With Just Five Words, Congress Can Rein In IRS And Other Federal Agents

Under the Inflation Reduction Act, the IRS will receive a staggering $45.6 billion to bolster “tax enforcement.” That means substantially more manpower for criminal prosecutions, civil judgments, and above all, more audits.

Unfortunately, with this great power comes no accountability. Thanks to a recent Supreme Court decision, any IRS agent—as well as almost every other federal officer—who goes rogue and abuses their power can’t be sued for violating the Constitution.

In Egbert v. Boule, Robert Boule, who owned a bed-and-breakfast, said he was thrown violently against an SUV by Border Patrol Agent Erik Egbert. After Boule filed a formal complaint with the Border Patrol, Egbert contacted the IRS, which promptly audited the innkeeper. That audit, Boule claimed, was retaliation for exercising his First Amendment rights.

Though the Supreme Court was split on whether Boule could sue Egbert for excessive force (the majority ruled he couldn’t), the court unanimously agreed there is “no cause of action for Boule’s First Amendment retaliation claim.” As a result, any disgruntled or thin-skinned government employee is free to weaponize the IRS with impunity.

Egbert shines a spotlight on a devastating loophole in government accountability. Had Egbert worked for a sheriff’s department or a police department, Boule could have sued under a federal law that authorizes civil rights lawsuits. Codified today as Section 1983, this law dates all the way back to 1871, when Congress enacted the Ku Klux Klan Act to crack down on horrific assaults and lynchings in the former Confederacy.

But federal officers were not included (and still aren’t). At the time, this omission made sense. Local and state lawmen were either deliberately indifferent or active participants in many of the atrocities committed in the Reconstruction South.

Meanwhile, federal law enforcement had a minimal presence in 1871. Two of the then largest federal policing agencies, Customs and the Postal Service, collectively had fewer than 130 special agents and investigators on their payroll. And throughout the 19th Century, federal courts routinely ordered rogue federal officers to pay damages to those they had wronged, since that was often the victims’ only recourse.

Times have changed. The federal government now employs over 132,000 law enforcement officers across more than 80 different agencies. Though the vast majority work for either the Justice Department or the Department of Homeland Security, federal law enforcement agents can also be found at the EPA, FDA, NASA, and the National Institutes of Health. But since they are still inexplicably exempt from Section 1983, federal agents are effectively given blanket immunity from constitutional lawsuits.

Partly in response, in 1971, the Supreme Court recognized a limited cause of action that allowed Fourth Amendment lawsuits against federal officers. Named after the plaintiff in the case, Webster Bivens, who was manacled and strip searched by federal narcotics agents, Bivens actions have helped countless victims vindicate their rights.

But since 1980, the Supreme Court has repeatedly refused to extend Bivens (11 times, according to Justice Clarence Thomas). Ensuring victims would have a legal remedy against federal misconduct became a “disfavored judicial activity.” This contempt for Bivens culminated in Egbert v. Boule, which saw the High Court dramatically tilt the already tipped scales of justice further in favor of the federal government.

Writing for the majority, Justice Thomas declared that federal courts are not “competent to authorize a damages action” against any Border Patrol agent, regardless of their conduct. For all other federal officers, under Egbert, courts must now reject any Bivens claim if “there is any reason to think that Congress might be better equipped to create a damages remedy.” That includes even the mere “potential” for “inappropriate” consequences.

For his part, Justice Neil Gorsuch would have overturned Bivens entirely, rather than offer “false hope” to victims. After all, “if the only question is whether a court is ‘better equipped’ than Congress to weigh the value of a new cause of action, surely the right answer will always be no.”

Less than a week later, Gorsuch’s words were already ringing true. The High Court refused to hear the cases of Kevin Byrd, a Texas small business owner who had a gun pulled on him by a U.S. Department of Homeland Security agent, and Hamdi Mohamud, a Somali immigrant who was thrown in jail for over two years on the baseless accusations of a St. Paul police officer deputized as a US Marshal.

Even though both cases involve “garden-variety” Fourth Amendment claims that had long been authorized by Bivens, Kevin and Hamdi had their Bivens claims thrown out by lower federal courts, simply because the offending officers were federal employees.

By failing to reverse the rulings made by the Fifth and Eighth Circuits, the Supreme Court has effectively rendered Bivens a dead letter in the 10 states governed by those circuits (Arkansas, Iowa, Louisiana, Minnesota, Mississippi, Missouri, Nebraska, North Dakota, South Dakota, and Texas), according to the Institute for Justice, which represents both Hamdi and Kevin.

Without action from Congress, federal agents can—and will—continue to act with impunity. Thankfully, there is already a bill pending. Re-introduced last December by Reps. Hank Johnson and Jamie Raskin and Sen. Sheldon Whitehouse, the Bivens Act would codify Bivens and overturn Egbert.

Unlike the Inflation Reduction Act and other mammoth bills that dominate the Hill, the Bivens Act is refreshingly short and sweet. The entire bill would add just five words (“of the United States or”) to Section 1983, a reform that would finally authorize civil rights lawsuits against federal officers. If enacted, the bill would ensure that federal agents don’t have any extra protections their state and local counterparts lack.

Despite the clear urgency for the Bivens Act, the bill has languished in both chambers; it hasn’t even received a hearing. With the Supreme Court adamant that only Congress can hold federal agents accountable, this lethargy is inexcusable.