Hernandez v. Mesa: Questions Answered and Questions Avoided

Andrew Kent*

The international border of the United States has been a site of acute legal and political controversy during the administration of President Donald Trump. Beginning with the travel ban affecting visitors and immigrants from several Muslim-majority countries, imposed one week after President Trump’s inauguration, and continuing with battles about separation of families of unauthorized migrants, funding for a southern border “wall,” the outsourcing of refugee-claim processing to third-party countries, and coronavirus-related travel restrictions, the border has loomed large since January 2017.

But it was during the administration of President Barack Obama, not President Trump, that a significant U.S. Supreme Court decision from the October 2019 Term arose at the southern border between El Paso, Texas, and Ciudad Juarez, Mexico. In Hernandez v. Mesa, the Court for the second time considered a tragic case involving the June 2010 death of Sergio Hernández Güereca, a fifteen year-old Mexican national.[1] Among the only undisputed facts are that Sergio was killed on the Mexican side of the border, near the Paso del Norte Bridge, among a group of people gathered in the concrete culvert which extends along the border. Also undisputed is that U.S. Border Patrol Agent Jesus Mesa, Jr., using his sidearm and while remaining on the United States side of the border, fired the shot that killed Sergio.

The Hernández family sued a mix of defendants—Agent Mesa, his supervisors, the United States, and several U.S. agencies—under a variety of bases of liability, including the Bivens doctrine,[2] the Alien Tort Statute (ATS),[3] and the Federal Tort Claims Act (FTCA).[4] Their complaint alleged that Sergio and some friends were playing an innocent game when the shooting occurred. Agent Mesa—supported by the Department of Justice after it conducted an investigation and declined to charge him—contends that he fired while seeking to apprehend a group engaged in illegal border crossing who were throwing rocks at him. Because the case never proceeded past the motion to dismiss stage, the Hernández family’s factual allegations in the complaint were accepted as true throughout. After other claims and defendants were dismissed,[5] the Hernández family was left only with their Bivens claims against Agent Mesa.

Congress has never enacted a federal officer equivalent to 42 U.S.C. § 1983, which authorizes money damages and injunctive suits against state and local officials for their constitutional wrongs. In the absence of a statute, the Supreme Court recognized a judicially implied cause of action and money damages remedy under the Constitution against federal officials who violate constitutional rights in the 1971 Bivens case.[6]

Bivens itself involved federal narcotics officers who allegedly violated the Fourth Amendment by entering Webster Bivens’s home without a warrant and mistreating him. For that type of unexpected, one-time misconduct, an injunction is not available for both practical and legal reasons.[7] Rogue action not undertaken pursuant to official policy, and not representing final agency action, cannot be challenged under the Administrative Procedure Act.[8] Where, as in Bivens, there is no allegedly unconstitutional statute, regulation, or official policy, nullification is not an available remedy.[9] Similarly where, as in Bivens, the government does not pursue a criminal prosecution, the exclusionary rule provides no relief. Without a detention, a writ of habeas corpus is unavailing, leaving damages as the only viable judicial remedy for Bivens. As Justice John Marshall Harlan said in concurrence, “[f]or people in Bivens’ shoes, it is damages or nothing.”[10] Finding that state tort law did not adequately protect against all of the injuries and harms recognized by the U.S. Constitution, the Bivens majority, in an opinion authored by Justice William Brennan, held that it was the federal judiciary’s role to provide remedies for federal rights, and that the Fourth Amendment was best understood to authorize the Court to craft a damages cause of action and remedy in that case.

In subsequent Brennan opinions, the Court authorized Bivens damages claims to go forward in two additional contexts: an Eighth Amendment claim against prison administrators for inadequate medical care of a federal inmate,[11] and an employment discrimination suit against a U.S. congressman under the equal protection component of the Fifth Amendment Due Process Clause.[12] The Supreme Court then abruptly stopped applying Bivens to new contexts.

Not once since Carlson in 1980 has the Court approved a new Bivens claim. Instead, in a series of decisions, it has refused to extend Bivens to any new contexts, new constitutional provisions, or new types of defendants. Its decisions are based on two caveats in Bivens itself: that a Bivens remedy should be withheld if Congress has created an effective alternate remedial scheme, or if there are other “special factors counseling hesitation” by the judiciary.[13]

Bivens skeptics on the Supreme Court—notably Justices Antonin Scalia and Clarence Thomas—frequently criticized Bivens as “a relic of the heady days” of the Warren and early Burger Courts during which the “Court assumed common-law powers to create causes of action” to enforce federal statutory provisions.[14] Since the Supreme Court had largely rejected this case law on separation-of-powers grounds,[15] Justices Scalia and Thomas could be read as calling to overrule Bivens, Davis, and Carlson, though they did not do so expressly. Instead, their opinions advocated accepting Bivens, Davis, and Carlson limited to their facts while never expanding the doctrine.[16] New Justices Neil Gorsuch and Brett Kavanaugh appeared likely to be Bivens skeptics, and their elevation to the Court in 2017 and 2018 raised anew the question whether the Court might overrule or dramatically narrow Bivens. Supporters of Bivens hoped, however, that if faced with sufficiently egregious facts or a plaintiff’s lacking any other judicial remedy, a majority of the Court might reinvigorate Bivens by recognizing a new claim, context, or type of defendant who could be sued. The 2016 grant of certiorari in Hernandez v. Mesa offered hope and fear to both supporters and detractors of Bivens. It ended up taking four years and a second trip to the Supreme Court to finally resolve the litigation.

After reviewing the progression of the Hernandez litigation, this essay will explore some of the issues that were clarified by the Court in 2020 and then some important issues that the Court ignored or avoided.

I. The Hernandez Litigation

The Bivens claims against Agent Mesa were brought under the Fourth Amendment and the Fifth Amendment Due Process Clause.[17] In cases arising under § 1983, the Supreme Court had long established that law enforcement uses of force that are objectively unreasonable and excessive under the circumstances violate the Fourth Amendment.[18] Deadly force may only be used if “the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others.”[19]

There was some reason to hope that the Court would extend Bivens to the circumstances in Hernandez, given that the Bivens case itself had involved a Fourth Amendment claim—albeit one premised on an unreasonable search rather than a deadly seizure, and one involving an ordinary narcotics investigation rather than a cross-border shooting. But the fact that Sergio was a Mexican national located in Mexico when he was killed complicated the Fourth Amendment claim. In 1992, in United States v. Verdugo-Urquidez, the Supreme Court held that the Fourth Amendment did not apply extraterritorially to a search in Mexico by U.S. and Mexican law enforcement of the home of a Mexican national detained in the United States on criminal charges.[20] This was in keeping with a centuries-long tradition under which noncitizens outside the United States were understood to lack individual-rights protection under the Constitution.[21] It is true, though, that Agent Mesa caused the injury from the United States, and so perhaps the claim against him should not be thought to involve an extraterritorial extension of the Fourth Amendment. But for non-U.S. citizens, Supreme Court case law seems to treat the location of the allegedly harmed individual as the primary factor.[22]

