Egbert v. Boule

We will hear argument this morning in case 21-147, Egbert versus Boule.

Hey everyone, this is Andrew Parsons from Prologue Projects.

Leon is away this week.

On this episode of 5-4,

what happens when a Border Patrol agent violates your constitutional rights?

The case involves the owner of an inn near the Canadian border who said a U.S.

Border Patrol agent used excessive force against him.

He sued.

But you actually can't sue, not according to the Supreme Court.

In a six to three decision handed down earlier this year, the justices made it nearly impossible to sue federal officials for damages.

This is 5-4, a podcast about how much the Supreme Court sucks.

Welcome to 5-4.

where we dissect and analyze the Supreme Court cases that have left our civil rights weak and cowering, like a police officer during a school shooting.

I'm Peter.

I'm here with Rhiannon.

Hey, everybody.

Hello.

And Michael.

Hi.

Sorry, we took a week off, so I'm a little late with it, but I had to bring it.

Yeah.

Yeah.

Yeah, yeah.

Fitting.

Today's case is Egbert v.

Boule.

This is a case from just a couple of weeks ago about whether you can sue federal officials for violating your constitutional rights.

There is a law, Title 42, Section 1983, generally referred to as just Section 1983, that allows people to sue state officials who violate their constitutional rights.

So if a state police officer smacks you with a baton for no reason, you can at least theoretically sue for damages.

Right.

But the law does not apply to federal officials.

So there's a question of what you can do when a federal official violates your rights.

Can you sue them for damages?

In the 1970s, in a case called Bivens v.

Six Unnamed Federal Agents, the court held that you can sue federal agents who violate your rights for damages, at least in some circumstances.

And then conservatives took hold of the court and spent 40 years limiting the circumstances in which you could actually sue.

That's right.

This has left a gaping hole in our Constitution where federal officials can openly and even intentionally violate your rights.

And not only do they suffer no consequences, but there's just nothing you can do about it at all.

This fucking case.

So there's a man running an inn near the Canadian border in Washington state, and he's assaulted and then subsequently harassed by a Border Patrol agent.

And he sues, claiming that his First and Fourth Amendment rights were violated.

But the Supreme Court, in a six to three decision written by Clarence Thomas, tells him he's out of luck because whether or not his rights were violated, he has no right to sue.

So, Ree, I feel like the context here is pretty spicy.

This is a fun one.

Yeah, there's some interesting facts here.

There's a smuggler's inn, there's an international border.

Yeah, lots of juicy stuff.

So let's get into it.

This case comes out of Washington state, close to the border with Canada.

So Robert Boulet owns a bed and breakfast there, right along the border with Canada.

And it's a bed and breakfast that's actually known as the Smuggler's Inn, because it's known that guests at this bed and breakfast sometimes illegally cross the border.

And federal agents have also seized large shipments of drugs from the Smuggler's Inn.

This guy rocks.

This is the party bed and breakfast.

Robert Boule, you know, the owner, of course, knows that all of this is happening at his bed and breakfast.

And actually, he was charged in 2018 by the Canadian government for allegedly helping people cross the border into Canada illegally.

Those charges were later dropped, but let's just say, like, he's on the Fed's radar, right?

This place is called the Smuggler's Inn by locals.

So.

Anyways, Border Patrol certainly knows about the activities of the inn.

And as a result, Robert Boulet had acted as a paid CI, a confidential informant for Border Patrol and immigration officials.

Less cool.

Not cool, Robert.

Yeah,

he had done this at various times throughout the years.

Been a snitch.

So that's a bit of background, but let's turn to the specific events that give rise to this case.

In March of 2014, Boulet had a guest at the inn who had recently arrived in the U.S.

from Turkey.

The guest was lawfully present in the United States, but Border Patrol, you know, they're a bunch of assholes.

So one agent, Eric Egbert, wanted more information about this guy.

Egbert drove onto Boulet's property and he approached the car where the Turkish guest was sitting in the parking lot.

Robert Boule intervened, though.

He asked Egbert to leave his property and the agent, Egbert, refused.

When Egbert refused to leave, Boule actually put his body in between the Border Patrol agent and the Turkish guest right next to the guy's car.

So Egbert turns around and grabs Boulet, slams him into the car, and pushes him to the ground.

So Boule complained about this treatment to Egbert's supervisor.

He filed an official kind of grievance with Border Patrol.

