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Patrick Jaicomo Profile picture
@pjaicomo
Jun 10, 2022 • 12 tweets • 9 min read • Read on X
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🧵More on Egbert v. Boule, #FederalImmunity, #PoliceAccountability: @IJ has 2 petitions pending on a similar issue involving *domestic* federal policing: Mohamud v. Weyker & Byrd v. Lamb. SCOTUS has been holding those cases *since Jan.* pending Egbert. 1/

ij.org/case/federal-p…
We expect the Court will soon issue orders in Mohamud and Byrd (perhaps Monday), and what it does with them will be telling about what - if anything - is left of Bivens. If you want a little more on our cases, I have talked about them here: 2/

Big picture, Egbert is the latest in the Court's death-by-1000-cuts approach to klling Bivens (w/o having to confront stare decisis or public outrage). What Egbert holds is that federal police *involved in immigration related functions* (about half) now have #FederalImmunity. 3/ Image
But the major distinction between Egbert and @IJ's cases is that Egbert involved immigration related policing and our cases involve *domestic* policing. See, e.g., Egbert's QPs (note #3 was NOT granted, so theoretically, the Court was adamantly not overruling Bivens). 4/ Image
Indeed, at oral argument in Egbert, the SG used this as a major point of leverage for how the CPB could win in Egbert w/o SCOTUS overturning Bivens. We explained this in detail in @IJ's supplemental briefs in Mohamud and Byrd: 5/
supremecourt.gov/DocketPDF/21/2…

supremecourt.gov/DocketPDF/21/2… Image
So, if SCOTUS GVRs Byrd and Mohamud because they involve domestic federal policing, there might be something left alive in Bivens. But if SCOTUS simply denies, boy, that sure seems like #FederalImmunity is now absolute, Bivens is done, and . . . 6/

supremecourt.gov/DocketPDF/21/2… ImageImage
Even Marbury v. Madison is called into question. Because that ruling established (1) judicial review, (2) that the constitutional is an enforceable legal document (not a political one), and (3) that every right must have a remedy. #FederalImmunity kills all 3. /7 ImageImageImage
In response to Egbert, we filed another supplemental brief in Byrd today, arguing that Bivens is not dead (and should not be) but, if it is, the Court should have the courage to say what it's doing (which is a point Gorsuch made in his concurrence): /8

supremecourt.gov/DocketPDF/21/2… Image
Related: As a matter of basic constitutional design, the courts don't need a permission slip from Congress to enforce the constitution. But even if they did, Congress provided one in the Westfall Act. /9 Image
And even if that's not right, Congress could (and now must) solve the #FederalImmunity problem by adding FOUR DAMN WORDS to Section 1983: /10

congress.gov/bill/117th-con… Image
I'll be sure to let you know what happens and, as a result, what is left of federal #PoliceAccountability. Stay tuned. 11/
PS @IJ litigates #FederalImmunity, in addition to #QualifiedImmunity and other doctrines that thwart the Constitution, through our Project on Immunity and Accountability. Find out more and support us here:
/END

ij.org/issues/project…

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More from @pjaicomo

Patrick Jaicomo Profile picture
May 16
The Supreme Court has issued its long-awaited ruling in the Alien Enemies Act case, AARP v. Trump.

The Court rules 7-2 that AEA detainees need more notice than was given. So they cannot presently be deported.

Kavanaugh concurs.

Alito and Thomas dissent (as before).

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After noting the gamesmanship, SCOTUS explains that the 5th Cir. erred in finding no jurisdiction. There is jurisdiction for emergency appeals when the practical effect of the lower courts is the same as refusing an injunction.

Also, the gov't's notice was insufficient.

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Because the gov't took such drastic action so quickly, 24 hour notice is nought enough to satisfy DUE PROCESS, which JJG v. Trump already held is required.

But how much notice is required can be addressed on remand, while an injunction stays in place.

Now, Alito's dissent.

3/Image
Read 15 tweets
Patrick Jaicomo Profile picture
May 7
🧵Nearly THREE YEARS after @IJ argued the ankle-monitor case Meade v. ETOH, the 5th Cir. issued an unpublished opinion holding that a judge's private, monetary relationship with a private ankle-monitoring company does not "create an unconstitutional risk of judicial bias."

