130. The Trump Administration Goes After Bivens
An unusual cert.-stage amicus brief helps to drive home how difficult the Supreme Court has made it to obtain damages for constitutional violations by federal officers—and why that's a *big* problem.
Welcome back to “One First,” a weekly newsletter that aims to make the U.S. Supreme Court more accessible to all of us.
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This week’s “Long Read” was prompted by an unusual brief filed last Monday by the Acting Solicitor General on behalf of the Trump administration—an uninvited amicus curiae (friend-of-the-Court) brief in support of a cert. petition. Although the justices often invite the federal government to weigh in on a cert. petition to which the government isn’t already a party, as John Elwood has compiled, the circumstances in which the government has filed an uninvited cert.-stage amicus are relatively few and far between. And here, it seems especially cynical—urging the Court to grant certiorari to limit, even further, the circumstances in which those whose constitutional rights are violated by federal officers can obtain damages arising from such official misconduct, via so-called “Bivens suits.”
It’s (fairly) common knowledge that the Supreme Court in a series of recent decisions has dramatically limited the availability of Bivens suits—even in contexts in which the result has been to leave victims of egregious constitutional violations by federal officers with no remedies for their injuries. (I represented the petitioners in one of those cases, Hernández v. Mesa.) What’s less well-known, and what I explore below the fold, is how weak the Court’s analytical justifications for that retrenchment have been.
But however we got here, it ought not to be especially controversial to suggest that, now more than ever, it’s important for courts to be able to provide appropriate relief when federal officers violate the Constitution. As the second Justice Harlan put it in his concurring opinion in Bivens, “it would be at least anomalous to conclude that the federal judiciary . . . is powerless to accord a damages remedy to vindicate social policies which, by virtue of their inclusion in the Constitution, are aimed predominantly at restraining the Government as an instrument of the popular will.” Put another way, there wouldn’t be much point to having constitutional rights if their enforceability depended upon the beneficence of those against whom they would be enforced.
But first, the news.
On the Docket
There was plenty of news out of the Court last week, foremost of which was Wednesday morning’s ruling denying the Trump administration’s emergency application in two of the foreign aid funding cases (about which I wrote on Wednesday).
The Court also handed down two decisions in argued cases:
City and County of San Francisco v. EPA: For a 5-4 majority, Justice Alito held that two conditions that the EPA had placed upon a permit issued to San Francisco for the discharge of wastewater pollution (social media has called it something less pleasant) were not authorized by the Clean Water Act. Justice Barrett didn’t just join the three Democratic appointees in dissent; she wrote on behalf of all four of the dissenting justices. And as is often the case when she’s dissenting from the other Republican appointees on a statutory interpretation case, she certainly seems to have the better of the argument. (I’ll save for another time the incredibly ugly—and incredibly revealing—right-wing tantrums over both this vote and her vote with the majority in the foreign aid funding cases.)
Bufkin v. Collins: In a technical dispute over how the U.S. Court of Appeals for Veterans Claims should review certain determinations by the Veterans’ Administration, Justice Thomas wrote for a 7-2 majority in suggesting that the answer is “just like all the others.” Justice Jackson, joined by Justice Gorsuch, dissented—arguing that Congress had intended for more searching review when it used the specific statutory language at issue, to ensure that the Court of Appeals was doing more than just rubber-stamping the VA’s resolutions of the claims at issue.
These two rulings were the 14th and 15th of the term (and, excluding the two cases that were dismissed after argument and TikTok, the 11th and 12th with a signed opinion). For comparison, last year, the justices didn’t hand down their 12th signed opinion until April 12. There was a lot of discussion last term about how slow the Court was moving, even relative to its recent (slower) pace. So far, this term seems to be reflecting more of a return to the mean pacing-wise—whether because the docket isn’t as front-loaded with major cases as it was last year; because the Court isn’t also working on a Code of Conduct this year; or because of other (invisible) reasons.
The Court also denied a stay of execution on Friday (over no public dissents) in the case of South Carolina prisoner Brad Sigmon—who was executed by firing squad later Friday afternoon, the first such case since 2010. The Court formally dismissed the Trump administration’s emergency application in the Hampton Dellinger case—which had been mooted by some combination of the expiration of the temporary restraining order at issue; the D.C. Circuit’s decision to stay a permanent injunction (and thus allow Trump to remove Dellinger); and Dellinger’s decision to drop his lawsuit rather than spend months (if not years) trying to reclaim his office. Last Monday’s Order List added a technical federal criminal case to the docket for next term. And all of that was on top of the second week of the “February” argument session. So… there’s a lot going on.
