This week, the Supreme Court decided Egbert v. Boule, holding that the Ninth Circuit was wrong to imply two constitutional causes of action. Rather, consistent with separation of powers principles, it is for Congress to determine the appropriate remedies for constitutional violations.

As IWLC argued in its amicus brief, thousands of border patrol agents risk their lives to protect America’s borders. These brave men and women face daily threats from terrorists, gangs, and others trying to smuggle goods or people into the United States. They risk everything for their fellow Americans. And it is Congress’s job to decide how any violations of the law that take place during the performance of their duties should be remedied. 

This is consistent with the principle that it is for Congress to write legal rules and the Courts are to interpret them. Thus, Congress or a state legislature may make assault illegal and specify a remedy or punishment for that assault, but the Court cannot do so on its own. Similarly, the Supreme Court cannot simply say that border patrol agents are liable for money damages for a Fourth Amendment violation or for a retaliation claim. That would be legislation and is for the legislative branch. 

In its amicus brief, IWLC explained why Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971) was wrongly decided and, in any event, should not be extended to Boule’s case. As IWLC explained, the Biven’s Court was wrong to make up its own constitutional violation and remedy, straying from its function, making–instead of interpreting–laws. It is thus hardly surprising that in the past 42 years, the Court has declined 11 times to extend Bivens to create remedies for other alleged constitutional violations. 

Egbert involved colorful facts. It involved a customs and border patrol paid informant, Robert Boule, who owns and operates a bed-and-breakfast that abuts the Canadian border, the aptly named Smuggler’s Inn, and drives a black SUV with the license tag SMUGLER. Over the years, all sorts of illegal drugs have been seized from the Smuggler’s Inn. Boule has also been convicted by Canadian authorities of human trafficking. Boule’s business model involves picking up and transporting “guests,” charging them up to $150 an hour for shuttle services, requiring them to pay for a night’s lodging, and then often tipping off the feds. No refunds allowed. He claims to have been paid around $60,000 by the government for his information. In this case, Boule argued that while investigating a guest as a border patrol agent Egbert pushed and shoved Boule to the ground. When Boule complained, Egbert allegedly retaliated by tipping off the IRS about Boule’s activities.

In Egbert, the Supreme Court all but overruled Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971). In that case, the Supreme Court implied a right to file a civil lawsuit and to seek monetary compensation against federal officials for alleged violations of the Fourth Amendment. The Egbert majority boiled down the Bivens inquiry into the question of “whether there is any reason to think that Congress might be better equipped to create a damages remedy.” If there was any such reason, then the Court would stay in its own lane and let Congress do the legislating. Further, the Court held that the federal courts could not make up a claim for money damages where Congress had already provided some sort of remedy. In Egbert, there were abundant reasons to think that Congress was better equipped to provide Boule with a remedy. A court-created claim, for instance, would risk undermining border security and have national security implications. The Court explained that “in all but the most unusual circumstances, prescribing a cause of action is a job for Congress, not the courts.” 

Indeed. As Justice Gorsuch’s powerful concurrence points out, the “separation of powers prohibits federal courts from assuming legislative authority.” Bivens “crossed that line” by making up new claims and remedies that Congress never authorized. Even the majority acknowledged that the Court would decide Bivens differently were the case to be decided today. 

One can hope that the Court’s decision in Egbert was the penultimate step towards clarifying once and for all that the provision of federal remedies belongs with Congress not the federal courts.