Amicus Curiae Brief — Erik Egbert, Petitioner v. Robert Boule

Supreme Court briefDec 27, 2021

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No. 21-147

In the

Supreme Court of the United States

ERIK EGBERT,

ROBERT BOULE,

Petitioner,

Respondent.

On Writ of Certiorari to the United States Court

of Appeals for the Ninth Circuit

BRIEF OF AMICI CURIAE FORMER U.S.

ATTORNEYS GENERAL JOHN D. ASHCROFT,

WILLIAM P. BARR, ALBERTO R. GONZALES,

EDWIN MEESE III, MICHAEL B. MUKASEY, AND

JEFFERSON B. SESSIONS III IN SUPPORT OF

PETITIONER

STEVEN A. ENGEL

Counsel of Record

MICHAEL H. MCGINLEY

JUSTIN M. ROMEO

ERIC D. HAGEMAN

MICHAEL P. CORCORAN

DECHERT LLP

1900 K Street, NW

Washington, DC 20006

(202) 261-3300

steven.engel@dechert.com

Counsel for Amici Curiae

December 27, 2021

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF AMICI CURIAE ............................... 1

INTRODUCTION

AND

SUMMARY

ARGUMENT ............................................................... 3

ARGUMENT ............................................................... 5

Only Congress Has Authority To Create New

Legal Remedies .................................................... 5

II. Expanding Bivens To Border Enforcement

Jeopardizes National Security........................... 13

CONCLUSION ......................................................... 17

TABLE OF AUTHORITIES

Cases

Alexander v. Sandoval,

532 U.S. 275 (2001).......................................... 10, 13

Anderson v. Creighton,

483 U.S. 635 (1987)................................................ 15

Armstrong v. Exceptional Child Center, Inc.,

575 U.S. 320 (2015)................................................ 10

Ashcroft v. Iqbal,

556 U.S. 662 (2009).................................................. 4

Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics,

403 U.S. 388 (1971)........................................ passim

Boule v. Egbert,

998 F.3d 370 (9th Cir. 2020).................... 3, 6, 14, 16

Bush v. Lucas,

462 U.S. 367 (1983).................................................. 8

Carlson v. Green,

446 U.S. 14 (1980).................................................... 7

Chappell v. Wallace,

462 U.S. 296 (1983)............................................ 8, 16

Chi. & S. Air Lines, Inc. v. Waterman S. S.

Corp., 333 U.S. 103 (1948) ..................................... 17

Correctional Services Corp. v. Malesko,

534 U.S. 61 (2001).................................................... 8

Cort v. Ash,

422 U.S. 66 (1975).................................................... 7

iii

Davis v. Passman,

442 U.S. 228 (1979).................................................. 7

Dep’t of Navy v. Egan,

484 U.S. 518 (1988)................................................ 14

Erie R. Co. v. Tompkins,

304 U.S. 64 (1938).................................................... 4

FDIC v. Meyer,

510 U.S. 471 (1994).................................................. 8

Haig v. Agee,

453 U.S. 280 (1981)................................................ 14

Hamdi v. Rumsfeld,

542 U.S. 507 (2004)................................................ 17

Hernandez v. Mesa,

140 S. Ct. 735 (2020).......................... 4, 9, 13, 14, 16

Jesner v. Arab Bank,

138 S. Ct. 1386 (2018)................................ 10, 11, 12

Lanuza v. Love,

899 F.3d 1019 (9th Cir. 2018)................................ 14

Minneci v. Pollard,

565 U.S. 118 (2012).................................................. 8

Nestle USA, Inc. v. Doe,

141 S. Ct. 1931 (2021)...................................... 10, 12

Oetjen v. Central Leather Co.,

246 U.S. 297 (1918)................................................ 14

Pearson v. Callahan,

555 U.S. 223 (2009)................................................ 15

Plaut v. Spendthrift Farm, Inc.,

514 U.S. 211 (1995).................................................. 6

Schweiker v. Chilicky,

487 U.S. 412 (1988).................................................. 8

United States v. Delgado-Garcia,

374 F.3d 1337 (D.C. Cir. 2004) .............................. 15

United States v. Stanley,

483 U.S. 669 (1987)............................................ 8, 16

Wilkie v. Robbins,

551 U.S. 537 (2007).................................................. 8

Ziglar v. Abbasi,

137 S. Ct. 1843 (2017).................................... passim

Constitution and Statutes

U.S. Const. art. I ......................................................... 6

6 U.S.C. § 111 ........................................................... 15

42 U.S.C. § 1983 ..................................................... 3, 7

Other Authorities

Neil Gorsuch, A Republic, If You Can Keep It

(2019) ........................................................................ 6

