A Clarification of the Constitution’s Application Abroad: Making the "Impracticable and Anomalous" Standard More Practicable and Less Anomalous

Jesse R. Merriam, Johns Hopkins University

Abstract

This Article explores how to apply the “impracticable and anomalous” standard, which is the test that courts have used in determining whether and how the Constitution applies to U.S. conduct abroad. Under this test, the Constitution constrains U.S. conduct abroad unless it would be impracticable and anomalous to do so. The “impracticable and anomalous” standard has been implicitly applied since the Insular Cases, a group of cases decided in the early 20th century, and explicitly applied since 1957 in Reid v. Covert, but it is still unclear what the standard means, even after the Supreme Court’s landmark 2008 decision applying the test in Boumediene v. Bush to determine whether and how the Suspension Clause applies to U.S. conduct in Guantanamo Bay.

Indeed, the syntactic structure of the “impracticable and anomalous” standard is still ambiguous, as the Court has not clarified whether it is a disjunctive or conjunctive standard, and there is also confusion about the standard’s semantic content, since the Court has provided little insight into what the words “impracticable” and “anomalous” mean in this context. With so many ambiguities, the doctrine is itself impracticable, because judges cannot apply it objectively and predictably, and it is also anomalous in the Court’s constitutional jurisprudence, because although many judicial doctrines contain some ambiguity, it is difficult to think of one whose semantic and syntactic structure is this amorphous.

Although there has been little scholarly inquiry into how to apply the standard, the issue is now heating up, as Gerald Neuman and Christina Duffy Burnett, two leading lights on the Constitution’s transnational applicability, have recently written significant articles on how they believe courts do and should apply the standard. But despite the enhanced interest in the issue, Neuman and Burnett agree that “a full elaboration and defense of [the standard] has yet to be written.” This Article undertakes this challenge to become the first “full elaboration and defense of” the standard, and in the process, to make it more practicable as a judicial doctrine and less anomalous in the Court’s constitutional jurisprudence.