the Constitution. Thus, the police would be entitled to conduct warrantless searches of tourists, or those here on student visas. They could deny due process to such individuals, as well as to foreign corporations who only have limited ties to the United States. Tourists and those on nonimmigrant visas could be subjected to cruel and unusual punishment, or tried for crimes absent the protections of either a grand or petit jury.

None of this is consistent with the way courts have interpreted the Constitution’s protections since the very founding. James Madison, speaking out against the Alien and Sedition Acts stated “it does not follow, because aliens are not parties to the Constitution, as citizens are parties to it, that, whilst they actually conform to it, they have no right to its protection.” This is a powerful argument against social compact theory and in favor of mutuality.

The Court has only appeared to rely on the social compact theory to limit constitutional rights on two occasions. One was Verdugo-Urquidez. The other was Dred Scott v. Sanford, in which the Court held that slaves were not parties to the compact and thus could be denied constitutional rights. Given this checkered pedigree, it is not surprising that it has not come up more often.

One final note on the social compact theory - it’s not entirely clear to me that it is being violated in most extensions of the Bill of Rights to others. Because the Bill of Rights largely creates negative rights, that is, restraints on the government, the application of these rights effects U.S. citizens, who are subjects of the compact. The Fourth Amendment places limits on U.S. citizens, when it commands that searches conducted by the Government must be reasonable. The Fifth and Sixth Amendments limit what the Government may do without following certain procedures. Even the First and Second Amendment prohibit the Government from infringing on rights. Thus, the operation of the rights in question are to limit government actors, all of whom are members of the compact. Thus, even adopting the social compact theory, it is not at all clear that aliens would not be entitled to the protections, properly conceived.

Ninth Circuit Weighs in on Second Amendment rights of undocumented aliens

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).

Early Cases and Extraterritorial Application

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.

EDNY Discusses Extraterritorial Application of the Fourth Amendment

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.

Cert petition filed in Ninth Circuit cross-border shooting case

As promised, when the defendant sought to stay the Ninth Circuit’s mandate, a petition for certiorari has been filed in Swartz v. Rodriguez, which concerns a cross border shooting incident. I discussed the Ninth Circuit’s decision here.

The petition is available here.

The petition presents two questions: 1) the “antecedent question” of whether a Bivens remedy applies at all and 2) whether Officer Swartz was entitled to qualified immunity.

As to the first question, it argues that the context of a cross-border shooting is new for Bivens purposes and that four “special factors” counsel hesitation in extending Bivens to this new context. Those special factors are: 1) foreign relations; 2) separation of powers; 3) the extraterritorial application of the Constitution in this case; and 4) the failure of Congress to act to provide a remedy.

I do not find the question of the extraterritorial application to be particularly convincing, because at the time Officer Swartz fired his weapon at J.A., the minor child, he had no idea if J.A. was a Mexican citizen, an American citizen, or whether he had any substantial ties to the United States. All he knew was that J.A. was in Mexico. The Supreme Court just last term in Hernandez v. Mesa frowned upon the use of unknown facts, learned only in hindsight, to justify a grant of qualified immunity. While this petition does ask a slightly different question, I do not believe that this makes a difference here.

Had J.A. been an American citizen, I believe he clearly should be entitled to a Bivens remedy, despite his presence in Mexico. The Supreme Court has consistently held, for over a century, that the Fourth Amendment travels with American citizens abroad. Given this, it does not seem extreme to extend the Bivens remedy abroad to the same extent. For reasons I have articulated elsewhere, I believe that the Fourth Amendment follows the conduct of U.S. officials wherever they act. And in this case, the action taken by Swartz undeniably occurred on U.S. soil, even though the effects occurred in Mexico.

In last term’s Ziglar v. Abbasi, the Court appeared to restrict Bivens to the three contexts in which it had previously been held to apply - unlawful searches and seizures under the Fourth Amendment, due process claims under the Fifth Amendment, and claims under the Eighth Amendment. Here, this seems like a classic Bivens case - indeed, unlike the search in Bivens, the seizure here was much more extreme. Only if the Court takes an extremely cramped view of the context can it be said to be materially different from Bivens itself.