The Federalist No. 70 (Jacob E. Cooke ed., 1961) ... 16

INTEREST OF AMICI CURIAE 1

Amici curiae are six former Attorneys General of

the United States. Each of the amici had the privilege

of serving as the Nation’s chief law enforcement

officer, an experience that left them acutely aware of

the responsibilities vested in law-enforcement and

national-security officials, as well as the need to

ensure that fulfillment of these critical responsibilities

is not chilled by the threat of civil litigation,

particularly litigation seeking remedies that have not

been authorized by Congress.

This case concerns a claim under Bivens v. Six

Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388 (1971), brought against a U.S.

Customs and Border Protection agent based on an

encounter near an international border. Amici are

concerned that the Ninth Circuit’s expansion of Bivens

departs from forty years of this Court’s precedents

and, if left in place, would interfere with the

Executive’s performance of vital law-enforcement and

national-security functions.

This Court has clearly and consistently directed

lower courts not to compound the original error of

Bivens by expanding that decision into novel contexts.

Article I of the Constitution vests power to create legal

remedial actions in Congress alone, and respecting the

boundaries among the branches is most important in

cases bearing on foreign affairs and national security.

1 Pursuant to Sup. Ct. R. 37.6, amici curiae affirm that no

counsel for a party authored this brief in whole or in part and

that no person other than amici curiae and their counsel made a

monetary contribution to its preparation or submission. Both

parties have consented to the filing of this amicus brief.

Having served in high executive office, amici know

firsthand the importance of protecting executive

discretion in the enforcement of our laws and the

protection of our national security.

The Honorable John D. Ashcroft served as

Attorney General of the United States from 2001 to

2005. He was also United States Senator from

Missouri from 1995 to 2001, Governor of Missouri

from 1985 to 1993, and Attorney General of Missouri

from 1977 to 1985.

The Honorable William P. Barr served as Attorney

General of the United States from 2019 to 2020 and

from 1991 to 1993. He also served as Assistant

Attorney General for the Office of Legal Counsel from

1989 to 1990 and Deputy Attorney General from 1990

to 1991.

The Honorable Alberto R. Gonzales served as

Attorney General of the United States from 2005 to

2007. He also served as White House Counsel from

2001 to 2005 and as Associate Justice of the Supreme

Court of Texas from 1999 to 2001.

The Honorable Edwin Meese III served as Attorney

General of the United States from 1985 to 1988. He

also served as Counselor to President Ronald Reagan

from 1981 to 1985.

The Honorable Michael B. Mukasey served as

Attorney General of the United States from 2007 to

2009. He also was a judge on the United States

District Court for the Southern District of New York

from 1987 to 2006.

The Honorable Jefferson B. Sessions III served as

Attorney General of the United States from 2017 to

2018. He was also a United States Senator from

Alabama from 1997 to 2017, Attorney General of

Alabama from 1995 to 1997, and United States

Attorney for the Southern District of Alabama from

1981 to 1993.

INTRODUCTION AND SUMMARY OF

ARGUMENT

For nearly two centuries, this Court left it to

Congress to define the legal remedies for

constitutional violations. That is because Article III

grants federal courts the “judicial power” to decide

cases or controversies within their jurisdiction, while

Article I vests in Congress the “legislative power” to

craft legal remedies for the violation of constitutional

rights.

In Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, the Court discovered in the

Fourth Amendment an “implied” right to collect

damages when certain federal officers violate its

terms. 403 U.S. 388 (1971). The Court admitted that

“the Fourth Amendment does not in so many words

provide for its enforcement by an award of money

damages,” id. at 396, and it understood that Congress

had not chosen to include federal officers when it

created a civil damages action for constitutional

wrongs under 42 U.S.C. § 1983, see id. at 429–30

(Black, J., dissenting).

