This Term, the Supreme Court will consider two cases addressing under what circumstances, if any, aggrieved parties can recover damages from federal officers who violate their constitutional rights. Ziglar v. Abassi, which will be argued on January 18th, involves the claims of Muslim non-citizens who were swept up by federal law enforcement and detained under harsh conditions without individualized suspicion after the 9/11 terrorist attacks. Hernandez v. Mesa, which will be argued in February, involves the cross-border lethal shooting of an unarmed 15-year-old Mexican boy by a U.S. border patrol agent. Abbasi will be the last case to be argued during the Obama Administration and Hernandez will be one of the first for the incoming Trump Administration.
“Although cases raising the scope of Bivens don’t tend to generate the same headlines as those involving hot-button social issues…,” argues Vladeck in the Issue Brief, “the more general principle of which Bivens is a critical element—that federal courts have an obligation to provide remedies for unconstitutional federal government conduct—is a bulwark of our constitutional system. Without such remedies, there would be little reason for federal officers to comply with the Constitution—especially those provisions that are least likely to be protected through the political process.”