When can you sue a federal agent who violates your constitutional rights? Which constitutional rights can you sue about? A federal statute allows you to sue state and local officers for violating your constitutional rights, but there is no federal law that does the same for federal officers. In 1971, in a case called Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, the Supreme Court held that a cause of action for damages against federal officers could be inferred from constitutional provisions. But in the 50 years since, the Court has struggled to explain how, or even if, a Bivens cause of action applies in different cases.
In 2014, Erik Egbert, a Customs and Border Patrol Agent, went to the Smugglers Inn, which sits at the U.S.-Canada border, and approached a car carrying a guest from Turkey. The inn’s owner, Robert Boule, asked Egbert to leave. Egbert refused to do so and pushed Boule to the ground. After Boule complained to Egbert’s supervisors, Egbert suggested to the IRS that it investigate Boule. In Egbert v. Boule, argued on March 2, the Court continued to grapple with Bivens questions, including whether Bivens applies to First Amendment retaliation and whether federal officers engaged in immigration-related functions are subject to Bivens suits for violations of Fourth Amendment rights.
Anya Bidwell, Attorney and Elfie Gallun Fellow in Freedom and the Constitution, Institute for Justice
Erin Hawley, Senior Legal Fellow, Independent Women's Law Center
Moderator: Hon. David Stras, Judge, United States Court of Appeals, 8th Circuit
To register, click the link above.
As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
Dean Reuter: Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at fedsoc.org.
Ryan Lacey: Welcome to The Federalist Society’s virtual event. This afternoon, April 1, 2022, we discuss “Courthouse Steps Oral Argument: Egbert v. Boule.” My name is Ryan Lacey, and I’m an Assistant Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of our experts on today’s call.
Today, we are fortunate to have an excellent panel moderated by Judge David Stras, whom I will introduce briefly. Judge Stras is a circuit judge of the United States Court of Appeals for the Eighth Circuit, and he’s a former associate justice of the Minnesota Supreme Court. Prior to becoming a judge, Stras was a member of the faculty at the University of Minnesota’s Law school from 2004 to 2010. Judge Stras received his Bachelors of Arts degree and Masters of Business Administration from the University of Kansas. He also received his law degree from the University of Kansas School of Law.
After our speakers give their remarks, we will turn to you, the audience, for questions. If you have a question, please enter into the Q&A feature at the bottom of your screen, and we will handle questions as we can towards the end of today’s program. With that, thank you for being here with us today. Judge Stras, the floor is yours.
Hon. David Stras: Thank you, Ryan, and thanks to The Federalist Society for putting together a really great program on an important issue. Bivens has been in the public eye and in the Supreme Court’s eye for a number of years now. They’ve taken, I think, three cases over the past five or six years, from Ziglar v. Abbasi to the Egbert v. Boule case. And we have an absolutely wonderful panel today.
On one side -- actually, I think we’re going to have some room for agreement here because we talked a little bit before starting this seminar, but I’m still going to say we got to have some disagreement. So on one side, we have Anya Bidwell, who is on the Institute for Justice’s brief supporting Boule. And for the sake of argument, we’ll say that she’s more on the pro-Bivens side than the anti-Bivens side. On the other side, we have Erin Hawley, who is from the Independent Women’s Law Center, which wrote an amicus brief on behalf of Egbert. And again, just for the sake of argument, we’ll say, at least in this particular case, that she is on the anti-Bivens side.
What we’ll do is we’ll hear a presentation from each of our panelists, and then I have a list of questions to ask and to promote discussion. And then, hopefully, as Ryan mentioned, at the end of the discussion, we’ll have time for Q&A. So without further ado, I will turn it over to Anya, who will start our discussion.
Anya Bidwell: Sounds great, Judge. Thanks very much. And thank you to FedSoc for putting together this wonderful panel, and it’s an honor to be a part of it. So the oral agreement in Egbert really unearthed how multidimensional the Bivens issue really is. And I think unpacking this many dimensions is a good way for us to understand it.
So there were two questions presented, even though there were originally three questions, including whether it’s worth overruling Bivens altogether. The first question was whether a Bivens cause of action exists under the Fourth Amendment when the defendant works for an immigration agency or when the defendant performs an immigration-related function. And the second was whether Bivens applies in the First Amendment, retaliation context. I’m going to give you an overview of the oral argument as it relates to these questions and then briefly describe where I stand on those issues and where the justices also seem to be leaning, at least as far as we can glean from the oral arguments.
So within the first question, justices wanted to really focus on three things. First, is this an extension of Bivens when you have a routine garden-variety excessive force or search and seizure claim, but it simply is against the defendant, who is anyone other than a narcotics agent? Right? So as long as the defendant is not working for the DIA, is it an extension of Bivens? Second, the justices were interested in whether -- if it is an extension, are there special factors that would counsel hesitation against extending Bivens even in a routine Fourth Amendment claim? Third, there was some interest with regard to how we should think about the Westfall Act. Is it an alternative remedy that should counsel against extending Bivens, or is it an authorization of Bivens by Congress? And if it is an authorization, then how strong of an authorization is it?
And within the second question presented, justices -- well, there weren’t really any questions on the second question presented with regard to the First Amendment retaliation claim, which makes me think that the justices -- generally speaking, there is a majority that thinks that an extension of Bivens, that a First Amendment retaliation claim would be an extension of Bivens, and that there are factors counseling hesitation against extending it into that sphere. And as I mentioned, the third question, only Justice Breyer really seemed interested in exploring the value of Bivens and also the underlying theme of implying remedies directly under the Constitution. We can certainly get to this broad theme here. But judging by the oral arguments and by the explicit denial of this question presented, the Court is likely to put this one on the back burner, although we can talk about whether it should do so or not.