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New Orleans judge Paul Bonin ordered defendant's to use a specific ankle-monitoring company: ETOH.

ETOH would send the judge the outstanding bills for the $300 "service."

If defendants didn't pay, the judge would threaten to jail them or refuse to release them from monitoring.

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But the judge never disclosed ETOH was run by his former law partner, who (along with the other owner of ETOH) repeatedly made monetary contributions to the judge.

The 5th Cir. held that this wasn't enough to violate due process.

The court gives 3 reasons.

3/ Image
Read 8 tweets
Patrick Jaicomo Profile picture
Apr 26
🧵The gov’t is lying to avoid due process.

4/7: In JJG v. Trump, SCOTUS held that the D.C. District Court lacked habeas jurisdiction.

Still, SCOTUS held that Alien Enemy detainees are entitled to notice “in such a manner as will allow them to actually seek habeas relief.”

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4/14: AG Bondi promulgated a memo to all federal police.

Directly contradicting SCOTUS, Bondi ordered police to falsely tell all AEA detainees they are “not entitled to a hearing, appeal, or judicial review of the apprehension and removal warrant.”

This memo stayed secret.

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4/23: The gov’t opposed a TRO in another AEA case, JAV v. Trump.

There it said the gov’t “developed procedures for aliens” subject to the AEA per SCOTUS in JJG.

It cited a SEALED decl., claiming each detainee is served an English form that’s read and explained in Spanish.

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Read 6 tweets
Patrick Jaicomo Profile picture
Apr 7
The Supreme Court just struck down Boasberg’s TRO in Trump v. JJG - the Alien Enemies Act, case.

The decision is disappointing in its application to people the gov’t already renditioned without due process (and seems to encourages the gov’t to evade judicial review), but… 1/Image
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SCOTUS confirms, contrary to what demagogues like @StephenM and @mrddmia have been screaming, that illegal aliens get due process and that the Alien Enemies Act requires notice and an opportunity to be heard *before* removal. This means habeas in the district of confinement. 2/ Image
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@StephenM @mrddmia JJG also confirms that the gov’t violated the constitutional rights of every person on the planes to CECOT, but they’re effectively outlaws because of prospective application.

Kavanaugh concurs to say, in large part b/c of War on Terror excesses, the decision isn’t novel. 3/ Image
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Read 10 tweets
Patrick Jaicomo Profile picture
Feb 16
Now that I’ve sat with it, I have a broader critique of @ilan_wurman and @RandyEBarnett’s anti-birthright-citizenship theory.

If the citizenship clause is really about allegiance, it seems incredible that the 14th Amendment’s drafters wouldn’t have spelled that out.

Why? 1/3 Image
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Because the 14th Amendment was, of course, passed as a result of the Civil War.

If citizenship turned on allegiance, that would have opened a Pandora’s box of questions pertaining to the citizenship status of, at least, confederate leaders, and, at most, all southerners. 2/3 Image
If the issue is allegiance, the child of Honduran immigrant who permanently (albeit illegally) moved to the U.S. for a better life surely has more allegiance to U.S. law than Winnie Davis, who was born while her dad was the president of the CSA and waging war against the U.S. 3/3 Image
Read 6 tweets
Patrick Jaicomo Profile picture
Jan 18
🧵As we await decisions on the #SCOTUS relists of @IJ’s #WrongHouseRaid cert. petitions, I want to highlight how these cases expose a judicial hypocrisy.

Factually, they’re similar.

SWAT teams raided the wrong house without checking the address.

Legally, they’re distinct. 1/8 Image
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Despite the cases involving different statutes (1983 v FTCA), immunities (qualified v sovereign), types of cops (city PD v FBI), circuits (5th v 11th), the outcomes were identical.

Even though SWAT raided the wrong addresses, innocent families were left to bear the costs. 2/8 Image
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So here’s the judicial hypocrisy.

In 2022’s Egbert v. Boule, SCOTUS eviscerated Bivens’ cause of action for constitutional claims against federal officials.

Its justification was separation of powers:

Providing a damages action is the role of Congress, not the judiciary. 3/8 Image
Read 8 tweets

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