At least as of now, we expect a somewhat quieter week ahead. The Court is set to hand down a regular Order List at 9:30 ET today. But there’s nothing else on the formal schedule—and the justices aren’t set to meet again in Conference until next Friday (March 21). Nor, at least at the moment, are there any urgent emergency applications that seem likely to produce full Court rulings. Then again, things elsewhere are … continuing to move quickly.
The One First “Long Read”:
The Exasperating Demise of Bivens
As I’ve written about in quite a bit of detail, from the Founding into the 1960s, courts facilitated a robust regime of damages suits against federal officers for constitutional violations in the form of judge-made civil remedies—remedies that, for the better part of the Nation’s first two centuries, derived from state, rather than federal law. A pre-Civil War Supreme Court decision rejected the argument that federal jurisdiction in such cases ought to be exclusive, and the Court would still explain as late as 1963 that, “When it comes to suits for damages for abuse of power, federal officials are usually governed by local law.” The notion that state courts (and state remedies) would be the primary means for enforcing the federal Constitution may seem entirely foreign to us today, but it’s deeply consistent with Founding-era understandings of the relevant roles of state versus federal courts, and, more fundamentally, with the core principle behind the “Madisonian Compromise” (the notion that Congress never even had to create lower federal courts).
By the 1960s, though, several flaws in the state-law model had crystallized. First, although it had been possible to loosely analogize certain constitutional protections to state tort law (e.g., vindicating Fourth Amendment violations through trespass), that analogy did not hold up well to some of the other constitutional rights (such as equal protection) into which the courts were then breathing new life. Second, the same period saw federal courts more routinely asserting the power to enjoin unconstitutional conduct by the federal government—even though, as with damages, no statute expressly authorized them to provide such relief—creating both a strange jurisdictional asymmetry between prospective and retrospective relief against federal officers and a precedent for a more aggressive federal judicial role. Third, and related, the 1950s and 1960s brought with them the rise of what Judge Henry Friendly called “the new federal common law,” pursuant to which federal courts identified more specific—and more analytically coherent—grounds on which to fashion judge-made (as opposed to statutory) rules of decision, defenses, and causes of action.
It’s against this backdrop that the Supreme Court in 1971 decided Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics—in which it held that federal courts can fashion judge-made damages remedies for violations of the Fourth Amendment directly from the Constitution, even though Congress had never expressly authorized such suits. And what this important and widely accepted history teaches is that Bivens was hardly a bolt from the blue. Rather, it was a practical response to a series of problems that had emerged in the state-law remedial model. It was “Bivens or state law” not “Bivens or nothing.” Indeed, the Nixon administration’s argument in Bivens itself was not that the Constitution foreclosed a remedy for Bivens; it was that the appropriate remedy for his constitutional claim was provided by New York state law—and that judge-made federal damages remedies would only be appropriate in cases in which they were “indispensable for vindicating constitutional rights.”
Against that baseline, the question Bivens meant to raise was whether we’d be better off with remedies for constitutional violations by federal officers being creatures of federal, rather than state, law. If that‘s the question, it’s easy to see why even Justice Harlan thought the answer ought to be “yes.”
And yet, the Supreme Court has spent most of the last 45 years scaling Bivens back—not in favor of state law remedies, but in favor of … nothing. It started in the 1980s and 1990s with a series of decisions in which the Court identified either (1) alternative statutory remedies that it claimed provided an adequate substitute for Bivens; or (2) “special factors counseling hesitation” against recognizing any damages remedy—like not wanting to allow military servicemembers to use damages suits to challenge their superiors. But for as skeptical as the Court became of extending Bivens to new classes of defendants (like entire federal agencies or private prisons), it was only in the last 10 years that it has gone further—refusing to recognize Bivens claims even in contexts in which the suit seeks to hold individual federal officers responsible for constitutional violations that were ultra vires, i.e., rogue actions of the like that were at issue in Bivens itself.
