NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
JESUS C. HERNANDEZ, et al., PETITIONERS v.
JESUS MESA, Jr.
on writ of certiorari to the united states court of appeals for the fifth circuit
[February 25, 2020]
Justice Alito delivered the opinion of 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.
The facts of this tragic case are set forth in our earlier opinion in this matter, Hernández
, 582 U. S. ___ (2017) (per curiam
). Sergio Adrián Hernández Güereca, a 15-year-old Mexican national, was with a group of friends in a concrete culvert that separates El Paso, Texas, from Ciudad Juarez, Mexico. The border runs through the center of the culvert, which was designed to hold the waters of the Rio Grande River but is now largely dry. Border Patrol Agent Jesus Mesa, Jr., detained one of Hernández’s friends who had run onto the United States’ side of the culvert. After Hernández, who was also on the United States’ side, ran back across the culvert onto Mexican soil, Agent Mesa fired two shots at Hernández; one struck and killed him on the other side of the border.
Petitioners and Agent Mesa disagree about what Hernández and his friends were doing at the time of shooting. According to petitioners, they were simply playing a game, running across the culvert, touching the fence on the U. S. side, and then running back across the border. According to Agent Mesa, Hernández and his friends were involved in an illegal border crossing attempt, and they pelted him with rocks.[1
The shooting quickly became an international incident, with the United States and Mexico disagreeing about how the matter should be handled. On the United States’ side, the Department of Justice conducted an investigation. When it finished, the Department, while expressing regret over Hernández’s death, concluded that Agent Mesa had not violated Customs and Border Patrol policy or training, and it declined to bring charges or take other action against him. Mexico was not and is not satisfied with the U. S. investigation. It requested that Agent Mesa be extradited to face criminal charges in a Mexican court, a request that the United States has denied.
Petitioners, Hernández’s parents, were also dissatisfied
and therefore brought suit for damages in the United States District Court for the Western District of Texas. Among other claims, they sought recovery of damages under Bivens
, alleging that Mesa violated Hernández’s Fourth and
Fifth Amendment rights. The District Court granted Mesa’s motion to dismiss, and the Court of Appeals for the Fifth Circuit sitting en banc has twice affirmed this dismissal.
On the first occasion, the court held that Hernández was not entitled to
Fourth Amendment protection because he was “a Mexican citizen who had no ‘significant voluntary connection’ to the United States” and “was on Mexican soil at the time he was shot.” Hernandez
v. United States
, 785 F.3d 117, 119 (CA5 2015) (per curiam
). It further concluded that Mesa was entitled to qualified immunity on petitioners’
Fifth Amendment claim. Id.,
After granting review, we vacated the Fifth Circuit’s decision and remanded the case, instructing the court “to consider how the reasoning and analysis” of Ziglar
, 582 U. S. ___ (2017), our most recent explication of Bivens
, “[might] bear on this case.” Hernández
582 U. S., at ___ (slip op., at 5). We found it “appropriate for the Court of Appeals, rather than this Court, to address the Bivens
question in the first instance.” Ibid.
And with the Bivens
issue unresolved, we thought it “imprudent” to resolve the “sensitive” question whether the
Fourth Amendment applies to a cross-border shooting. Ibid.
In addition, while rejecting the ground on which the Court of Appeals had held that Agent Mesa was entitled to qualified immunity, we declined to decide whether he was entitled to qualified immunity on a different ground or whether petitioners’ claim was cognizable under the
Fifth Amendment. Id.,
at ___–___ (slip op., at 5–6).
On remand, the en banc Fifth Circuit evaluated petitioners’ case in light of Abbasi
and refused to recognize a Bivens
claim for a cross-border shooting. 885 F.3d 811 (CA5 2018). The court reasoned that such an incident presents a “ ‘new context’ ” and that multiple factors—including the incident’s relationship to foreign affairs and national security, the extraterritorial aspect of the case, and Congress’s “repeated refusals” to create a damages remedy for injuries incurred on foreign soil––counseled against an extension of Bivens
. 885 F. 3d, at 816–823.