Without support in constitutional text, structure,

or history, the Court grounded Bivens in “the

amorphous belief that federal courts have the

authority to ‘make good the wrong done.’” Boule v.

Egbert, 998 F.3d 370, 374 (9th Cir. 2020) (Bumatay,

J., dissenting from the denial of rehearing en banc)

(quoting Bivens, 403 U.S. at 396). Relying on a view

of judicial lawmaking that had elsewhere been

discarded, see, e.g., Erie R. Co. v. Tompkins, 304 U.S.

64, 78 (1938), the Court created a right of action and a

damages remedy that Congress had not previously

seen fit to add to the United States Code.

The Court did not take long “to appreciate more

fully the tension between this practice and the

Constitution’s separation of legislative and judicial

power.” Hernandez v. Mesa, 140 S. Ct. 735, 741 (2020).

After extending Bivens twice in the decade after the

decision, the Court has unfailingly rejected any new

expansion over the past forty years, returning to an

understanding of the judicial power that leaves the

creation of new remedies to Congress.

In so doing, the Court has increasingly

characterized Bivens as a judicial usurpation of the

legislative power. The Court has called Bivens

remedies “disfavored,” Ashcroft v. Iqbal, 556 U.S. 662,

675 (2009), and the product of a since-deposed “ancien

regime,” Ziglar v. Abbasi, 137 S. Ct. 1843, 1851 (2017)

(citation omitted).

With some degree of

understatement, the Court has called it “doubtful”

that it “would have reached the same result” if the

case arose today. Hernandez, 140 S. Ct. at 742–43

(citing Abbasi, 137 S. Ct. at 1856).

While the Court has not taken the additional step

of overruling Bivens, it has directed lower courts not

to compound the error by inferring causes of actions in

cases that “differ in a meaningful way” from the three

scenarios this Court has directly endorsed. Abbasi,

137 S. Ct. at 1860. For cases that involve a new

context or a new category of defendants, courts must

consider whether “special factors” counsel against

extension. Id. at 1859.

In this case, the Ninth Circuit blew through forty

years of precedent that stood against inferring new

causes of action. Amici agree with Petitioner that the

decision below ignores at least two special factors

counseling against a novel expansion of Bivens: the

separation of powers and the implications this case

has on national security and foreign affairs. Amici

write separately to emphasize that regardless of the

“special factor” framework, any expansion of Bivens

contravenes the separation of powers under the

Constitution itself. And such expansion is even more

disconcerting when, as here, it touches on national

security and foreign affairs, inviting the judiciary to

second-guess the judgment of executive officers in

these critical areas.

ARGUMENT

Only Congress Has Authority To Create New

Legal Remedies.

Petitioner has more than adequately demonstrated

that the Ninth Circuit’s expansion of Bivens infringes

on the separation of powers. Amici write separately to

emphasize two critical points.

First, the separation of powers is not just one of

several “special factors counseling hesitation” in

Bivens expansions. Instead, it is the linchpin of the

analysis. This Court’s precedents demonstrate that a

proper respect for the separation of powers should be

the primary reason for hesitation in expanding Bivens.

And, although for now, the Court has declined

certiorari on the question whether to do away with

Bivens altogether, it may and should hold that any

further expansion of Bivens to encompass new causes

of action violates the separation of powers. Bivens

itself

expanded

judicial

power

into

the

incontrovertibly legislative task of remedy creation.

This Court has refused invitation after invitation to

compound the damage. It should unequivocally

instruct lower courts that they must do the same.

One of the great innovations of our Constitution is

the separation of powers among the three branches.

See Boule, 998 F.3d at 374 (Bumatay, J., dissenting

from the denial of rehearing en banc) (citing Neil

Gorsuch, A Republic, If You Can Keep It 40 (2019)).

The Framers designed Articles I and III “to separate

the legislative from the judicial power.” Id. (quoting

Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 219

(1995)). Article I vests “[a]ll legislative powers” in “a

Congress of the United States.” U.S. Const. art. I, § 1

(emphasis added). Article III in contrast vests the

“judicial power of the United States” in this Court and

the lower federal courts.

This separation gave the United States an

independent judiciary that, time and again, has

proven itself an essential check on overreaching by the

political branches. But with that great power comes a

concomitant responsibility for the federal judiciary to

eschew quintessentially legislative policy judgments.

