Andrew Kent was quoted in LifeZette regarding constitutional rights of non-citizens following the case of a Mexican couple seeking the right to sue over the shooting death of their son by a U.S. Border Patrol agent.
“That has been under a lot of pressure and challenge recently,” Fordham University School of Law professor Andrew Kent told reporters on a conference call last week.
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With the court currently divided 4-4 between more liberal and more conservative justices, a split decision would leave the appellate decision in effect. But Kent, the Fordham professor, noted that Kennedy wrote the majority opinion in the Guantanamo case. If he decides that precedent applies more broadly, a five-vote majority to overturn the lower court decision is possible.
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“That hasn’t been, in the past, how Justice Kennedy has done business,” Kent said, noting that the justice’s majority opinion in the Guantanamo case was open-ended.
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Such an outcome in this case could open the door to further challenges, he said. Judicial second-guessing of the government’s decisions affecting foreigners is an issue in the legal battle over President Donald Trump’s travel ban. Kent said it also potentially could impact surveillance of foreigners by U.S. intelligence services.