So with respect to the first question presented, petitioner in Egbert took a very hard line on Bivens, harder even than the government, which also argued in the case as an amicus. According to the petitioner, even a routine Fourth Amendment claim involving someone other than a narcotics agent is an extension of Bivens. And since extensions are disfavored, it should not be permitted. From my point of view, it is hard to see how any claim involving routine policing, which I would argue is the case in Egbert since at the heart of the Fourth Amendment claim there is that a government agent entered private property and searched the car without a warrant and using excessive force, that this routine policing claim is somehow meaningfully different from Bivens itself. I don’t think it is. There is no highly ranked officer like the DOJ officials in Abbasi. The constitutional right at issue is not different. We’re talking about the Fourth Amendment claim. There is plenty of judicial guidance on excessive force and search and seizure cases. And the judiciary does not disrupt other branches when it adjudicates such excessive force cases.
So the list of meaningful differences that Abbasi provided, you really don’t -- it’s hard to see how this case would be meaningfully different. And even if we accept that Egbert would be an extension of Bivens, there are no factors counseling hesitation in routine excessive force Bivens cases. The test, according to Abbasi, is whether the judiciary is well suited to weigh the costs and benefits of allowing a cause of action to move forward. And here, in routine policing cases, the judiciary is unquestionably well suited. The cost of extending Bivens here is really not high. After all, we are not talking about recognizing a new substantive legal remedy, the concern that was articulated in Abbasi. Or, as Wilkie v. Robbins said, we are not talking about creating a new species of litigation because they’re really not that great.
They are, however, plenty of benefits for the judiciary to get involved, such as that federal officials, just like their state and local counterparts, are helped to account for excessive force violations, which are often the most flagrant constitutional violations out there. The Supreme Court seemed attuned to this line of reasoning during the oral argument. The justices kept pushing on what exactly are the cases that are permitted by Abbasi and by Bivens. This really was best articulated by Chief Justice Roberts, who very early on asked whether there really could be a Fourth Amendment-free zone -- Constitution-free zone that Judge Willett talked about, and Justice Roberts talked about Fourth Amendment-free zone simply because the routine policing took place at the border.
So while I wouldn’t go as far as to suggest that the justices are ready to say that there are no meaningful differences between Egbert and Bivens, I do think that there is a chance, however slight, that at the very least, they would allow Egbert’s Fourth Amendment claim to go forward. And if not that, then maybe at least the justices would say that -- would at least contrast this case to a routine domestic policing case and maybe provide some sort of a protection zone for routine domestic policing cases and say that, within the search and seizure context of domestic policing, Abbasi articulated at search and seizure zone, that should be respected.
And interestingly enough, this was the government’s view, too. During the oral argument, the Solicitor General’s Office conceded that Bivens should not be allowed in many such cases. For example, in the response to Chief Justice Roberts’s request to provide an appropriate Bivens scenario, the government said that in a case involving an FBI agent or an agent of the Park Police or the Marshal Service, that would be a routine domestic search and seizure claim or excessive force claim. So I do feel like there is a room here for some positive Bivens law being made.
And I will just briefly touch on the Westfall Act question and then pass it on to Erin. There are some questions about the FTCA and the Westfall Act. The focus was very much on whether the FTCA is the type of an alternative remedy that should counsel hesitation in extending Bivens. And the response by Boule’s counsel, I think, was exactly spot on. Carlson v. Green specifically says that Congress made it crystal clear—and that’s words from the Supreme Court’s opinion—that the FTCA is a complementary remedy to Bivens, not a substitute. And we also have congressional comments during the 1974 amendments to the FTCA to show for it, where the Congress specifically talks about these causes of action being counterpart.
In addition, we have the Westfall Act itself. Right? The Westfall Act made the federal court remedy against the United States government exclusive, but it exempted constitutional claims against individual officers, which is essentially edification of Bivens. Importantly, Congress, in 1988, when it codified Bivens, legislated against the backdrop of the Supreme Court cases, which, at that point, acknowledged a Bivens cause of action even in cases involving First Amendment retaliation—Harlow v. Fitzgerald, for example. This case is known for creating a modern-day standard for qualified immunity.
But at the time, what would have been clear to any legal observer is that Bivens is so well-established that federal officials were on par with state and local officials when it came to constitutional accountability. And Butz v. Economou specifically talked about this. So this meant that Congress could prohibit suits against federal officers in state courts, which they did in Westfall Act. They cut off that common-law remedy. Right? And you would still have this individual remedy against these officials in federal courts. Importantly, even in Hernandez v. Mesa, the Supreme Court acknowledges that Congress left Bivens where it founded it in 1988. And in 1988, Bivens was much stronger, that what counsel for petitioners is asking for here. So from my perspective, at the very least, Bivens would have been permitted under the Fourth Amendment for claims against federal police.
So that’s kind of my broad thinking on these things that seem to be on the forefront of the justices’ thinking when they were asking the questions. And we can talk about sort of question presented number three and the broader implications of Bivens and what Bivens really is later in the discussion. I will now pass this on to Erin.
Hon. David Stras: Sounds good. Erin?
Erin Hawley: Thank you so much, Judge Stras. Thank you to FedSoc and to Anya for that great presentation. There is a lot of agreement and also some disagreement, which is good for this sort of panel. And I wanted to set—I’m sure many of you know—but I wanted to set this case just sort of in its context for two reasons, one, because it’s fascinating, and two, because under the Supreme Court’s precedent, this context is directly relevant as to whether Bivens should be extended.
