At a time when there is a desire to hold ICE agents accountable for their constitutional violations, the Supreme Court might be poised to eliminate the only way to hold them civilly liable under federal law.By way of background, if state or local officers violate the Constitution, they can be sued under a federal statute, 42 U.S.C. Section 1983. But no federal law authorizes suits against federal officers for constitutional violations. Rather, the ability to sue a federal government officer for money damages comes from a 1971 Supreme Court decision, Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics. There, the court said that it would allow a cause of action for money damages under the Fourth Amendment even without a federal statute authorizing it.Nevertheless, for decades, the Supreme Court has refused to extend or even apply Bivens to other violations of constitutional rights by federal officers, and several conservative justices have called for it to be overruled. Now, in Nielsen v. Watanabe, to be argued on Nov. 9, the court will again confront whether to allow a Bivens suit – and perhaps whether to end such claims entirely.The underlying issue is about separation of powers: should the court provide a remedy for constitutional violations or is that entirely the province of Congress? But it also is about accountability: without Bivens, how can those who violate constitutional rights, including ICE agents, be held responsible and how can those injured be compensated?Bivens and its applicationWebster Bivens alleged that he had been subjected to an illegal and humiliating search by agents of the Federal Bureau of Narcotics. Bivens sought money damages as compensation for the harms he suffered. The court held that a federal law cause of action for money damages could be inferred directly from the Fourth Amendment. The majority, in an opinion by Justice William Brennan, emphasized that individuals whose rights have been violated should not be relegated to state law remedies, which might be inadequate or hostile to the federal constitutional interest.In an important and often-cited concurring opinion, Justice John Marshall Harlan explained that the federal courts long have devised remedies for violations of federal law. Harlan said that it is essential that federal courts be able to provide such relief because “it is apparent that some form of damages is the only possible remedy for someone in Bivens’ alleged position. … For people in Bivens’ shoes, it is damages or nothing.” Harlan rejected the claim that the court violates separation of powers when it creates such a cause of action and remedy. In his view, the court is responsible for upholding and enforcing the Bill of Rights, and, hence, the judiciary need not wait for the legislature in order to act.Chief Justice Warren Burger and Justices Hugo Black and Harry Blackmun dissented. Each wrote an opinion arguing that separation of powers means that Congress, and not the court, should create a cause of action for damages against federal officers. Black explained that “[s]hould the time come when Congress desires such lawsuits, it has before it a model of valid legislation, 42 U.S.C. §1983, to create a damage remedy against federal officers.” Similarly, Blackmun argued that “it is the Congress, and not this Court, that should act.”For a decade after Bivens, the court applied and extended it. In 1979’s Davis v. Passman, the court allowed a Bivens suit under the due process clause of the Fifth Amendment for an equal protection claim. Congressman Otto Passman fired his administrative assistant, Shirley Davis, because he wanted a male to fill the position. In allowing the suit against the congressman, the court emphasized the judiciary's role in ensuring effective protection of constitutional rights.And only a year later, in Carlson v. Green, the court allowed a Bivens suit for violation of the Eighth Amendment. A mother sued federal prison officials on behalf of her deceased son, claiming that he was the victim of gross inadequacies of medical facilities and staff, which caused his death and constituted cruel and unusual punishment. A remedy was available under the Federal Tort Claims Act; thus, the issue before the court was whether a Bivens suit should be allowed in light of this alternative. The court concluded that Bivens suits were a “counterpart” to the Federal Tort Claims Act because the act creates liability for the federal government and a Bivens cause of action permits recovery from federal officers themselves. The court found no indication that Congress intended for the act to preclude Bivens suits.Whither BivensSince 1980, however, the court has not ruled in favor of a Bivens claim. In its most recent decision about Bivens, 2022’s Egbert v. Boule, the court noted that it had “declined 11 times to imply a similar cause of action for other alleged constitutional violations” and that “in all but the most unusual circumstances, prescribing a cause of action is a job for Congress, not the courts.”Specifically, the