The Supreme Court sided Wednesday with a Border Patrol agent accused of using “excessive force” by an innkeeper near the Canadian border.
In the split 6-3 ruling, the Court upheld broad immunity for border agents, the Hill reported. The opinion all but repealed a Supreme Court precedent that the Court suggested had usurped the authority of Congress to decide when federal officers can be sued.
SCOTUS sides with Border Patrol agent
Robert Boule, the owner of the Smuggler’s Inn in Blaine, Washington and a federal informant, alleged that border agent Erik Egbert threw him to the ground during a 2014 dispute, then retaliated against him by reporting Boule to the IRS after he complained.
The issue before the Court turned on who gets to decide when and under what circumstances federal officers can be sued for violating Constitutional rights: Congress, or the courts? The majority said emphatically, “Congress.”
The Court cast a skeptical eye on the 1971 Supreme Court precedent Bivens v. Six Unknown Fed. Narcotics Agents. The Court made a mistake in that case, Justice Clarence Thomas suggested, when it found a cause of action for a man whose home was raided by narcotics agents.
Writing for the majority, Thomas noted that the Court has declined several times in the past to stretch the Bivens precedent to new contexts. Thomas said that Congress, not the Courts, should decide when a cause of action exists in a new context, especially one as sensitive as border security.
“Because matters intimately related to foreign policy and national security are rarely proper subjects for judicial intervention,” Thomas wrote, “we reaffirm that a Bivens cause of action may not lie where, as here, national security is at issue.”
Bivens precedent under fire
In a concurring opinion, Justice Neil Gorsuch agreed with the thrust of Thomas’s argument but accused him of dancing around what he really wanted to say: that Bivens is fundamentally flawed because it usurped the power of Congress to create causes of action against federal officers.
The failure to overturn Bivens will only lead to more confusion and “false hope” for plaintiffs down the line, Gorsuch said.
The Court should “forthrightly return the power to create new causes of action to the people’s representatives in Congress,” he wrote.
Justice Sonia Sotomayor wrote a scathing dissent that accused the Court of slamming “the door to Bivens suits by many who will suffer constitutional violations at the hands of federal agents.”
Wednesday’s ruling has clear implications for border officers in their capacity to enforce the immigration laws. As it stands, their jobs have been made very difficult by the neglect and libelous abuse of the Biden administration.