It would be one thing if the Court’s refusal to recognize Bivens claims just returned matters to the pre-1971 status quo—where victims of constitutional violations by federal officers could rely upon state tort law. But in 1988, Congress took away all such claims—converting them into suits under the Federal Tort Claims Act, which generally doesn’t allow recovery for constitutional violations. (Professor Carlos Vázquez and I have explained why Congress almost certainly didn’t mean to foreclose the kinds of state tort claims at issue here. But a single concurrence aside, no court has yet suggested that we’re right.) In other words, in many (if not most) cases, we went from “Bivens or state law” to “Bivens or nothing,” and the Court has recently started to choose “nothing.” Injunctions might still suffice when the constitutional violation is ongoing (even though equity is supposed to follow the law, and not the other way around).1 But for brief, transitory, or otherwise concluded constitutional violations, the result, increasingly, was for there to be no possible judicial remedy.
These cases have provoked a series of lengthy academic critiques, only some of which have been by me. The closest the Court came to responding was in Justice Alito’s majority opinion in Hernández II (the one I argued) in 2020, which suggested that the rich history of Founding-era damages suits against federal officers is immaterial because of the Supreme Court’s repudiation of “general” federal common law in its 1938 ruling in Erie:
Erie 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. 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, and no statute expressly creates a Bivens remedy.
The first sentence is unquestionably correct. But the second sentence does not follow from the first, for, as all Civil Procedure students learn, Erie did not generally repudiate the federal courts’ power to fashion common law; it merely repudiated the power to do so on a general (as opposed to specific) basis. On the same day as Erie, and in dozens of decisions since, the Supreme Court has recognized circumstances in which federal common-law-making remains appropriate—including in cases implicating “the rights and obligations of the United States,” even if the United States itself is not a party.
As Justice Scalia wrote for the majority in one such case, “[a]nother area that we have found to be of peculiarly federal concern, warranting the [judicial] displacement of state law, is the civil liability of federal officials for actions taken in the course of their duty.” Although the cases Scalia cited all involved the fashioning of federal common-law immunities, the same considerations ought to govern the availability of a cause of action—for the cause of action likewise implicates “the civil liability of federal officials for actions taken in the course of their duty.” In other words, Justice Alito’s majority opinion in Hernández II is based upon reading Erie to do something the Court has elsewhere specifically said it didn’t do. Yes, courts today (and since 1938) need special justifications for fashioning federal common law rules. But one might argue (and, in Hernández II, we did argue) that providing remedies for egregious constitutional violations by federal officers is a pretty persuasive justification. At the very least, the Court in Hernández II should’ve had to explain why that’s not true rather than simply citing Erie and calling it a day.
And yet, for whatever reason, even as it has drastically limited Bivens suits, the Court has thus far refused to overrule Bivens—including in its most recent Bivens case, Egbert v. Boule. There, the cert. petition (on which the counsel of record was from the current Acting Solicitor General, Sarah Harris) had presented both whether the Ninth Circuit had misapplied the Court’s Bivens jurisprudence and whether Bivens should be overruled. The Court granted only the first of those questions. But now, with the federal government filing an uninvited brief at the certiorari stage asking the Court to summarily reverse a lower court (something that I don’t believe the Court has ever done in a Bivens case), we appear to be heading for something even worse than expressly overruling Bivens (which might finally force Congress to consider enacting a federal equivalent to 42 U.S.C. § 1983)—death by a thousand cuts.
There are good and hard debates about whether we’d be better off with an express statutory cause of action (rather than judge-made remedies) when the federal government violates our constitutional rights, including whether the defendant should be the officer or the government itself. But if the question is how to calibrate a damages regime so that the right cases go forward and the wrong ones are cut off, that’s something that is much easier to do through immunity doctrines than through the existence (or not) of a cause of action. Whatever else might be said about the Supreme Court’s current qualified immunity jurisprudence (itself a creature of judge-made federal common law), it at least allows for recovery in some cases. A world with no Bivens suits is a world in which federal officers enjoy what is effectively absolute immunity, at least from damages liability, no matter how egregiously unconstitutional their conduct may be.
That result was alarming enough when the Court decided Hernández II in February 2020—at a time when we could have some faith that there were still other checks on intentional deprivations of constitutional rights by federal officers, including internal government watchdogs; political pressure from Congress; and so on. But especially in the world we inherit today, the lack of any remedy for many, if not most, constitutional violations by federal officers is an increasingly alarming reality.