So if we look at the context here, Respondent Boule is a US citizen. He owns and runs the Smuggler’s Inn—some might say sort of hiding in plain sight. The Smuggler’s Inn is a bed-and-breakfast. His property abuts the Canadian property -- excuse me, the Canadian border, so it’s right across from the Canadian border. This town is known to be a place for drug smuggling, people smuggling, those sorts of things. And the bed-and-breakfast itself is known to -- or at least suspected of that sort of conduct. The respondent here, he drives a car with the Smuggler license plate tag. He’s worked as a confidential informant for the customs and border control. And subsequent to this case, he also pled guilty to Canadian violations of immigration law. So just a bit of background to say why the border patrol might have been interested in the Smuggler’s Inn.
In the day in question, Petitioner Egbert went to the Smuggler’s Inn to question a person who was staying at the inn, who was from Turkey, about his travel plans. On finding that they were legitimate, he had no further questions. But he did get in sort of this altercation with respondent. Respondent requested that he leave. Egbert refused to do so. Egbert pushed him to the ground, which results in the Fourth Amendment claim here. And then, Boule reports Egbert to his superiors, at which point the allegation is that Egbert calls the IRS and says, “Hey, you might want to check out this guy.” So that’s where the First Amendment retaliation claim comes in—so a bit of context. So now to sort of the buckets of questions that Anya posed.
And the first one is, is this a routine claim for a Fourth Amendment Bivens claim? I would argue not. And indeed, both Petitioner Egbert as well as the Solicitor General said no, and this is for a couple of reasons. First, there are national security concerns present here. As the government recognized, you are on -- literally a step away from the Canadian border. You are a border patrol agent who is charged with keeping the United States safe. You’ve got a suspected tip of someone who’s in the country illegally, so that was the context for the border protection agent’s action here. So you do have those national security concerns that were not present in the original Bivens context. And again, even the government, although they were not willing to say you should never extend Bivens, as was Egbert’s argument, they said you should not extend Bivens here. It is a new context. It is a new case, and there are these special national security concerns that counsel against expansion here.
I think some of the interesting things from the oral argument is the question as to how you determine whether it’s an extension. Do you focus on the job? Justice Breyer pointed out that, I think, there are 83 different federal agencies that might be involved with citizens. Do you look at their specific job as a border patrol agent? Or do you look -- as Justice Barrett suggested at one point, do you look at the specific task that they are performing, and how does that come into play under the Bivens test? Sarah Harris argued on behalf of Egbert, said that you need to look at both things. You need to look at both the statutory mission of the enforcement agency involved as well as the particular mission of the particular context and the particular officer involved. So she said you need to look at both. On the other side, the counsel for Boule suggested that you can’t possibly have this sort of free zone, as Anya said.
But again, if we look at the specific facts of this case, you have the border patrol agent who was investigating a tip about a possible border violation that would have national security and national relations implications, according to the Solicitor General. So that does seem an extension of Boule’s [Bivens?]. It’s not your routine Fourth Amendment claim that takes place within the four corners of the United States and doesn’t involve those national security concerns. So that’s the first question presented. I agree with Anya with respect to the second question presented. The Court didn’t seem much interested. Even Felicia Ellsworth, who was representing respondent here, admitted that she had an uphill climb for her client with a First Amendment retaliation claim. There’s special consideration by the nature of retaliation claims in addition to just extension of Bivens in general.
And then, I think that gets us to this third question presented that the Court declined certiorari on. And Egbert here had explicitly asked the Supreme Court to take up the question and to decide whether Bivens was incorrectly decided. To me, that’s one of the most fascinating parts of this case. I think we have a series of decisions for the last 30-some years in which the Court has continually peered back Bivens. And I think this is the realization by the Court that implying causes of action is not for the Court but rather is for a congressional cause of action. And I’ve been thinking of this in the context actually of the Court’s shift away from purposivism into originalism and textualism.
And I think in that vein, a 2015 speech by Justice Elena Kagan is really instructive. And in that speech, she was speaking about the late Chief Justice Scalia and how much he had changed how the Court goes about its ordinary business of deciding cases. And she’s just got some fabulous statements in there that sort of explain how we got Bivens and also why it might be a bad idea to extend Bivens outside of the context or might even arguably be a reason to overrule it. So she joked that “we’re all textualists now” in 2015 and said that if someone had even mentioned statutory interpretation to her while she was in law school, she might not have known what that meant. And that was really the time period as Justice -- or Judge, excuse me, O’Scannlain has pointed out that the purposivism with the dominant strain of legal interpretation, sort of this common-law lawmaking in the legal academy at the time.
And then, you get decisions like Bivens, in which the Court says you need to have a constitutional remedy. They imply the constitutional cause of action. The Court acknowledged in Bivens that the Fourth Amendment does not, in so many words, provide for its enforcement by an award of money damages. Today, I think that would be the end of the line even for justices like Justice Kagan, who sometimes is on the more liberal framework in ideological spectrum. But for her, I think the fact that the Fourth Amendment does not “in so many words provide for the enforcement through this mechanism” would mean that it’s up to Congress to create it. So the Supreme Court, since Bivens, of course, has returned to text structure and history, leaving Bivens, as the Court has acknowledged, sort of an anachronism or, as one justice said, “The relics of heady days,” in which the Court assumed common-law-making powers.
