Last week, federal agents arrested Brad Lander, a Democrat running for mayor of New York City and the city’s incumbent comptroller, after Lander linked arms with an immigrant the agents sought to detain and asked to see a warrant. Last month, federal officials also arrested Newark’s Democratic Mayor Ras Baraka while Baraka was protesting at a detention facility for immigrants.
A federal law permits sitting members of Congress to enter federal immigration facilities as part of their oversight responsibilities. That didn’t stop the Trump administration from indicting Rep. LaMonica McIver (D-NJ), who was at the same protest as Baraka. Federal officers also detained and handcuffed Sen. Alex Padilla (D-CA) after he tried to ask Secretary of Homeland Security Kristi Noem questions at a press conference.
These arrests are part of a broader campaign by the Trump administration to step up deportations, and to intimidate protesters who object. Most of these incidents are recent enough that the courts have not had time to sort through what happened and determine whether anyone’s constitutional rights were violated. But one thing is all but certain: even if it turns out that federal law enforcement officers flagrantly and deliberately targeted protesters or elected officials, violating the Constitution’s First or Fourth Amendment, nothing will happen to those officers.
The reason why is a pair of fairly recent Supreme Court decisions, which make it nearly impossible to sue a federal officer if they violate your constitutional rights — even if the allegations against that officer are truly shocking. In Hernández v. Mesa (2020), the Court’s Republican majority gave lawsuit immunity to a US Border Patrol officer who fatally shot a Mexican teenager in the face. And in Egbert v. Boule (2022), the majority reaffirmed this immunity — albeit in a case involving a less sympathetic plaintiff.
Both of these cases are part of the Republican justices’ crusade against an older Supreme Court decision known as Bivens v. Six Unknown Named Agents (1971). Bivens held that federal law enforcement officers who violate the Fourth Amendment — which protects against “unreasonable searches and seizures,” among other things — may be sued for that violation.
Significantly, Bivens ruled that a victorious plaintiff in such a case “is entitled to recover money damages for any injuries he has suffered as a result of the agents’ violation of the Amendment.” So officers faced very real consequences if they violated the Fourth Amendment.
The Court’s current majority, however, appears determined to destroy Bivens. Hernández and Egbert didn’t explicitly overrule Bivens, but they ground down that decision to the point that it has little, if any, remaining force. And the Court appears to be laying the groundwork for a decision eliminating Bivens suits altogether. Significantly, Justice Samuel Alito’s majority opinion in Hernández warned that “it is doubtful that we would have reached the same result” if Bivens were decided today.
That means that individuals who are unconstitutionally arrested by federal officers, or who face similar violations of their rights, will generally have no recourse against those officers. And that’s likely to embolden the worst officers to violate the Constitution.
The Constitution places several restrictions on law enforcement, including the Fourth Amendment’s ban on unreasonable arrests and excessive force. But it is silent on what can be done when an officer violates these restrictions.
Bivens, however, held that a right to sue federal officers is implicit in the Constitution itself. An officer who acts unlawfully “in the name of the United States possesses a far greater capacity for harm than an individual trespasser exercising no authority other than his own.” And so it follows, Bivens explained, that there must be a meaningful remedy to ensure that officers do not abuse this power.
In fairness, the Supreme Court started limiting Bivens suits not long after that case was handed down. Shortly after Bivens was decided, President Richard Nixon replaced two justices, creating a new majority on the Court that was more favorable to law enforcement. But the Court only recently signaled that it intends to destroy Bivens altogether. In Egbert, the Court’s Republican majority declared that courts must reject Bivens suits if there is “any rational reason (even one)” to do so. Even a minor factual discrepancy between a new case and Bivens, such as the fact that the officers who violated the Constitution belong to a different agency than the officers in Bivens, is frequently enough to defeat a Bivens suit.
President Donald Trump took office on twin promises to crack down on both undocumented immigrants and his perceived enemies — “I am your retribution,” he told supporters in 2023 — and it’s not hard to see how decisions like Egbert and Hernández enable him to do so.
The Republican justices argue that nullifying Bivens is necessary to restore a more traditional vision of “the Constitution’s separation of legislative and judicial power.” The Supreme Court, under this vision of the separation of powers, may not determine that a right to sue federal officers is implicit in the Constitution. This right, according to Alito, must come from an explicit act of Congress.
Alito’s historical claim, that Bivens departed from a traditional understanding of the role of Congress and the courts, is somewhat dubious; the courts permitted at least some suits against federal officials who break the law for most of American history. In Little v. Barreme (1804), for example, the Supreme Court held that a Navy officer who unlawfully seized a neutral ship “must pay such damages as are legally awarded against him.” More recently, in Larson v. Domestic & Foreign Commerce Corp. (1949), the Court declared that “the principle that an agent is liable for his own torts ‘is an ancient one, and applies even to certain acts of public officers or public instrumentalities.’”
Hernández’s call for granting immunity to federal officials would also have more credibility if the Republican justices hadn’t recently ruled that Trump has broad immunity from prosecution if he uses the powers of the presidency to commit crimes. This concept of presidential immunity appears nowhere in the Constitution, and it certainly has no place in American legal tradition — among other things, why would President Gerald Ford have pardoned former President Richard Nixon for crimes Nixon committed in office, if Nixon were immune from prosecution?
The Court, in other words, appears determined to remove legal obstacles that might have deterred federal officials from behaving illegally in the past — regardless of what the law or legal traditions might dictate. And it removed important obstacles right before the United States took a dangerously authoritarian turn.