We granted certiorari, 587 U. S. ___ (2019), and now affirm.
v. Six Unknown Fed. Narcotics Agents
403 U.S. 388
, the Court broke new ground by holding that a person claiming to be the victim of an unlawful arrest and search could bring a
Fourth Amendment claim for damages against the responsible agents even though no federal statute authorized such a claim. The Court subsequently extended Bivens
to cover two additional constitutional claims: in Davis
442 U.S. 228
(1979), a former congressional staffer’s
Fifth Amendment claim of dismissal based on sex, and in Carlson
446 U.S. 14
(1980), a federal prisoner’s
Eighth Amendment claim for failure to provide adequate medical treatment. After those decisions, however, the Court changed course.
, and Carlson
were the products of an era when the Court routinely inferred “causes of action” that were “not explicit” in the text of the provision that was allegedly violated. Abbasi
, 582 U. S., at ___ (slip op., at 8).
“During this ‘ancien regime
,’ . . . the Court assumed it to be a proper judicial function to ‘provide such remedies as are necessary to make effective’ a statute’s purpose . . . . Thus, as a routine matter with respect to statutes, the Court would imply causes of action not explicit in the statutory text itself.” Ibid.
532 U.S. 275
, 287 (2001); J. I. Case Co.
377 U.S. 426
, 433 (1964)).
extended this practice to claims based on the Constitution itself. 582 U. S., at ___ (slip op., at 8); Bivens
, 403 U. S., at 402 (Harlan, J., concurring in judgment) (Court can infer availability of damages when, “in its view, damages are necessary to effectuate” the “policy underpinning the substantive provisio[n]”).
In later years, we came to appreciate more fully the tension between this practice and the Constitution’s separation of legislative and judicial power. The Constitution grants legislative power to Congress; this Court and the lower federal courts, by contrast, have only “judicial Power.” Art. III, §1. But when a court recognizes an implied claim for damages on the ground that doing so furthers the “purpose” of the law, the court risks arrogating legislative power. No law “ ‘pursues its purposes at all costs.’ ” American Express Co.
v. Italian Colors Restaurant
570 U.S. 228
, 234 (2013) (quoting Rodriguez
v. United States
480 U.S. 522
, 525–526 (1987) (per curiam
)). Instead, lawmaking involves balancing interests and often demands compromise. See Board of Governors, FRS
v. Dimension Financial Corp
474 U.S. 361
, 373–374 (1986). Thus, a lawmaking body that enacts a provision that creates a right or prohibits specified conduct may not wish to pursue the provision’s purpose to the extent of authorizing private suits for damages. For this reason, finding that a damages remedy is implied by a provision that makes no reference to that remedy may upset the careful balance of interests struck by the lawmakers. See ibid.
This problem does not exist when a common-law court, which exercises a degree of lawmaking authority, fleshes out the remedies available for a common-law tort. Analogizing Bivens
to the work of a common-law court, petitioners and some of their amici
make much of the fact that common-law claims against federal officers for intentional torts were once available. See, e.g.
, Brief for Petitioners 10–20. But Erie R. Co.
304 U.S. 64
, 78 (1938), held that “[t]here is no federal general common law,” and therefore federal courts today cannot fashion new claims in the way that they could before 1938. See Alexander
, 532 U. S., at 287 (“ ‘Raising up causes of action where a statute has not created them may be a proper function for common-law courts, but not for federal tribunals’ ”).
With the demise of federal general common law, a federal court’s authority to recognize a damages remedy must rest at bottom on a statute enacted by Congress, see id.,
(“private rights of action to enforce federal law must be created by Congress”), and no statute expressly creates a Bivens
remedy. Justice Harlan’s Bivens
concurrence argued that this power is inherent in the grant of federal question jurisdiction, see 403 U. S., at 396 (majority opinion); id.