Egbert, though, learned about the complaint and he turns around and retaliates against Boulet by contacting the IRS and asking the IRS to investigate Boulet's taxes.

So he's getting another federal agency involved, right?

So Robert Boule says, look, enough of this bullshit.

And he sues Eric Egbert.

He's saying his constitutional rights were violated in two ways.

First, he says that Agent Egbert violated his Fourth Amendment rights by, you know, physically assaulting him on his property when Boulet told Egbert to leave.

And then secondly, Boulet says his First Amendment rights were violated because he should have been allowed to complain to an agent's supervisor without retaliation from the agent.

That's right.

There's another little bit of retaliation I want to mention, which is that he also,

this fascist prick, prick also

reported boulet to some state agency because his license plate, his vanity license plate said smuggler on it.

And he reported it

for referencing illegal activity.

I did not see that.

That's great.

Yeah, it's fantastic.

So let's talk about the law a bit here first because it's fairly technical.

Yeah.

There's this overarching question here about what you do when the government violates the Constitution.

The Constitution lays out what the government can and cannot do, but it doesn't really explain what is supposed to happen when the government does something that it's prohibited from doing.

So the question is: can courts create a remedy for people whose constitutional rights are violated?

Historically, the answer has depended on what type of remedy the person is seeking.

Right.

So a quick aside here first.

This case is about whether the court can create a remedy for people who are seeking damages from federal officials.

So we'll be using the term court-made remedies or judge-made remedies a lot.

That's all we mean.

Courts have been very willing to grant injunctions, which are just court orders directing the government to stop doing something that violates the Constitution.

But there are some violations that injunctions can't solve, right?

When an officer uses excessive force on you, the damage is already done, right?

An injunction is not going to do you any good.

You want compensation for your injury.

I'm getting an injunction as like a cop is like punching you in the face.

Right, right, exactly.

I'm filing for a declaratory and injunctive relief.

You are in so much trouble.

So I mentioned section 1983, a law that allows people to sue state officials who violate their constitutional rights for damages.

But again, no equivalent for federal officials.

Right.

And so in 1971, in that case called Bivens, the court says, okay, even though there's no law saying this, you can sue federal officials who violate your rights for damages.

And the basic reasoning is pretty simple.

If you can't sue for this stuff, then federal officials can just violate your rights at will, right?

There needs to be some way to enforce your rights in these circumstances.

Conservatives have never liked this and have spent decades whittling away at it.

In fact, the court has rejected every Bivens claim since 1980.

Wow.

And so we get to this case, and there are two big questions.

One, the immediate question, how will they resolve Boulet's case?

And two, the bigger question, are they going to shut down any avenue for suing federal officials for damages and get rid of Bivens

once and for all?

Altogether, right.

And then maybe three, are constitutional rights a real thing or just a joke thing?

What's going on with them?

Could y'all please answer that question?

Yeah.

So Boule has sued seeking damages for violations of both his First and Fourth Amendment rights, right?

He says that He was roughed up by the officer violating his Fourth Amendment rights, and then he complained and was retaliated against, and that's a First Amendment violation.

And the majority tells him, of course, to fuck off.

And we will walk through their reasoning.

First, Clarence Thomas starts off with a pretty lengthy discussion, basically, of how he thinks Boulet is like a shady dude.

Yeah.

And he just sort of like talks about the criminal history involved, some of which is like a little bit speculative.

And he says, like, you know, Boule had like a scheme going where he would

escort folks for money,

you know, presumptively across the border.

And then he would alert border Border Patrol.

And he'd inform on them.

And then keep their money.

Right.

And keep the money.

So he's doing like snitch stuff.

And Thomas is trying to say, like, this guy's kind of an asshole.

Although what he skips over is like, Border Patrol is part of that scheme, sounds like.

Right.

Exactly.

Sounds like there's two parties here working in conjunction with one another.

Yeah.

They're literally working together.

That's what.

He's a paid CI.

Like he's literally fucking

working with them.

You know, another another thing Thomas does is like list out all the drugs.

You know what I mean?

Like instead of just saying like drugs were being trafficked through this bed and breakfast, he's like methamphetamine, cocaine, marijuana, like all of the baddest things you could think of.

The other thing I liked about this was that like he's trying to make him sound like a real like exploitive asshole, right?

Like taking money from these people he's informing on.

But it comes off where he's kind of like, can you believe this shady shit?

And he's a snitch.

Right.

Right.