And so, I think you have the backdrop of this sort of question about who it is, what branch of government should be creating causes of action for money damages, I think, is informing the Court’s jurisprudence as it continually narrows Bivens. So this recognition that it’s not for the Court to do these sorts of things results, I think, in narrowing, a whittling away, at Bivens. And I think for that reason, I suspect that the Court will find that this is a new context, that it involves for-protection agencies, and that Bivens cannot be extended given the underlying problems with that decision.
And then the last thing I will say is that there is this tension, as the Chief Justice notes in oral argument, that this whole Bivens framework depends on a fact-specific contextual inquiry, which, again, is not something the Supreme Court ordinarily does. So again, I think just another indication that the initial Bivens court went wrong.
Hon. David Stras: Outstanding. I’m going to take -- and for those in the audience, spend some time thinking about if you have questions for the panelists because I’m going to try to leave 10 to 15 minutes at the end. But in the meantime, I’m going to take a little bit of a moderator’s privilege here, and as we were discussing, actually before the program started, I’ve had the honor of writing a lot of the Eighth Circuit opinions on Bivens since Ziglar v. Abbasi. And the teacher in me, the professor in me, is still there. And I want to briefly summarize what I think’s going on here in, hopefully, a helpful way.
When we looked at Ziglar and we looked at Hernandez in the Eighth Circuit, it really comes down to a two-step process. Step one, which is a factually intensive inquiry, is to determine whether or not there’s a new context. If there’s a new context, and only if there’s a new context, would you go on to step two. If it’s an old context -- and there’s three contexts here. There’s Bivens, which was a Fourth Amendment claim—and obviously, the facts matter, but we can get into those later—Carlson, which was a cruel and unusual punishment claim; and Davis, which was a sex discrimination claim under the Fifth Amendment. So if it falls into one of those categories, you’re not extending Bivens, and the Bivens claim lies.
But if it’s a new context you go on -- and by the way, on that first point, what you’re hearing between the two panelists, I think, is Erin might define those cases a little bit more narrowly than Anya would. Anya might be a little broader. And there’s debate, because it's so open-ended, among the courts of appeal on how to frame whether it’s a new context or not. So it’s a complicated inquiry.
The second step, you have to figure out that, if it’s a new context, are there reasons to counsel hesitation? Are there reasons not to expand Bivens to a new context? Keep in mind that the second step -- and it’s hard for judges to sort of balance these policy concerns. I mean, I don’t really do policy, but the second step requires us to talk about the policy and think about what the effect on the other branches of government might be. But we have to think about that and then figure out whether or not there’s a reason not to extend it. And so, it’s a really -- this is a tough inquiry for judges. And recognize the Supreme Court has not extended Bivens or recognized a Bivens cause of action for over 30 years. So that’s one thing to keep in mind as you litigate or encounter Bivens cases.
So with that sort of factual background in mind, I thought I would jump right into the questions. Both of you mentioned question three. And question three was whether to overrule Bivens. What the Court’s been doing over the past 30 years and particularly lately is taking individual cases out of the circuits and saying uniformly, “This is not a -- or this is a new Bivens context, and we’re not going to extend it.” If that’s what they’ve been doing, why not just take the issue that was presented on a silver platter to them, which is whether to overrule Bivens? And either one of you -- Anya, do you want to go first?
Anya Bidwell: Yeah. That was an interesting development, especially because the Institute for Justice, we have two petitions pending before the Court that specifically present what happens to Bivens in domestic policing cases. Right? So in both of our cases, it does not involve any kind of immigration. So I would argue that Abbasi is very clear about search and seizure context in which it arose and as you, Judge, mentioned. But I would argue for a broader Fourth Amendment understanding of what meaningful differences actually are. So I do find it interesting that the question presented -- that the Court did not accept the question presented. They are clearly saying that they are not interested in overruling Bivens.
And from my perspective—and I think my own colleagues would depart with me on this—part of me thinks that at least if question three is presented and somehow the Court wants to go into that direction and explicitly state that Bivens is now overturned and is no longer good law, then there will be much more clarity with regards to what to do with federal officials. You will essentially no longer have any kind of constitutional accountability for them, and you would have for state and local officials under Section 1983. So perhaps, that would at least be a catalyst for Congress to do something about this because if Bivens continues to be whittled down but continues to technically be on the books as good law, that creates an unhelpful uncertainty. So the Supreme Court really needs to draw clear lines, provide clear guidance.
If it retains Bivens, it needs to make it clear how and in what situations—with broad rules, not just fact by fact—Hernandez was immigration-related this way, and Egbert is immigration-related that way. It’s really hard then for lower courts to interpret it and for plaintiffs and defendants to understand. So it needs to either do that, or overruling it, which I don’t think they will do here since they explicitly denied question presented, number three -- would also be helpful because at least there will be then no doubt what the heck the Court means by having a Bivens cause of action alive.
And that would too present then questions with regards to the constitutionality of the Westfall Act because the Westfall Act is taking away the common law remedies that plaintiffs had for violations of individual rights historically since the founding of this country. Right? So the Westfall Act is taking away those individual remedies. And now, if Bivens is not read -- if Westfall Act is really not allowing any Bivens claims, and Bivens is no longer good law, then perhaps the Westfall Act is unconstitutional all by itself. And we need some sort of ability to sue federal officials for violations of individual rights as we were able to do at the founding. So there will be other questions raised if Bivens is overruled. But that’s just my two cents on the matter.
And as I said, my colleagues and I, we vigorously disagree on that. So if one of them were doing this webinar, they would say, “No, never,” so just my view.
Hon. David Stras: Okay. Erin?