, at 405 (opinion of Harlan, J.), but our later cases have demanded a clearer manifestation of congressional intent, see Abbasi
, 582 U. S., at ___–___ (slip op., at 10–12).
In both statutory and constitutional cases, our watchword is caution. For example, in Jesner
v. Arab Bank, PLC
, 584 U. S. ___, ___–___ (2018) (slip op., at 18–19) we expressed doubt about our authority to recognize any causes of action not expressly created by Congress. See also Abbasi,
582 U. S.,
(slip op., at 9) (“If the
statute does not itself so provide, a private cause of action will not be created through judicial mandate”). And we declined to recognize a claim against a foreign corporation under the Alien Tort Statute. Jesner
, 584 U. S., at ___ (slip op., at 29).
In constitutional cases, we have been at least equally reluctant to create new causes of action. We have recognized that Congress is best positioned to evaluate “whether, and the extent to which, monetary and other liabilities should be imposed upon individual officers and employees of the Federal Government” based on constitutional torts. Abbasi
, 582 U. S., at ___ (slip op., at 10). We have stated that expansion of Bivens
is “a ‘disfavored’ judicial activity,” 582 U. S., at ___ (slip op., at 11) (quoting Ashcroft
556 U.S. 662
, 675 (2009)), and have gone so far as to observe that if “the Court’s three Bivens
cases [had] been . . . decided today,” it is doubtful that we would have reached the same result, 582 U. S., at ___ (slip op., at 11). And for almost 40 years, we have consistently rebuffed requests to add to the claims allowed under Bivens
. See 582 U. S., at ___ (slip op., at 23); Minneci
565 U.S. 118
551 U.S. 537
(2007); Correctional Services Corp.
534 U.S. 61
510 U.S. 471
487 U.S. 412
(1988); United States
483 U.S. 669
462 U.S. 296
462 U.S. 367
When asked to extend Bivens
, we engage in a two-step inquiry. We first inquire whether the request involves a claim that arises in a “new context” or involves a “new category of defendants.” Malesko
, 534 U. S., at 68. And our understanding of a “new context” is broad. We regard a context as “new” if it is “different in a meaningful way from previous Bivens
cases decided by this Court.” Abbasi
, 582 U. S., at ___ (slip op., at 16).
When we find that a claim arises in a new context, we proceed to the second step and ask whether there are any “ ‘ “special factors [that] counse[l] hesitation” ’ ” about granting the extension. Id.
, at ___ (slip op., at 12) (quoting Carlson
, 446 U. S., at 18, in turn quoting Bivens
, 403 U. S., at 396). If there are––that is, if we have reason to pause before applying Bivens
in a new context or to a new class of defendants—we reject the request.
We have not attempted to “create an exhaustive list” of factors that may provide a reason not to extend Bivens
, but we have explained that “central to [this] analysis” are “separation-of-powers principles.” Abbasi
, 582 U. S., at ___ (slip op., at 12). We thus consider the risk of interfering with the authority of the other branches, and we ask whether “there are sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy,” id.,
at ___ (slip op., at 13), and “whether the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed,” id.,
at ___ (slip op., at 12).
claims in this case assuredly arise in a new context. Petitioners contend that their Fourth and
Fifth Amendment claims do not involve a new context because Bivens
involved claims under those same two amendments, but that argument rests on a basic misunderstanding of what our cases mean by a new context. A claim may arise in a new context even if it is based on the same constitutional provision as a claim in a case in which a damages remedy was previously recognized. Compare Carlson
, 446 U. S., at 16–18 (allowing Bivens
remedy for an
Eighth Amendment claim for failure to provide adequate medical treatment), with Malesko
, 534 U. S., at 71–74 (declining to create a Bivens
remedy in similar circumstances because the suit was against a private prison operator, not federal officials). And once we look beyond the constitutional provisions invoked in Bivens
, and the present case, it is glaringly obvious that petitioners’ claims involve a new context, i.e.