SCOTUS Trivia: The Caption in Bivens
The Bivens case itself has an unusual caption. Webster Bivens (the plaintiff) sued “Six Unknown Named Agents of the Federal Bureau of Narcotics” (a precursor to today’s DEA). As Professor Jim Pfander from Northwestern Law explains in his excellent chapter on the case’s broader background:
Following the initiation of the litigation, the United States Attorney identified the agents who participated in the search of Bivens’ apartment, and process was duly served upon them. (Apparently, only five agents were so identified and served, rather than the six specified in the complaint.) Much later, when the case was pending before the Supreme Court, the government offered this post-filing identification of the agents in an attempt to account for the caption of the case. The government’s brief on appeal to the Supreme Court sought to explain the apparent contradiction by suggesting that the agents were “unknown” at the time of filing but were later identified and served with process, and thus “named.” But the subsequent identification does not explain why the original pro se complaint referred to “Unknown Named” agents who were not named in the original complaint. A more plausible explanation is that, from the plaintiff’s perspective, the agents simply had “unknown names.”
Sometimes, cases end up with unusual captions for entirely un-unusual reasons.
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“Equity follows the law” is shorthand for the long-settled view that equitable remedies like injunctions are supposed to be available only when legal remedies like damages are not. In other words, damages should be the principle remedy for government misconduct; injunctions should be available only when damages won’t suffice.
To be fair (and I say this as someone who agrees with Prof. Vladeck's basic point about the necessity of Bivens), the real doctrinal reason the Court is retrenching on Bivens probably has less to do with Erie generally and more to do with implied rights of action specifically. Bivens was decided when the Court had a policy of liberally interpreting STATUTES to allow lawsuits even if they didn't say so. The most notable example of this is JI Case v. Borak, which allowed securities suits even though the securities statutes didn't provide for a cause of action. The Warren Court felt that if policy arguments supported "implying" a cause of action not provided for in a statute, it was worth doing so.
Conservatives DID NOT like this. The intellectual leader on this was actually one of the more moderate conservatives, Justice Powell. But he dissented in Cannon v. University of Chicago, in 1979, and said this whole business of implying causes of action into statutes was hogwash. Congress gets to decide if there's a cause of action, and if Congress says there isn't one, the Court's job is to obey Congress' wishes.
At the time, Powell's dissent was a solo dissent, but it was massively influential. And by the time Scalia had joined the Court in the late 1980's, the conservatives had picked up on Powell's position and ever since then, although old implied rights of action such as the Borak case were grandfathered in, the Court has adopted Powell's view and is not implying any new causes of action.
Accordingly, whither Bivens? Bivens, to someone who agrees with Powell, is an abomination. At least when you imply a STATUTORY cause of action, Congress can come back and say "you're wrong" to the Court and get rid of it. But Bivens implied a cause of action directly into the Constitution, which Congress (presumably) may not be able to change. (If Bivens is common law, maybe Congress can change it, but is Bivens common law? Would Chief Justice Warren have allowed Congress to pass a law saying "if the federal government illegally searches your property, you have no legal remedy"? See also Dickerson v. United States, in which Rehnquist(!) invalidated a statute that similarly tried to neuter Miranda v. Arizona's exclusionary rule.)
Basically, it isn't surprising that a court that feels that courts have no power to imply causes of action into statutes would also feel that implying causes of action into the Constitution is wrong too. And that's what is driving the push to neuter Bivens.
To me, this is all silly; I think courts have broad powers to fashion remedies for constitutional violations, and if a damages suit is the appropriate remedy, courts can do that too. But we have a more formalistic Supreme Court now and they don't agree with me on that.
Although the viability of Bivens remains an open issue, the constitutional violations by the current administration expand every day. Now is the time to develop a program to begin filing the Bivens claims, probably coupled with a state common law claim, against the offending federal officials. If we wait for the dust to clear, we may only see the corpse. But cases with compelling facts - carefully pled in the complaint in substantial detail - will provide real evidence of the widespread injury being inflicted. That will make it harder for the SCt to see the issue as merely an interesting legal question and increase the chance that if the Court does destroy Bivens and state causes of action, Congress will have a hard time rejecting well-drafted legislation to allow for redress.