Yesterday the Supreme Court granted certiorari (again) in Hernandez v. Mesa, the case of the border patrol agent (Mesa) who, while in the United States, shot across the border and killed a Mexican citizen (Hernandez) in Mexico. The case reached the Court in 2017 but was remanded without a definitive ruling; after the Fifth Circuit reaffirmed its ruling for Mesa, it's back.
The core issue of originalist interest in whether the Constitution protects non-citizens outside the United States. Here are two guest posts on that issue from Andrew Kent (Fordham) from the time that the Court first heard the Mesa case.
Unfortunately the Court isn't likely to reach this issue, as it has set itself up to decide the remedy first. Specifically, the Court limited its grant to the question:
Whether, when the plaintiffs plausibly allege that a rogue federal law-enforcement officer violated clearly established Fourth and Fifth amendment rights for which there is no alternative legal remedy, the federal courts can and should recognize a damages claim under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics.
And the Court's approach to Bivens questions has been strongly nonoriginalist, whatever one may think of its outcomes. (Here is a post I wrote many years ago on originalism and Bivens).
Posted at 6:16 AM