During a back-and-forth on Lawfare with Steve Vladeck a few months ago, I suggested that Hernandez v. Mesa, pending at the Supreme Court this term, had the potential to generate a very important opinion: the Fourth Amendment issue in the case could impact the legality of worldwide extraterritorial national security activities by the U.S. government like electronic surveillance and drone strikes.
Hernandez arose out of the deadly shooting of a Mexican national in Mexico by a U.S. border patrol agent standing in the United States. Under a Supreme Court case dating back to 1990, also arising in Mexico, the Fourth Amendment does not protect noncitizens located outside the United States, unless they have some pre-existing substantial, voluntary connection to the United States. The deceased in Hernandez lacked any such connection.
But the Court’s 2008 decision in Boumediene v. Bush, applying the Constitution’s Habeas Suspension Clause to the noncitizen detainees at the Guantanamo base, arguably overruled a bright-line approach to determining the Constitution’s applicability beyond U.S borders. Instead, the Court applied totality of the circumstances analysis. Using Boumediene, the plaintiffs’ counsel in Hernandez, among whom is Steve, argued that the Court could rule for their clients on the applicability of the Fourth Amendment without opening the entire can of worms about extraterritorial national security activities. This was possible, they suggested, because like Guantanamo—Cuban sovereign territory, but leased permanently and controlled exclusively the by U.S. government—the Mexico-U.S. border area is a sui generis territory. This border, they argued, was a liminal zone of shared control with constantly traversing populations, and therefore wholly unlike purely foreign territory.
I was skeptical that the border was truly so unique and that a Fourth Amendment ruling for the plaintiffs could be cabined and limited so neatly.
On Monday, the Court vacated and remanded Hernandez to the Fifth Circuit, declining to rule on the merits of the Fourth Amendment. It avoided this constitutional issue, the Court told us, because “[t]he Fourth Amendment question in this case . . . is sensitive and may have consequences that are far reaching.” This per curiam opinion was issued for Chief Justice Roberts and Justices Kennedy, Alito, Sotomayor, and Kagan. Along the way the Court made important statements about Bivens (more below) and qualified immunity.
Justice Thomas concurred, saying he would have ruled for the border patrol agent on Bivens grounds. Justice Breyer, joined by Justice Ginsburg, dissented, essentially adopting the plaintiffs’ view of the Fourth Amendment. Justice Gorsuch did not participate, as he was seated after oral argument.
What can we glean from the per curiam’s treatment of the Fourth Amendment? We know that five justices seized the opportunity to duck the issue for now. They did so by directing the Fifth Circuit to apply the Court’s new decision in Ziglar v. Abassi on the availability of Bivens, before reaching the merits. As many readers know, Bivens refers to a 1971 Supreme Court decision holding that, even though Congress has not enacted a statute allowing money damages suits against federal officers who commit constitutional torts, the Court can imply such a remedy under the Constitution in some circumstances. Through 1980, the Court took an expansive view of Bivens, extending it to at least three contexts. But since then it has declined to allow Bivens suits in any new areas, and has counseled the lower courts to exercise caution before doing so. As I have written, lower federal courts, spurred by the disfavor in which the Court views Bivens, have in recent years developed a jurisprudence finding Bivens almost per se inappropriate in cases involving national security activities of the U.S. government.
In Abassi, the Court strongly signaled that it agrees. As described by Alex Loomis at Lawfare, Abassi held that before extending Bivens to a context not previously approved by the Supreme Court, courts should carefully evaluate whether Congress might doubt the efficacy of a damages remedy as part of the system for enforcing the law and correcting a wrong. The Court fleshed out its concept of “special factors” which counsel against extending Bivens, directing courts to evaluate factors such as whether senior executive officials would be distracted or deterred in the performance of their duties by the fear of damages suits. The Court was plainly concerned that excessive judicial intrusion into the national security realm, where Congress and the President have the primary constitutional roles, would be unwise in many circumstances.
Abassi was decided by a 4-2 vote, with Chief Justice Roberts and Justices Thomas and Alito joining Justice Kennedy’s majority opinion. Justices Breyer and Ginsburg dissented. Justices Kagan, Sotomayor, and Gorsuch did not participate, each for a different reason.
