INJUSTICE AT THE BORDER: APPLICATION OF THE CONSTITUTION ABROAD THROUGH THE CONFLICT OF LAWS.

• Author: Kopel, Margaret

INTRODUCTION 1242 I. THE HISTORY OF EXTRATERRITORIAL APPLICATION OF THE 1244 CONSTITUTION II. THE HERNANDEZ CASE 1248 III. FOURTH vs. FIFTH AMENDMENT 1251 A. Verdugo-Urdiquez Does Not Hold That the Reasonableness 1251 Requirement in Deadly Force Cases is Limited Geographically B. Deprivation of Life Cases do not Need to Be Analyzed 1252 Exclusively IV. THEORIES OF CONSTITUTIONAL APPLICATION ABROAD 1255 A. Boumediene Fails to Provide a Theory of Constitutional 1255 B. Boumediene Fails to Provide a Theory of Constitutional 1257 Applications Abroad 1. Strict Territoriality 1257 2. Universalism 1257 3. Membership 1258 4. Municipality 1259 5. Global Due Process 1259 V. CONFLICT OF LAWS APPROACH 126l A. Territoriality/Vested Rights Approach 126l B. The Second Restatement 1262 C. Interest Analysis 1263 D. Application of Interest Analysis to Hernandez v. Mesa 1264 CONCLUSION 1267 INTRODUCTION

On June 7, 2010, a Mexican teenager named Sergio Hernandez was playing with his friends near the U.S.-Mexico border, running back and forth along the narrow concrete culvert that separates the two countries. (1) Border Patrol Agent Jesus Mesa was patrolling the area on bike, and grabbed one of the boys as they ran down the culvert. (2) Sergio ran and hid behind a concrete pillar on the Mexico side of the border. (3) "Within seconds," Agent Mesa shot Sergio in the head, killing him instantly. (4) Mesa was standing on the U.S. side of the border and Sergio, a mere sixty feet away, was on the Mexico side. (5) Agent Mesa initially claimed that the boys had been throwing rocks at him and that he acted in self-defense, but cellphone video later surfaced disproving this story. (6)

As is often the case, only the executive branch was left responsible for determining the consequences of this killing, a process that has largely immunized the U.S. Customs and Border Patrol. (7) Perhaps unsurprisingly, the Department of Justice did not find sufficient evidence to prosecute, and so the only consequences for Agent Mesa were determined by an internal agency review. (8) The Mexican government attempted to extradite Agent Mesa, but the U.S. government denied that request. (9) And, in what will be the focus of this Comment, when Sergio's family brought suit in federal court, as their only remaining avenue for redress, their suit was ultimately dismissed, leaving Agent Mesa with no legal consequences and the family of Sergio with no justice for the seemingly unjustified killing of their child. (10)

In this Comment, I will examine the constitutional jurisprudence that led to Hernandez v. Mesa, which shows an obvious lack of cohesion and guiding theory. I will also survey some of the leading theories as to extraterritorial application of the U.S. Constitution, none of which are satisfactory in a case like Hernandez. I will first argue that in this and similar cases, the plaintiffs' claims can be analyzed under the Fifth Amendment, rather than exclusively under the Fourth Amendment. I will then argue that the best theory to use in analyzing extraterritorial application of the Constitution is interest analysis, from conflict of laws theory, which asks whether a law's domestic purpose would be served by its application abroad. Under this analysis, the Due Process Clause of the Fifth Amendment, designed to restrain executive action no matter against whom it is directed, has clear applicability in cases like Hernandez. By using interest analysis, we can create a more cohesive constitutional theory and develop more robust protections for those harmed by U.S. executive action at home and abroad.

1. THE HISTORY OF EXTRATERRITORIAL APPLICATION OF THE CONSTITUTION

   The history of the Supreme Court's approach to whether and when the Constitution extends abroad is muddled to say the least. (11) The cases have gone back and forth between extending or declining to extend different provisions. The factual contexts of these cases vary wildly; they involve U.S. territories, alien enemy combatants, U.S. citizens, aliens held in detention abroad, and aliens detained in the United States but arrested abroad. (12) Furthermore, many of these cases do not have clear majority opinions but are a combination of pluralities and multiple concurring opinions, with disagreement as to which opinion controls. As such, it is not surprising that academic articles, and courts themselves, tend to pick and choose among the cases for those that suit their needs most favorably. This lack of precedent or predictability highlights the need for an understanding of constitutional theory by the Court, and a move away from the functional, case-by-case decisionmaking that has led to this whiplash for more than a century.

