Takings Clause and Foreigners: Thanks to Eugene Volokh at Volokh Conspiracy for his post on the Federal Circuit opinion dismissing a claim that the Fifth Amendment's Takings Clause applied to foreign nationals with no relationship to the United States. While the Takings Clause does not normally arouse our interest, the Federal Circuit's discussion of the Bill of Rights as it applies to foreigners is of interest - especially in light of pending U.S. Supreme Court decisions pending in Boumediene and Al Odah.
In its decision the Federal Circuit discusses Ross v. McIntyre, 140 U.S. 453 (1891) and Johnson v. Eisentrager, 339 U.S. 763 (1950). The Ross decision stated constitutional guarantees "against accusation of capital or infamous crimes... apply only to citizens and others within the United States, or who are brought there for trial for alleged offenses committed elsewhere, and not to residents or temporary sojourners abroad." Johnson also applied this principle to find the Fifth and Sixth Amendments do not confer rights on aliens seeking habeas corpus relief. The Federal Circuit reasoned, that similar to the U.S. Supreme Court's decision in Reid v. Covert, 351 U.S. 598 (1956), the protections afforded by the Bill of Rights are applied when "the United States acts against citizens abroad".
Of particular interest is the court's discussion of Kennedy's concurrence in United States v. Verdugo-Uriquidez, 494 U.S. 259 (1990). In this Fourth Amendment case, Kennedy "first noted the importance, in cases involving the extraterritorial application of the Constitution, of the distinction between citizens and aliens", because the Constitution does not create a judicial relationship with noncitizens "beyond United States territory." Verdugo-Uriquidez, 494 U.S. at 275 (Kennedy, J., concurring).
Relying on this precedent, the Federal Circuit rejects the petitioner's claim that the Takings Clause gives her a right to just compensation even though she has not established any relationship with the United States. The Federal Circuit rejected petitioner's claims that prior cases, such as Turney v. United States, 115 F. Supp. 457, 464 (Ct. Cl. 1953), created such a right, and reasoned establishing such a right for a noncitizen "would be far broader than any rule previously adopted by the Supreme Court for extraterritorial application of any Constitutional provision."
It will be interesting to see if this same logic is used by the United States Supreme Court when it announces its decision in Boumediene and Al Odah. Boumediene and Al Odah have claimed Fifth Amendment rights to habeas corpus. CJLF wrote an Amicus brief in support of the United States Government. CJLF argued the constitutional “privilege of the writ of habeas corpus” does not extend to an alien captured abroad by the military as an enemy, with no other connection to the United States.
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