Yes.

Yes, yes.

It really comes off like you think snitching is like a moral character flaw, like, right.

As well, like, yeah.

The other part of this is like he really blurs the line between things that have like happened at the inn and things that Boulet was involved in, right?

He's like, you know, there have been busts at the inn, and it's like, well, was he involved or was it just like because there are, there is smuggling going on in the vicinity, right?

And Thomas doesn't say.

Were those busts because he told CBP to get out there?

Like, somebody brought drugs into my inn.

Yeah, exactly.

And come get him.

And look, I mean, the one thing to note here, all of this aside, is that this is completely irrelevant to the analysis, right?

Exactly.

Nothing to do with this.

Not like in my opinion, but like actually.

Legally.

Right.

Literally just an aside that Thomas starts with.

It has no legal bearing on the case.

This is very similar to what we've discussed in criminal cases where conservative justices will will often

describe the defendant's crime in brutal detail, even though it's not relevant to the analysis.

So, you might ask yourself why they do this.

Why explain that you think this guy is engaged in shady dealings when it's legally not relevant?

And the answer is simple: it serves to the court as a justification for the brutality that they are about to deliver upon this person.

Exactly.

Yep.

There was like years ago, there was this kind of famous message board comment defining conservatism as being one proposition.

There is an in-group that the law protects but does not bind, and an out-group that the law binds but does not protect.

And that's what's happening here.

Clarence Thomas is just identifying him as the out-group.

I have my own version of this, which is just good boy versus bad boy theory.

And Clarence Thomas is telling you this is a bad boy.

Boulet is a bad guy.

We are not going to be deferential toward his rights.

Who else do we think is a good boy and a bad boy on Thomas's?

Genie Thomas is a good boy.

Yeah.

Donald Trump, good boy.

Yep.

That's a good boy.

That's a classic good boy.

Bill Barr with all that nasty testimony he's giving before the January 6th Committee, bad boy.

Bad boy.

He's becoming a bad boy.

Yeah, he used to be a good boy.

He lost his way.

All right.

So then we get into the actual relevant stuff.

And Thomas starts talking about the factors that the court generally uses for establishing whether a plaintiff can pursue damages against a federal official under Bivens.

And the primary questions are whether the case involves a new context that the court hasn't seen before, and whether there are any special factors that would counsel against allowing him to sue in that new context, if so.

But Thomas actually sort of tosses that aside and says, this just boils down to one question.

Is there any reason that we, the Supreme Court, should be the ones to provide a remedy here instead of Congress?

Like, Congress hasn't said that you can sue for damages.

So, like, is there any reason that we should?

That's the only question that needs to be addressed.

Pretty interesting, first because he's just tossing out the precedent, right?

And replacing it with his own little analysis.

And also, because the question is basically rhetorical.

Thomas does not believe that the court should be creating remedies in these cases.

So he's always going to answer the question by rejecting the claim, right?

Yeah.

Yeah.

He's acting like he's like answering this question sort of seriously, right?

Like going through these factors and like, I really want to find an answer to this question, yes or no.

But it's Clarence Thomas.

Like we know his answer to the question.

Yeah.

He really just sort of, you know, has his hand face up here.

He then proceeds to argue that the facts of this case,

because it involves border patrol, which implicates national security, that counsels against allowing for a lawsuit to proceed because the court is not competent to fashion a remedy against Border Patrol agents.

You know, he's sort of using this analysis that they used in Hernandez v.

Mesa, which was one of our earlier episodes.

And it's just like, well, look, we don't mess around with national security.

We're just the court, right?

Who are we to say that some border patrol agent shouldn't shove this guy to the ground?

Right.

Or in the case of Hernandez v.

Mesa, shoot and kill a child.

Right.

Yes.

Shoot a kid across the border.

We're going to need experts to weigh in on whether this fucking Egbert idiot can shove a man to the ground for no reason other than he's angry.

Right.

And also retaliate against him exercising his First Amendment rights with the power of the federal government.

Right.

That's, yeah.

Yeah, the retaliatory claim, that's really, that's national security interests right there.

Right.

For sure.

Fuck off.

this is sort of important though like Peter said they're basically coming out and saying in so many words if not outright that like

the court won't entertain these sorts of claims against border patrol and so it's important to note that border patrol's jurisdiction covers over 200 million people That's most of the country.

Most of the country.

Right.