That includes the various policy judgments necessary

to determine who may sue for constitutional

violations, who the appropriate defendants in such

cases are, and what damages or other legal remedies

may be available.

Bivens itself was an act of judicial lawmaking that

sought to improve on the text of the Fourth

Amendment by adding a damages remedy that did not

previously exist. The Court took the same step in

Davis v. Passman, 442 U.S. 228 (1979), by crafting a

Fifth Amendment right to sue a member of Congress

for employment discrimination, and in Carlson v.

Green, 446 U.S. 14 (1980), by creating an Eighth

Amendment right for federal prisoners to sue for

mistreatment. But Bivens has had all of nine good

years and forty-odd bad ones. This Court’s most

recent precedents have emphatically rejected the

intellectual premise of these three decisions and

rejected any attempt to expand them to new claims.

In Ziglar v. Abbasi, the Court declined to extend

Bivens to Fourth and Fifth Amendment claims

brought by aliens detained after the September 11

terrorist attacks. 137 S. Ct. at 1851. In so doing, the

Court discussed the strict limits of its Bivens

jurisprudence. It recounted Congress’s decision in

1871 to enact 42 U.S.C. § 1983, which authorized

money damages against state officials who violate

constitutional rights, but pointedly withheld that

remedy against federal officials.

Despite that

legislative determination, one hundred years later,

Bivens found “general principles of federal

jurisdiction” sufficient to authorize an implied cause

of action for certain Fourth Amendment violations. Id.

at 1854. Even so, as soon as 1975, the Court began

pulling back on implied causes of action, “adopt[ed] a

far more cautious course.” Id. at 1855 (citing Cort v.

Ash, 422 U.S. 66, 68–69 (1975)). By 2012, the Court

had rejected implied damages remedies in no fewer

than eight constitutional contexts. Id. at 1857. 2

The Court’s explanation for this course correction

was simple: “when a party seeks to assert an implied

cause of action under a federal statute, separation-ofpowers principles are or should be central to the

analysis.” Id. That is because “an issue [that] involves

a host of considerations that must be weighed and

appraised . . . should be committed to those who write

the laws rather than those who interpret them.” Id.

(citation omitted; cleaned up). “In most instances, the

Court’s precedents now instruct, the Legislature is in

the better position to consider if the public interest

would be served by imposing a new substantive legal

liability. As a result, the Court has urged ‘caution’

before extending Bivens remedies into any new

context.” Id. (citations omitted; cleaned up). These

separation-of-powers concerns are not merely “special

factors counselling hesitation,” id., but are the

See Bush v. Lucas, 462 U.S. 367, 390 (1983) (declining to

create an implied damages remedy in a First Amendment suit

against federal employer); Chappell v. Wallace, 462 U.S. 296

(1983) (race-discrimination claims against military officers);

United States v. Stanley, 483 U.S. 669 (1987) (substantive due

process claim against military officers); Schweiker v. Chilicky,

487 U.S. 412 (1988) (due process claim against Social Security

officials); FDIC v. Meyer, 510 U.S. 471 (1994) (wrongfultermination claims against federal agency); Correctional Services

Corp. v. Malesko, 534 U.S. 61 (2001) (Eighth Amendment claim

against private prison); Wilkie v. Robbins, 551 U.S. 537 (2007)

(due process claim against federal officials); Minneci v. Pollard,

565 U.S. 118 (2012) (Eighth Amendment claim against private

prison guards).

animating principle weighing strongly against every

potential expansion of Bivens.

The Court’s opinion in Hernandez v. Mesa, 140

S. Ct. 735 (2020), picked up where Abbasi left off.

Hernandez rejected expanding Bivens to Fourth and

Fifth Amendment claims arising from a cross-border

shooting. The Court affirmed that the separation of

powers is not a mere “special factor.” Instead, all the

“multiple factors that counsel hesitation about

extending Bivens” are “condensed to one concern—

respect for the separation of powers.” Id. at 749 (citing

Abbasi, 137 S. Ct. at 1857–58). The Court reaffirmed

that the central question is whether it is Congress or

the Court who has the authority to fashion new

remedies. And as in Abbasi, the Court recognized that

“[t]he correct ‘answer most often will be Congress.’”

