The Claremont Institute

Mar. 2 CCJ Town Hall: When Does the Constitution Apply to Non-Citizens?

March 2, 2017

In this podcast Dr. John C. Eastman, Founding Director of the Claremont Institute's Center for Constitutional Jurisprudence, and his guest, Andrew C. McCarthy, a former Assistant United States Attorney for the Southern District of New York in Manhattan, discuss the issues surrounding the Constitutional rights of non-citizens who are located outside of the United States.  The Supreme Court heard oral arguments in Hernández v. Mesa on February 21, and President Trump’s Executive Order on immigration continues to be a hot topic of discussion. We tackle the questions at issue in both of these cases in this town hall.

In Boumediene v. Bush (2008), the Supreme Court blurred the line that determines when Constitutional protections apply to an individual who is not physically located within the borders of the United States. The Court determined that Constitutional protections extend to individuals based on “objective factors and practical concerns, not formalism.” In Hernández v. Mesa, three teenage boys were found in the concrete culvert separating El Paso, Texas and Juarez, Mexico by U.S. Border Agent Jesus Mesa. He caught one of the boys while the other two ran for the Mexican side of the culvert. While standing on U.S. soil, Agent Mesa shot Hernández, who was on Mexican soil. The Court is asked to decide whether they want the courts below to apply a formal or a functional analysis to cases asking what Constitutional protections individuals like Hernández enjoy.

The national conversation regarding President Trump’s executive order (EO) suspending entry into the U.S. from seven countries with ties to terrorism raises similar questions. On January 27, the President issued his order, and on February 3, Judge James Robart issued a nation-wide temporary restraining order to halt its implementation. The Ninth Circuit allowed the temporary restraining order to stand. The case now has three paths: appeal to the Supreme Court, reconsideration by the full Ninth Circuit, or back to Judge Robart to consider the merits of the case.