Gutting Bivens: How the Supreme Court Shielded Federal Officials from Constitutional Litigation.

AuthorLindvall, Alexander J.

"No man in this country is so high that he is above the law.... All officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it.... [And the] Courts of justice are established, not only to decide upon the controverted rights of the citizens as against each other, but also upon rights in controversy between them and the government." --United States v. Lee (1882) (1) TABLE OF CONTENTS TABLE OF CONTENTS 1014 I. INTRODUCTION 1015 II. A BRIEF HISTORY OF BIVENS SUITS 1017 A. Bivens and its Progeny 1017 1. 1971-1980: Creating and Expanding Bivens 1017 2. 1980-2007: Limiting Bivens 1022 B. The Roberts Court Guts Bivens 1027 1. Ziglar v. Abbasi (2017) 1027 2. Hernandez v. Mesa (2020) 1031 III. THE COURT CHOSE THE RESULTS IN ABBASI AND HERNANDEZ 1037 A. Nearly Every Constitutional Provision is Susceptible to 1037 Multiple Plausible Interpretations B. Conservative Judges Use History as a Smokescreen to 1041 Reach Their Desired Outcomes C. Conservative Judges Often Choose to Reach Heartless 1046 and Unacceptable Results IV. THE LARGER PICTURE: IMMUNIZING GOVERNMENT OFFICIALS 1049 A. Justiciability 1050 1. The Court's Standing Rules Are Unjustifiable 1050 2. The Political Question Doctrine Is Indefensible 1057 B. Governmental Immunity 1059 V. COUNTERARGUMENTS CONSIDERED 1062 A. Counterargument: Shouldn't Congress, Not the Judiciary, 1062 Be the One to Authorize Suits Against Federal Officials? B. Counterargument: Can't We Rely on Federal Agencies 1064 and the Political Process to Discipline Federal Officers and Compensate Their Victims? VI. CONCLUSION 1066 I. INTRODUCTION

Bivens has been gutted. (2) In two recent cases, the United States Supreme Court adopted the narrowest possible reading of Bivens, (3) and two Justices outright called for its overruling. (4) In real-world terms, these decisions mean that many federal officials will not be held accountable--at least not through the courts--for their disturbing and unconstitutional behavior. In the Court's most recent Bivens case, Hernandez v. Mesa, the Court held that a United States Border Patrol agent could not be sued for shooting an unarmed fifteen-year-old in the back. (5) In another recent case, Ziglar v. Abbasi, the Court held that several high-ranking federal officials could not be sued for implementing and administering a policy that systematically rounded-up, jailed, and tortured Muslim immigrants. (6)

The results of these cases are unacceptable. In the United States, there should be consequences for shooting an unarmed child in the back, and there should be consequences for systematically jailing and torturing ethnic minorities without cause. To be clear, the results of these cases were avoidable--but the Court's conservative majority chose these results. The Abbasi and Hernandez majorities simply rejected the precedents that would have allowed the plaintiffs to have their day in court and instead chose to limit Bivens suits based on their own personal predilections. The Court's dismissive attitude towards these very serious claims is troubling to say the least.

But what is even more troubling is that these decisions are "unsurprising" (7) given the Court's "disturbing campaign" of "using legal technicalities to keep people from getting a fair hearing." (8) As Erwin Chemerinsky has recognized, the Court has been methodically "closing the courthouse door" on plaintiffs for nearly a half-century. (9) The Court's conservative Justices have, on their own accord, placed a series of complicated procedural hurdles in front of plaintiffs, allowing the courts to dodge difficult yet important constitutional questions. (10) The Court's justiciability doctrines, governmental immunity requirements, and Bivens limitations have made the federal courts inaccessible to many plaintiffs and have made many constitutional rights unenforceable. (11)