Id. at 750 (quoting Abbasi, 137 S. Ct. at 1857). The

Court should now confirm that the correct answer will

always be Congress, because the power to create new

remedies is a legislative power.

These cases inch closer and closer to the simple

acknowledgment that Bivens itself was a mistake.

Fifty years after its genesis, it has served only to invite

a series of misadventures into judicial legislating,

including in the decision below. It has forced this

Court repeatedly to confront unwarranted extensions

of the doctrine, and it has allowed lower courts to

impinge Congress’s singular power to legislate. At

minimum, this Court should not expand it here—or

anywhere else.

Second, apart from the Bivens context, this Court

has repeatedly recognized that the power to create

new legal remedies lies solely with Congress. In

Armstrong v. Exceptional Child Center, Inc., the Court

held that the Supremacy Clause does not confer a

private right of action to enforce federal statutes

against state actors. 575 U.S. 320 (2015). The Court

explained that the necessary-and-proper clause grants

Congress “broad discretion” to determine how to carry

out its enumerated powers. Id. at 325. If the

Supremacy Clause included a private right of action,

it would mean the Constitution “requires Congress to

permit the enforcement of its laws by private actors.”

Id. at 326 (emphasis in original). And this sort of

“mandatory

private

enforcement”

would

impermissibly limit Congress’s power to designate its

own statutory enforcement mechanisms. Id.

The Court has reached the same conclusion with

respect to statutory construction. For example, in

Alexander v. Sandoval, the Court held that Title VI of

the Civil Rights Act of 1964 does not authorize a

private

civil

action

for

disparate-impact

discrimination. 532 U.S. 275 (2001). Justice Scalia’s

opinion for the Court recognized that “[l]ike

substantive federal law itself, private rights of action

to enforce federal law must be created by Congress.”

Id. at 286 (citation omitted). The Court’s task is to

“interpret the statute Congress has passed,” and

without congressional creation of a cause of action,

“courts may not create one, no matter how desirable

that might be as a policy matter, or how compatible

with the statute.” Id. at 286–87 (citations omitted).

The Court’s recent opinions interpreting the Alien

Tort Statute (“ATS”) are to the same effect. See Jesner

v. Arab Bank, 138 S. Ct. 1386 (2018); Nestle USA, Inc.

v. Doe, 141 S. Ct. 1931 (2021). In both cases, several

Justices expressed doubt that the ATS’s general grant

of jurisdiction over “any civil action by an alien for a

tort only, committed in violation of the law of nations

or a treaty of the United States,” authorized the Court

to fashion novel causes of action for violations of

international law.

Writing for the majority in Jesner, Justice

Kennedy reiterated that “[t]he Court’s recent

precedents cast doubt on the authority of courts to

extend or create private causes of action.” 138 S. Ct.

at 1402 (citations omitted). That is because the

expansion of causes of action is a job for Congress,

which “is in the better position to consider if the public

interest would be served by” such decisions. Id.

(quoting Abbasi, 137 S. Ct. at 1857). In a portion of

his opinion joined by the Chief Justice and Justice

Thomas, Justice Kennedy further explained that “the

political branches are better equipped to make the

preliminary findings and consequent conclusions that

should inform this determination.” Id. at 1408

(plurality op.).

Concurring in part, Justice Gorsuch similarly

emphasized that the judicial power does not include

the authority to fashion new legal remedies. The

Constitution’s structure “insulat[es]” federal courts

from democratic accountability and vests Congress

with the power held by common-law courts. Id. at

1413. Citing Abbasi, Justice Gorsuch reiterated that

“when confronted with a request to fashion a new

cause of action, ‘separation-of-powers principles are or

should be central to the analysis.’” Id. (quoting

Abbasi, 137 S. Ct. at 1857).

The proposed expansion of the ATS in Jesner

involved deciding whether “persons like A who engage

in certain conduct will be liable to persons like B.” Id.