court has held that that such claims are not allowed if there is a statute that precludes suits (in 2010’s Hui v. Castaneda), or that provides an alternative remedy even if it is inadequate (in 1988’s Schweiker v. Chilicky). It has precluded Bivens claims for those injured while in the military, even for egregious violations of their rights (in 1987’s United States v. Stanley). It has ruled that Bivens suits should be allowed only if they are on balance desirable and consistently has found that they are not (in 2007’s Wilkie v. Robbins, 2017’s Ziglar v. Abbasi, 2020’s Hernandez v. Mesa, and Boule). And it has precluded Bivens suits against private prisons that contract with the federal government (in 2001’s Correctional Services Corp. v. Malesko) and the guards employed by them (in 2012’s Minecci v. Pollard).Based on this line of cases, the court in Egbert v. Boule stressed that recognizing a Bivens cause of action “is ‘a disfavored judicial activity.’” The court stated that“[T]he most important question is who should decide whether to provide for a damages remedy, Congress or the courts?” If there is a rational reason to think that the answer is “Congress”— as it will be in most every case, — no Bivens action may lie. Our cases instruct that, absent utmost deference to Congress’ preeminent authority in this area, the courts “arrogat[e] legislative power.”The court then laid out the framework for Bivens claims going forward. According to the majority, this should be guided by a two-step inquiry:First, we ask whether the case presents “a new Bivens context” — i.e., is it “meaningful[ly]” different from the three cases in which the Court has implied a damages action. Second, if a claim arises in a new context, a Bivens remedy is unavailable if there are “special factors” indicating that the Judiciary is at least arguably less equipped than Congress to “weigh the costs and benefits of allowing a damages action to proceed.” If there is even a single “reason to pause before applying Bivens in a new context,” a court may not recognize a Bivens remedy.This is a test that puts a very strong presumption against recognizing Bivens claims.Nielsen v. WatanabeLike Carlson v. Green, Nielsen v. Watanabe involves an Eighth Amendment claim for cruel and unusual punishment.The case involves a prisoner, Kekai Watanabe, who alleges that he suffered a broken tailbone when attacked by other prisoners that caused him excruciating pain and that a staff nurse, Francis Nielsen, denied him medical care. The court granted review as to whether the U.S. Court of Appeals for the 9th Circuit “erred [here] in recognizing a Bivens cause of action.”Watanabe argues to the court that this case is governed by Carlson v. Green and does not seek to extend Bivens in any way. His brief states: “Watanabe asserts the same kind of violation of the same constitutional right by the same type of defendant in the same institutional setting pursuant to the same substantive standards as the plaintiff in Carlson. This is precisely the kind of claim this Court has long understood Carlson to encompass.”In response, Nielsen argues that Bivens suits are strongly disfavored and that there are “significant factual differences such as the immediacy and severity of the harm alleged” compared with Carlson. But that is not all: Nielsen also expressly argues that “Bivens should be overruled” and that “Congress, not the judiciary, creates causes of action.”The court could affirm the U.S. Court of Appeals for the 9th Circuit and allow a Bivens suit, saying that this is governed by Carlson. Or the court could distinguish Carlson, accepting Nielsen’s argument that there are sufficient factual differences between the cases, essentially limiting Bivens claims only for cruel and unusual punishment claims involving deaths. Or the court could overrule Carlson but not overrule Bivens.Or the court could overrule Bivens entirely, which several conservative justices have advocated in the past.The stakesThe fundamental disagreement, as it was in Bivens, is whether it is the judicial role to provide remedies for violations of constitutional rights or whether that is just for Congress. The practical reality is that without Bivens suits, those whose rights have been violated – even horribly – are left with no recourse. In Hernandez v. Mesa, for example, a boy in Mexico was killed by shot fired across the border by a federal agent in Texas. The court’s rejection of a Bivens suit left no remedy at all.In that case, and in many other situations, the Federal Tort Claims Act does not allow suits against the United States. Often there are not state tort remedies available either. To paraphrase Justice Harlan, for people in the shoes of many injured by federal officers, it is Bivens suits or nothing.I would like to think that the reports of egregious constitutional violations by ICE agents, including killings, would cause the court to realize the importance of Bivens suits and to not end such causes of action. That is what makes Nielsen v. Watanabe so important.