This Article makes three primary arguments. First, this Article argues the results of Abbasi and Hernandez are completely unacceptable in "a government of laws, and not of men." (12) These decisions undermine some of our nation's most important values and allow federal officials to remain above the law. Second, this Article argues that the Court's conservative majority chose the results of these cases. For the last thirty years or so, conservative jurists and scholars have argued their "originalist" method of deciding cases removes judges' personal views from the equation and produces value-neutral judging. (13) However, given the Constitution's purposely vague language and its broad, ethereal principles, it is "simply wrong to think that Supreme Court judges--liberal or conservative--can decide difficult constitutional cases without making value judgments" or inserting their personal views into the decision-making process. (14) This Article seeks to add to the chorus of scholars who reject the originalism facade. Finally, this Article argues that the Abbasi and Hernandez decisions are two pieces in a much larger and very disturbing puzzle. The Supreme Court has erected a series of unnecessary barricades around the federal courts, preventing plaintiffs from having their day in court, and preventing the courts from deciding important constitutional issues. These judge-made hurdles need to be removed--or at least significantly lowered--to ensure the people retain actual, enforceable rights.

This Article proceeds in four Parts. Part II provides a brief history of Bivens suits, beginning with Bivens itself and ending with the Court's two most recent (and most troubling) Bivens cases: Ziglar v. Abbasi and Hernandez v. Mesa. Part III shows that the Court's conservatives were not duty-bound to reach the results in Abbasi and Hernandez; rather, they chose the results of these cases by using flimsy legal precepts to reach their predetermined outcomes. Part IV shows how this narrow reading of Bivens is part of the Court's larger effort to close the courthouse door to plaintiffs and to immunize government officials. Part V responds to a pair of additional counterarguments that were not fully addressed in Parts I through III.

A "permanent and indispensable feature of our constitutional system" is that "the federal judiciary is supreme in the exposition of the law of the Constitution." (15) When James Madison presented the Bill of Rights to Congress in 1789, he cautioned:

If [these rights] are incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the Legislative or Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights. (16) Today, however, the Supreme Court acts less like an "impenetrable bulwark" and more like a passive observer. (17) Although the political branches continue to exceed the bounds of the Constitution, as they always have, the Court's conservative Justices often shrug their collective shoulders and allow unconstitutional activity to go uncorrected. My hope is that this Article will persuade at least some readers that our "independent tribunals of justice" should reclaim their role as impenetrable constitutional bulwarks.


    This Part proceeds in two Subparts. Subpart A discusses Bivens and its progeny, beginning with Bivens itself and ending with the Court's 2007 decision in Wilkie v. Robbins} (18) Subpart B discusses and critiques the Court's two most recent Bivens cases--Ziglar v. Abbasi and Hernandez v. Mesa--which have effectively gutted Bivens beyond recognition.

    1. Bivens and its Progeny

      1. 1971-1980: Creating and Expanding Bivens

        Since 1871, there has been a federal statute that allows citizens to sue state and local government officials for violating the Constitution. (19) That statute is now codified at 42 U.S.C. [section] 19 83. (20) But there is no statutory counterpart that allows constitutional suits for money damages against federal officials. (21) Accordingly, for 100 years, a victim's ability to bring a lawsuit for constitutional violations largely depended on whether the offending officer was a state or federal actor.

        In 1971, however, in Bivens v. Six Unknown Federal Narcotics Agents, the Supreme Court held that the Fourth Amendment contains an implied cause of action that allows aggrieved citizens to bring money-damages suits against federal officials for their unconstitutional behavior. (22) As the Court later described it: "Bivens established that a citizen suffering a compensable injury to a constitutionally protected interest c[an] invoke the general federal question jurisdiction of the district courts to obtain an award of monetary damages against the responsible federal official." (23) Because of this decision, constitutionally-based lawsuits for money damages against the federal government or its agents are commonly called "Bivens suits." (24)

        Bivens arose from the illegal and humiliating search and seizure of Webster Bivens and his family. (25) On November 26, 1965, several Federal Bureau of Narcotics agents, without a warrant, entered Bivens's apartment and arrested him in front of his wife and children. (26) After searching his apartment from "stem to stern," the agents took Bivens to the local federal courthouse, where he was "interrogated, booked, and subjected to a visual strip search." (27) After this incident, relying exclusively on the Fourth Amendment, Bivens filed a suit for money damages in federal court, alleging that he was unlawfully searched and seized and that he "suffered great humiliation, embarrassment, and mental suffering as a result of the agents' unlawful conduct." (28) The agents sought to dismiss Bivens's suit, arguing there was no federal law allowing suits for money damages against federal officers. (29)

        On appeal, the Supreme...

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