This exercise is “just like enacting a new law,” a task

that “belongs to Congress, not the courts.” Id. For

that reason, “separation of powers considerations

ordinarily require us to defer to Congress in the

creation of new forms of liability.” Id. at 1414. 3

In Nestle USA, Inc. v. Doe, the Court similarly

rejected expanding the ATS to cover injuries that

occurred overseas. 141 S. Ct. 1931 (2021). While the

majority rested this decision on the presumption

against extraterritoriality, as section of Justice

Thomas’s lead opinion joined by Justices Gorsuch and

Kavanaugh also concluded that the task for “creat[ing]

a cause of action” under the ATS belongs to Congress.

Id. at 1937 (plurality op.). Justice Thomas expressed

serious doubt that causes of action under the ATS

could extend past the three historical torts recognized

at the time of its adoption, id. at 1938, and concluded

that “our precedents already make clear that there

always is a sound reason to defer to Congress,” id. at

1940. Therefore, the question whether to permit

additional causes of action “lies within the province of

the Legislative Branch.” Id.

Justice Thomas’s and Justice Alito’s opinions similarly

emphasized separation-of-powers concerns. See Jesner, 138

S. Ct. at 1408 (Thomas, J., concurring) (“Courts should not be in

the business of creating new causes of action under the Alien Tort

Statute . . . .” (citations omitted)); id. (Alito, J., concurring)

(outcome “compelled not only by judicial caution, but also by the

separation of powers” (citation and quotation marks omitted)).

Justice Gorsuch’s concurrence reached the same

conclusion, recognizing that nothing in the ATS

“deputizes” this Court to innovate new causes of action

or legal remedies. Id. at 1942–43 (Gorsuch, J.,

concurring). The ATS merely grants the Court

jurisdiction to hear preexisting tort claims. Before the

Constitution, common-law courts bore responsibility

for creating and defining new legal remedies. But the

Constitution withheld that function from the federal

courts. Id. at 1942 (citing Sandoval, 532 U.S. at 287).

The Court’s approach in these cases applies with

equal, if not greater, force to the Ninth Circuit’s novel

expansion of Bivens. The plaintiffs in those cases

asked this Court to do precisely what the lower court

did here: to fashion new rights and remedies absent

congressional authorization. As in those cases, here,

the Court should reaffirm the foundational principle

that the power to create new legal remedies rests

solely with Congress and accordingly reject the Ninth

Circuit’s arrogation of congressional authority.

II. Expanding Bivens To Border Enforcement

Jeopardizes National Security.

Petitioner is also correct that the Ninth Circuit’s

expansion of Bivens to First Amendment and borderinvolved Fourth Amendment claims could chill

decisions needed to protect our national security and

thus implicate another “special factor” under Bivens.

Indeed, any intrusion on the sensitive area of

immigration policy violates the separation of powers

twice-over.

Because suits challenging border

enforcement actions necessarily implicate national

security, Hernandez, 140 S. Ct. at 746, any expansion

of Bivens in this context would encroach on

prerogatives entrusted to the Executive under Article

II, as well as Congress under Article I. See Boule, 998

F.3d at 382–83 (Bumatay, J., dissenting from the

denial of rehearing en banc). That double intrusion on

the separation of powers makes this case “an easy

call.” Id. at 382.

The United States’ foreign relations and national

security are committed to the political branches. See

Oetjen v. Central Leather Co., 246 U.S. 297, 302

(1918). It follows that “[m]atters intimately related to

foreign policy and national security are rarely proper

subjects for judicial intervention.” Haig v. Agee, 453

U.S. 280, 292 (1981).

Accordingly, Abbasi and

Hernandez both establish that Bivens should not be

expanded to claims that would jeopardize the political

branches’ autonomy in these arenas. As both cases

explain, “‘courts traditionally have been reluctant to

intrude upon the authority of the Executive in military

and national security affairs’ unless ‘Congress

specifically has provided otherwise.’” 137 S. Ct. at

1861 (quoting Dep’t of Navy v. Egan, 484 U.S. 518, 530

(1988))); Hernandez, 140 S. Ct. at 744 (same).

The Ninth Circuit ignored this consideration,

concluding

that

“run-of-the-mill

immigration

proceeding[s]” were “unrelated to any other national

security decision or interest.” Boule, 998 F.3d at 389

(panel op.) (quoting Lanuza v. Love, 899 F.3d 1019,

1030 (9th Cir. 2018)). But that facile distinction

squarely conflicts with this Court’s precedents. The

Court has held that the judiciary must respect “the

framework established by the political branches”

regarding foreign relations and national security.

