Extraterritorial Rights in Border Enforcement

49 Pages Posted: 16 Oct 2019 Last revised: 31 Oct 2019

See all articles by Fatma E. Marouf

Fatma E. Marouf

Texas A&M University School of Law

Date Written: August 30, 2019

Abstract

Recent shifts in border enforcement policies raise pressing new questions about the extraterritorial reach of constitutional rights. Policies that keep asylum seekers in Mexico, expand the use of expedited removal, and encourage the cross-border use of force require courts to determine whether noncitizens who are physically outside the United States, or who are treated for legal purposes as being outside even if they have entered the country, can claim constitutional protections. This Article examines a small but growing body of cases addressing these extraterritoriality issues in the border enforcement context, focusing on disparities in judicial analyses that have resulted in at least two circuit splits. Specifically, the Article explores differences in courts’ selection and application of the Supreme Court’s main extraterritoriality tests; various ways of conceptualizing the interaction between the Court’s extraterritoriality jurisprudence and the plenary power doctrine, which one appellate court described as “competing” constitutional fields; and contrasting approaches to the role of separation of powers as a limiting structural principle, given the ambiguity of the Constitution’s text regarding is geographic scope. The separation of powers analysis reflects particular concerns about the executive branch’s manipulation of the border as a legal construct, as well as its manipulation of national security as an illusory threat, in order to evade accountability. The Article concludes that extending constitutional protections, preserving judicial review, and critically examining demands for deference are crucial in this context in order to avoid creating a law-free zone just beyond our southern border.

Keywords: extraterritorial rights, constitution, border, immigration enforcement, Mexico, cross-border shooting, Hernandez, expedited removal, MPP, migrant protection protocol, remain in Mexico, metering, fourth amendment, fifth amendment

JEL Classification: K37, K40

Suggested Citation

Marouf, Fatma E., Extraterritorial Rights in Border Enforcement (August 30, 2019). Washington and Lee Law Review, Forthcoming; Texas A&M University School of Law Legal Studies Research Paper No. 19-55. Available at SSRN: https://ssrn.com/abstract=3463718 or http://dx.doi.org/10.2139/ssrn.3463718

Fatma E. Marouf (Contact Author)

Texas A&M University School of Law ( email )

1515 Commerce St.
Fort Worth, TX 76102
United States

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