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The Degradation of the Bivens Doctrine Poses Another Challenge for Migrants

Updated: Nov 29, 2022

By: Kirsten Companik

In a 1971 case named Bivens v. Six Unknown Named Agents, the Supreme Court enshrined the right for individuals to sue federal officials who have violated their constitutional rights. The reasoning in Bivens was one of principle: where an individual’s constitutional rights have been violated by a federal agent, that individual has an implied right to sue for monetary damages. Since the ‘70s, the Supreme Court has heard several more Bivens claims; however, it has declined to extend Bivens to any new case since 1980. This degradation of the Bivens doctrine certainly has wide implications for U.S. citizens’ individual rights, but the national security implications, specifically regarding our borders, are perhaps most disturbing.

In a 2020 case, the Supreme Court denied relief to the family of a Mexican teenager who was killed by a Border Patrol agent in a cross-border shooting. The majority in Hernandez v. Mesa held that Bivens did not extend to cross-border shootings because such an application would significantly (and literally) depart from the circumstances that Bivens was intended to remedy. Since the suit in Hernandez was against a Border Patrol agent for violations of due process, and the suit in Bivens was against a Federal Bureau of Narcotics officer for an unlawful search and arrest without a warrant, the Court argued that Bivens should not extend to this new and significantly different context. The Court further concluded, most notably, that expanding Bivens in this context would interfere with the executive branch’s prerogative to set foreign policy and the legislative branch’s authority to create law and legal remedies.

Most recently, this past summer the Justices again declined to extend Bivens in Egbert v. Boule. In March 2014, Agent Egbert drove onto Robert Boule’s Washington state property to inquire about one of Boule’s guests, a Turkish resident who recently arrived in the United States. When Boule asked Egbert to leave his property, Egbert allegedly shoved Boule against his car and threw him onto the ground. After the incident, Boule complained to Agent Egbert’s supervisors and filed an administrative claim with Customs and Border Protection (CBP); Egbert responded by contacting the IRS and asking them to audit Boule’s business. Boule sued Egbert for damages under Bivens, arguing that Egbert had violated his First and Fourth Amendment rights when he had used a show of force at the property and later retaliated against Boule by calling for an investigation into his business. The Supreme Court held that because the circumstances deviated significantly from the context from which Bivens arose, it should refrain from weighing in and interfering with these questions of national security that are not under its authority as the judiciary.

In neither Hernandez nor Egbert did the Supreme Court decide to outright overturn Bivens; however it emphasized that the practice of extending Bivens to new causes of action is “a disfavored judicial activity.” The crux of the Court’s reasoning in both cases is that extending Bivens would impact issues of national security; however, by not extending Bivens, the Court is equally affecting national security. If an agent violates a U.S. law, the Court should have the authority to rule on the issue without question of if the violation of domestic law has a foreign policy nexus. Border officers and other federal agents are given broad authority as part of their prerogative to stop crime in the border region, and perhaps because of this, they frequently violate constitutional protections. By limiting the rights of individuals to seek money damages under Bivens, the Court is restricting the remedies available to seek justice. The Court admits in Hernandez that the general responsibility and conduct of agents positioned at the border has a strong connection to national security. However, the Court taking a hands-off approach to these routine civil-rights violations will inherently impact the conduct of agents at the border. With little constitutional oversight, barring legislative reform, these violations will likely only continue.

In considering what the consequences of denying Bivens remedies might look like moving forward, migrants will likely, perhaps obviously, be impacted the most. In Hernandez, the Court held that merely regulating the conduct of agents near the border had national security implications, and therefore Bivens should not be extended. Similarly in Egbert, the Court wrote that it did not matter that Boule’s guest was in the United States lawfully, he still posed a national security risk and therefore the Court should not weigh in. By not extending Bivens in these cases, it is unlikely that the Court would extend Bivens in constitutional violations that arise out of migrant centers at the border, where border agents are given broad authority and migrants are often not in the United States lawfully. Therefore, by narrowing the ability for individuals to seek monetary damages under Bivens, the Court has restricted the available options for migrants to seek justice for the frequent constitutional violations in the border region.

In both Hernandez and Egbert, the Court indicated in concurring opinions that it may be time to consider discarding the Bivens doctrine altogether. Whether they elect to do so in a future case, or whether they continue to decline extending it to new claims, it appears time for the legislature to consider alternatives to enshrine these protections.


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