Hernandez, 140 S. Ct. at 746. Here, Congress has

clearly granted authority over immigration matters to

the Department of Homeland Security and, in turn,

the U.S. Customs and Border Protection (“CBP”). See

6 U.S.C. §§ 111(b)(1)(A), 111(b)(1)(E). The bordercontrol policies at issue “are of crucial importance to

the national security and foreign policy of the United

States,” regardless of whether the facts in a particular

case implicate that subject. See United States v.

Delgado-Garcia, 374 F.3d 1337, 1345 (D.C. Cir. 2004).

Expanding Bivens here would threaten real-world

harm to national security and to border-enforcement

efforts. Subjecting border patrol agents to judicial

second-guessing risks clouding their judgment and

encumbering important split-second decisions. As the

Court has explained, “permitting damages suits

against government officials can entail substantial

social costs, including the risk that fear of personal

monetary liability and harassing litigation will unduly

inhibit officials in the discharge of their duties.”

Anderson v. Creighton, 483 U.S. 635, 638 (1987)

(citation omitted). In addition, the costs of complying

with judicially invented remedies (or those yet to be

invented) and of defending against a slurry of new

lawsuits will redirect executive resources that could be

better used to protect our borders. See, e.g., id.

(detailing costs of expanded officer liability including

“the expenses of litigation”); Pearson v. Callahan, 555

U.S. 223, 237–38 (2009) (discussing importance of

quick disposition of Bivens claims to avoid “wast[ing]

the parties’ resources”).

Those harms are hardly theoretical in this case.

Petitioner is a member of a CBP unit that focuses

specifically on “counterterrorism, cross-border crime,

and drug and human trafficking.” Boule, 998 F.3d at

383 (Bumatay, J., dissenting from the denial of

rehearing en banc). The site of the incident was a

known hub for smugglers and illegal migrants. And

Respondent himself “has since been arrested by

Canadian authorities and charged with human

trafficking.” Id. at 375 n.3. Rather than allow the

Executive Branch to protect our borders against these

threats, the Ninth Circuit would have the judiciary

second-guess critical actions in the field.

Moreover, as this Court has recognized, protecting

the Nation’s physical borders is a profoundly

important aspect of national security. In Hernandez,

for example, the Court likened interference in border

security to interfering with “system[s] of military

discipline.” 140 S. Ct. at 746–47 (citing Chappell v.

Wallace, 462 U.S. 296 (1983), and United States v.

Stanley, 483 U.S. 669 (1987)). Because “regulating the

conduct of agents at the border unquestionably has

national security implications, the risk of

undermining border security provides reason to

hesitate before extending Bivens into this field.” Id. at

747 (citing Abbasi, 137 S. Ct. at 1861).

The Founders understood these threats. Hamilton

wrote in The Federalist No. 70 that “[e]nergy in the

Executive . . . is essential to the protection of the

community against foreign attacks.” The Federalist

No. 70, at 469 (Jacob E. Cooke ed., 1961). That is

because “[d]ecision, activity, secrecy, and dispatch will

generally characterise the proceedings of one man, in

a much more eminent degree, than the proceedings of

any greater number.” Id. The separation of powers is

therefore “most important in the national-security and

foreign-affairs contexts.” Hamdi v. Rumsfeld, 542

U.S. 507, 581 (2004) (Thomas, J., dissenting). And,

while Congress “has a substantial and essential role

in both foreign affairs and national security,” judicial

review of these matters, absent legislative sanction,

“destroys the purpose

of vesting

primary

responsibility in a unitary Executive.” Id. at 582; see

also Chi. & S. Air Lines, Inc. v. Waterman S. S. Corp.,

333 U.S. 103, 111 (1948) (recognizing that foreignpolicy decisions “are wholly confided by our

Constitution to the political departments of the

government, Executive and Legislative”).

Amici thus urge this Court to be especially reticent

to extend Bivens to claims involving important issues

of national security.

The separation-of-powers

concerns that have restricted this Court’s expanding

Bivens in every other context apply with special force

where, as here, national security and foreign affairs

are on the line.

CONCLUSION

For the foregoing reasons, the judgment of the

Ninth Circuit should be reversed.

Respectfully submitted,