The Supreme Court on Tuesday heard contentious oral arguments in a case that involves whether and to what degree constitutional protections should be extended to non-citizens, as the Trump administration readies new guidance on the nation’s handling of foreign nationals at U.S. borders.
At issue in Hernandez v. Mesa is whether the Fourth Amendment applies to a U.S. Border Patrol agent’s cross-border shooting and killing of an unarmed Mexican teenager, Jesus Hernandez. The case also presents questions about whether the border agent is entitled to qualified immunity and whether the parents of the victim can sue the agent.
Robert Hilliard, attorney for the slain teen, argued for the justices to rule based on the specifics of the case, including the killing’s location in proximity to the border. Chief Justice John Roberts and Justice Samuel Alito questioned Hilliard about what sort of rule could be applied in the case that could be used in other cases, and Hilliard struggled to provide a direct answer.
“We have to have a rule to apply in other cases,” Alito said after not receiving a satisfying answer from Hilliard. “And I don’t know what rule you want us to adopt other than you win.”
The court’s left-leaning bloc appeared much more amenable to Hilliard’s argument, but were just as earnest in understanding what sort of language Hilliard would think appropriate for a judgment in his favor. Justice Stephen Breyer told Hilliard, “You have a very sympathetic case” but grew irked when the lawyer did not give a direct answer about what sort of rule should be instituted in an opinion ruling for the victim.
Breyer later suggested that the justices could limit their opinion to cases where the shooter is in the United States and the injury occurs at the southern border, which includes what Breyer termed joint-administration areas — where Mexico and U.S. each have some responsibility.
Randolph Ortega, attorney for border agent Jesus Mesa, argued that Breyer’s proposed rule would “plunge the lower courts into a sea of uncertainty” about U.S. boundaries.
Hernandez v. Mesa looks poised to be another case where the high court could divide evenly along ideological lines, with Justice Anthony Kennedy’s vote being the decisive factor. Kennedy pressed both sides with questions about application of the Fourth Amendment. But he appeared to view the question of whether the Mexican victim’s family could sue the U.S. border agent as a matter best left to the nation’s political branches.
“This is one of the most sensitive areas of foreign affairs … and the political branches ought to discuss it with Mexico,” Kennedy said.
Deputy Solicitor General Edwin Kneedler argued vociferously in opposition to the victim’s family suing the government and urged the high court to let Congress resolve the matter as it involves foreign relations.
However the high court chooses to decide Hernandez v. Mesa, its opinion could have ramifications for President Trump, whose administration is readying new executive actions on migration into the U.S. and his proposed wall along the Mexican border.