Erin Hawley: Yeah. I think those are all great points. And this interesting thing about why the Court didn’t take it, because I would suspect that there are at least four justices who think as an initial matter that Bivens is wrongly decided. And indeed, as we’ve seen over the last 30 years, as Judge Stras said, the Court has refused to extend Bivens ever or even to affirm a Bivens case. So there’s this real narrowing of Bivens to the specific cases, maybe to these specific fact patterns.
And I think as Anya hinted at, as a way of sort of developing the law, it’s not very satisfactory for their plaintiffs or defendants or federal Court of Appeals judges and district court judges who are left struggling with is this the same fact pattern – it’s really the case that only the Supreme Court can answer that. So I think all of these are reasons that the Court should take a hard look at whether Bivens should be overruled. I think it's out of step with current Supreme Court doctrine and precedent and how the Court interprets the Constitution. But I agree that in this case, since they specifically declined the question presented, that they’re unlikely to reach that question.
Hon. David Stras: Yeah. Related to that, what about Justice Barrett? You mentioned, Erin, that you think there’s at least four justices that don’t think it’s right as an original matter. As I recall, Justice Barrett was appointed after Hernandez, and she’s sort of the wild card. Did either of you get a sense—and Erin, you can take this first—of where Justice Barrett may stand on this and the broader question of whether Bivens should be overruled?
Erin Hawley: So I think from her questions at oral argument, Justice Barrett seemed very skeptical of extending Bivens. She sort of talked about this idea of looking carefully at the facts to make sure that there are close parallels to previous Bivens actions. I think the reason to do that is because you have concerns with the legitimacy of Bivens because it’s sort of this narrowing rule of construction of one of the Supreme Court’s own cases. And generally speaking, you should interpret the case for what it says, not narrow it. So why would you narrow it? Maybe because you think that there’s an issue underlying it. You can also sort of pull those threads out of Hernandez and other cases—Abbasi. But I suspect her idea of narrowing of those cases would come out of the concern that Bivens was wrongly decided. That would be consistent, I think, with her views about originalism and deferring to Congress when it is in Congress’s wheelhouse and those sorts of things. But I agree with you that we don’t have a clear indication of her views on this.
Anya Bidwell: And I think that there was a very interesting exchange between Justice Amy Coney Barrett and Sarah Harris, who represented Petitioner Egbert, where Judge Barrett—Justice Barrett—she was kind of talking about does it matter what agency the officer is working for, or does it matter what function this officer is performing? And counsel for Egbert would not concede that if -- unlike the US government, frankly, that if this is somebody working for FWP agency but performing traditional policing functions, that Bivens should be allowed. So I think that she is kind of working within precedent, looking at what Abbasi is talking about. And I don’t think she is convinced, at least when judging by the oral argument, that fact distinctions from Bivens itself would automatically make it a new context and then would not allow a cause of action under Bivens.
So there’s a lot of complexity in her understanding of Bivens, and she’s thinking about it, as I mentioned in my introduction, in a very multifaceted way because the Bivens cause of action turned out to be a multifaceted type of a topic even though, fundamentally, it’s a very simple question. Should federal officials be held accountable for violations of constitutional rights the way state and local officials are?
Hon. David Stras: Fascinating. So here comes a broader sort of law-professor-type question, which is, in several areas -- and we saw this, and I’m not going to ask about this other area, but just use them as an example -- in Seila Law, the removal case—removing executive officers—the Supreme Court has talked about, for example, that the president does have that function. But it’s been clear in these types of cases -- “Well, if we’ve allowed things in the past, we’re not going to allow our new precedent to disrupt that old precedent. We’re going to leave that old precedent alone.” And you see that a little bit in the Bivens context where you see that a number of the justices are uncomfortable with Bivens. We don’t know if it’s a majority that want to overrule it or not yet. But they’re uncomfortable with it. But they’re saying, “Let’s go ahead and keep it to what we said 40 years ago, and let’s not extend it out any further.”
So on one side, I think IJ’s position might be, “Well, that doesn’t make any sense because you need to extend it further.” If the same policies that underlie Bivens, to begin with, are still there, maybe it should be extended. On the other side, Erin and others would say, “Well, that’s not a good way to do stare decisis because if it’s wrong to begin with, you should just overrule it.” And so, I guess my question is, is what do you think about that as a practice, the fact that the Court is limiting those prior cases to the facts, leaving a lot of people in the dark about whether and how to expand or contract it? And I’ll open up to either one of you because that’s a very broad question.
Anya Bidwell: Well, Judge, what the Supreme Court said 40 years ago with respect to Bivens is actually very broad. It’s kind of the understanding at the time about what would -- first of all, they were looking at it as a complementary cause of action to what was happening in state courts. At the time, you could sue federal officials in state courts. So they’re looking at it, one, as a complementary cause of action and, two, as this ability to imply rights under the Constitution. And after Bivens, as you mentioned, you had Davis v. Passman. You have Carson v. Green. You have cases like Butz v. Economou, where the Supreme Court speaks in broad terms about accountability for federal officials and that being on the same level as accountability for state and local officials. So for the longest time after Bivens, not long as -- that’s certainly an exaggeration for --
Erin Hawley: Eight years.
Anya Bidwell: -- like say, ten years or so, you actually do have the Supreme Court really thinking about Bivens in broad terms. And if we are talking about preserving Bivens as precedent, that’s kind of -- it was a broad precedent, right? Winnowing it down and limiting it to its facts is essentially overruling it in anything but name. And that, I think, could be very deleterious to our system of government because when precedent is overturned, that makes sense. When precedent is robustly enforced, that makes sense. When precedent is limited to its facts, it doesn’t make sense. It provides window dressing for anybody who wants to take it.
