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A Murdered Mexican Boy and the Abuse of American Power at the Border ⋆ Epeak . Independent news and blogs

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The fundamental question in Hernández v. Mesa is whether Hernández’s family can seek redress for this tragic abuse of power. Under the Constitution’s text and history, the answer is yes. The role of the courts in our system of separation of powers is to check official abuse of power and maintain the rule of law. There is no “border shooting” exception to these foundational principles.

When the Framers of the Constitution designed our system of government, they made the courts the frontline defense against violations of the Constitution’s guarantees. When a federal officer uses lethal force to kill an innocent civilian without justification, the ultimate responsibility to enforce the Constitution lies with the courts. Indeed, when Founders lobbied for a Fourth Amendment to check government misconduct, they viewed suits for damages such as Hernández’s as essential. An anti-Federalist essayist at the time argued that “no remedy has been yet found equal to the task of deterring and curbing the insolence of office, but a jury.”

For more than four decades, the Supreme Court’s so-called Bivens doctrine has allowed injured parties to sue for damages when their rights under the Fourth Amendment have been violated, recognizing that “damages have been regarded as the ordinary remedy for an invasion of personal interests in liberty,” and that for victims of police misconduct, “it is damages or nothing.” Conservative justices have long detested Bivens and have chipped away at it, but the fundamental principle remains that there must be some remedy available when federal officers violate the Constitution. Hernández—as well as Ziglar v. Abassi, an important case growing out of abuses committed by federal agents in the wake of 9/11 heard in the last days of the Obama administration—present the question of whether the Roberts Court will continue to chip away at the fundamental principle that individuals can go to court to remedy abuse of federal power, or whether it will reaffirm it.

When a six-justice Court heard oral argument in Ziglar last month, Justice Stephen Breyer and Chief Justice John Roberts sparred over the role of the courts in enforcing constitutional rights. Insisting on the need for courts to police the president and his subordinates, Breyer argued that “there’s no blank check for the President. And if there’s no blank check, that means sometimes they can go too far. And, if they have gone too far, it is our job to say that.” Roberts countered that the courts should not provide a “way of challenging national policy through damages actions against the individuals implementing it,” claiming that “we don’t want people forming policy to have to worry [that] they are going to have to … pay … if the policy is found infirm.” Expect the debate over access to courts to dominate the Hernández hearing, as well.

The government’s main argument is that judicial review, and, indeed, the Constitution itself, stops at the border. Hernández’s parents, the government maintains, cannot sue—even though Mesa fired his gun on U.S. soil—because their son was on the Mexican side of the border. Indeed, the government claims that the Constitution does not apply at all, even to an extrajudicial killing committed by an officer who fired within the U.S. This is an astounding claim. Even at the border, no U.S. officer is above the law. Yet the government’s argument would give federal agents a sweeping license to shoot to kill at the border, with no possibility of redress for victims and their families. That kind of unchecked, concentrated power is at war with the Constitution’s structure and its limits on abuse of government power.

This Supreme Court case will come down, as so many do, to Justice Anthony Kennedy. Nearly a decade ago, in the landmark 5-4 ruling in Boumediene v. Bush, his majority opinion concluded that even prisoners held at Guantanamo Bay, Cuba, on suspicion of terrorist activities could invoke the Constitution’s promise of access to the courts—specifically, the Suspension Clause’s guarantee of the writ of habeas corpus—to challenge the legality of their detention. Boumediene rejected the government’s claim that it could exercise unchecked power when detaining suspects at Guantanamo, refusing to give the government the power to “switch the Constitution on or off.”

If Kennedy follows these principles, he should insist that, even at the border, individuals can go to court to redress abuse of power by the government. With Trump promising bold action along the U.S.-Mexico border, the judiciary has a duty to ensure that he cannot turn the Constitution on or off at will.

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