The Hernández family’s substantive due process claim had some problems as well. The Davis case arose under the Due Process Clause but concerned employment discrimination—so there was no direct precedent for a Bivens due process claim in the context of a law-enforcement officer using lethal force. The substantive due process doctrine “prevents the government from engaging in conduct that ‘shocks the conscience’ or interferes with rights ‘implicit in the concept of ordered liberty.’”[23] In theory, that could cover a bad-faith or outrageous use of lethal force. The Supreme Court has held, however, that “all claims that law enforcement officers have used excessive force . . . should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard, rather than under a ‘substantive due process’ approach.”[24] Adding to the problems for the Hernández family’s Fifth Amendment claim, the Court’s 1992 case on extraterritorial constitutional rights described an earlier precedent, Johnson v. Eisentrager, as having been “emphatic” in its “rejection of extraterritorial application of the Fifth Amendment” to benefit German nationals detained by the U.S. military in post-World War II Germany.[25]

Agent Mesa moved to dismiss on the ground that Sergio’s status as a foreign national with no voluntary connection to the United States, and his location outside U.S. territory when killed, meant that he had no constitutional rights. Agent Mesa prevailed in the district court, but a split panel of the U.S. Court of Appeals for the Fifth Circuit reversed in part. It found that the Fourth Amendment claim was barred by the Supreme Court’s extraterritoriality decision in Verdugo-Urquidez, but the Fifth Amendment claim could go forward because that amendment’s protections were geographically broader than the Fourth’s, reaching into Mexico.[26] On rehearing en banc, the Fifth Circuit unanimously held that the Hernández’s complaint had failed to state a Fourth Amendment claim because Sergio was “a Mexican citizen who had no ‘significant voluntary connection’ to the United States” and “was on Mexican soil at the time he was shot.”[27] On the Fifth Amendment claim, the court split on whether Agent Mesa had violated that amendment, but unanimously found that, even if so, Agent Mesa was entitled to qualified immunity, since it was unclear at the time of the shooting whether the Fifth Amendment protected a foreign national injured in a foreign country by a federal officer in the United States.[28]

After granting cert, the Supreme Court in a short per curiam opinion vacated and remanded for consideration, prior to reaching the merits, whether a Bivens remedy was available in the circumstances,[29] based on the framework set forth in 2017 in Ziglar v. Abbasi.[30] Justice Thomas dissented in Hernandez I on the ground that the Bivens question could and should be answered right away: “’Bivens and its progeny’ should be limited ‘to the precise circumstances that they involved.’”[31] Justices Stephen Breyer and Ruth Bader Ginsburg also dissented, stating that Bivens should be available for all Fourth Amendment violations, and that Sergio’s Mexican nationality and location in Mexico when shot should not, based on a variety of factors, preclude him from asserting rights under the Fourth Amendment.

Abbasi had been decided a week before Hernandez I, but by a short-handed Court. Justice Gorsuch was seated only after Abbasi was argued and so he did not participate. President Obama’s two appointees—Justices Sonia Sotomayor and Elena Kagan—also did not participate in Abbasi, for different reasons. In a 4–2 split, the Abbasi Court, per Justice Anthony Kennedy, found that no Bivens cause of action was available against the former FBI Director, U.S. Attorney General, and other senior federal officials for their part in devising and implementing a policy during the immediate aftermath of the 9/11 attacks of lengthy civil detention for immigration violations of non-U.S. citizens of Arab, South Asian, and Muslim background. The detainees were held for long periods of time because of a policy of “hold until cleared” (of connections to terrorism), and many were mistreated while in custody.

In Abbasi, Justices Scalia and Thomas’s critique of Bivens first entered a majority opinion (albeit one speaking for only four justices). Abbasi situated Bivens as the product of an era, now over, when the Court “assumed it to be a proper judicial function to ‘provide such remedies as are necessary to make effective’ a statute’s purpose,”[32] and further assumed that the same logic and same common-law creative power allowed the federal courts to craft causes of action to enforce the Constitution.

Having rejected the routine creation of implied private rights of action to enforce statutory purposes, Abbasi suggested that the time for creating new Bivens causes of action to enforce the Constitution had also passed. “[I]t is a significant step under separation-of-powers principles,” the Court wrote, “for a court to determine that it has the authority, under the judicial power, to create and enforce a cause of action for damages against federal officials in order to remedy a constitutional violation.”[33] And further: “The question is ‘who should decide’ whether to provide for a damages remedy, Congress or the courts? The answer most often will be Congress.”[34] The Court pointedly suggested that Bivens would have been decided differently if the issue presented in 1971 came to the Court for the first time today.[35]

There were, however, aspects of Abbasi that could give the Hernández family a bit of optimism about their putative Bivens claim. First, the Abbasi Court emphasized that Bivens is inappropriate if plaintiffs seek to “call into question the formulation and implementation of a general policy,” especially one in the national security or foreign affairs areas, and especially one devised by very senior executive officials responding to an emergency, such as the 9/11 attacks.[36] By contrast, Abbasi suggested that Bivens actions under the Fourth Amendment challenging misconduct by individual officers in “standard ‘law enforcement operations’” continue to be appropriate.[37]

Second, although I think Abbasi is best read as calling a halt to the expansion of Bivens, it might be read to leave the door slightly ajar.[38] Step one of the decisional framework asks whether an injured plaintiff is requesting a “new” Bivens claim—anything different than the claims approved in Bivens itself, Davis, or Carlson. If no, the claim proceeds. Maybe Hernandez could be shoehorned into the Fourth Amendment claims approved in Bivens itself? Conversely, if the requested Bivens claim is new, the test proceeds to step two, asking “if there are ‘special factors counselling hesitation in the absence of affirmative action by Congress.’”[39] Here the Court was rather adamant that it did not envision new claims being approved.[40]

Finally, Abbasi emphasized that the lack of any other judicial remedy counts in favor of allowing Bivens. Since their complaint alleged a one-off, rogue, unconstitutional “seizure” by a single officer in violation of Border Patrol policy, and since no other judicial remedy was available to them, the Hernández family must have hoped that their case would arrest, even if only temporarily, the Court’s trend of rejecting Bivens claims. It did not turn out that way.

II. Questions Answered and Questions Avoided

Hernandez II provided answers to some important questions about the current status of Bivens, but also ignored or avoided confronting some difficult issues. After briefly reviewing some of the points of clarity that emerged from the Hernandez litigation, this section delves more deeply into four issues about which uncertainty remains.

A. What Hernandez Answered

Hernandez II—in a majority opinion authored by Justice Samuel Alito and joined by Chief Justice Roberts and Justices Thomas, Gorsuch, and Kavanaugh—confirmed that Bivens is still heavily “disfavored” by a majority of the Supreme Court.[41] And the decision also confirmed that a majority of the Court is willing to reject the creation of a Bivens cause of action even if it leaves a plaintiff with no means of judicial redress for alleged constitutional injuries.[42]

More specifically, the Court signaled that Bivens is likely to be confined to the precise contexts and constitutional provisions in Bivens, Davis, and Carlson—the position long advocated for by Justices Scalia and Thomas. We can see this from how Hernandez II implemented the Court’s two step doctrinal framework. Although Bivens approved a Fourth Amendment claim and Davis approved a Fifth Amendment Due Process claim, the Court in Hernandez II called it “glaringly obvious” that the claims under the same constitutional provisions were “new” in the present case. And the Court noted, “Bivens concerned an allegedly unconstitutional arrest and search carried out in New York City; Davis concerned alleged sex discrimination on Capitol Hill.”[43] This incredibly fact-specific description of the Court’s prior cases approving of Bivens causes of action seems intended to signal that every case that is not on point factually and legally with Bivens, Davis, or Carlson will be treated as “new” and hence in need of affirmative justification. And in both Abbasi and Hernandez II, the Court suggested that the answer at step two—should the Court endorse a “new” Bivens cause of action—will almost invariably be “no.” Thus the majority of the Court seems to have arrived at or close to the position long advocated by Justices Scalia and Thomas.

