Hernandez's case is not an isolated one, Hilliard insisted, claiming that there have been "at least 10 cross-border shootings" with six deaths of Mexican nationals.
Justice Kennedy asked whether the Court should consider the matter if "this is one of the most sensitive areas of foreign affairs" and "the political branches should discuss with Mexico what the solution ought to be."
"But isn't this an urgent matter of separation of powers for us to respect the duty that…the executive and the legislative have with respect to foreign affairs?" he asked Hilliard.
When Randolph Ortega argued for Mesa before the Court, justices pressed him on the location of the killing and the role of Border Patrol officers.
"The actor is the Border Patrol member. And the instruction from the United States is very clear: Do not shoot to kill an unarmed, non-dangerous person who is no threat to your safety. Do not shoot to kill. That's U.S. law," Justice Ruth Bader Ginsburg observed.
"It's the United States law operating on the United States official who's acting inside the United States. This case has, as far as the conduct is concerned, United States written all over it," she said.
Ortega insisted that "in areas of the United States where there is a clearly defined border, as we have here, the Fourth Amendment stops unless the person seized – in this case Hernandez – had some voluntary contact with the United States."
Ginsburg asked how it would be different if an officer, standing in the U.S., shot a foreign national in the U.S. versus shooting someone on the border.
"That doesn't make a whole lot of sense, does it, to distinguish those two victims?" she asked.
"I think it's very distinguishable because of the very real border," Ortega replied. "Wars have been fought to establish borders. The border is very real."
Matt Hadro was the political editor at Catholic News Agency through October 2021. He previously worked as CNA senior D.C. correspondent and as a press secretary for U.S. Congressman Chris Smith.