, one that is meaningfully different. Bivens
concerned an allegedly unconstitutional arrest and search carried out in New York City, 403 U. S., at 389; Davis
concerned alleged sex discrimination on Capitol Hill, 442 U. S., at 230. There is a world of difference between those claims and petitioners’ cross-border shooting claims, where “the risk of disruptive intrusion by the Judiciary into the functioning of other branches” is significant. Abbasi
U. S., at ___ (slip op., at 16); see Parts III–B and III–C, infra
Because petitioners assert claims that arise in a new context, we must proceed to the next step and ask whether there are factors that counsel hesitation. As we will explain, there are multiple, related factors that raise warning flags.
The first is the potential effect on foreign relations. “The political branches, not the Judiciary, have the responsibility and institutional capacity to weigh foreign-policy concerns.” Jesner
, 584 U. S., at ___ (slip op., at 19). Indeed, we have said that “matters relating ‘to the conduct of foreign relations . . . are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference.’ ” Haig
453 U.S. 280
, 292 (1981) (quoting Harisiades
342 U.S. 580
, 589 (1952)). “Thus, unless Congress specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in [these matters].” Department of Navy
484 U.S. 518
, 530 (1988). We must therefore be especially wary before allowing a Bivens
remedy that impinges on this arena.
A cross-border shooting is by definition an international incident; it involves an event that occurs simultaneously in two countries and affects both countries’ interests. Such an incident may lead to a disagreement between those countries, as happened in this case.
The United States, through the Executive Branch, which has “ ‘the lead role in foreign policy,’ ” Medellín
552 U.S. 491
, 524 (2008) (alteration omitted), has taken the position that this incident should be handled in a particular way—namely, that Agent Mesa should not face charges in the United States nor be extradited to stand trial in Mexico. As noted, the Executive decided not to take action against Agent Mesa because it found that he “did not act inconsistently with [Border Patrol] policy or training regarding use of force.” DOJ Press Release. We presume that Border Patrol policy and training incorporate both the Executive’s understanding of the
Fourth Amendment’s prohibition of unreasonable seizures and the Executive’s assessment of circumstances at the border. Thus, the Executive judged Agent Mesa’s conduct by what it regards as reasonable conduct by an agent under the circumstances that Mesa faced at the time of the shooting, and based on the application of those standards, it declined to prosecute. The Executive does not want a Mexican criminal court to judge Agent Mesa’s conduct by whatever standards would be applicable under Mexican law; nor does it want a jury in a Bivens
action to apply its own understanding of what constituted reasonable conduct by a Border Patrol agent under the circumstances of this case. Such a jury determination, the Executive claims, would risk the “ ‘ “embarrassment of our government abroad” through “multifarious pronouncements by various departments on one question.” ’ ” Brief for United States as Amicus Curiae
18 (quoting Sanchez-Espinoza
, 770 F.2d 202, 209 (CADC 1985) (Scalia, J.)).
The Government of Mexico has taken a different view of what should be done. It has requested that Agent Mesa be extradited for criminal prosecution in a Mexican court under Mexican law, and it has supported petitioners’ Bivens
suit. In a brief filed in this Court, Mexico suggests that shootings by Border Patrol agents are a persistent problem and argues that the United States has an obligation under international law, specifically Article 6(1) of the International Covenant on Civil and Political Rights, Dec. 19, 1966, S. Treaty Doc. No. 95–20, 999 U. N. T. S. 174, to provide a remedy for the shooting in this case. Brief for Government of United Mexican States as Amicus Curiae
2, 20–22. Mexico states that it “has a responsibility to look after the well-being of its nationals” and that “it is a priority to Mexico to see that the United States provides adequate means to hold the agents accountable and to compensate the victims.” Id.
, at 3.