They can operate within 100 miles of the border, which covers a massive number of cities along the physical border of the United States, including in some cases, like entire states, right?

Like I think the entire state of Florida, the entire state of Hawaii, a lot of New England, but also

that includes like international airports as well.

So any inland city with an international airport is basically like entirely within the jurisdiction of the Border Patrol.

Right.

Which is kind of scary if they have this sort of, you know, blank check to to violate your rights.

And so it's worth like just taking a minute to like understand where this comes from.

So like Border Patrol was created in the 1920s as part of a very racist immigration act,

the Johnson-Reed Act, which was designed to keep all those swarthy-skinned, nasty people from immigrating from like France and Spain and Eastern Europe.

They wanted to limit immigration to like Great Britain and Germany and like the Nordic countries.

And originally it was understood that they would only operate within a few miles of the border, but very quickly they started, you know, forays into the city, and there was some talk about passing legislation.

But in the 40s, it basically, you know, they just said within a reasonable distance of the border.

At that point, they were part of the Department of Justice, and there was a memo written which, in a footnote, said that meant within 100 miles of the border.

And that's it.

Well,

that's how that came to be.

And that's, that's basically

and ever since.

Unbelievable.

An entire Gestapo out of a footnote.

Right.

Right.

They could change that to five miles tomorrow if they wanted to.

I mean, they might need notice and public comment and all that shit.

But given that none of that happened in the creation of the rule, I'm not even convinced they would, they would necessarily need that.

They'd at least have a colorable claim.

Right.

They don't.

So this is very much a choice.

This is a policy choice that we've just sort of accepted that we're going to let these SS pricks run wild over most of the country.

Yeah.

Right.

This feels like a good time to take a break.

And we are back.

So

there's also the question of the First Amendment claim, right?

Boulet is saying, hey, I made a complaint and you retaliated against me.

And Thomas is like, well, first of all, you know, we've never allowed a First Amendment claim under Bivens.

And so this is a new context.

And we shouldn't allow it because if we did, it would unduly inhibit officials in the discharge of their duties, which is how lawyers say would make their jobs harder, I guess.

And it's like, first of all, would it have made his job harder if he didn't call the IRS to

get them to investigate this claim?

I feel like you're going to have to walk me through that one, Clarence.

Right, exactly.

Like you're saying it makes a federal agent's job harder if he's not allowed to retaliate against people like that actually seems like more work if you're just retaliating left and right and like we've actually talked about this before because they use this rationale to allow cops to run wild all the time and it's like yeah like rules tend to make things slightly harder.

The point, the point of the Bill of Rights is to make the federal government's job harder.

Exactly.

Speed limits make it harder to get to work.

That's not an argument against him.

It's just like, but that's like, that's all of the analysis.

He's just like, yeah, well, as you know, if cops have to think for a second about whether they are harassing someone illegally, that would distract them so much that they would not be able to do their jobs.

Yeah.

It's fucking unbelievable.

He's such a fascist prick.

I mean,

he really is the biggest fascist on the court.

Right.

Like we've talked about this in war and terror cases.

We talked about this in school discipline cases right and school speech cases oh yeah yeah rights of students yeah he is a

fascist freak yeah they got to get him off the court man somebody somebody's got to get him off the court i mean we're one cheeseburger away on the other hand the libs don't even dissent from this part right i mean they sign on to the first amendment part of this they dissent from the fourth amendment claim about excessive force but they're like good point clarence It's wild.

I don't understand how Sodomayor

could not see this for what it is.

Right.

It boggles the mind.

We'll talk about our dissent, but I think that it's got a lot of weaknesses.

And this is

for sure.

There's also the Gorsuch concurrence, which is essentially him saying, hey, great opinion, Clarence,

but we should all just admit that we need to throw out Bivens.

It's done for, right?

We haven't allowed a new Bivens claim in 42 years.

Let's just admit that we're all done with it and it doesn't exist.

And that's that.

Yeah.

I think my favorite part of his opinion, and like Sidro Mayor and Descent quotes him on this as well, where he like flat out admits that like you can't really distinguish this case from Bivens.

Right.

Like they're hanging their hat on the fact that it's a border patrol agent, but this isn't really border enforcement.

This is an American citizen.

on American soil on his property, a federal agent entering an American citizen's property without a warrant and then using excessive force.

That is Bivens.

Yes.

Those were the facts of Bivens.

Like, this is indistinguishable.

And he's like, candidly, this is Bivens.