On the other hand, Hernandez II confirms that, even with the addition of two very conservative new justices—Justices Gorsuch and Kavanaugh—there are not presently five votes for simply overruling the Bivens/Davis/Carlson trio of cases. Just three years ago, Chief Justice Roberts and Justices Alito and Thomas joined the part of the Abbasi opinion which stated:

[T]his opinion is not intended to cast doubt on the continued force, or even the necessity, of Bivens in the search-and-seizure context in which it arose. Bivens does vindicate the Constitution by allowing some redress for injuries, and it provides instruction and guidance to federal law enforcement officers going forward. The settled law of Bivens in this common and recurrent sphere of law enforcement, and the undoubted reliance upon it as a fixed principle in the law, are powerful reasons to retain it in that sphere.[44]

Some of the same things could be said about Carlson and its approval of Eighth Amendment Bivens claims against federal prison officials. Litigation there is “common and recurrent” too, and the law is pretty well-settled because of the enormous volume of Eighth Amendment cases arising under 42 U.S.C. § 1983 suits against state and municipal corrections officers. In both settings, it seems reasonably frequent that rogue actions by individual officers requires judicial “redress for injuries.” Hernandez II does not contain anything that appears to back away from these views expressed in Abbasi. Thus, the current majority of the Court seems satisfied for now to leave in place ordinary Bivens and Carlson claims under the Fourth and Eighth Amendments.

Justice Thomas, for his part, has decided to increase his demands, having secured victory (seemingly) on confining the Bivens doctrine to the facts of Bivens, Carlson, and Davis. In Hernandez II, Justice Thomas, joined by Justice Gorsuch, argued that those three cases should be overruled.[45]

B. Questions Avoided

This essay next reviews two important issues avoided by the Court in the Hernandez litigation: whether the Constitution is violated by the lack of any judicial remedy for a constitutional wrong and whether the Constitution’s protections extend to noncitizens outside the United States.

1. The Westfall Act and Ubi Jus Ibi Remedium

The Court expressly avoided one question in Hernandez II. The cert petition by the Hernández family asked the Court, if it found no Bivens remedy available, to decide “whether the Westfall Act violates the Due Process Clause of the Fifth Amendment insofar as it preempts state-law tort suits for damages against rogue federal law enforcement officers acting within the scope of their employment for which there is no alternative legal remedy.”[46] But the Court declined to grant cert on that question and, predictably, said nothing about it in Hernandez II.

Historically, tort suits under state common law or general law were an important method by which persons injured by federal officers’ misconduct could seek compensation and redress.[47] The U.S. government’s briefing in Bivens in 1971 urged the justices not to create a damages remedy under the Constitution because ordinary tort law sufficiently protected the interests in being free from unreasonable searches and seizures by federal law enforcement officers. Might tort law have provided a remedy for the Hernández family? Certainly, Texas courts could have heard a state-law tort suit for personal injury to a Mexican national occurring in Mexico.[48] And the same suit should have been viable in federal court under diversity jurisdiction.[49]

But congressional action since the initial Bivens decision prohibited the Hernández family from bringing an ordinary tort suit against Agent Mesa. Under the Westfall Act of 1988,[50] Congress designated the Federal Tort Claims Act (FTCA) as the exclusive remedy for nonconstitutional torts committed by federal officials within the scope of their employment, except for constitutional torts.[51] In other words, state-law tort claims against individual federal officers acting within the scope of employment were barred. Now, a state-law tort suit can be brought only if it falls with the FTCA’s waiver of sovereign immunity, and in that case, it will be a suit against the United States, subject to the various limitations of the FTCA. Unfortunately for the Hernández family, the FTCA does not allow suits on any claim “arising in a foreign country.”[52] So even though a state tort action was barred, Sergio’s death in Mexico could not be the basis for a FCTA action against the United States either.

When the Court held in Hernandez II that no Bivens suit was available, the combined actions of the Court and Congress meant that there was no judicial remedy available for a plausible claim of a constitutional violation and tortious misconduct that resulted in the taking of human life. Does this violate due process? The Court refused to even receive briefing on the topic.

The Court’s decision in Hernandez II is inconsistent with the ancient maxim ubi jus ibi remedium (for every right there must be a remedy). The notion that a rights violation requires a civil remedy lies at the foundation of the common law of torts,[53] was assumed by the framers of the American Constitution to underlie our legal system,[54] and has been reiterated by the Supreme Court in many decisions, including Marbury v. Madison and Bivens itself.[55] It is widely considered a foundational principle of our constitutional order, premised on limited government and the rule of law, that wrongs by government officials can be redressed through the legal system. The Supreme Court has several times used the avoidance canon in a way that implies a constitutional right to present constitutional claims to court: a “’serious constitutional question’ . . . would arise if a federal statute were construed to deny any judicial forum for a colorable constitutional claim.”[56] But here, Congress has not barred constitutional claims. It has failed to enact a statute to authorize constitutional damages claims against federal officers; has arguably acquiesced by inaction in the Court’s modern Bivens jurisprudence, which refuses to judicially imply causes of actions for damages for constitutional torts by federal officers in most circumstances; and at the same time has barred state-law tort claims against federal officers acting within the scope of their employment, substituting instead a limited waiver allowing suits against the sovereign in some circumstances.

Notwithstanding the general assumptions reflected in the ubi jus maxim, the Court’s case law leaves few solid guideposts for deciding whether these actions and inactions by Congress and the Supreme Court have denied injured individuals of due process.[57] Perhaps the leading source of wisdom on the general topic—Professors Hart and Wechsler’s Federal Courts casebook and writings by some of its authors—offer that “Congress necessarily has a wide choice in the selection of remedies,” and it is “rarely” an issue of “constitutional dimension” if Congress has chosen one over the other.[58] But there is no judicial remedy in Hernandez—what then? The casebook continues that the ubi jus dictum “can sometimes be outweighed” to “permit accommodation of competing interests,” but the “overall system of remedies” must be “effective in maintaining a regime of lawful government.”[59]

Competing interests—doctrines like standing, mootness, sovereign immunity, official immunity, state secrets, the political question doctrine, congressional control of jurisdiction, abstention, exhaustion of remedies, procedural default, plausibility pleading, and others—mean that the Court and Congress frequently tolerate instances in which wrongs, even constitutional wrongs, go unremedied.[60] In Hernandez, however, none of the constitutional rules and policies supporting these doctrines—rules and policies that sometimes outweigh the remedial imperative of ubi jus—are applicable. For instance, there is no question that the claim is justiciable; a suit against an officer in his individual capacity for tort damages does not implicate sovereign immunity; Hernandez I suggested that qualified immunity is likely inapplicable here;[61] Agent Mesa admitted shooting Sergio and thus the complaint stated an at least plausible claim; and Congress has provided jurisdiction in 28 U.S.C. § 1331.

