In the case of Hernandez v. Mesa, by a vote of 5-4, the judgment of the U.S. Court of Appeals for the Fifth Circuit was affirmed. Per Justice Alito's opinion for the Court: "We are asked in this case to extend Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), and create a damages remedy for a cross-border shooting. As we have made clear in many prior cases, however, the Constitution’s separation of powers requires us to exercise caution before extending Bivens to a new 'context,' and a claim based on a cross-border shooting arises in a context that is markedly new. Unlike any previously recognized Bivens claim, a cross-border shooting claim has foreign relations and national security implications. In addition, Congress has been notably hesitant to create claims based on allegedly tortious conduct abroad. Because of the distinctive characteristics of cross-border shooting claims, we refuse to extend Bivens into this new field.... In sum, this case features multiple factors that counsel hesitation about extending Bivens, but they can all be condensed to one concern––respect for the separation of powers." Justice Alito's majority opinion was joined by the Chief Justice and Justices Thomas, Gorsuch, and Kavanaugh. Justice Thomas filed a concurring opinion, joined by Justice Gorsuch. Justice Ginsburg dissented, joined by Justices Breyer, Sotomayor, and Kagan. Peter Thomson joins us to discuss this decision and its implications.
Featuring:
Peter M. Thomson, Member, Stone Pigman Walther Wittmann L.L.C.

Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on our website. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.