Both the United States and Mexico have legitimate and important interests that may be affected by the way in which this matter is handled. The United States has an interest in ensuring that agents assigned the difficult and important task of policing the border are held to standards and judged by procedures that satisfy United States law and do not undermine the agents’ effectiveness and morale. Mexico has an interest in exercising sovereignty over its territory and in protecting and obtaining justice for its nationals. It is not our task to arbitrate between them.
In the absence of judicial intervention, the United States and Mexico would attempt to reconcile their interests through diplomacy––and that has occurred. The broad issue of violence along the border, the occurrence of cross- border shootings, and this particular matter have been addressed through diplomatic channels. In 2014, Mexico and the United States established a joint Border Violence Prevention Council, and the two countries have addressed cross-border shootings through the United States-Mexico bilateral Human Rights Dialogue.[2
] Following the Justice Department investigation in the present case, the United States reaffirmed its commitment to “work with the Mexican government within existing mechanisms and agreements to prevent future incidents.” DOJ Press Release.
For these reasons, petitioners’ assertion that their claims have “nothing to do with the substance or conduct of U. S. foreign . . . policy,” Brief for Petitioners 29, is plainly wrong.[3
Petitioners are similarly incorrect in deprecating the Fifth Circuit’s conclusion that the issue here implicates an element of national security.
One of the ways in which the Executive protects this country is by attempting to control the movement of people and goods across the border, and that is a daunting task. The United States’ border with Mexico extends for 1,900 miles, and every day thousands of persons and a large volume of goods enter this country at ports of entry on the southern border.[4
] The lawful passage of people and goods in both directions across the border is beneficial to both countries.
Unfortunately, there is also a large volume of illegal
cross-border traffic. During the last fiscal year, approximately 850,000 persons were apprehended attempting to enter the United States illegally from Mexico,[5
] and large quantities of drugs were smuggled across the border.[6
] In addition, powerful criminal organizations operating on both sides of the border present a serious law enforcement problem for both countries.[7
On the United States’ side, the responsibility for attempting to prevent the illegal entry of dangerous persons and goods rests primarily with the U. S. Customs and Border Protection Agency, and one of its main responsibilities is to “detect, respond to, and interdict terrorists, drug smugglers and traffickers, human smugglers and traffickers, and other persons who may undermine the security of the United States.”
6 U. S. C. §211(c)(5). While Border Patrol agents often work miles from the border, some, like Agent Mesa, are stationed right at the border and have the responsibility of attempting to prevent illegal entry. For these reasons, the conduct of agents positioned at the border has a clear and strong connection to national security, as the Fifth Circuit understood. 885 F. 3d, at 819.
Petitioners protest that “ ‘shooting people who are just walking down a street in Mexico’ ” does not involve national security, Brief for Petitioners 28, but that misses the point. The question is not whether national security requires such conduct––of course, it does not––but whether the Judiciary should alter the framework established by the political branches for addressing cases in which it is alleged that lethal force was unlawfully employed by an agent at the border. Cf. Abbasi
, 582 U. S., at ___ (slip op., at 19) (explaining that “[n]ational-security policy is the prerogative of the Congress and President”).
We have declined to extend Bivens
where doing so would interfere with the system of military discipline created by statute and regulation, see Chappell
462 U.S. 296
483 U.S. 669
, and a similar consideration is applicable here. Since regulating the conduct of agents at the border unquestionably has national security implications, the risk of undermining border security provides reason to hesitate before extending Bivens
into this field. See Abbasi
, 582 U. S., at ___ (slip op., at 19) (“Judicial inquiry into the national-security realm raises ‘concerns for the separation of powers’ ” (quoting Christopher
536 U.S. 403
, 417 (2002))).
