Despite the killing of an unarmed fifteen-year-old boy by a federal border patrol agent, the U.S. Supreme Court in Hernandez v. Mesa refused to allow a Bivens cause of action to proceed and left an egregious violation of constitutional rights unremedied. The U.S. Supreme Court’s rulings in Ziglar v. Abbasi and Hernandez v. Mesa further limited the Bivens cause of action in such a way that makes successfully suing federal officials for constitutional violations practically impossible. The Supreme Court frequently denies Bivens claims due to the purported availability of alternative remedies. However, the Court’s recent jurisprudence makes clear that these alternative remedies do not need to be as effective as a remedy under Bivens, nor do they even need to be certain to exist. Thus, the supposed availability of alternative remedies in the United States often leaves individuals with no remedy at all. On the other hand, the Supreme Court of Canada’s approach to constitutional remedies, outlined in Vancouver (City) v. Ward, functionally analyzes the availability and adequacy of alternative remedies, which increases a plaintiff’s chance of obtaining effective relief. The U.S. Supreme Court should adopt portions of Canada’s functional approach and consider the absence of alternative remedies an important factor in deciding to extend a Bivens claim to a new context. This will enhance the protection of constitutional rights in the United States and prevent individuals from being left without a remedy after their rights have been violated by a federal official.
Bivens and Ward---Constitutional Remedies in the United States and Canada,
Emory Int'l L. Rev.
Available at: https://scholarlycommons.law.emory.edu/eilr/vol36/iss2/3