And I agree that we shouldn't do this because we should overturn Bivens.

But what you're doing is smoke and mirrors.

Right.

He's like,

he's, in a sense, he's calling out the majority for being full of shit.

Right.

Right.

Which is correct.

He does it in a very friendly way where he's like, I appreciate that you're trying to simplify this by ignoring the Bivens test that we're supposed to be using that we wrote ourselves four years ago right

right

but you know he's like well i think that uh we should all just lift the veil it's time right yeah yeah we have the power let's do it and it is sort of surprising that thomas wouldn't be on board to do it i don't entirely understand why right i do think gorsuch is maybe the most immodest if that's the right word of the conservative justices and sometimes that's good and sometimes it's bad it's like here he's like let's just admit it we're getting rid of bivens and you know we shouldn't like pussyfoot around it and he does that like with liberal causes as well right like when he on the rare thing that he's good on with like tribal rights he's like it doesn't matter that we've been violating you know tribal sovereignty for 150 years.

If it's wrong, it's wrong.

We should just get rid of it.

It doesn't matter if the insular cases

have been in place for 100 years.

They're awful, racist, colonialist precedent.

We should get rid of them, right?

Right.

But that's also like, it doesn't matter that the administrative state has massive reliance interests on it.

We should get rid of that too.

Right.

You know, he's just, I think immodest is the right word.

He's like a very sort of like, let's just fucking do it and be legends sort of justice.

Like, yeah, it feels, and this is just sort of vibing out his writing, that it's like predicated on.

arrogance a little bit.

I think that's right.

Yes.

But he very much believes that he is the smartest person in every race.

Oh, for sure.

He's like, I'm right.

I know I'm right.

So let's just do it and let's stop pretending like we have any humility about this and just do it right and do the right thing.

Yeah.

Just too bad that 85% and 95% of the time, what he thinks is the right thing is just absolutely heinous and brutal.

Yeah.

He's, I think, maybe the truest believer in like conservative jurisprudence.

Right.

Like he's the guy who's like the, the nerd who's deep in the academic theory of all of this more than someone like Alito, who's just a pure hack.

Right.

You know, Thomas has his moments, but I don't think he reaches Gorsuch levels.

No.

I do, there was another line I wanted to mention from Gorsuch's concurrence that was like driving me nuts, which he says, to create a new cause of action is to assign new private rights.

And no, that's not, there's no new private right here.

The right is the Fourth Amendment.

It's rights in the Constitution.

Right, right.

It's the Fourth and First Amendment.

I can point to that.

The First and Fourth Amendments.

It's so bizarre that that's what they think.

Like Like, the right is not the right to sue.

Right.

No.

Nor is it the right to the money.

The right is not to be brutalized.

Not to have your property trespassed upon and not to be thrown to the ground, to be physically assaulted.

That's the right.

Yeah, exactly.

The question is whether you have any remedy when that right is violated.

That's the only question.

Right?

That's it.

Yeah.

And want to highlight that, like, this is about whether or not Boulet has a claim, whether he can get to court, right?

This isn't about like, oh, they awarded him damages and it's too much compensation and you don't have a right to that, right?

That's not what it is.

It's, do you have a right to get into court to vindicate your rights that are in the Constitution?

Yeah, right.

And they frame it as like, oh, that would be giving new rights to people, new private rights that

we do not like.

Oh, it's

fucking insane.

It is.

Well, so do my ore rights of dissent, Michael.

What's that like?

So

it's funny you should ask, Rhianna.

Her dissent, I thought, was kind of weak.

Like, it's got some good points in there.

I think she's trying to build up to this final point, which she makes at the very end, which I think is a good one, which is that Congress has been sort of legislating in the shadow of Bivens, this case we're talking about, for

50 years.

And that includes like some of the statutes in issue here, the Federal Torts Claims Act, which is implicated in this case.

And so, you know, Thomas is saying in the majority, like,

look, we don't want to

step on Congress's toes here.

Like, that's not our job to fashion, you know, these sorts of avenues for relief.

That's Congress's job.

I don't know that I agree with that.

We'll discuss that later.

But the important thing is that Congress has been legislating for decades and amending statutes and passing statutes about this stuff with Bivens on the book

available as a remedy.

Yes.

So

every like first-year law student will tell you that like it's understood that that means those statues basically incorporate, you know, what's going on at the courts, right?

Like Congress isn't naive.

They understand what else is going on.