Hernandez shows us that Justices Kagan and Sotomayor agree with the Court’s framework for analyzing Bivens set out in Abassi, bringing the total justices signing on to six. For this reason alone, Hernandez is a significant decision. Justice Gorsuch's conservatism and support for judicial restraint suggest that he too is quite likely to adopt the Abassi approach.
So did the Court grant cert in Hernandez merely to have a second opportunity this term to speak to the Bivens issue, rather than to address the Fourth Amendment question? Maybe, maybe not.
It takes at least four justices to decide to hear a case. Cert was granted in Hernandez in October 2016, after Justice Scalia had died and the nomination of Merrick Garland had been blocked by the Republican Senate. At the time, most people assumed Hillary Clinton would win the upcoming election, perhaps with a Democratic majority in the Senate, and have the opportunity to fill the Scalia seat.
My guess—admittedly pure speculation—is that the four more liberal justices may have voted for the cert grant hoping to add Kennedy (and a Clinton nominee, if seated in time) to get a majority in favor of ruling for the plaintiffs on the Fourth Amendment extraterritoriality issue. Kennedy wrote Boumediene, a decision I have criticized for egregiously mis-describing past Court precedent and adopting a new mushy, malleable, judge-centric approach to extending the Constitution abroad. This approach abandoned the bright-line rule that previously assured predictability for the political branches in managing foreign affairs and national security, though depending on one’s point of view, this predictability came at the cost—of leaving noncitizens located outside the United States unprotected by the Constitution. Kennedy had also concurred in the 1990 Supreme Court decision about the Fourth Amendment in Mexico, joining the bright-line approach of the majority opinion but also planting a seed that grew into Boumediene.
If a liberal bloc (Ginsburg, Breyer, Sotomayor, Kagan) voted for cert hoping to add Kennedy on the merits of the Fourth Amendment, that looked like a pretty good bet at the time. But Kennedy, though undoubtedly in favor of allowing the courts to pick and choose where and when the Constitution will protect noncitizens abroad, was never a certain vote for the plaintiffs in Hernandez because of his skepticism toward Bivens suits. Kennedy might have swung both ways in Hernandez: joining an opinion with the liberals holding that the Fourth Amendment applied, but joining a different majority holding that a Bivens suit should not be allowed under the circumstances.
But it didn’t happen that way. Trump won, Gorsuch joined the Court (albeit too late to participate in the case), and Kennedy evidently decided at some point that he did not want to write or join an opinion on the merits of the Fourth Amendment. But if at least four justices so desire, the Court will have an opportunity as a full body of nine to hear Hernandez again after a Fifth Circuit decision on remand.
In my view, the full Court would be wise to avoid again ruling on the Fourth Amendment issue. The circumstances of Hernandez are tragic—though as the Court emphasized, only the plaintiffs’ factual allegations about how and why the shooting occurred have been considered to this point. For whatever reason, a teenager was killed. The urge to provide some compensation and redress to the grieving parents will be strong and understandable. But as I wrote previously:
[T]he Fourth Amendment governs all manner of searches and seizure by U.S. officials, everything from electronic surveillance to physical searches of persons, buildings, computers and other devices, to thermal imaging to shootings. . . . If [the Fourth Amendment is] held to apply outside U.S. borders to protect noncitizens, a huge array of intelligence, military, immigration, customs, and law enforcement activity could be impacted. To take two examples that are salient for Lawfare readers: extraterritorial foreign intelligence surveillance and drone strikes, both of which have proceeded to date under the executive branch's assumption that noncitizens outside the United States have no relevant constitutional rights in those contexts.
Any extension of the Fourth Amendment abroad would come as an application of Boumediene. As I wrote about this prospect:
[A] “test” so amorphous probably just boils down to whether five justices believe judicial review under the Constitution is, in their estimation, salutary in a given context. Depending on its scope, a Fourth Amendment extended abroad to protect noncitizens could reach potentially millions more possible plaintiffs than the habeas right in Boumediene did.
This would, in my view, be a revolutionary and destabilizing change in the law, putting courts in the position to oversee and constrain myriad extraterritorial national security activities that have to date been governed by the political branches under the more flexible and forgiving dictates of statutes, executive orders, international law, and diplomatic and policy judgments.
Concerns such as these are likely what led the Hernandez Court to avoid—at least for now—the "sensitive" and consequential Fourth Amendment issue.