Our reluctance to take that step is reinforced by our survey of what Congress has done in statutes addressing related matters. We frequently “loo[k] to analogous statutes for guidance on the appropriate boundaries of judge-made causes of action.” Jesner
, 584 U. S., at ___ (opinion of Kennedy, J.) (slip op., at 19). When foreign relations are implicated, it “is even more important . . . ‘to look for legislative guidance before exercising innovative authority over substantive law.’ ” Id.,
at ___ (slip op., at 20)
542 U.S. 692
, 726 (2004)). Accordingly, it is “telling,” Abbasi
, 582 U. S., at ___ (slip op., at 20), that Congress has repeatedly declined to authorize the award of damages for injury inflicted outside our borders.
A leading example is
42 U. S. C. §1983, which permits the recovery of damages for constitutional violations by officers acting under color of state
law. We have described Bivens
as a “more limited” “federal analog” to §1983. Hartman
547 U.S. 250
, 254, n. 2 (2006). It is therefore instructive that Congress chose to make §1983 available only to “citizen[s] of the United States or other person[s] within the jurisdiction thereof.” It would be “anomalous to impute . . . a judicially implied cause of action beyond the bounds [Congress has] delineated for [a] comparable express caus[e] of action.” Blue Chip Stamps
v. Manor Drug Stores
421 U.S. 723
, 736 (1975). Thus, the limited scope of §1983 weighs against recognition of the Bivens
claim at issue here.
Section 1983’s express limitation to the claims brought by citizens and persons subject to United States jurisdiction is especially significant, but even if this explicit limitation were lacking, we would presume that §1983 did not apply abroad. See RJR Nabisco, Inc.
v. European Community
, 579 U. S. ___, ___ (2016) (slip op., at 7) (“Absent clearly expressed congressional intent to the contrary, federal laws will be construed to have only domestic application”). We presume that statutes do not apply extraterritorially to “ensure that the Judiciary does not erroneously adopt an interpretation of U. S. law that carries foreign policy consequences not clearly intended by the political branches.” Kiobel
v. Royal Dutch Petroleum Co.
569 U.S. 108
, 116 (2013); see also EEOC
v. Arabian American Oil Co
499 U.S. 244
, 248 (1991).
If this danger provides a reason for caution when Congress has enacted a statute but has not provided expressly whether it applies abroad, we have even greater reason for hesitation in deciding whether to extend a judge-made cause of action beyond our borders. “[T]he danger of unwarranted judicial interference in the conduct of foreign policy is magnified” where “the question is not what Congress has done but instead what courts may do.” Kiobel
, 569 U. S., at 116. Where Congress has not spoken at all, the likelihood of impinging on its foreign affairs authority is especially acute.
Congress’s treatment of ordinary tort claims against federal officers is also revealing. As petitioners and their amici
stress, the traditional way in which civil litigation addressed abusive conduct by federal officers was by subjecting them to liability for common-law torts. See Brief for Petitioners 10–17. For many years, such claims could be raised in state or federal court,[8
] and this Court occasionally considered tort suits against federal officers for extraterritorial injuries. See, e.g.
, 13 How. 115 (1852) (affirming award in trespass suit brought by U. S. citizen against U. S. Army officer who seized personal property in Mexico during the Mexican-American war). After Erie
, federal common-law claims were out, but we recognized the continuing viability of state-law tort suits against federal officials as recently as Westfall
484 U.S. 292
In response to that decision, Congress passed the so-called Westfall Act, formally the Federal Employees Liability Reform and Tort Compensation Act of 1988,
28 U. S. C. §2679. That Act makes the Federal Tort Claims Act (FTCA) “the exclusive remedy for most claims against Government employees arising out of their official conduct.” Hui
559 U.S. 799
, 806 (2010).[9
] Thus, a person injured by a federal employee may seek recovery directly from the United States under the FTCA, but the FTCA bars “[a]ny claim arising in a foreign country.” §2680(k).[10
] The upshot is that claims that would otherwise permit the recovery of damages are barred if the injury occurred abroad.