While Congress could make matters a great deal clearer by enacting a statutory remedy for these types of cross-border shootings, its inaction, especially in light of Bivens, does not deprive the Court of the ability to recognize this three-decades old remedy in this familiar context.

Ninth Circuit Allows Cross-Border Shooting Case to Proceed, Splits with the Fifth Circuit

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.

(footnotes omitted).

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.

Puerto Rico and the Appointments Clause

On July 13, 2018, the United States District Court for the District of Puerto Rico issued a decision in In re: The Financial Oversight and Management Board for Puerto Rico as representative of the Commonwealth of Puerto Rico, denying a motion to dimiss the Oversight Board's bankruptcy petition under the Puerto Rico Oversightm, Management, and Economic Stability Act (PROMESA).

Under the terms of the Act, the Financial Oversight and Management Board had filed a petition in federal court to restructure Puerto Rico's debt.  Three of the creditors, Aurelius Investment, LLC, Aurelius Opportunity Fund, LLC and Lex Claims, LLC moved to dismiss the petition, arguing that the Oversight and Management Board was appointed in a manner inconsistent with the Appointments Clause of Article II, Section 2 of the U.S. Constitution.  The following is an excerpt of the facts.  Footnotes and citations have been removed.

In 2016, in response to the longstanding and dire fiscal emergency of theCommonwealth, Congress enacted PROMESA “pursuant to article IV, section 3 of the Constitution of the United States, which provides Congress the power to dispose of and make allneedful rules and regulations for territories.” PROMESA established, among other things, federal statutory authority pursuant to which federalterritories, including the Commonwealth, may restructure their debts.

The Oversight Board is composed of seven voting members, with the Governor or his designee serving ex officio as an additional non-voting member.  PROMESA provides that the President "shall appoint" the seven voting members as follows: one "may be selected in the President's sole discretion" and six "should be selected" from specific lists of candidates by congressional leaders. (emphasis added).  PROMESA does not require Presidential nomination and Senate confirmation for the President's discretionary appointeess and members chosen from the congressional lists.  However, in the event that the President appoints members that are not named on the congressiaional lists, Senate confirmation is required under PROMESA.

 

Aurelius argued that the Appointments Clause procedures were mandatory because members of the Board are either (i) principal "Officers of the United States" who could only be appointed with Senate confirmation; or (ii) inferior officers of the United States whose appointment was improperly delegated to the President.

The United States intervened to defend PROMESA's constitutionality.  It argued that PROMESA’s appointment mechanism is not subject to the Appointments Clause because (i) the Oversight Board members are territorial officers rather than “Officers of the United States,” and (ii) the Appointments Clause does not govern the appointment of such territorial officers.

In addition, the Board argued that the Appointments Clause is not a "fundamental" constitutional provision and so does not apply of its own force to Puerto Rico, under the Territorial Incorporation Doctrine, and, in the alternative, even if were applicable, the Board members were properly appointed.

The Court avoided the tricky question of whether the Appointments Clause applies to Puerto Rico, because it determined that the members of the Board were territorial officers and not "Officers of the United States."  As such, regardless of whether the Clause applied, it would not govern the appointment of Board members.

The Court relied on Congress's plenary power under Article IV, Sec. 3 of the Constitution to "make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States...."  It held that despite the fact the officers are appointed by the President and are only removable by him, they are not "Officers of the United States" within the meaning of the Appointments Clause.  Because territories are not inherently sovereign, like states, the federal government plays two roles in overseeing them - the more familiar federal role, and it can act as states do with regard to their own governments.  The court likened territories to municipal corporations, such as counties.  When acting in that role, the federal government creates officers that belong to the territory and it has the authority to determine how such officers shall be appointed.

