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The Supreme Court could make it very easy for federal law enforcement to violate the Constitution

What’s the remedy if a federal official violates your constitutional rights? The answer may soon be nothing.

A boarder patrol agent stands with sunglasses and a mask on his face and armor on his body.
Border Patrol agents work a checkpoint at an entry near the Del Rio International Bridge on September 22, 2021 in Del Rio, Texas.
Brandon Bell/Getty Images
Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court.

Robert Boule owns a bed and breakfast along the border between Washington State and Canada, which is cheekily named the “Smuggler’s Inn.” It’s a business that has a fairly shady reputation.

Boule admits that some of his guests used his property to illegally cross the border into Canada. In 2018, Canada charged Boule with multiple criminal violations “for his alleged involvement in helping foreign nationals enter Canada illegally between April 2016 and September 2017.”

Those charges were later dismissed by a Canadian court on constitutional grounds. But now, Boule’s somewhat sketchy inn is the subject of a Supreme Court case that could grant federal law enforcement officers sweeping immunity from lawsuits alleging that they violated the Constitution — even when those officers target people who are entirely innocent.

Egbert v. Boule could radically expand federal officers’ legal immunity

In March of 2014 Boule welcomed a guest who had recently arrived in the United States from Turkey. Although the guest was lawfully present in the United States, federal border patrol agent Erik Egbert decided to confront this guest when he arrived at Boule’s inn.

When the guest arrived, Egbert drove onto Boule’s property and approached the car containing the guest. After Boule asked Egbert to leave, and Egbert refused, Boule stepped between the border patrol agent and his guest. Egbert then allegedly shoved Boule against the car, grabbed him, and pushed him to the ground.

Then, after Boule complained to Egbert’s supervisor about this treatment, Egbert allegedly retaliated against him by contacting the Internal Revenue Service and asking that agency to investigate Boule’s tax statute.

Boule, in other words, alleges that Agent Egbert violated his constitutional rights. The Fourth Amendment forbids “unreasonable searches and seizures,” and if Egbert did, indeed, assault Boule, that could form the basis for a valid Fourth Amendment lawsuit. Boule also claims he had a First Amendment right to complain to Egbert’s supervisor without facing retaliation.

And yet, in Egbert v. Boule, a case being argued in front of the Supreme Court this Wednesday, the Court is likely to cut off Boule’s lawsuit against Egbert before it even gets off the ground. In the process, the Court could gut a seminal precedent from the early 1970s establishing that federal law enforcement officers can be held personally responsible when they violate the Constitution.

The primary issue in Boule is the continued viability of Bivens v. Six Unknown Named Agents (1971), which permits federal lawsuits against federal officials who allegedly violated the Constitution. Although the Court has not yet overruled Bivens, it has already stripped that case of much of its force. The Supreme Court’s most recent case applying Bivens, for example, said that a border patrol agent — who allegedly shot and killed a Mexican child, from across the US-Mexico border, and in cold blood — could not be sued.

So the most likely outcome in the Boule case is that Agent Egbert receives lawsuit immunity. The more difficult question is whether any meaningful part of Bivens will remain in effect after Boule is decided.

Bivens, briefly explained

Although the Constitution places numerous limits on federal law enforcement, including the limits imposed by the First and Fourth Amendments, it is silent about what the proper remedy is when a law enforcement officer violates those rights. A federal law does permit suits against state law enforcement officers who violate “any rights, privileges, or immunities secured by the Constitution and laws,” but there is no similar statute that explicitly authorizes suits against federal agents.

Nevertheless, the Court concluded in Bivens that a right to sue federal law enforcement officers is implicit in the Constitution. “Power,” Justice William Brennan wrote for the Court in Bivens, “does not disappear like a magic gift when it is wrongfully used.” An officer who acts unlawfully “in the name of the United States possesses a far greater capacity for harm than an individual trespasser exercising no authority other than his own.” And thus there must be some legal remedy to ensure that officers do not abuse this power.

Brennan, in other words, articulated something very similar to the Spider-Man rule: With great power, comes great responsibility.

But Bivens fell out of favor with the Supreme Court almost as soon as it was decided. Months after Bivens was handed down, President Richard Nixon made his third and fourth appointments to the Court — giving it a new majority that was less favorable to the rights of criminal defendants. And the Court has moved inexorably to the right ever since, in large part because the Electoral College and Senate malapportionment allow Republicans to confirm their own nominees, and to block Democratic nominees, even when Republicans do not enjoy majority support from the nation as a whole.

As a result, the Court’s more recent decisions have described Bivens suits as “a ‘disfavored’ judicial activity.” In Hernández v. Mesa (2020), the case where a border patrol agent shot a Mexican child, the five Republicans in the majority concluded that it is “doubtful that we would have reached the same result” if Bivens were “decided today.” And Hernández also instructed lower courts to be very reluctant to hear Bivens claims.

Under Hernández, courts should be skeptical of any Bivens suit that is “different in a meaningful way from previous Bivens cases decided by this Court,” and should dismiss these suits if there are any “special factors counselling hesitation.”

All of which is a long way of saying that Boule faces an uphill battle in a Supreme Court that’s only grown more conservative since Hernández was decided.

The Court could give the entire border patrol sweeping immunity from constitutional litigation

Indeed, given the Hernández decision, it wouldn’t be difficult for the Court’s Republican majority to craft an opinion rejecting Boule’s lawsuit. Justice Samuel Alito’s majority opinion in Hernández is a love letter to the federal border patrol, and can easily be read to immunize every member of that agency from Bivens suits.

Recall that Bivens suits will typically be dismissed if a court determines that the case presents “special factors counselling hesitation.” Alito’s Hernández opinion claimed that several such factors were present in that case, some of which are not at all present in Boule. Among other things, Alito noted that the US and Mexican governments disagreed about what should happen to a US official who shoots a Mexican child from across the border, and suggested that this disagreement should be resolved through “diplomatic channels” and not through a lawsuit.

But Alito’s opinion also spoke reverently about the job of border patrol agents, and the role they perform “by attempting to control the movement of people and goods across the border.” Quoting from a federal statute, Alito noted that the border patrol’s responsibility is to “detect, respond to, and interdict terrorists, drug smugglers and traffickers, human smugglers and traffickers, and other persons who may undermine the security of the United States,” and that border patrol agents might be deterred from doing this job aggressively if they could face lawsuits for illegal conduct.

“Since regulating the conduct of agents at the border unquestionably has national security implications,” Alito wrote, “the risk of undermining border security provides reason to hesitate before extending Bivens into this field.

So there really isn’t too much uncertainty about how the Court will resolve Boule. Hernández is pretty clear that the courts should not bother themselves with trivial things, such as the First and Fourth Amendments, if those amendments could interfere with the important work of US border patrol agents.

The more uncertain question is whether the Court will use Boule as a vehicle to neutralize Bivens altogether, or at least to cut off many Bivens suits that do not involve the border patrol.

Boule is, admittedly, not the most sympathetic plaintiff who has ever filed a Bivens lawsuit. But the Supreme Court deals in broad legal rules that bind every federal court in the country. In the likely event that the Court rules against Boule, it could do considerable violence to the public’s ability to hold rogue law enforcement officers accountable.