In its latest request to the Supreme Court over President Donald Trump’s approach to immigration, the Justice Department turned to the court’s emergency docket to ask for fast-track permission to construct a border barrier system along a 517-mile stretch in remote west Texas. Stymied by a federal district court’s preliminary injunction issued in October, the Justice Department argues that Supreme Court intervention is needed to prevent irreparable harm to the country. But details of the government’s legal argument reveal that the Trump administration hopes to use the emergency docket as a fast track to victory regardless of the actual urgency of the legal dispute.Early this year, the Department of Homeland Security began taking important preliminary steps to build physical barriers through Big Bend National Park, Big Bend Ranch State Park, and nearby property along the U.S.-Mexico border. Part of the Border Patrol’s Big Bend Sector, covering approximately one-quarter of the entire border, no artificial barriers exist there. Despite its massive geographic reach, the region is sparsely populated and at immense distance from large urban centers. Unlike other parts of the U.S.-Mexico border, few people or goods cross from one country to the other in the Big Bend Sector. Indeed, according to U.S. District Judge Kathleen Cardone, who issued a preliminary injunction blocking DHS from carrying out its plans to erect a border barrier in the area, this is the border region with “the lowest aggregate number of apprehensions [of migrants] and the lowest number of apprehensions per mile of border.”In Mullin v. Friends of the Ruidosa Church, a group of individuals with personal or business ties to the region, along with two advocacy groups, argued that DHS had failed to comply with required environmental reviews. Pointing to a 1996 law signed by President Bill Clinton, the Justice Department responded that Secretary of Homeland Security Markwayne Mullin and his predecessor, Kristi Noem, waived application of those environmental laws. The government also argued that the district court lacked the power to decide the lawsuit in the first place.Cardone disagreed with the government on both counts. Congress narrowed courts’ jurisdiction in border-barrier disputes, but left room for courts to consider constitutional challenges to DHS’s conduct, she concluded. The challenge to Mullin’s waiver of environmental laws raises a constitutional question, Cardone added.Having concluded that she could consider the challengers’ lawsuit, Cardone then turned to the criteria that Congress imposed on the secretary of Homeland Security to waive environmental review. The 1996 law directs the immigration agency “to waive all legal requirements” that could slow or impede construction of border barriers and roads. But the same law also instructs DHS to build barriers and roads “in areas of high illegal entry into the United States.” Considering the government’s data about apprehensions of people and seizures of drugs in the Big Bend Sector, as compared to other parts of the U.S.-Mexico border, Cardone concluded that the region cannot be considered to have high levels of illegal entry. “[I]f the Big Bend Sector is an area of high illegal entry, so is every other sector,” Cardone announced.Seven days after Cardone released her opinion, the U.S. solicitor general asked the Supreme Court to intervene. Much of the government’s argument turns on its disagreement with Cardone about what constitutes an area of “high illegal entry.” Mullin determined that the Big Bend Sector constitutes an area of high illegal entry because Customs and Border Protection, the DHS agency that enforces immigration laws at and near the border, apprehended 89,000 people and “seized enormous amounts” of illicit drugs from fiscal years 2021 to 2025, the government explains. In addition, failure to build a border barrier in this region “would act as a dangerous magnet” for additional illegal entries, the solicitor general claims. Despite Mullin’s assessment that the facts on the ground met the “high illegal entry” threshold required