Erin Hawley: So, yeah. So I agree with a lot of that. I will say one thing, I think though, that we fundamentally disagree on. And that is not that it’s unimportant to hold federal officials accountable for violations. That’s undoubtedly true. But I think the question is, is who should create those causes of actions, and what should they look like? I think Bivens erred because it allowed the Supreme Court to create a cause of action rather than delegating that or leaving, I should say, that authority with Congress where it belongs. So the question’s not whether federal officials should be held accountable, but rather who should do that holding accountable.
With respect to overruling precedent, I think that’s a fantastic point. And if you look at a number of the Supreme Court’s recent cases. I think about the Smith case, Fulton, which narrowly upheld Smith but did so in a way that severely limits that case. Also, if you look at Kisor v. Wilkie, that was a case in which the Auer doctrine was in question. And a lot of people thought that the Supreme Court was going to overrule Auer, which requires agencies -- requires courts, I should say, to defer not only to agency interpretations but to agency interpretations of their own regulations. And a lot of people thought that was just crazy and that the Court would overrule it.
But what the Court does is come up with this multifactor test that, as Justice Gorsuch says in dissent, is really a zombified version of Auer. And I agree with Anya, it doesn’t do -- is deleterious to the justice system. And when we have these upholding of cases, that is, in many ways, overruling or limiting a case to its facts. So I think the Court often writes in bold strokes and says this is wrong or right. But recently, the Court has also taken to limiting cases, I think, to preserve them but in a way that departs from, I think, a fair reading of the initial case.
Hon. David Stras: I think -- oh, go ahead.
Anya Bidwell: Yeah. I would just like to briefly respond to Erin because I think there is an interesting discussion to be had here with respect to the Westfall Act and kind of what is it that Westfall Act authorizes because if the issue is that Congress needs to speak with respect to the cause of action, then the Westfall Act and the Supreme Court has acknowledged that authorizes a Bivens cause of action.
I think I have it rated down like the exact language here—“A civil action against a federal employee which is brought for a violation of the Constitution of the United States.” Right? So the Supreme Court has acknowledged this is a Bivens cause of action. It was passed in 1988. Right? And the question is, “How broad of a cause of action was Bivens in 1988 when Congress passed the Westfall Act?” And I think that in 1988, it was a very robust cause of action. I know Justice Scalito -- Alito would disagree with me. Scalito, that’s interesting. I know that Justice Alito would disagree with me. Right? But in 1988, Bivens was much more robust than what we -- than how we’ll look at it today. So there is that aspect of it.
And then, of course, there is this whole thing about whether Bivens is policy or whether Bivens is the manifestation of a regional intent. Right? There is this famous case, The Apollon, by Justice Story, where he talks about how it is the job of the judiciary to see whether the law was violated and then to order a remedy if it was and that it’s the job of Congress then to worry about chilling effects and things like indemnification. And Bivens, in many respects, is about enforcing individual rights as we have always been able to do at the founding.
And if the Constitution simply provides the Bill of Rights and lists them without intending for them to be enforced, then it does seem like the Bill of Rights is simply an empty promise if we are not looking at it as the law but waiting for Congress to provide a cause of action. That’s a broader argument in terms of whether we even need for Congress to speak on this. But even if we do, I would argue that Congress did speak about it, and it spoke about it in 1988 when Bivens was still very strong.
Hon. David Stras: All right. I’m going to move to some questions from the audience. I promised I’d deal with about 15 minutes to go, and here we are. It’s gone by quick. I’m going to ask the question. This came up in a case that I was on, so I’m going to ask the question and not comment any further, but I think it’s a good one. “How will any ruling on Bivens affect law enforcement officers who are sworn both to state and federal law? They’re dual officers, and it’s not always clear whose authority those officers are operating under.”
Anya Bidwell: Yeah. I’m happy to take on, Erin, if you’d like me to. That’s a very interesting question and really puts this issue of dual tract of constitutional accountability front and center because the way the lower courts have been reading it so far is that so long as you have a state officer or a local officer on a task force with a federal officer or deputized by the US Marshal, even if that officer is performing functions that are related to his work as a state officer or a local officer, that officer can still take advantage of the Bivens regime, which means that it’s much more difficult to sue that officer.
So this two-track constitutional accountability, in a way, makes Bivens into a loophole where even those who are subjected to 1983 accountability, like state and local officials, can basically say, “Forget about this one. We now are in Bivens territory. And anything is meaningfully different from Bivens, and you can’t sue us.” So that’s kind of an interesting situation. And at the very least, if you’re a task force officer, you should be subjected to both 1983 and Bivens. Right? And 1983 should not be excluded. And if it is, then we have -- then the Bivens issue is even more pronounced and urgent because it's such an easy way to escape accountability even under Section 1983.
Hon. David Stras: Erin, anything to add?
Erin Hawley: Yeah. It’s really interesting. I have not thought about this. So, yeah, it’s really interesting. I think it brings up Justice Barrett’s questions about whether you look at function or whether you look at the job title. And I don’t know -- I don’t think that came up at oral argument, the dual positions. But that is something that would be relevant, I think, to that discussion.
Anya Bidwell: Yeah. I can tell you that we had the cross-petition in one of our cases to the Supreme Court involving specifically this question, and it was denied, so….
