Congress Protects The U.S. Supreme Court After The Court Refused To Protect You

High court gives federal employees effective blanket immunity from being sued for violating citizens' Constitutional rights.

Photo by Michael Dziedzic on Unsplash

The U.S. Congress passed a bill Tuesday to provide enhanced police protection to U.S. Supreme Court Justices and their families.

Only a week earlier, the Court effectively ruled that federal officials have immunity from lawsuits for violating a citizen’s constitutional rights.

So citizens must pay to protect the Court, but the Court says citizens have no right to protection from federal workers who violate their Constitutional rights.

The decision in Egbert v. Boule overturned a ruling by the U.S. Court of Appeals for the Ninth Circuit, based in San Francisco, against a Border Patrol agent who allegedly physically assaulted an innkeeper and then had him investigated by government agencies, including the IRS, in retaliation for filing a complaint.

Robert Boule, the owner of a bed and breakfast in Washington state, near the Canadian border, says he was lifted off the ground by Border Patrol Agent Erik Egbert, thrown against an SUV, and then to the ground. Egbert was checking the immigration status of one of Boule’s guests (who was in the country legally) and Boule had asked him to leave.

Egbert then retaliated against Boule by reporting his license plate to the Washington Department of Licensing for illegal activity, and asking the local assessor and the IRS to investigate. All of them did but found no impropriety.

Boule filed a federal lawsuit charging that Egbert violated his Fourth and First Amendment rights under the U.S. Constitution.

The case was initially dismissed by a lower court but reinstated by the Ninth Circuit based on a 1971 U.S. Supreme Court decision (Bivens v. Six Unknown Fed. Narcotics Agents) that contains a formula that determines whether citizens can file lawsuits against federal workers.

The U.S. Supreme Court overturned the Ninth Circuit decision in a ruling written by U.S. Justice Clarence Thomas that narrowed the so-called Bivens remedy to the point of a pin.

First, the majority said Boule couldn’t sue Border Patrol agents because that “presents national security concerns.” The Court said Boule had an alternative remedy, a complaint to the Border Patrol that resulted in Egbert’s dismissal for “lack of integrity.”

Then the Court said a citizen lawsuit against a federal official should be foreclosed if there is '“any rational reason (even one) to think that Congress is better suited to ‘weigh the costs and benefits of allowing a damages action to proceed.’”

First Amendment

What is really extraordinary about the decision is that the Court effectively denied Boule a remedy for the gross violation of his First Amendment rights.

Justice Thomas wrote that Congress is in a “better position to decide whether or not the public interest would be served by imposing damages on federal officials…. There are many reasons to think that Congress, not the courts, is better suited to authorize such a damages remedy.”

But what if Congress doesn’t choose to act? The import of the Court decision is that a fundamental Constitutional right is contingent upon whether the violator works for the federal government. If he s/he does, fuhgeddaboudit.

The nation’s high court said a citizen has a fundamental Constitutional right but no remedy to enforce that right

The Court expressed concern that allowing lawsuits for First Amendment violations would pose an acute “risk that fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties.”

Yet Boule was forced to pay $5000 to an accountant to assist him in a retaliatory IRS tax audit. Boule was physically assaulted. What are the chances he experienced some fear?

The dissent wrote that the majority “rewrites a legal standard… stretches national-security concerns beyond recognition, and discerns an alternative remedial structure where none exists.”

But even the dissent failed to stand up for Boule’s First Amendment right.

The dissent agreed that Boule’s First Amendment claim was not cognizable because it could potentially reach beyond federal law enforcement officers to virtually all employees. The dissent said this overreach was a matter for Congress.

Justices John Roberts, Samuel Alito, Brett Kavanaugh and Amy Coney Barrett joined Thomas in the majority. Justice Neil M. Gorsuch filed a concurring opinion.. Three judges concurred in part and dissented in part - Justices Sonia Sotomayor, Stephen Breyer and Elena Kagan.