by Stephen I. Vladeck, Professor of Law, the University of Texas School of Law and Author of the New ACS Issue Brief, “The Bivens Term: Why the Supreme Court Should Reinvigorate Damages Suits Against Federal Officers”
It is, of course, a coincidence that the very last oral argument the Supreme Court will hear during the Obama administration and one of the first it will hear during the Trump administration both involve remedies for constitutional violations by federal government officers. And yet, the fortuitous timing only underscores why these two cases—Ziglar v. Abbasi and Hernández v. Mesa—are, as my new ACS Issue Brief explains, likely the most important cases the Justices have heard in decades on the scope of so-called “Bivens suits,” and could well turn out to be among the most significant rulings the Court hands down this Term. [Full disclosure: I am co-counsel to the Petitioners in Hernandez. This post, like the Issue Brief, reflects my personal views, and not necessarily those of the Petitioners or their counsel.]
The facts of Abbasi and Hernandez are sharply different. In Abbasi, a group of immigrants are seeking to challenge their allegedly unconstitutional treatment while detained as part of the post-9/11 roundup of Muslim and Arab non-citizens in and around New York City. Specifically, the plaintiffs allege that senior government officials—including Attorney General Ashcroft and FBI Director Mueller—knew that they had no connection to terrorist activity and nevertheless chose to subject them to especially harsh, punitive and allegedly unconstitutional conditions of confinement otherwise reserved for terrorism suspects. Hernández, in contrast, arises out of a single Customs and Border Patrol agent’s allegedly unprovoked cross-border shooting of an unarmed 15-year-old Mexican boy. But whereas the cases raise different facts (and other legal questions, including, in Hernández, whether the Fourth Amendment even applies to such a cross-border shooting), both raise a basic question about remedies—and whether the courts can and should recognize damages claims for constitutional violations by federal officers even though Congress has never expressly authorized such suits.
The “Bivens doctrine” is named after a 1971 case in which the Supreme Court held that, in at least some circumstances, the answer was yes—that courts could infer a cause of action for damages against federal officers directly into the Constitution, at least in the absence of adequate alternatives or what Justice Brennan called “special factors counseling hesitation.” But as the Issue Brief explains in more detail, Bivens was not a bolt from the blue. Going all the way back to the Founding, federal officers had routinely been liable for damages to victims of constitutional violations. It’s just that the pre-1971 practice was to leave such suits to the vagaries of state tort law—a practice that became increasingly incongruous as new constitutional protections lacking state law analogues were recognized and as federal courts more regularly asserted the similar (if not more coercive) power to enjoin unconstitutional federal official action without express statutory authorization. Bivens, then, reflected the Supreme Court’s conclusion that there would be circumstances in which prospective relief or retrospective state-law remedies would be insufficient to vindicate individuals’ constitutional rights—and so retrospective federal remedies would be necessary. In Bivens itself, that meant a cause of action for damages to vindicate Webster Bivens’s Fourth Amendment right to be free from unreasonable searches and seizures.