And so

the meat of her opinion is trying to demonstrate how Thomas has essentially changed the standard they use and how that itself,

he's changing it from a standard they came up with four years ago and how that itself was a change.

And her point is like, look, all these changes are actually making policy choices for Congress.

That's right.

Where Congress has not changed things.

It accepted Bivens and has legislated in light of that.

And then you're going through and changing Bivens wholesale.

And that's changing the statutory scheme.

Right.

You're just like intentionally pulling the rug out, right?

Exactly.

Exactly.

Like 50 years ago, the court says, hey, you can sue federal officials for damages.

So then the Congress, they're not going to pass a law saying you can sue federal officials for damages.

The court has already held you can, right?

Right.

Exactly.

And then 50 years later, Thomas is like, well, if Congress hasn't passed a law, then we certainly can't do it congress should have done it yeah right

right yeah so so she i think she does a good job of very patiently like laying out all the ways they've been like changing bivens and narrowing it and narrowing it to make this point have force but i don't think it's forceful enough and you shouldn't have to get to like literally the second to last paragraph or the last paragraph yeah to get this i think this is the lead point right which is that this is legislating they're In the name of judicial modesty, what they're doing is very much judicial activism and

changing the status quo in a very serious way.

And as we discussed earlier, in a very fucked up way, because that means

pretty much almost all of our listeners

are subject to the whims of a bunch of fascist pricks and border patrol.

Yeah, I think, you know, something this case really highlights is something that we talk about a lot, which is that rights without remedies are not really rights.

You know, we've brought this up in a bunch of contexts, but the point is that if you have a right protected by the Constitution, take the Fourth Amendment, take the First Amendment.

If there's no remedy for that right being violated, then that right doesn't really exist, right?

Actually, there is a really good quote from Bivens where Justice William Brennan wrote, Power does not disappear like a magic gift when it is wrongfully used.

He goes on and says that a federal officer who acts illegally, quote, in the name of the United States, possesses a far greater capacity for harm than an individual trespasser exercising no authority other than his own.

So it's a recognition in Bivens, right?

That like, if people don't have a remedy, if people don't have a way to get damages, if people don't have a way to get into court and vindicate their rights when a federal officer violates their rights, then your right doesn't mean anything, right?

And I think pivoting back to this case, a really good example of how Thomas is just brushing this off, kind of brushing it under the rug, is that Thomas says that like, okay, yeah, yeah, yeah, you don't have a Bivens claim where, you know, you can't, you can't sue this federal officer for damages, but, you know, you can still file a complaint.

Yes.

You can still, you can still get your grievance in just like at that agency.

Just like, you know, call up his superior superior and let him know that you can literally complain to a manager, you're still allowed to write a Facebook post about it if you want, right?

And it's like, no, actually, I can't because when I do that, I'm retaliated against

by the federal government.

Yeah, but you can then complain about that, Reed.

It's a series of never-ending complaints.

It's literally the case.

Like, I did file a complaint, sir,

and you're not doing shit about it.

Like,

you know, like,

it's ridiculous.

And so, yeah, it just, it just serves to underscore, right, that, like,

you, Thomas is saying, you know, the Supreme Court says you have these constitutional rights.

Thomas is saying, yeah, yeah, yeah, you have these constitutional rights.

But if you can't do anything about it, if you can't get something back, if you can't hold the government accountable to violating your rights, then that right doesn't mean shit.

Yeah.

And he says that, by the way.

He says, look, the relevant question is not whether this would provide for a wrong that would otherwise go unredressed, nor does it matter that existing remedies do not provide complete relief.

Period.

Doesn't matter.

Right.

Right.

Well, in that case, they don't care that there's no remedy here.

Your constitutional rights are violated.

Eat shit.

Too bad.

Doesn't matter.

You got no remedy.

Sorry.

Literally does not matter.

You know, so underlying this debate is the idea that like the Supreme Court is not well positioned to create remedies for constitutional violations.

Like that's the realm of Congress.

First off, is it right?

Because the Constitution is supposed to be a constraint on the power of government to impede on your rights.

What good is that if Congress can pick and choose which rights it wants to protect, right?

What's the point of the Constitution then?

Conservatives who oppose this stuff will say, oh, it's it's about separation of powers.

Courts shouldn't be creating remedies.

That's Congress's job.

But I'm not sure that argument makes much sense when we're talking about the Constitution, which is intended to restrain the government, Congress included.

