White House, Gorsuch Could Clash on Search and Seizure

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By Jessica DaSilva

Protections for non-citizens against unreasonable government searches and seizures could be an area of disagreement between President Donald J. Trump and his nominee to the U.S. Supreme Court.

Judge Neil M. Gorsuch is known for his hard-nose, originalist approach to interpreting the Fourth Amendment—which protects people from unreasonable government searches and seizures—and has been likened to the late Justice Antonin Scalia, whom he would replace if confirmed by the U.S. Senate, according to an evidence professor.

But President Trump has issued two immigration-related executive orders that suggest the administration takes the position that non-citizens don’t enjoy the same protections as citizens—one a temporary travel ban that resulted in the detention of several individuals at airports and the other a crackdown on illegal immigrants living in the U.S.

Colin Miller, University of South Carolina evidence professor and author of the EvidenceProf Blog, said Gorsuch’s way of analyzing the Fourth Amendment could come into conflict with the Trump administration in related instances or future cases if he is confirmed.

“If you interpret it as a property-based right, citizenship wouldn’t matter,” Miller said. “If it’s the search of a house or vehicle, it would be based on that, rather than on citizenship status.”

Nominee’s Potential Conflict

Gorsuch’s rulings on the Fourth Amendment typically stem from property ownership rights, Miller said. That mindset is almost identical to Scalia, who often wrote pivotal opinions strengthening Fourth Amendment rights.

Trump might not have considered Gorsuch’s position on the Fourth Amendment when nominating him, Miller cautiously speculated, saying that it may have been more important to find a nominee who could bypass Democratic Party opposition after a Republican-controlled Congress failed to confirm former President Barack Obama’s nominee Merrick Garland.

But Gorsuch’s ardent Fourth Amendment positions could come into conflict with an administration that may believe only citizens should enjoy its protection, Miller said.

According to Bloomberg News, Trump’s executive order would indefinitely ban Syrian refugees from entering the U.S. and stop all other refugees—people fleeing their homelands claiming persecution or fear of violence—for 120 days. It also would block entry to the U.S. for 90 days to citizens of Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen. Several courts placed holds on the orders.

“The government is detaining individuals in the U.S. who are non-citizens in violation of the Fourth and Fifth Amendments,” Steven Schwinn, associate constitutional law professor at John Marshall Law School, told Bloomberg BNA. “Although the White House has been utterly unclear about this, it might be taking the position that it doesn’t apply to non-citizens.”

Death on the Border

The dichotomy between the president’s actions in light of Gorsuch’s nomination leave it unclear what his position is on search and seizure protections—and if he has one. Meanwhile, the U.S. Supreme Court could decide that issue for him.

The Supreme Court will hear oral arguments in Hernández v. Mesa, U.S., 15-118, review granted 10/11/16 , on Feb. 21. A decision restricting Fourth Amendment protections to American citizens only could mean trouble for non-citizens—even those living inside the U.S. legally like political asylum applicants—who could no longer claim protection from law enforcement officers searching their property or detaining them, said Steven Schwinn, associate constitutional law professor at John Marshall Law School.

The case deals with a border patrol agent on the U.S. side of the U.S.-Mexico border who claimed immunity for shooting and killing a Mexican teenager on the other side of the border based on the teen’s legal status, even though the agent didn’t know the teen’s status at the time.

The U.S. government in its brief has already taken the position that the Fourth and Fifth Amendments only apply within the U.S. to citizens, Schwinn said. However, the Supreme Court could finally answer the question on whether all people on American soil and Americans abroad enjoy those rights, which could undermine whatever position the presidential administration takes, Schwinn said.

“If the White House now is taking the position that you can’t have an unlawful stop on a person who is a non-citizen, that could affect Fourth Amendment claims,” he said. “It would basically mean open season on non-citizens.”

The White House didn’t return requests for comment.

Analytically Distinct Questions

In making its decision to potentially place parameters on the Fourth Amendment, the court will need to analyze two questions, Schwinn said. First, the court will need to determine whether the Fourth Amendment can reach past U.S. borders to protect Americans abroad.

Second, he said, justices must determine whether the term “people” applies to everyone in the U.S. or just to U.S. citizens. The Supreme Court has never defined who fits under the category of “people” in the Bill of Rights, he added.

Those questions are analytically distinct with one deciding how robust Fourth Amendment protection is and the other deciding who enjoys that robust protection, Schwinn said.

To contact the reporter on this story: Jessica DaSilva in Washington at jdasilva@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com

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