On the morning of November 26, 1965, agents of the Federal Bureau of Narcotics entered the apartment of Webster Bivens and arrested him for a narcotics violation. It was alleged that the agents manacled Mr. Bivens in front of his wife and children, threatened to arrest the entire family, and searched the entire apartment. Mr. Bivens was thereafter taken to the federal courthouse in Brooklyn, where he was interrogated, booked, and strip-searched.
Almost two years later, Mr. Bivens sued in the Federal District Court, complaining that the federal agents arrested him without a warrant, that they used unreasonable force, and that they made the arrest without probable cause. But the agents argued that a violation of the Fourth Amendment to the U.S. Constitution didn’t create a basis for a lawsuit.
The Supreme Court disagreed. Citing the seminal case of Marbury v. Madison, the Court said that the “’very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.’”  Having concluded that Mr. Bivens had stated a proper cause of action under the Fourth Amendment, the Court held that he was entitled to recover money damages for any injuries he had suffered as a result of the agents’ constitutional violation.
The case was Bivens v. Six Unknown Federal Narcotics Agents, and the Court relied on a principle that is a critical feature of our legal tradition going back to England. As Sir William Blackstone put it in his Commentaries on the Laws of England, “it is a general and indisputable rule, that where there is a legal right, there is also a legal remedy, by suit or action at law, whenever that right is invaded.”  Webster Bivens had the rights guaranteed by the Fourth Amendment, and thus had a lawsuit available to him for any violations of those rights.
Recently, in Hernandez v. Mesa, the Supreme Court was asked to extend the holding of the Bivens case to a cross-border shooting. What happened in this case was that a 15-year-old Mexican national by the name of Sergio Adrián Hernández Güereca was with a group of friends in a concrete culvert that separates El Paso, Texas, from Ciudad Juarez, Mexico, the border running through the center of the culvert. Border Patrol Agent Jesus Mesa, Jr., was detaining one of Hernández’s friends on the U.S. side. Hernández was also on the U.S. side and ran back to the Mexican side, whereupon Agent Mesa shot and killed him.
Hernández’s parents sued in the United States District Court for the Western District of Texas, alleging a violation of his Fourth and Fifth Amendment rights. But when the case reached the Supreme Court, the Court declined to apply Bivens on separation of powers grounds. Specifically, the Court said that with “the demise of federal general common law, a federal court’s authority to recognize a damages remedy must rest at bottom on a statute enacted by Congress…, and no statute expressly creates a Bivens remedy,”  thus, coming very close to overruling Bivens entirely.
But that reasoning completely ignores Clearfield Trust Co. v. United States, where the Court said that where federal questions are involved “it is for the federal courts to fashion the governing rule of law according to their own standards” in the absence of an applicable Act of Congress.  There is no federal common law in cases where the federal courts take cognizance based on the parties being residents of different states, although the legal questions are based on state law. But that rule doesn’t apply where the legal question is a federal one, as in the Bivens case as well as Hernandez v. Mesa.
It thus appears that in the Hernandez case the Court wasn’t exercising laudable judicial restraint, but was abrogating its role. There would have been no intrusion on the function of Congress involved in permitting Hernández’s parents to proceed with their case. The Court would not have been making any substantive law; the Fourth and Fifth Amendments to the Constitution are already the law, and that whether Congress likes it or not.
As a result of the Court’s decision we now have a situation where there is no legal remedy for the violation of a legal right. This strikes at the very heart of our civil liberty, and we all should be alarmed at this development.