In 2022, the Supreme Court effectively gutted a long-standing constitutional remedy for torts committed by federal officers. In the process, it seemingly immunized even the most serious abuses committed by Border Patrol agents. Such dramatic legal transformation has occurred despite — and perhaps because of — the soaring numbers of migrants at the southern border and the sobering evidence of alleged abuses there. According to one study, since 2010, over 250 persons, including unarmed children, have died due to fatal encounters with Border Patrol agents.
While the Court has historically expressed skepticism toward this remedy since its inception in the landmark case Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, its recent expression of outright hostility toward it is relatively new. To justify such casual discarding of an established constitutional precedent, it cast Bivens as an unlawful judicial usurpation of legislative power.
Though scholars have probed the reasons for the remedy’s demise, they have not focused on the important role that immigrants and immigration law have played in it. The Article’s novel contribution is filling that gap by contextualizing the transformation of constitutional torts within immigration law and its animating principles. It frames the Court’s separation-of-powers rationales as incomplete by showing that the remedy’s erosion occurred primarily in cases involving immigrants, or immigration-related matters, and through the Court’s reliance on the following three false narratives about them: (1) immigrant as terrorist, (2) immigrant as danger, and (3) immigrant as foreign. It then exposes constitutional torts’ hidden connections to immigration law by locating the same three false narratives in a foundational immigration law theory that has been used to exclude immigrants from the ambit of constitutional protections for over a century. Finally, it examines the import and implications of the remedy’s demise by exposing harms to both the law and the person.