Why are we reliant on Congress to validate our constitutional rights?

I thought the whole point of the Constitution was that they can't fuck with those rights.

And, you know, on top of that, the conservatives want you to believe that the idea of the court creating remedies for constitutional violations is like this really unusual and novel thing that should rarely happen, but that it's like some form of judicial overreach, right?

Yeah, yeah.

But it's actually extremely common and basically the backbone of our constitutional system is like the ability of federal courts to issue injunctions, despite in many cases there being no specific congressional authorization.

Brown v.

Board.

involved the Supreme Court issuing an injunction to halt school segregation without authorization.

That was was not a Section 1983 case.

That was predicated on court-made remedies.

Right.

Many injunctions to enforce First Amendment rights, just for example, are issued without specific authorization from Congress.

There are some statutes, like the Administrative Protection Act, just as an example, that like allow for injunctions explicitly.

But it's really just sort of a light patchwork.

And it has and the fact that there aren't statutes authorizing the court to enforce all sorts of rights has never stopped them.

So the complaint that the court is not suited to create remedies for constitutional violations, it's just not made in good faith.

It's something that the conservatives strategically deploy.

And, you know, mostly when some Border Patrol goon gets sued for brutalizing someone.

Right.

That's right.

And you know what else really bothers me about this case is how, you know, all of this combines with qualified immunity and a system of protecting police officers that makes holding police of any any type, you know, whether state or federal agents, it makes holding them accountable nearly impossible, right?

So it's been a while since we talked about qualified immunity.

I think we had an episode about qualified immunity literally like two years ago.

But, you know, that's the mechanism by which police are often granted immunity from lawsuits when they violate people's rights.

And the idea behind qualified immunity,

the good faith reading of qualified immunity, is that police shouldn't be at perpetual risk of lawsuits for violating someone's rights if they didn't know what they were doing is unconstitutional.

But since the 1980s, just like with Bivens, the Supreme Court has taken this idea and made it harder and harder and harder to sue cops at all, right?

So basically, they've restricted the circumstances under which you can actually sue cops, and they've granted qualified immunity in so many situations that it's become like this impenetrable shield for police.

And so I say all that.

Qualified immunity isn't at issue here in this case because qualified immunity applies to state actors.

And this is federal law enforcement.

But we just want to highlight this trend, right?

That's like.

completely judicially made doctrine.

It shields police from accountability the vast majority of the time.

So you have Bivens claims that the court is shutting down for federal actors.

You have qualified immunity being used to protect state actors.

You know, this is what is meant when people say we live in a police state, right?

A legal framework that protects police no matter the violation, no matter what they do.

And at every level, federal, state, local, it doesn't matter.

The justices at the Supreme Court are fashioning and using their own form of judicial activism to build these frameworks that protect police.

The big bulwarks against like a police state are, yeah, the ability to hold cops accountable, make sure they are subject to the law, and also civilian control of the police forces.

And ask yourself if you really think

all your civilian governments, your little city and state governments, have much to say at all about how police departments are run these days.

Right.

And, you know, it's worth noting another dichotomy.

Qualified immunity is a

judge-made doctrine, right?

It doesn't stem from a statute.

It's something the courts made up.

So the courts are allowed to make up ways to impede with your lawsuits, but they can't make up ways to allow you to to sue.

Right.

One of the many, many ways in which conservatives have absolutely no real principle here.

Yeah.

Yeah.

And talk from both sides of the mouth, right?

Yeah.

Yeah.

And so like with the Fourth Amendment in particular, it's important to note that like

all there are are like judicial, like judge-made remedies, right?

Like there are basically like four ways to vindicate your Fourth Amendment rights.

One of them, as we've discussed, is like declaratory and injunctive relief, which is kind of a joke when it comes to things like excessive force.

A court will say, yeah,

that was excessive force.

Who fucking cares?

That's it.

That's it, right?

Like,

that's nothing.

One of them is what's known as the exclusionary rule, which says that at least in some cases, not all cases,

evidence that was collected in violation of the Fourth Amendment cannot be used against you in a court of law.

But again, if it's just a Border Patrol asshole, you know, punching you in the stomach and leaving you on the ground, like spitting blood or whatever, like, so what?

Right.

Right.

The exclusionary rule doesn't help you.

Yeah.

Oh, if he collects my DNA, there you can't use it in court against me.

Right, right.