The one competing constitutional policy at play in Hernandez is the modern Court’s view that the separation of powers commands that Congress expressly create causes of action and remedies when money damages are sought for constitutional torts by federal officers. It would have been useful for the Court to have explained in Hernandez II why that view of separation of powers outweighs ubi jus here, particularly when a human life was taken. Such an explanation would have been particularly welcome because, as I discuss below, the modern Court believes that it has common law powers to create an injunctive cause of action and remedy to stop unconstitutional action by federal (and state) officers.

2. Extraterritoriality

By resolving the Hernandez litigation on Bivens grounds, the Supreme Court avoided a decision about the extraterritorial reach of the Constitution to protect noncitizens. The Hernández family argued that the Court’s 1992 holding concerning the lack of extraterritorial Fourth Amendment protection for noncitizens without substantial voluntary connections to the United States[62] had been undermined by an intervening decision in Boumediene v. Bush, arising out of war-on-terror detentions at Guantanamo Bay, Cuba.[63] Though nominally about only one constitutional provision—the Habeas Suspension Clause—and one unusual piece of territory that was quasi-domestic and quasi-foreign—Cuban land permanently leased to the United States, over which the U.S. government exercises total jurisdiction and control—Boumediene contained broader language about the application of the Constitution to noncitizens outside U.S. borders.[64]

According to the family’s brief in Hernandez I, “Boumediene held that ‘de jure sovereignty’ is not and has never been ‘the only relevant consideration in determining the geographic reach of the Constitution’ because ‘questions of extraterritoriality turn on objective factors and practical concerns, not formalism.’”[65] The brief argued that under Boumediene’s approach, “functional” and “practical” considerations might limit constitutional rights for non-U.S. citizens outside U.S. borders, if granting or applying those rights proved “impracticable and anomalous.”[66] According to the Hernández family, it was neither impractical nor anomalous to apply the Fourth Amendment to the shooting, because the Mexican side of the U.S-Mexican border area where Sergio was shot was part of a “shared [] community,” and “heavily patrolled by [U.S.] federal agents.”[67] As a result, Verdugo-Urquidez, the 1992 case in which Fourth Amendment warrant requirements were held inapplicable to a search of a Mexican national’s home in Mexico, was not controlling.

Since Boumediene in 2008, and throughout the Hernandez I and II litigation, the Supreme Court had not clarified whether Boumediene was intended to broadly undermine the traditional view that noncitizens outside U.S. borders lack U.S. constitutional rights (unless they have significant voluntary connections to the United States, as lawful permanent residents do, for example). As I wrote when Hernandez I was pending at the Supreme Court:

This case could be significant because the Fourth Amendment governs all manner of searches and seizure by U.S. officials, everything from electronic surveillance to physical searches of persons, buildings, computers and other devices, to thermal imaging to shootings. . . .

If [the Fourth Amendment were] held to apply outside U.S. borders to protect noncitizens, a huge array of intelligence, military, immigration, customs, and law enforcement activity could be impacted. To take two examples that are salient to . . . readers: extraterritorial foreign intelligence surveillance and drone strikes, both of which have proceeded to date under the executive branch’s assumption that noncitizens outside the United States have no relevant constitutional rights in those contexts.[68]

In Hernandez I, the Court criticized the Fifth Circuit for addressing the extraterritoriality of the Fourth Amendment prior to deciding that Bivens was available, because the Fourth Amendment issue is “sensitive and may have consequences that are far reaching.”[69] This reluctance continued in Hernandez II. The majority opinion did not cite the sensitivity and significance of the Fourth Amendment question as a “special factor” suggesting that Bivens should not be available. Nor did the Court expressly reference the concerns Justice Kennedy raised in Abbasi about Bivens being used as a vehicle to judicialize and constitutionalize the governance of national security and foreign affairs. Rather the Hernandez II opinion rotely recited “the potential effect on foreign relations” and on “an element of national security,” namely border control, if the courts were to rule for the plaintiffs in this case, and the fact that “Congress has repeatedly declined to authorize the award of damages for injury inflicted outside our borders.”[70]

One might have speculated that the extraterritoriality of the Fourth Amendment to protect noncitizens was so sensitive a topic that the majority in Hernandez II felt it best to say nothing at all. A few months after Hernandez II was decided, however, the Court in an opinion joined by the same justices stated that it is a “bedrock principle . . . of American constitutional law” that “foreign citizens outside U.S. territory do not possess rights under the U.S. Constitution,” citing Boumediene among other decisions.[71] The dissent countered that Boumediene demanded a multi-part test weighing practicality and other soft factors, rather than the formal line-drawing employed by the majority.[72] So perhaps the failure to address the extraterritoriality issue in Hernandez II resulted from other impulses, such as judicial minimalism; or a desire to avoid the doctrinal messiness of sorting out whether a cross-border shooting called for the extraterritorial application of the Constitution; or from concern about the optics of holding that a teenager shot dead by the U.S. Border Patrol lacked individual rights under the Constitution.

III. Some Unanswered Questions

In addition to issues raised by the parties or pleadings but avoided by the Court, there are two (at least) major puzzles or tensions in the Court’s Bivens jurisprudence, neither of which the Court addressed in Hernandez (or its prior cases cabining Bivens). One asks why the Court treats equitable remedies so differently than legal, damages remedies. The second concerns the lawmaking power of the federal courts.

A. Why Are Damages Different?

Concurring in Bivens, Justice John Marshall Harlan argued that the existence of “inherent equitable powers” of the federal courts to issue injunctions against unconstitutional action suggests that the courts similarly possess inherent nonstatutory power to remedy constitutional violations with compensatory damages.[73] There are legions of cases in which the Supreme Court has approved equitable causes of action and remedies against both federal and state government actors violating federal law.[74] Why, Justice Harlan asked, are judicially-created money-damages remedies any different?

In theory, this is a good question,[75] but the law and history are complex and the Court’s statements somewhat confused. In addition to suggesting that the power to issue injunctions against unconstitutional action is “inherent,” Justice Harlan also suggested it derived from Congress’s grant of subject-matter jurisdiction over federal question cases.[76] Justice Alito, author of Hernandez II, followed Justice Harlan by writing in another case that under the subject-matter jurisdiction statute, 28 U. S. C. § 1331, “it has long been established practice for this Court to sustain the jurisdiction of federal courts to issue injunctions to protect rights safeguarded by the Constitution.”[77] As Jack Preis has noted, for many decades the federal courts have expressed the “view that their equitable power springs from Congress’s grant of subject matter jurisdiction to the court,” and nothing more.[78] But the Court has also referred to its cases authorizing injunctions against unconstitutional state government action as “nonstatutory,”[79] and a Justice Scalia-authored decision more recently seemed to suggest the same.[80]

Not only does the modern Court seem to believe that its power to issue injunctions against unconstitutional action is inherent as long as Congress has granted subject-matter jurisdiction over federal-question cases, it seems to believe that this has always been true. Justice Scalia in Armstrong referenced the injunction power as one “creat[ed]” by the courts and traced its lineage back to English law prior to American independence.[81] Relatedly, the Court has suggested that it was understood at the time of the Founding and the Judiciary Act of 1789, in the “ambient law of the era,” that the federal courts had common-law powers to create “causes of action,” once jurisdiction had been provided by Congress.[82] This means that the Supreme Court thinks federal courts’ common law powers at the time of the Founding allowed them to create remedies as long as there was subject-matter jurisdiction, because in the eighteenth century, causes of action—forms of proceeding, often simply referred to as writs—combined what we think of today as the separate issues of a right of action, substantive law, some procedure, and remedies.[83]