This can be a confusing area of law, since most people are not accustomed to thinking of federal power as being divided in this way.  It can also be confusing, given that the Supreme Court has held that the territory's sovereign powers flow from the federal government, such that the two are not distinguishable for Double Jeopardy purposes.  Nevertheless, this distinction between territorial and federal officers is long recognized and it allowed the Court to avoid the more tricky question that would arise under the Board's theory, arising as it does from the Insular Cases.

Further reading:

In re The Financial Oversight and Management Board for Puerto Rico as representative of Commonwealth of Puerto Rico, No. 17 BK 2383-LTS.

Hat tip to Bob Loeb at Orrick for posting a copy of the decision.

Judge Kavanaugh and the Extraterritorial Constitution

With the nomination of Judge Brett Kavanaugh to replace Justice Anthony Kennedy, I have decided to examine Judge Kavanaugh's views on the extraterritorial application of the Constitution.  Because of his position on the D.C. Circuit, he has a higher than usual number of opinions in this area, largely as a result of that Circuit's role in overseeing appeals from detainees held at Guantanamo Bay, Cuba.

This is something of a mixed blessing - on the one hand, it provides a larger number of opinions to analyze; on the other, almost all of them involve questions of war, which tend to be treated differently than other areas of law.  Nonetheless, an examination of Judge Kavanaugh's six opinions dealing with the extraterritorial application of the Constitution is useful.

Special thanks to dccircuitbreaker.org for compiling all of Judge Kavanaugh's opinions in one place for easy reference.

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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.

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 Obviously Extraterritorial Constitution

As noted in earlier posts, there are open questions about which provisions of the Constitution apply abroad.  However, there are some provisions that quite clearly do - most notably the "Define and Punish Clause" in Article I, Section 8.

This provision provides that Congress shall have the power "To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations[.]"  By its definition, this power applies outside the territorial boundaries of the United States, at least in part.  Congress has used this power, almost since it first met, to punish piracy, among other international crimes.

Today, this clause is used to combat hijacking of aircraft and is the basis for the Maritime Drug Law Enforcement Act, which is the major basis for Coast Guard actions interdicting drugs making their way to the United States, so long as the vessels are captured on the high seas.

Another clause that, on its face, calls for extraterritorial application, is somewhat related - the juries clause of Article III, Section 2.  This clause holds that "The Trial of all Crimes, except in Cases of Inpeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed."

This clause plainly contemplates that crimes over which the United States has jurisdiction may well be committed outside the boundaries of the States themselves.  At the time of the Founding, there was very little in the way of territory over which the U.S. exercised sovereign control that was not within the boundaries of a state.  The Northwest Territories were the prime example.  However, historical evidence demonstrates that this language applied to those crimes committed on the high seas as well.  Pirates were subject to the jurisdiction of the first district court into which they found themselves brought.

Although not demonstrated by the text itself, it seems self evident that the limits in Article I, Section 9 would apply to the extraterritorial exercises of jurisdiction allowed by Article I, Section 8.  Thus, it seems to me unremarkable to say that the power to "Define and Punish piracies and Felonies committed on the high Seas" is constrained by the Constitution's prohibitions on Bills of Attainder and ex post facto laws.  In other words, the drug runner who was caught on the high seas on October 5, 2006 (the day before the MDLEA went into effect) would have a valid constitutional defense to charges brought under Act.  Likewise, a bill which targeted an individual for punishment by name, even though that individual was living abroad, would be able to successfully argue that the bill contravened Article I, Section 9.

Given this, it seems that the Court's claim in Johnson v. Eisentrager, that the application of the Constitution abroad was so novel that it would have excited debate, does not withstand scrutiny.  Certainly, the idea that enemy aliens captured and held abroad could claim the protection of the Constitution, which was the core question in Eisentrager, might have raised eyebrows in Philadelphia.  But the idea that the Constitution empowered Congress to act outside the United States was self-evident.  And just as self evident, I argue, is the fact that the limits on Congress's power would travel abroad as well.

Recent scholarship, which I will examine in depth in a future blog post, appears to bear this out.  See Professor Nathan Chapman's excellent article, "Due Process Abroad," for more on this historical practice.