Does the Fourth Amendment apply in cases of cross-border shootings of foreign nationals, when those shots were fired by United States Border Patrol agents from American soil, striking a victim in Mexico? In oral argument, Petitioner failed to heed the trail of breadcrumbs strewn at his feet by inquisitive Supreme Court Justices. A workable, yet narrow rule that would plug the critically important gap in application of the United States Constitution to remedy such cross-border atrocities, was not articulated. I propose one here. The world’s busiest border is that which is shared between the United States and Mexico. Our countries are intertwined economically and historically and have a shared cultural identity. Justice demands an answer in the affirmative; that the Constitution applies cross-border not only to remedy this young man’s death, but also to address inevitable future events.
Joseph C. Alfe, Extraterritorial Constitutionalism: A Rule Proposed, 50 J. Marshall L. Rev. 787 (2017)