The Supreme Court previously had a different understanding of the source of its power over rights to sue and remedies: the power came from Congress. The Judiciary Act of 1789,[84] and more importantly the Temporary Process Act of 1789[85] and the Permanent Process Act of 1790,[86] were understood to authorize the federal courts, where they had subject-matter jurisdiction, to adopt the writs and forms of action from state law as of 1789 in cases at common law (which would include money-damages remedies in appropriate cases) and to develop a uniform body of equitable law, including remedies, based on the traditional equity as practiced in the English Chancery Court.[87] In 1828, these same rules were extended by statute to new states admitted since 1789.[88] In 1872, Congress directed that federal courts in cases at law apply the procedure then existing in state law.[89]

As Professors AJ Bellia and Bradford Clark explain, over time the nineteenth-century codification movement and a changing distinction between substance and procedure meant that in some states, causes of action and remedies were no longer considered part of state procedure and thus not covered by the 1872 Act. If that were the case, the Rules of Decision Act (derived from section 34 of the 1789 Judiciary Act) directed the application of state substantive law in cases not covered by federal enactment or the Swift v. Tyson[90] general common law. Conversely, if then-existing state law forms of action were still “procedural” in a given state, the 1872 Act directed that federal courts located there apply them. The bottom line was that tort damages for invasions of rights by federal officials were still sanctioned by Congress.

After Erie[91] and the new Federal Rules of Civil Procedure in 1938, federal courts applied state law as determined by state statutes and state court decisions as the rule of decision, in the absence of federal enactment. If applicable state law provided them, causes of action in tort and money-damages remedies against lawbreaking government officials continued to be available, still with congressional imprimatur. But a new question arose: since causes of action and remedies were considered substantive, and the Federal Rules of Civil Procedure did not grant any new substantive rights, could federal courts hear U.S. constitutional tort suits seeking money damages remedies? For state and local official defendants, Congress has provided a cause of action and remedies in 42 U.S.C. § 1983, enacted in 1871. But no statute allowed constitutional tort suits for damages against federal officials. Thus, the question underlying the Bivens case was presented as of 1938, not by any conscious choice by judges or lawmakers, but as a result of related changes in law and background understandings.

Practice on the equity side continued throughout the nineteenth century under the Judiciary Act of 1789 and the 1792 Permanent Process Act, with one major change. With the enactment of general federal question jurisdiction in 1875, the federal courts were now frequently confronted with bills in equity seeking to enjoin government action for violations of the U.S. Constitution.[92] Before then, the more limited subject-matter jurisdiction of the federal courts meant that many equity cases were based on diversity of citizenship. In equity, the bottom line remained the same: Congress authorized the issuance of injunctions, including those to restrain unconstitutional government action. Congress’s codification of procedure in 1911 contained provisions assuming rather than granting the right of the federal courts to issue injunctions.[93]

As Professor Preis has argued, anti-injunction statutes enacted by Congress in the 1930s “by divesting federal courts of the power to issue injunctions in specific types of cases . . . implicitly confirmed that the courts enjoyed a freestanding authority to issue injunctive relief.”[94] I would put it slightly differently: the statutes confirmed that Congress assumed the continuance of the congressionally-granted power to issue injunctions.

Next, the new Federal Rules of Civil Procedure, issued under the Rules Enabling Act of 1934[95] and effective in 1938, replaced previous procedure statutes and continued to assume the existence (and regulate the procedure of) the injunctive power of the federal courts.[96] Because the Federal Rules could not “abridge, enlarge or modify any substantive right,”[97] and because a right to sue for a particular claim and the ability to obtain an injunction are now best understood to be matters of substance rather than procedure,[98] arguably the best understanding is that congressionally-conferred injunctive power, as derived originally from the 1792 Permanent Process Act, continued in force. At mid-century, the Supreme Court and scholars seemed to think that power to issue injunctions followed simply from Congress’s provision of subject matter jurisdiction.[99] Justice Harlan in Bivens referenced both of these understandings while at the same time also calling the court’s injunctive power “inherent”[100]— a third view of the source of power, this one seemingly divorced from congressional grant.

The Court would do well to sort out these knotty issues. If injunctive power in constitutional cases is best understood as congressionally conferred, the Court’s hesitance to create on its own a Bivens cause of action and remedy for money damages seems more understandable. But if inherent judicial power is the authorizing source of constitutional injunctions, an acute question is posed as to why Bivens actions are not routinely available.

B. Federal Common Law

There is another underexamined puzzle in the current Court’s Bivens jurisprudence. As discussed above, the modern Supreme Court views it as constitutionally inappropriate to act in a common-law capacity to imply a cause of action to enforce a statute, in the absence of clear congressional intent that there be a judicial remedy. And the Court has a similar view of the inappropriateness, under the separation of powers, of expanding Bivens beyond the three contexts already recognized in Bivens, Davis, and Carlson.

But the same justices who form the majority opinions just summarized also appear to view it as entirely appropriate for the federal courts to craft substantive rules of federal common law  governing the primary conduct of private persons and government officials. For instance, one of the more controversial extensions of substantive federal common law in the modern era is Boyle v. United Technologies Corp.,[101] written by Bivens skeptic Justice Scalia, and joined by Biven skeptics Chief Justice William Rehnquist and Justices Kennedy and Sandra Day O’Connor. Many other examples can be given.[102]

As Justice Harlan noted in his Bivens concurrence, “it would be at least anomalous to conclude that the federal judiciary—while competent . . . to generate substantive rules governing primary behavior in furtherance of broadly formulated policies articulated by statute or Constitution . . . is powerless to accord a damages remedy to vindicate” constitutional rights designed to restrain government abuse.[103]

It seems at least as great a separation-of-powers problem for the Court to craft primary rules governing the conduct of private parties as it does to allow a damages suit against federal officials who have violated the Constitution. For as Alexander Hamilton put it in The Federalist number 78, it is the task of the legislature to “prescribe[e] the rules by which the duties and rights of every citizen are to be regulated.”[104] With the Court in Abassi and especially Hernandez II seeming to confine Bivens to the precise contexts found in Bivens, Davis, and Carlson, the Court’s under-theorized distinction between the federal common law of remedies and substantive law calls for explanation.

***

The lengthy Hernandez litigation did not result in a blockbuster decision. That could only have occurred if the Court had either extended Bivens to the new context presented in this case and the reach of the Fourth Amendment to a noncitizen outside the international border, or overruled Bivens, Davis, and Carlson. In retrospect, neither of those extreme outcomes was likely to occur. The Court has been muddling along since the early 1980s, circumscribing Bivens more and more, bit by bit. That long process simply continued here. Still, the decision is not without significance. A human life was taken, in highly questionable circumstances, perhaps unconstitutionally—and a majority of the Court displayed no hesitation or remorse about denying a right to sue the responsible officer. The unresolved tensions and questions in the Court’s Bivens jurisprudence were shown in sharp relief by the tragic facts of this case.

