On Tuesday, the Supreme Court ruled that the parents of a Mexican child who was shot and killed in a cross-border shooting could not sue the Border Patrol Agent who was responsible for the shooting.
As set forth in the Supreme Court’s opinion, Sergio Adrian Hernandez Guereca (“Hernandez”), who was 15 at the time, was with some friends in a concrete culvert. The border separating Texas and Mexico ran through the middle of the culvert. Border Patrol Agent Jesus Mesa, Jr. (“Mesa”) detained one of Hernández’s friends who had run onto the United States’ side of the culvert. After Hernández, who was also on the United States’ side, ran back across the culvert onto Mexican soil, Mesa fired two shots at Hernández; one struck and killed him on the other side of the border.
According to Hernandez’s parents, prior to the shooting, Henandez and his friends were simply playing a game where they ran across the culvert, touched the fence on the U.S. side, and then ran back across the border. Mesa, on the other hand, claimed that Hernandez and his friends were trying to illegally cross the border and that they pelted him with rocks.
The parents sued pursuant to the case of Bivens v. Six Unknown Fed. Narcotics Agents and sought damages resulting from Mesa’s alleged violation of Hernandez’s Fourth and Fifth Amendment rights. The District Court dismissed the case, and the Court of Appeals for the Fifth Circuit affirmed the dismissal on two separate occasions. On the first occasion, the Supreme Court ordered the Court of Appeals for the Fifth Circuit to consider how the Supreme Court’s decision in Bivens and subsequent cases would bear on the case. After doing so, the Fifth Circuit Court of Appeals refused to recognize a Bivens claim for a cross-border shooting. The Supreme Court subsequently agreed to hear the case.
In its opinion, the Supreme Court first discussed the Bivens case and its applicability:
In Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, the Court broke new ground by holding that a person claiming to be the victim of an unlawful arrest and search could bring a Fourth Amendment claim for damages against the responsible agents even though no federal statute authorized such a claim. The Court subsequently extended Bivens to cover two additional constitutional claims: in Davis v. Passman, 442 U. S. 228 (1979), a former congressional staffer’s Fifth Amendment claim of dismissal based on sex, and in Carlson v. Green, 446 U. S. 14 (1980), a federal prisoner’s Eighth Amendment claim for failure to provide adequate medical treatment. After those decisions, however, the Court changed course.
While the Supreme Court recognized the Bivens decision and some of the subsequent decisions that extended Bivens, it also recognized the dangers of creating new causes of action that are not expressly created by Congress. This, according to the court, was not the job of the judicial branch, but the legislative branch.
With regard to Bivens, the court explained that it follows a two-step process when deciding whether to extend Bivens:
When asked to extend Bivens, we engage in a two-step inquiry. We first inquire whether the request involves a claim that arises in a “new context” or involves a “new category of defendants.” Malesko, 534 U. S., at 68. And our understanding of a “new context” is broad. We regard a context as “new” if it is “different in a meaningful way from previous Bivens cases decided by this Court.” Abbasi, 582 U. S., at ___ (slip op., at 16).
When we find that a claim arises in a new context, we proceed to the second step and ask whether there are any “‘“special factors [that] counse[l] hesitation”’” about granting the extension. Id., at ___ (slip op., at 12) (quoting Carl-son, 446 U. S., at 18, in turn quoting Bivens, 403 U. S., at 396). If there are––that is, if we have reason to pause before applying Bivens in a new context or to a new class of defendants—we reject the request.
With this backdrop, the Supreme Court found that the first prong of the test was met, as the claims arose in a new context because they were “meaningfully different” in that “’the risk of disruptive intrusion by the Judiciary into the functioning of other branches’ is significant..”
While the first prong of the test was satisfied, the second prong was not. As the court noted, there were several red flags that persuaded it not to extend Bivens in this case.
The first was the potential effect on foreign relations, which is not something that the judicial branch should be involved with:
“Thus, unless Congress specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in [these matters].” Department of Navy v. Egan, 484 U. S. 518, 530 (1988). We must therefore be especially wary before allowing a Bivens remedy that impinges on this arena.
Second, the court was also concerned that extending Bivens would potentially impact national security:
Since regulating the conduct of agents at the border unquestionably has national security implications, the risk of undermining border security provides reason to hesitate before extending Bivens into this field. See Abbasi, 582 U. S., at ___ (slip op., at 19) (“Judicial inquiry into the national-security realm raises ‘concerns for the separation of powers’” (quoting Christopher v. Harbury, 536 U. S. 403, 417 (2002))).
In essence, the Supreme Court refused to extend Bivens in this case because it was concerned with preserving the separation of powers:
In sum, this case features multiple factors that counsel hesitation about extending Bivens, but they can all be condensed to one concern––respect for the separation of powers. See Abbasi, 582 U. S., at ___ (slip op., at 12). “Foreign policy and national security decisions are ‘delicate, complex, and involve large elements of prophecy’ for which ‘the Judiciary has neither aptitude, facilities[,] nor responsibility.’” Jesner, 584 U. S., at ___ (GORSUCH, J., concurring part and concurring in judgment) (slip op., at 5) (quoting Chicago & Southern Air Lines, Inc. v. Waterman S. S. Corp., 333 U. S. 103, 111 (1948)). To avoid upsetting the delicate web of international relations, we typically presume that even congressionally crafted causes of action do not apply outside our borders. These concerns are only heightened when judges are asked to fashion constitutional remedies. Congress, which has authority in the field of foreign affairs, has chosen not to create liability in similar statutes, leaving the resolution of extraterritorial claims brought by foreign nationals to executive officials and the diplomatic process.
Congress’s decision not to provide a judicial remedy does not compel us to step into its shoes. “The absence of statutory relief for a constitutional violation . . . does not by any means necessarily imply that courts should award money damages against the officers responsible for the violation.” Schweiker, 487 U. S., at 421–422; see also Stanley, 483 U. S., at 683 (“[I]t is irrelevant to a ‘special factors’ analysis whether the laws currently on the books afford [plaintiff]an ‘adequate’ federal remedy for his injuries”).12
When evaluating whether to extend Bivens, the most important question “is ‘who should decide’ whether to provide for a damages remedy, Congress or the courts?” Abbasi, 582 U. S., at ___ (slip op., at 12) (quoting Bush, 462 U. S., at 380). The correct “answer most often will be Congress.” 582 U. S., at ___ (slip op., at 12). That is undoubtedly the answer here.
The court’s decision, while difficult, makes sense. Moreover, while the facts of this case are tragic, Republicans should welcome the court’s reliance (and insistence) on the doctrine of separation of powers, which is vital. Judges should not legislate from the bench, which was happening all-too-often before President Trump began to re-shape the courts.
Fortunately, that did not happen on this occasion.
This article is intended for informational purposes only. It is not intended to solicit business or to provide legal advice. You should not take, or refrain from taking, any legal action based upon the information contained in this article without first seeking professional counsel.
Mr. Hakim is a writer, commentator and a practicing attorney. His articles have been published in The Washington Examiner, The Daily Caller, The Federalist, The Epoch Times, The Western Journal, American Thinker and other online publications.
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