Hon. David Stras: So it’s interesting for all of us, maybe not interesting for the Supreme Court, at least, not yet. So another question is -- and this actually mirrors a question that I had, which is why I’m asking it. And it’s really, I think, mostly from IJ’s position, which is, “Does the Constitution actually require a judicial remedy for unconstitutional conduct by federal officials. And if so, where does it come from? Because that seems to be a thesis of IJ’s brief.” And I thought I’d give you a chance to respond to that question from the audience.
Anya Bidwell: Yeah. There is a big sort of -- the discovery with Bivens comes from this idea that it’s true, you have individual rights accountability at common law but that it naturally doesn’t translate into individual rights accountability directly under the Constitution. And one of the kind of -- one reason that the courts are queasy is the Erie doctrine that abolished the general common law. And so, the thinking is this were general common law, and now we don’t have it anymore, and you shouldn’t have a cause of action without a congressional permission slip.
But at the very least, Bivens is -- if nothing else, it’s federal common law because it is an area of peculiarly federal concern in the words of the Supreme Court in Boyle v. United States—tax corporation for example—where you have specifically federal interests. And Justice Harlan talks about it in Bivens and how important it is there. So at the very least, Bivens is federal common law. But also, in terms of Constitution, we’re not just looking at self-executing provisions like the takings clause, for example. Right? We are looking at the promises made to us as the people about rights that we have. And in the system of government that we have here in the United States, you really can’t enforce those rights if the courts are unwilling to do that because you have nowhere to turn to.
So while 1983 is a great cause of action to have, and it is an important one, and it totally made sense after the Civil War when state and local officials were not interested in protecting individual rights, especially of folks like former slaves, it totally -- bashing Section 1983 made sense. It’s not a necessary precondition for being able to sue under the Constitution.
Hon. David Stras: Well, let me add—and I’ll ask Erin—a companion question, which is IJ’s brief—and this is reflected in what was just said—argues that the originalist/Blackstonian view is that the damages remedy actually “springs from the right themselves,” and a view that’s – actually, I think it’s quite similar to what Chief Justice Marshall may have said in Marbury about all rights needing a remedy. And then you --.
Anya Bidwell: There are. There must be a remedy. That’s right.
Hon. David Stras: Right. And then you have the common law background that you mentioned. Erin, you mentioned that folks were skeptical on the Court of the origins of Bivens. But isn’t that a pretty good originalist answer?
Erin Hawley: So I don’t think so. I agree that Chief Justice Marshall does say that, basically, if there’s a right, there must be a remedy. But it’s not clear why that’s true in a system of positive law. So the system implemented by the founders was quite different from common law. At common law, you had judges who were actually discovering rights. So they were looking to customs. They were looking to prior precedent in order to discover what the law “is.”
We don’t have that system anymore. We have a system in which Congress and the elected branches, the president, with his signature, passes legislation that governs our republic. It’s not a system in which judges discover or make the law. They interpret it. So I think that’s a fundamental difference here. And you do have some provisions, like the takings clause that Anya mentions, that’s more self-executing, that does provide a sort of remedy. But the first -- the other Bill of Right amendments don’t have that sort of self-executing provision. And I think if you’re looking to the differences between common law and to the structural separation of powers that the founders actually implemented, they intended that authority to go to Congress and not to the courts.
Hon. David Stras: Correct. A side question, which is -- and I’ll address this to Erin as well. Another argument I’ve heard—and I think it’s an interesting one—is Bivens exists. And I know it’s a judge-made doctrine, but should Congress have -- we’ve been talking about maybe Congress will act if Bivens is overruled. But maybe the opposite should be true. Maybe Congress should have the responsibility to overrule Bivens, and then we’ll be in a different spot. So I guess my question for you is, why not put the onus on Congress to act now that the Court’s created the remedy?
Erin Hawley: Well, the Court’s been clear in the Clean Water Act-type of litany of cases if you look at Riverside Bayview and you look at these other cases in which the Court has acknowledged that perhaps past courts had gone beyond the scope of the term of the waters of the United States. And there was this idea floating around in those pieces—“Well, Congress could have changed that, but they chose not to—” sort of this idea of congressional acquiescence.
But I would argue even in that context where Congress is certainly aware of how the Court has interpreted Bivens—it’s certainly aware of how the Court has interpreted Waters of the United States—but if the Court’s role as an Article III court that swears to uphold the Constitution of the United States is fidelity to interpret the Constitution and statutes, not to rely on this idea of congressional acquiescence. So I guess I would say that I don’t think Congressional acquiescence is a very strong ground to adhere to past wrong precedent.
Anya Bidwell: I would agree with Erin in terms of Article III and its importance. And I actually do think that Article III gives Court permission to interpret the Constitution and, if Constitution is violated, order a remedy. In addition to Article III powers, there is, of course, Section 1331, which is a federal question jurisdiction. And Congress passed that right at around the same time as it passed Section 1983. And for 1331 all by itself as a federal question jurisdiction plus the Article III power is enough to allow federal courts to imply remedies under the Constitution.
Now, the question is, and it’s kind of Dean Chemerinsky and his federal jurisdiction treaties kind of talks about it—what is the source of power for Bivens—because if Bivens is federal common law, then what you say, Judge, is true. Right? Congress can actually come in and specifically say Bivens is no longer a cause of action that we permit. But if the source is coming specifically from the Constitution, then Congress would not be able to do that because that would actually violate the separation of powers.
Hon. David Stras: Okay. Did you want to add something, Erin?
Erin Hawley: No. That’s just really interesting. So I think what Anya is saying, actually, is that it is unconstitutional for the Court to overrule Bivens, which is, yeah -- yeah, I don’t think I agree with, but it’s interesting.