* Professor and John D. Feerick Research Chair, Fordham Law School. Thanks to Benjamin Zipursky, Thomas Lee, and Steven Schwinn for helpful comments on drafts, and to Maria Chrysanthem and Peter Morrison for excellent editorial assistance.

[1] Hernandez v. Mesa (Hernandez II), 140 S. Ct. 735 (2020). When the case was at the Court the first time, remand was ordered. See Hernandez v. Mesa (Hernandez I), 137 S. Ct. 2003 (2017) (per curiam).

[2] See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).

[3] 28 U.S.C. § 1350.

[4] The FTCA “is a limited waiver of sovereign immunity, making the Federal Government liable to the same extent as a private party for certain torts of federal employees acting within the scope of their employment.” United States v. Orleans, 425 U.S. 807, 813 (1976).

[5] For example, claims against the United States and its agencies under the FTCA were dismissed because the FTCA does not cover tort claims arising in a foreign country—here Mexico. See Hernandez v. United States, 785 F.3d 117, 119 (5th Cir. 2015) (en banc) (approving and reinstating in relevant part the panel opinion, Hernandez v. United States, 757 F.3d 249, 257–59 (5th Cir. 2014)).

[6] Bivens, 403 U.S. at 397; see also Andrew Kent, Are Damages Different?: Bivens and National Security, 87 S. Cal. L. Rev. 1123, 1126–27 (2014).

[7] See e.g., City of Los Angeles v. Lyons, 461 U.S. 95, 105–06 (1983) (stating strict requirements to have standing to seek an injunction based on threatened future injury).

[8] See 5 U.S.C. § 704 (specifying the agency actions which are subject to judicial review).

[9] See generally Richard H. Fallon, Jr., Bidding Farewell to Constitutional Torts, 107 Calif. L. Rev. 933, 942 (2020) (tracing the “nullification” remedy to Marbury v. Madison: “Under Marbury, a court must deny effect to any purported law that violates the Constitution and thereby nullify any constitutionally impermissible threat that the law otherwise would pose”).

[10] Bivens, 403 U.S. at 410 (Harlan, J., concurring).

[11] Carlson v. Green, 446 U.S. 14 (1980).

[12] Davis v. Passman, 442 U.S. 228 (1979).

[13] Bivens, 403 U.S. at 396–97.

[14] Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 75 (2001) (Scalia, J., concurring, joined by Thomas, J.); see Minneci v. Pollard, 565 U.S. 118, 131 (2012) (Scalia, J., concurring, joined by Thomas, J.); Wilkie v. Robbins, 551 U.S. 537, 568 (2007) (Thomas, J., concurring, joined by Scalia, J.).

[15] See, e.g., Alexander v. Sandoval, 532 U.S. 275, 286–87 (2001) (“Like substantive federal law itself, private rights of action to enforce federal law must be created by Congress. . . . Respondents would have us revert in this case to the understanding of private causes of action that held sway 40 years ago . . . . That understanding is captured by the Court’s statement in J.I. Case Co. v. Borak, 377 U.S. 426, 433 (1964), that ‘it is the duty of the courts to be alert to provide such remedies as are necessary to make effective the congressional purpose’ expressed by a statute. We abandoned that understanding in Cort v. Ash, 422 U.S. 66, 78 (1975) . . . and have not returned to it since.”).

[16] See, e.g., Minneci, 565 U.S. at 131–32 (Scalia, J., concurring, joined by Thomas, J.) (“I would limit Bivens and its two follow-on cases (Davis v. Passman, 442 U.S. 228 (1979), and Carlson v. Green, 446 U.S. 14 (1980)) to the precise circumstances that they involved.”).

[17] Hernandez I, 137 S. Ct. 2003, 2005 (2017).

[18] See Plumhoff v. Rickard, 572 U.S. 765, 774 (2014); Graham v. Connor, 490 U.S. 386, 394–96 (1989); Tennessee v. Garner, 471 U.S. 1, 7–8 (1985).

[19] Garner, 471 U.S. at 11.

[20] United States v. Verdugo-Urquidez, 494 U.S. 259, 269 (1990).

[21] See, e.g., Andrew Kent, Disappearing Legal Black Holes and Converging Domains: Changing Individual Rights Protection in National Security and Foreign Affairs, 115 Colum. L. Rev. 1029, 1036 (2015); Andrew Kent, Boumediene, Munaf, and the Supreme Court’s Misreading of the Insular Cases, 97 Iowa L. Rev. 101, 123–32 (2011) [hereinafter Kent, Insular Cases]; J. Andrew Kent, A Textual and Historical Case Against a Global Constitution, 95 Geo. L.J. 463 passim (2007).

[22] See Mathews v. Diaz, 426 U.S. 67, 77 (1976); Kwong Hai Chew v. Colding, 344 U.S. 590, 596 n.5 (1953); Johnson v. Eisentrager, 339 U.S. 763, 770–71, 776–77, 784 (1950); Fong Yue Ting v. United States, 149 U.S. 698, 724 (1893); Carlisle v. United States, 83 U.S. (16 Wall.) 147, 154 (1872). In a case involving an alleged constitutional harm to a property interest—a search unreasonable under the Fourth Amendment—the Court treated the location of the property as determinative of whether extraterritorial application of a constitutional right was being sought. See Verdugo-Urquidez, 494 U.S at 264. To the extent tort principles are relevant here, I note that in the late eighteenth century when the Constitution was adopted, “the dominant principle in choice-of-law analysis for tort cases was lex loci delicti: courts generally applied the law of the place where the injury occurred.” Sosa v. Alvarez-Machain, 542 U.S. 692, 705 (2004). Under the traditional lex loci approach, the place of the wrong for torts involving bodily harm is “the place where the harmful force takes effect upon the body.” Restatement (First) of Conflict of Laws § 377, Note 1 (1934).

[23] United States v. Salerno, 481 U.S. 739, 746 (1987).

[24] Graham v. Connor, 490 U.S. 386, 395 (1989).

[25] Verdugo-Urquidez, 494 U.S. at 269 (discussing Eisentrager, 339 U.S. at 784).

[26] Hernandez v. United States, 757 F.3d 249, 267–75 (5th Cir. 2014); id., at 280–81 (Dennis, J., concurring in part and concurring in the judgment).

[27] Hernandez v. United States, 785 F.3d 117, 119 (5th Cir. 2015) (en banc) (per curiam) (quoting Verdugo–Urquidez, 494 U.S. at 271).

[28] Id. at 120; see also id. at 119–20 (“The remaining issue for the en banc court is properly described as whether ‘the Fifth Amendment . . . protect[s] a non-citizen with no connections to the United States who suffered an injury in Mexico where the United States has no formal control or de facto sovereignty.’”) (citation omitted).

[29] Hernandez I, 137 S. Ct. 2003, 2006–07 (2017).

[30] Ziglar v. Abbasi, 137 S. Ct. 1843 (2017).

[31] Hernandez I, 137 S. Ct. at 2008 (Thomas, J., dissenting) (quoting Abbasi, 137 S. Ct. at 1870 (Thomas, J., concurring in part and concurring in the judgment)).

[32] Abbasi, 137 S. Ct. at 1855 (quoting J.I. Case Co. v. Borak, 377 U.S. 426, 433 (1964)).

