🧵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/
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/
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/
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…
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/
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
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
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
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
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
🧵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."
1/
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.
2/
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.
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.”
1/
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.
2/
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.
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/
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/
@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/
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
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
🧵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
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
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
🧵 @IJ's been fighting hard against #FirstAmendment retaliation - litigating a dozen cases in the past few years. But people don't realize that #SCOTUS has all but killed retaliatory *arrest* claims. It's wild. Let me tell you about it (and our case👇). 1/ ij.org/case/castle-hi…
While #SCOTUS is very protective of prior restraint on @USConst_Amend_I and kinda protective of non-arrest retaliation (but see #QualifiedImmunity), it's openly hostile to retaliatory arrest claims. See Nieves v. Bartlett. 2/
Worse still, the reason #SCOTUS immunizes police from retaliatory arrest claims? Pure *policy* (AKA judicial activism). You can't enforce the #FirstAmendment because police have a tough job. Seriously. Justice Gorsuch points this out in his concurrence in Nieves. 3/