by Congress, “the district court nonetheless issued an unprecedented injunction blocking those waivers and halting associated border-wall construction,” the solicitor general wrote to the court.Unsurprisingly, the challengers disagree. Opposing the government’s request for relief from the justices, they describe Mullin and Noem’s waivers as “unprecedented” and claim they “carry undisputed and extraordinary political and economic significance.”The solicitor general’s claim is fundamentally a dispute about the proper interpretation of the text of the 1996 law. The government argues that courts cannot second-guess Mullin’s decision to waive environmental laws, and that Mullin’s view of what constitutes “high illegal entry” is all that matters. Cardone disagrees and contends that courts have a role to play here.By turning to the emergency docket, the Justice Department has dispensed with the ordinary appellate process in favor of a fast-track path to, it hopes, final victory. Wanting an answer sooner rather than later is understandable, but a party’s interest in “line-jumping,” as Justice Ketanji Brown Jackson has described the emergency docket, isn’t reason enough to circumvent the slower course of the ordinary appellate process. Jackson would prefer to limit the emergency docket to situations in which an actual emergency exists. It’s hard to see what exigency exists in west Texas, however. The solicitor general argues that drugs and people will continue to enter through the Big Bend Sector. That is undoubtedly true, but, as that stretch of land has been unfortified since it became a border on March 18, 1848, nothing is likely to occur in the near future that is markedly different from past decades.The government’s request for fast-track intervention by the Supreme Court also does not meet the standards set by Jackson’s ideological opposites. Explaining his view of the court’s emergency docket in Trump v. CASA, the court’s fast-track decision announcing that district courts are not authorized to issue universal injunctions, Justice Brett Kavanaugh wrote that its alternative pathway is appropriate when “Congress passes a major new statute, or the Executive Branch issues a major new rule or executive order.” Neither applies to the border-wall dispute. Congress enacted the contested statute 30 years ago and the waivers issued by Mullin and Noem are neither an agency rule nor an executive order.Nor is the border-wall legal battle the type of dispute that only the Supreme Court can resolve. In a 2021 speech, Justice Samuel Alito compared the court’s emergency docket to a hospital’s emergency room, suggesting that, in his view at least, the fast-track process is proper only when no suitable alternative exists. But an alternative does exist to decide if Cardone overstepped. The government could have appealed Cardone’s decision to the U.S. Court of Appeals for the 5th Circuit. Like other circuit courts, the 5th Circuit regularly reviews preliminary injunctions granted by district courts. As Kavanaugh explained in CASA, “The courts of appeals and this Court can (and regularly do) expeditiously review district court decisions awarding or denying preliminary injunctive relief.” Instead of asking the 5th Circuit to correct the mistake it claims Cardone committed, the solicitor general skipped the 5th Circuit and went directly to the Supreme Court.The reason it did this is not difficult to figure out: The administration is hopeful that it will receive a friendly audience at the Supreme Court. But this is a fast-track procedure meant for exceptional circumstances. And there is nothing exceptional about the legal fight over the administration’s attempt to build new segments of border barrier in rural west Texas. If the court grants the government’s request to pause Cardone’s preliminary injunction, allowing construction to move forward where no barrier currently exists, it should, at the very least, explain how this case meets the criteria that the justices have previously provided and if the term “emergency docket” is a misnomer.

More voting-related battles could be coming.