[33] Id. at 1860.

[34] Id. at 1857.

[35] Id. at 1856.

[36] Id. at 1860.

[37] Id. at 1861 (quoting Verdugo-Urquidez, 494 U.S. at 273). See text accompanying infra note 44.

[38] See Fallon, supra note 9, at 953 (“As a practical matter, however, it is not clear that much space exists between the Court’s Ziglar [v. Abbasi] ruling and the earlier demand of Justices Scalia and Thomas that Bivens, Davis, and Carlson ‘should be limited “to the precise circumstances that they involved.”’”) (quoting Wilkie v. Robbins, 551 U.S. 537, 568 (2007) (Thomas, J., concurring) (in turn quoting Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 75 (2001) (Scalia, J., concurring)).

[39] Abbasi, 137 S. Ct. at 1857 (quoting Carlson v. Green, 446 U.S.14, 18 (1980)) (in turn quoting Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 396 (1971)).

[40] Id. at 1856–58.

[41] Hernandez II, 140 S. Ct. 735, 742 (2020) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)).

[42] See Kent, supra note 6, at 1143 (citing earlier Supreme Court cases in which that had occurred).

[43] Hernandez II, 140 S. Ct. at 744.

[44] Abbasi, 137 S. Ct. at 1856–57.

[45] Hernandez II, 140 S. Ct. at 753 (Thomas, J., concurring) (“It is time to correct this Court’s error and abandon the doctrine altogether.”).

[46] Petition for a Writ of Certiorari at i, Hernandez v. Mesa, 140 S. Ct. 735 (2020) (No. 17–1678).

[47] See, e.g., James E. Pfander, Dicey's Nightmare: An Essay on the Rule of Law, 107 Cal. L. Rev. 737, 754–56 (2019); Kent, supra note 6, at 1163–64; Ann Woolhandler, Patterns of Official Immunity and Accountability, 37 Case W. Res. L. Rev. 396, 399 (1987); Louis L. Jaffe, Suits Against Governments and Officers: Sovereign Immunity, 77 Harv. L. Rev. 1, 9–16 (1963).

[48] See Carmack v. Panama Coca Cola Bottling Co., 190 F.2d 382, 386 (5th Cir. 1951) (“An action to recover damages for a tort is not local, but transitory, and can, as a general rule, be maintained wherever the wrongdoer can be found. But in the few states where the rule does not prevail, it does not bar the federal courts of jurisdiction if the cause of action and the controversy come under the grant of federal jurisdiction.”); Keller v. Millice, 838 F. Supp. 1163, 1172 (S.D. Tex. 1993) (stating that under Texas law tort claims are “clearly transitory actions”). For examples of transitory tort actions arising in Mexico and heard in Texas state courts, see Gutierrez v. Collins, 583 S.W.2d 312 (Tex. 1979) (tort suit concerning a car crash in Mexico; plaintiff was a resident of El Paso, Texas); Vizcarra v. Roldan, 925 S.W.2d 89 (Tex. Civ. App.—El Paso 1996) (same; plaintiffs were Mexican nationals).

[49] See 28 U.S.C. § 1332(a)(2) (“The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between . . . citizens of a State and citizens or subjects of a foreign state.”). The plaintiffs are citizens and residents of Mexico. See Second Amended Complaint ¶¶ 17–19, Hernandez v. United States, 3:11-CV-00027 (W.D. Tex.). Agent Mesa’s agency appears to require U.S. citizenship for employment. See What Are the Basic Requirements for Employment?, U.S. Customs and Border Protection.

[50] Westfall Act, Pub. L. No. 100–694, 102 Stat. 4563 (1988) (codified as amended at 28 U.S.C. § 2621 et seq.).

[51] 28 U.S.C. § 2679(b).

[52] Id. § 2680(k).

[53] See Benjamin C. Zipursky, Rights, Wrongs, and Recourse in the Law of Torts, 51 Vand. L. Rev. 1, 5, 16 (1998).

[54] See, e.g., The Federalist Nos. 15, 70 (Alexander Hamilton). See generally John C.P. Goldberg, The Constitutional Status of Tort Law: Due Process and the Right to a Law for the Redress of Wrongs, 115 Yale L.J. 524 (2005).

[55] See, e.g., Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 396 (1971); United States v. Loughrey, 172 U.S. 206, 232 (1898); Kendall v. United States, 37 U.S. (12 Pet.) 524, 624 (1838); Marbury v. Madison, 5 U.S. (1 Cranch) 137, 147, 163 (1803).

[56] Webster v. Doe, 486 U.S. 592, 603 (1988) (citing Bowen v. Michigan Acad. of Family Physicians, 476 U.S. 667, 681, n. 12 (1986); see also McNary v. Haitian Refugee Center, Inc., 498 U.S. 479, 498 (1991); Bowen v. Michigan Acad. of Family Physicians, 476 U.S. 667, 681 n.12 (1986); Johnson v. Robison, 415 U.S. 361, 366–67 (1974).

[57] The Constitution expressly mentions two remedies, habeas corpus and just compensation, for a taking of private property for public use. In addition, in a few cases involving allegations of unconstitutional or otherwise illegal state or local government collection of taxes, the Court has held or implied that due process requires a judicial remedy. See, e.g., McKesson Corp. v. Div. of Alcoholic Bevs. & Tobacco, 496 U.S. 18 (1990); Ward v. Love Cty., 253 U.S. 17 (1920).

[58] Richard Fallon Jr., et al., Hart & Wechsler’s The Federal Courts and the Federal System 331 (7th ed. 2015) (quoting Henry M. Hart, Jr., The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harv. L. Rev. 1362, 1366 (1953)).

[59] Id. at 775–76 (quoting Richard H. Fallon, Jr. & Daniel J. Meltzer, New Law, Non-Retroactivity, and Constitutional Remedies, 104 Harv. L. Rev. 1731, 1778–79 (1991)).

[60] See Fallon & Meltzer, supra note 59, at 1779–86; Kent, supra note 6, at 1156–57.

[61] Hernandez I, 137 S. Ct. 2003, 2007 (2017).

[62] See supra note 20 and accompanying text.

[63] Boumediene v. Bush, 553 U.S. 723 (2008).

[64] See Andrew Kent, Judicial Review for Enemy Fighters: The Court's Fateful Turn in Ex Parte Quirin, the Nazi Saboteur Case, 66 Vand. L. Rev. 153, 245–46 (2013).

[65] Brief for Petitioners at 12, Hernandez I, 137 S. Ct. 2003 (2017) (No. 15–118) (quoting Boumediene, 553 U.S. at 764). As I have shown, Boumediene was incorrect on this point: formalism, not factual and practical balancing, dominated the Court’s approach to extraterritoriality through at least the mid-twentieth century, if not later. See Kent, Insular Cases, supra note 21.

[66] Brief for Petitioners at 17, Hernandez I, 137 S. Ct. 2003 (2017) (No. 15–118).

[67] Id. at 20–21.

[68] Andrew Kent, Thoughts on the Briefing to Date in Hernandez v. Mesa—The Cross-border Shooting Case, Lawfare (Dec. 27, 2016).

[69] Hernandez I, 137 S. Ct. at 2007.

[70] Hernandez II, 140 S. Ct. 735, 744, 746–47 (2020).