   In a series of cases during the early twentieth century, known as the Insular Cases, the Court decided which parts of the Constitution extend to newly acquired territories after the Spanish-American War, such as Puerto Rico and the Philippines. The Court took a largely territorial approach, holding that "[f]ull constitutional protection was reserved for territories that Congress had incorporated into the United States, as opposed to those merely acquired." (13) While declining to extend rights the Court saw as "procedural", such as Sixth Amendment rights, the Court maintained that there were certain constitutional provisions deemed to be so fundamental that they might always apply, regardless of the status of a territory. (14)

   In Johnson v. Eisentrager, (15) twenty-one German nationals were detained for violating war crimes for continuing aggression in China after the surrender of Germany during World War II. The prisoners were tried by a military commission, found guilty, and detained in Germany, where they petitioned for writs of habeas corpus, alleging violations of the Fifth and Sixth Amendments. (16) The Supreme Court found that the petitioners did not have standing to seek the writ. (17) The case is often cited for the proposition that it supports a territorial view of the Constitution. (18) At the same time, however, the Court focused extensively on the fact that the petitioners were alien enemy combatants, and contrasted the "relative vulnerability" of the enemy alien's status during war, compared to the "security and protection" that same alien enjoys "while the nation of his allegiance remains in amity" with the United States (19) The Johnson opinion could be viewed more narrowly, as denying constitutional protections to active alien combatants, during wartime, who nonetheless still received some due process. (20)

   Setting the stage for future decisions, Justice Black's dissent discussed the fact that the U.S. government controlled the German prison where the petitioners were detained, even though it was outside U.S. territory. (21) At the same time, he lamented the "broad and dangerous principle" (22) being adopted that allowed for the Executive to control a prisoner's constitutional rights based on the Executive's chosen location of detention, asking "Does a prisoner's right to test legality of a sentence then depend on where the Government chooses to imprison him?" (23) Black pointed to the arbitrary results that would flow from constitutional rights being decided by the location of detention. (24) He also highlighted the erosion of separation of powers that this decision would allow. (25)

   Seven years later, Justice Black wrote the Court's opinion in Reid v. Covert, (26) which extended constitutional rights to U.S. citizens abroad. Two U.S. citizen women (not in the military), who had been living at military bases with their enlisted husbands in England and China had killed their husbands and subsequently been tried and convicted by military commissions. (27) The citizens petitioned for a writ of habeas, alleging denial of their Fifth and Sixth Amendment rights. (28)

   Justice Black's forceful opinion began by stating "[t]he 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." (29) He went on to disavow any analysis that might focus on practical factors, (30) or that would extend rights in a piecemeal manner. (31) Justice Harlan's concurring opinion, meanwhile, focused explicitly on the practical, functional analysis that would extend constitutional provisions one-by-one, depending on the context. (32)

   While the Reid opinion is important in marking a turn from the territorial perspective of Johnson v. Eisentrager, and explicitly limiting the effect of the Insular Cases, (33) Reid's scope is arguably limited, given that it was directed only at U.S. citizens abroad, and that Justice Black was writing for a plurality. (34)

   Over thirty years later, in United States v. Verdugo-Urdiquez, (35) the Court declined to apply the Warrant Clause of the Fourth Amendment (36) to operations by Drug Enforcement Agency Agents in Mexico. DEA Agents had arrested Verdugo-Urdiquez, a Mexican citizen, and held him in custody in the United States. While in custody, they searched his home in Mexico City, without a warrant, and Verdugo-Urdiquez filed a motion to suppress the evidence resulting from this search. Chief Justice Rehnquist, in his majority opinion, wrote that because the Fourth Amendment references the rights of "the people," (37) it thus does not protect foreigners like Verdugo-Urdiquez, who had no "voluntary attachment" to the United States. (38)

   Justice Kennedy wrote a concurring opinion in which he stated that the holding of Reid v. Covert, constraining the U.S. government wherever it acts in the world, is correct, but that it is only the first step in the analysis. (39) The analysis must also consider whether application of a constitutional provision in any given case would be "impracticable and anomalous" under the circumstances. (40)

   Justice Brennan's dissent focused on the limited and enumerated powers of the U.S. Government...