Yet another example is provided by the Torture Victim Protection Act of 1991, note following
28 U. S. C. §1350, which created a cause of action that may be brought by an alien in a U. S. court under the Alien Tort Statute, §1350. Under the Torture Victim Protection Act, a damages action may be brought by or on behalf of a victim of torture or an extrajudicial killing carried out by a person who acted under the authority of a foreign state. Consequently, this provision, which is often employed to seek redress for acts committed abroad,[11
] cannot be used to sue a United States officer. See Meshal
, 804 F.3d 417, 430 (CADC 2015) (Kavanaugh, J., concurring).
These statutes form a pattern that is important for present purposes. When Congress has enacted statutes creating a damages remedy for persons injured by United States Government officers, it has taken care to preclude claims for injuries that occurred abroad.
Instead, when Congress has provided compensation for injuries suffered by aliens outside the United States, it has done so by empowering Executive Branch officials to make payments under circumstances found to be appropriate. Thus, the Foreign Claims Act,
10 U. S. C. §2734, first enacted during World War II, ch. 645,
880, allows the Secretary of Defense to appoint claims commissions to settle and pay claims for personal injury and property damage resulting from the noncombat activities of the Armed Forces outside this country. §2734(a). Similarly, §2734a allows the Secretary of Defense and the Secretary of Homeland Security to make payments pursuant to “an international agreement which provides for the settlement or adjudication and cost sharing of claims against the United States” that arise out of “acts or omissions” of the Armed Forces. §2734a(a); see also
22 U. S. C. §2669(b) (State Department may settle and pay certain claims for death, injury, or property loss or damage “for the purpose of promoting and maintaining friendly relations with foreign countries”); §2669–1 (Secretary of State has authority to pay tort claims arising in foreign countries in connection with State Department operations);
21 U. S. C. §904 (Attorney General has authority to pay tort claims arising in connection with the operations of the Drug Enforcement Administration abroad).
This pattern of congressional action—refraining from authorizing damages actions for injury inflicted abroad by Government officers, while providing alternative avenues for compensation in some situations—gives us further reason to hesitate about extending Bivens
in this case.
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. See Abbasi
, 582 U. S., at ___ (slip op., at 12). “Foreign policy and national security decisions are ‘delicate, complex, and involve large elements of prophecy’ for which ‘the Judiciary has neither aptitude, facilities[,] nor responsibility.’ ” Jesner
, 584 U. S., at ___ (Gorsuch, J., concurring part and concurring in judgment) (slip op., at 5) (quoting Chicago & Southern Air Lines, Inc.
v. Waterman S. S. Corp.
333 U.S. 103
, 111 (1948)). To avoid upsetting the delicate web of international relations, we typically presume that even congressionally crafted causes of action do not apply outside our borders. These concerns are only heightened when judges are asked to fashion constitutional remedies. Congress, which has authority in the field of foreign affairs, has chosen not to create liability in similar statutes, leaving the resolution of extraterritorial claims brought by foreign nationals to executive officials and the diplomatic process.
Congress’s decision not to provide a judicial remedy does not compel us to step into its shoes. “The absence of statutory relief for a constitutional violation . . . does not by any means necessarily imply that courts should award money damages against the officers responsible for the violation.” Schweiker
, 487 U. S., at 421–422; see also Stanley
, 483 U. S., at 683 (“[I]t is irrelevant to a ‘special factors’ analysis whether the laws currently on the books afford [plaintiff] an ‘adequate’ federal remedy for his injuries”).[12
When evaluating whether to extend Bivens,
the most important question “is ‘who should decide’ whether to provide for a damages remedy, Congress or the courts?” Abbasi
, 582 U. S., at ___ (slip op., at 12) (quoting Bush
, 462 U. S., at 380). The correct “answer most often will be Congress.” 582 U. S., at ___ (slip op., at 12).
is undoubtedly the answer here.
* * *
The judgment of the United States Court of Appeals for the Fifth Circuit is affirmed.
It is so ordered.