[71] Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 140 S. Ct. 2082, 2086–87 (2020). The case concerned whether separately-incoporated foreign affiliates possess the same First Amendment speech rights that the Court had previously found that the American parent organizations possessed.

[72] See id. at 2100 (Breyer, J., dissenting).

[73] Bivens v. Six Unknown Names Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 402 (1971) (Harlan, J., concurring) (quoting Textile Workers v. Lincoln Mills, 353 U. S. 448, 460 (Burton, J., concurring in result)).

[74] See e.g., Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 326–27 (2015); Virginia Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 255 (2011); Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 487, 491 (2010); Verizon Md. Inc. v. Public Serv. Comm’n of Md., 535 U.S. 635, 640, 644–45 (2002); Schneider v. Smith, 390 U.S. 17, 21–22 (1968); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 583–84 (1952); Mulford v. Smith, 307 U.S. 38, 46–47 (1939); Rickert Rice Mills v. Fontenot, 297 U.S. 110, 113 (1936); Philadelphia Co. v. Stimson, 223 U.S. 605, 619–20 (1912); Ex parte Young, 209 U.S. 123, 129, 132, 144–45 (1908); American Sch. of Magnetic Healing v. McAnnulty, 187 U.S. 94, 110 (1902); Carroll v. Safford, 44 U.S. (3 How.) 441, 463 (1845); Osborn v. Bank of U. S., 22 U.S. (9 Wheat.) 738, 838–39, 844 (1824).

[75] Scholars have been critical of the Court’s seemingly incongruous approach, pointing out that historically damages have been the ordinary remedy for invasion of legally protected interests, including by government officials, and equity the extraordinary remedy—the reverse of the modern Court’s doctrine. See John F. Preis, In Defense of Implied Injunctive Relief in Constitutional Cases, 22 Wm. & Mary Bill Rts. J. 1, 3 (2013) (citing examples). I have previously suggested some answers to the question why the Court prefers injunctions to damages in the national security context. See Kent, supra note 6.

[76] Bivens, 403 U.S. at 405 (Harlan, J., concurring).

[77] Elgin v. Dept. of Treasury, 567 U.S. 1, 25 (2012) (Alito, J., dissenting) (quoting Bell v. Hood, 327 U. S. 678, 684 (1946)).

[78] Preis, supra note 75, at 41.

[79] Bush v. Lucas, 462 U.S. 367, 374, n.12 (1983) (describing Ex parte Young, 209 U.S. 123 (1908)).

[80]  Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 326–27 (2015).

[81] Id.

[82] Sosa v. Alvarez-Machain, 542 U.S. 692, 714, 724 (2004).

[83] See Anthony J. Bellia Jr. & Bradford R. Clark, The Original Source of the Cause of Action in Federal Courts: The Example of the Alien Tort Statute, 101 Va. L. Rev. 609, 631–36 (2015); Preis, supra note 75, at 9–10.

[84] Judiciary Act of 1789, ch. 20, §§ 11, 13–14, 34, 1 Stat. 73, 78–82, 92.

[85] An Act to Regulate Processes in the Courts of the United States, ch. 21, § 2, 1 Stat. 93, 93–94 (1789). More specifically, this statute provided that “forms and modes of proceeding” in equity, admiralty, and maritime cases should be “according to the course of the civil law.” Id.

[86] An Act for Regulating Processes in the Courts of the United States, ch. 36, § 2, 1 Stat. 275, 276 (1792). In this statute, the forms of proceeding for non-common law cases were required to be “according to the principles, rules and usages which belong to courts of equity and to courts of admiralty respectively, as contradistinguished from courts of common law.” Id.

[87] See Bellia & Clark, supra note 83, at 614–15, 627–28, 643–45; Preis, supra note 75, at 24; Kristin A. Collins, A Considerable Surgical Operation: Article III, Equity, and Judge-Made Law in the Federal Courts, 60 Duke L.J. 249, 259–60, 264, 278 (2010). For Supreme Court decisions on this point, see, for example, Robinson v. Campbell, 16 U.S. 212, 221–23 (1818); Boyle v. Zacharie, 31 U.S. (6 Pet.) 648, 658 (1832); Livingston v. Story, 34 U.S. 632, 655–56 (1835); Atlas Life Ins. Co. v. W. I. S., Inc., 306 U.S. 563, 568 (1939).

[88] Process Act of May 19, 1828, ch. 68, §1, 4 Stat. 278, 278–82. Louisiana was excepted, because it had a civil law-based system from its time under Spanish and French rule.

[89] An Act to Further the Administration of Justice, ch. 255, 17 Stat. 196 (1872) (Conformity Act).

[90] Swift v. Tyson, 41 U.S. (16 Pet.) 1 (1842).

[91] Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).

[92] See Henry Paul Monaghan, A Cause of Action, Anyone?: Federal Equity and the Preemption of State Law, 91 Notre Dame L. Rev. 1807, 1825 n.122 (2016); Thomas W. Merrill, Article III, Agency Adjudication, and the Origins of the Appellate Review Model of Administrative Law, 111 Colum. L. Rev. 939, 949 (2011).

[93] An Act to Codify, Revise, and Amend the Laws Relating to the Judiciary, §§ 263–66, Pub. L. no. 61–475, 36 Stat. 1087 (Judicial Code of 1911).

[94] Preis, supra note 75, at 42.

[95] Rules Enabling Act, Pub. L. No. 73–415, 48 Stat. 1064 (1934) (codified as amended at 28 U.S.C. § 2072).

[96] See Rules 67 and 70, Fed. R. Civ. P. (effective 1938).

[97] 28 U.S.C. § 2072(b).

[98] The Federal Rules of Civil Procedure do not purport to decide when parties may sue for particular kinds of relief.

[99] Preis, supra note 75, at 42–44; see also Leedom v. Kyne, 358 U.S. 184, 190 (1958); Bell v. Hood, 327 U.S. 678, 684 (1946); Holmberg v. Armbrecht, 327 U.S. 392, 395 (1946); Guaranty Trust Co. v. York, 326 U.S. 99, 104–05 (1945); Atlas Life Ins. Co. v. W. I. S., Inc., 306 U.S. 563, 568 (1939).

[100] Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 402 (Harlan, J., concurring) (quoting Textile Workers v. Lincoln Mills, 353 U. S. 448, 460 (Burton, J., concurring in result)).

[101] Boyle v. United Techs. Corp, 487 U.S. 500 (1988).

[102] See e.g., Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 97–98 (1991) (unanimous decision joined by Bivens skeptics Justices Rehnquist, Scalia, Kennedy, and O’Connor); Collins v. Virginia, 138 S. Ct. 1663, 1678–80 (2018) (Thomas, J., concurring); Empire Healthchoice Assur., Inc. v. McVeigh, 547 U.S. 677, 702 (2006) (Alito and Kennedy, J.J., joining a dissent).

[103] Bivens, 403 U.S. at 403–04 (Harlan, J., concurring).

[104] See also Gundy v. United States, 139 S. Ct. 2116, 2131, 2133 (2019) (Gorsuch, J., dissenting, joined by Roberts, C.J. and Thomas, J.) (citation omitted) (“The Constitution promises that only the people's elected representatives may adopt new federal laws restricting liberty” or “prescrib[ing] the rules by which the duties and rights of every citizen are to be regulated.”).