This is a great example of a case where, like, yeah, the exclusionary rule doesn't apply because the cop didn't use them to get evidence.

The cop just beat the shit out of him.

That's right.

Exactly.

Brutalized someone and moved on with his day.

Yeah.

A third way, I did not know about this.

States and a lot of cities, they're protected by sovereign immunity, and you can't sue them, but you can sue municipalities.

I didn't know this.

I guess because there's something more coherent about their structure.

So you can sue in the rare instance where you are brutalized.

by someone who is acting as an agent of a municipality, you can sue their municipality.

right that's although they the municipalities win most of those cases by claiming that the officer was acting outside of their authority almost inherently right yeah that has to be pursuant to their authority as an agent of the municipality so yeah good luck with that right and then the fourth and final way all these are judge-made right the fourth and final way

also judicial remedy for vindicating your Fourth Amendment rights is money damages, which the Supreme Court is closing off.

And that's it.

So there's nothing left.

That's it.

Like,

literally, there's no recourse.

It's angry blog posts.

It's adding CBP on Twitter.

Yeah.

If you let this court run for another decade, the act of a police officer using excessive force on you would be

like functionally legal.

Right.

Yeah.

Yeah.

Yeah.

And I think the point you're getting to, Michael, is just that like the Fourth Amendment will nearly be dead letter law, right?

If, if not for judge-made remedies that are actually held up in court, that are actually delivered, right?

Right.

It's, it's only force comes from judge-made remedies.

That's right.

Yes.

Yeah.

I also think it's important to like remind ourselves of the context that this is happening and the author of this opinion.

You know, we were joking about it before, but like that, you know,

he is the most MAGA of the justices.

He's He's the biggest fascist of the justices.

One of Trump's big appeals and like an animating sort of principle in the conservative movement right now is immigration, building the wall, being harsh on immigrants, not just illegal immigrants, legal immigrants, right?

Not just undocumented immigrants, legal immigration.

And part of that is creating a sort of a force where you can take the gloves off, right?

This is like very much in line with that ideology.

The CBP has 20,000 agents.

We're talking about 20,000 agents whose jurisdiction covers 200 million Americans

in a time when there's like sort of a rising fascist movement that is very much looking for scapegoats, whether it's Hispanic people or trans people or whatever.

And like, if it isn't like obvious enough already, the idea that it will stop at one group and that'll be the end of it.

Like, the defendant's name in this is Boulet.

That's not a fucking Latino name.

Right.

Right?

Like, this is everybody's rights are at stake.

Yeah.

Exactly.

None of our rights are protected.

Throughout the conservatives' opinions about this, there's like this implication that the court creating a remedy for damages against Border Patrol agents would be judicial overreach of some kind.

And the big problem with that is like there's no neutral course here.

You either devise a remedy for these situations or you allow constitutional rights to be trampled without consequence, right?

Those are the only two options in front of you.

There's no, there's no like middle ground.

But the conservatives don't view it like that because to them, leaving a constitutional violation unaddressed is not inherently a problem, right?

Like Thomas said it explicitly in that quote you read, Michael, right?

Where it's just like, yeah, sometimes it's not a remedy.

They are okay with leaving your rights to a series of like unrelenting technicalities.

And

this case is just like a trolley problem where on one side of the tracks is your constitutional rights, and on the other, there's nothing.

And the trolley is headed towards your constitutional rights.

And the Supreme Court is saying they won't do anything about it because they don't think it's their job to pull the lever.

Right.

Right.

Yeah.

That's the whole case.

Yeah.

Exactly.

These fucking, these fucking pigs.

Jesus.

Next week, Shin v.

Ramirez.

Case about whether courts have to hear exculpatory evidence.

Evidence that you didn't do the crime.

And the answer is no, they don't.

You're fucked.

In order to put you to death.

The answer is always the worst thing here on 5-4.

That's right.

That's what you come for.

You come back week after week.

The whole show, baby.

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Bye.

5-4 is presented by Prologue Projects.

This episode was produced by Lena Richards and Rachel Ward.

Leon Napok and Andrew Parsons provide editorial support.

Our production manager is Percia Verlin, and our assistant producer is Arlene Arevalo.

Our artwork is by Teddy Blanks at Chips NY,

and our theme song is by Spatial Relations.

All right, well, next week.

What are we doing next week?

It almost seems not worth saying what we're doing next week because there's no way we survive a week without getting an emergency episode.

Yeah.