Hon. David Stras: All right.
Anya Bidwell: It is constitutional for the courts to overrule Bivens?
Erin Hawley: Right. Right.
Anya Bidwell: No. I am saying that Congress wouldn’t -- if you agree that Bivens is federal common law, then Congress can certainly come in and overrule it. But if you agree that Bivens actually is Article III 1331 powers, then -- Article III powers, just inherently, you can order remedy under the Constitution, then Congress can’t overrule it.
Hon. David Stras: All right. So getting back to the Egbert case -- we talked about some broader things. This arises in a unique context. So I have two questions that are both related, so I’m going to ask them as we’re running out of time. First of all, how much do you think that the Court’s interest in this case stems out of the fact that we’re at the border, within 25 miles of the border, and you have these national security-type interests or at least border interests playing a role? And then the second question is—and this is from an audience member—what significance will this case have for other types of situations? For example, think of policing at an airport, policing at a train station, policing in ports, all of those types of things. Anya, I’ll let you go first on this one.
Anya Bidwell: Yeah. I do think that’s why it really is important to not look at Bivens in a fact-by-fact situation. That’s just bad practice. Right? What should matter is what kind of a function the officer is performing. So in Egbert, I would argue—and I know Erin disagrees—but I would argue that the officer is performing a very standard Fourth Amendment routine, excessive force, search and seizure function. And that should go under Bivens and not be meaningfully different from Bivens at all.
Erin might disagree, but at least that’s a productive route to take compared to looking at, “Oh, this happened.” Like one of the cases we had where a Vietnam veteran was beaten by security guards who worked for the VA police, where the Fifth Circuit said, “Oh, this happened at the VA building, instead of happening at a house, therefore….” And these were VA security guards rather than Narcotics Bureau officials. Therefore, it’s not like Bivens. So factual distinctions are not productive. Functional distinctions, I think, are a much more fruitful avenue to go down.
Hon. David Stras: Okay. Erin?
Erin Hawley: I think that makes sense. I think also you asked why did the Court take this case. I think one of it -- one reason is definitely the border concerns. And the second, I think, is this case came out of the Ninth Circuit in which the Court recognized, not one, but two new Bivens actions, or at least arguably new Bivens actions, which I think is something the Court has been really clear about cautioning—that that’s not something the courts are to do without carefully thinking about it. So I think that’s another reason the Court took it.
Hon. David Stras: Do you think this is a case where the Court was more interested in the First Amendment issue, which is the one that they didn’t ask any questions about and the fact that there was -- the Ninth Circuit was the first circuit to recognize the First Amendment claim? And then the Fourth Amendment claim kind of got caught up in the mix, which is really what became the focus of oral argument.
Erin Hawley: I think that’s possible.
Hon. David Stras: Yeah, interesting. All right. Well, we don’t have a lot of time left. I’m totally at the end -- at an hour. But I want to give you—we have two minutes left—and I want to give you each a minute to have closing remarks if you have any. You can certainly pass, and we can end a minute or two early. But I want to give you a chance. So this time, we’ll go in reverse order. Erin, if you have anything to say, please feel free.
Erin Hawley: Sure. So I think -- just quickly, I think we can agree that federal officers should be held accountable for unconstitutional actions, but I do think it’s important on how that remedy is created. If we do have this sort of general common law, my concern is that it would vest federal judges with a wide amount of power. And as the Chief Justice has noted in other contexts, when there’s not clear constitutional texts, that is when a judge is most at sea and most in danger of imposing his or her own personal prejudices, even if completely innocuously. So I worry when we’re sort of at sea from that constitutional text.
Hon. David Stras: All right, Anya, we have about 45 seconds left.
Anya Bidwell: Oh, great.
Hon. David Stras: Anything to add?
Anya Bidwell: Well, I would just say that the dual trap of constitutional accountability really worries me. When Bivens was first -- when the Court decided Bivens, we had an ability to sue federal officials in state courts, and then we had an ability to sue officials under federal Constitution. What we have today under the Westfall Act is a complete closure of this state law route. Right? You can’t sue federal officials in state courts.
And now, what we’re hearing from many is that Bivens is extremely limited and, according to some, it’s only purely on Bivens’s facts. If you look at it that way, that there is no longer an ability to sue in state courts and Bivens only allows you very, very, very small amount of constitutional claims to move forward, then essentially, there is an absolute immunity for violations of constitutional rights when it comes to federal officials. And then, you couple that with this task force/US. Marshal situation, where it's extremely easy to go under the Bivens regime, and what you see is not just a two-track system where federal officials can’t be sued, it’s that state and local officials can also take advantage of that and not be sued as well.
And finally, qualified immunity is still there. Let’s not forget about that—that both when it comes to federal officials and state and local officials, you have qualified immunity to overcome as well. And that is very far from the promise of where there is a right, there must be a remedy.
Hon. David Stras: Thanks to both of you. I learned a tremendous amount despite being one of the resident Eighth Circuit experts on Bivens. It was an outstanding program. And I just want to say how much I appreciate your participation.
Anya Bidwell: Thank you.
Hon. David Stras: And thanks to everyone in the audience as well.
Ryan Lacey: Thank you to our panelists and our moderator. On behalf of The Federalist Society, I wanted to thank our experts for the benefit of their valuable expertise today. And I want to thank you, the audience, for joining us and participating. We welcome any listener feedback by email at [email protected] And as always, keep an eye on our website and your emails for announcements about upcoming webinars and events. Thank you all for joining us today. We are adjourned.
Dean Reuter: Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.