Hernandez v. Mesa

Justice Kavanaugh (08:15): If Bivens were a statute, in effect, we would apply the presumption against extraterritorial application. And the other side argues that, therefore, even if it were a statute, it wouldn't apply in a circumstance like this. What's your answer to that?

Stephen I. Vladeck (original response): Well, I think we have two answers, Justice Kavanaugh. And I think the -- the first and most important is that but Bivens is not a statute and that this Court has never suggested, for example, that in looking at whether particular constitutional provisions apply extraterritorially, we would use any of the typical presumptions that we apply to statutes because it is a fundamentally different task from the perspective of looking at the extent to which the Constitution applies overseas versus what Congress would have intended. But even if this Court, nevertheless, believes that it's appropriate to map on that presumption, I actually think Kiobel helps us more than it hurts us, because, in Kiobel, this Court said there will still be cases in which the -- the underlying conduct, the gravamen of the plaintiff's complaint, involves activity that touches and concerns U.S. soil with sufficient force to displace the presumption against extraterritoriality. And so I think this Court could assume without deciding that extraterritoriality is a special factor for purposes of Bivens and still say this case is different because Respondent was standing on U.S. soil at the time he pulled the trigger, that is touching and concerning U.S. territory from my perspective the way Kiobel meant it.

Ilya Somin: Well, I think we have two answers, Justice Kavanaugh. And I think the -- the first and most important is that but Bivens is not a statute and that this Court has never suggested, for example, that in looking at whether particular constitutional provisions apply extraterritorially, we would use any of the typical presumptions that we apply to statutes because it is a fundamentally different task from the perspective of looking at the extent to which the Constitution applies overseas versus what Congress would have intended. The text of the Fourth and Fifth Amendments imposes no geographic limitations on their scope. It reads as a general constraint on the exercise of federal power. Original meaning supports that inference from the text. During the Founding era, the government assumed the Bill of Rights protected even pirates captured at sea, regardless of whether they were US citizens. They could not be punished without first being provided the due process required by the Fifth Amendment. Rights that protect even pirates captured at sea surely also apply to a teenager standing just across the border. We do not ask the Court to revisit every precedent that imposes divergent constitutional standards depending on whether the victim is in the US. But we do ask that you not extend this dubious doctrine to cases at the border, which implicate American territory far more than do captures in international waters and other actions far away from the US. The point of this addition is to remind the Court’s textualist and originalist-oriented justices that the imposition of territorial constraints on the Bill of Rights rests on dubious foundations from the standpoint of their preferred methodology. While they may be unwilling to completely eliminate such double standards, they should at least avoid expanding them. If this concern persuades even one conservative justice to join with the four liberals (all of whom seem likely to support Hernandez), the plaintiffs are highly likely to prevail.