The Supreme Court will hear oral arguments on Jan. 13 in a Florida man’s challenge to the state’s use of six-person juries; one week later, it will hear a religious zoning dispute between a Catholic church in northern Kentucky and a couple who live across the street and oppose the church’s plans to build a shrine to the Virgin Mary. Those cases, Kian v. Florida and Missionaries of Saint John the Baptist v. Frederic, are among the highlights of the court’s January argument calendar, which was released on Monday afternoon. The justices will hear six arguments over five days, from Jan. 11-13 and again from Jan. 19-20.The January argument scheduleMontoya Palacios v. Liggins (Jan. 11) – Whether a petition for habeas corpus that challenges civil immigration detention is a “civil action” under the Equal Access to Justice Act, so that a detainee who prevails in such a case could be eligible for attorney’s fees if the government’s position was not “substantially justified.”Apple Inc. v. Epic Games (Jan. 11) – Whether a litigant can be held in contempt of court for violating the “spirit” of an injunction that is silent about the conduct at issue, or whether contempt requires a finding that the litigant has violated an order that clearly and unambiguously forbids it.RiseandShine Corp. v. Pepsico, Inc. (Jan. 12) – Whether a trademark’s “inherent strength” is a question of law, which a judge decides, or instead a question of fact, which is normally decided by a jury.Kian v. Florida (Jan. 13) – Whether, under the Constitution, a defendant who is charged with a serious felony has a right to a 12-person jury.Marschner v. Marschner (Jan. 19) – Whether the Uniformed Services Former Spouses’ Protection Act, which provides that disability-based retirement pay and retirement pay that a servicemember waives to receive disability pay cannot be divided, requires state courts to refuse to enforce a provision in a divorce settlement obligating a veteran to compensate his ex-wife if he began receiving disability payments (and, as a result, less retirement pay) after their divorce.Missionaries of Saint John the Baptist v. Frederic (Jan. 20) – Whether a land-use regulation that bars a religious institution from building a religious structure on its own property constitutes a “substantial burden” on religious exercise under the Religious Land Use and Institutionalized Persons Act, a law that Congress enacted in 2000 to expand religious freedom protections for prisoners and for religious organizations or individuals seeking to challenge zoning laws.

The Trump administration on Monday morning asked the Supreme Court to intervene in its efforts to keep California from counting ballots cast by what it contends are more than 20,000 noncitizens who have registered to vote in that state. In a brief, unsigned order released to reporters shortly before 6 p.m., however, the court turned down the government's request. There were no noted dissents.In a 19-page filing, U.S. Solicitor General D. John Sauer requested an order from the justices that would require California to keep those ballots separate until the voters’ citizenship could be verified. “Once California commingles the challenged ballots with lawful ones,” Sauer wrote, “there is no way to get the challenged ballots back.”The filing was the latest chapter in the Trump administration’s push to combat alleged voter fraud. It began last month, when the administration went to federal court in Los Angeles, seeking an order directing the state not to send ballots to, or count the ballots of, voters who were likely not citizens.On Oct. 28, U.S. District Judge David Carter turned down the government’s request for a temporary order directing California to sequester the ballots of “likely noncitizens.” Among other things, he questioned the credibility of the Trump administration’s allegations that the voters it had identified were not U.S. citizens. On Friday, the U.S. Court of Appeals for the 9th Circuit also rejected the Trump administration’s motion for emergency relief.With the midterm elections now just one day away, the Trump administration sought relief next in the Supreme Court. Sauer argued that the government is likely to prevail on the merits of its claim – a key factor that courts consider in deciding whether to grant temporary relief – because federal law bars anyone who is not a U.S. citizen from voting in federal elections. Therefore, he wrote, “it follows that any ballot cast by an alien is unlawful” and states cannot count them.The United States will also suffer permanent harm (another factor that courts consider in deciding whether to award temporary relief), Sauer continued, because “‘California admits that there is no way to trace a ballot after it is processed.’” The government’s “injury will continue to mount,” Sauer contended, “through Tuesday, November 10 (a week after election day, California’s deadline for receiving mail ballots.)”By contrast, Sauer said, California will not suffer “undue hardship” from having to sequester the ballots at issue in this case. Indeed, he suggested, “California’s own election laws contemplate the segregation of challenged ballots, and the segregation of challenged ballots is a standard remedy in election cases.”Sauer asked the court to also issue an immediate temporary order, known as an administrative injunction, “that requires California to segregate mail ballots from persons whom the United States has identified as likely noncitizens” while the justices consider the government’s request.The Trump administration’s filing went first to Justice Elena Kagan, who has primary responsibility for emergency appeals from the 9th Circuit. Kagan then referred it to the full court, which declined the Trump administration’s request.