” Kavanaugh thus interpreted Supreme Court war-crimes precedents, such as Ex parte Quirin, which upheld a commission’s authority to try actual war crimes, as rejecting any international-law-based constraint on Congress’ authority to assign criminal jurisdiction to military commissions rather than Article III courts. [read post]

Noting that the Supreme Court had granted a cause of action in Bivens in part because there were “no special factors counseling hesitation in the absence of affirmative action by Congress,” Judge Gergel analyzed Bivens‘s progeny, noting that the Supreme Court has increasingly resisted the expansion of the Bivens remedy beyond the early Bivens cases, “generally finding present ‘special factors counseling hesitation. [read post]