One of the reasons why it's so hard to sue the federal government for damages is because, even when Congress *has* authorized such suits, it's imposed limits that are increasingly difficult to defend.
I have to quibble with your assertion that there's nothing much to say about the constitutional issues implicit in Trump's war on Iran. What about presidential immunity from criminal liability? The holding in Trump v. US was that the president is entitled to absolute immunity from criminal prosecution for acts committed within his core constitutional authority, and to presumptive immunity for acts committed within the penumbral scope of his authority. But the president has no constitutional authority to initiate a war, and no authority whatever to do so unless congress first authorizes it. Thus, no aggressive war-making is within a president's core constitutional authority, and no war unauthorized by congress is within his penumbral sphere (except when defending against a foreign aggressor, which is not the case here). So Trump v. US does not extend immunity, either absolute or presumptive, to the current situation. Would it not follow that a president who unilaterally attacks another country with military force is criminally liable for all that follows within American jurisdiction, including, at the very least, deaths and injuries caused and suffered by American armed forces, and the misappropriation or theft of government funds and property? Now that American troops have been killed and injured, with more presumably to follow, this question acquires salience, if not urgency. And with the jurisdictional issue comes the thorny question of universal jurisdiction. I think there's a lot to say on these matters, and I'd love to see you say it.
Steve wrote about ultra vires in post #17 Arlington, the Lees ... with reference to Kaufman v Lee, Sup Ct, Oct 1882, 196.
Could the president could be liable for ultra vires conduct if he a) exceeds authority delegated by statute and b) violates the Constitution? Does U.S. v Trump preclude this (in other words is criminal immunity of official presidential (mis)conduct a species of sovereign governmental immunity; if so can ultra vires overcome it (the criminal immunity)?
Re Footnote 1 and Hain v. Palmquist. More than 20 years ago, I was sued by a law firm that was fussing with my co-counsel in a series of cases. Plaintiff's counsel told the state court judge I was MOSTLY named to avoid diversity jurisdiction and federal court. The case went away quickly - I paid nothing - but I recall that it's really, really hard to make the case for improperly suing someone to avoid diversity jurisdiction.
Steve, wrt Iran, you wrote, "It seemed hard to justify a standalone post on the subject—not because of a lack of gravity or seriousness, but because of a lack of novelty."
Yes. Trump's incremental increase in the use of illegal force makes it hard to say anything new. But therein lies the problem. The horror becomes normalized. We have become accustomed to his behavior. Once again we are frogs in boiling water.
Still, thank you for all you do, even finding cause this week to agree, for once, with Justice Thomas. You never cease to amaze.
Thinking about your SCOTUS trivia today, it seems to me that the introduction of AI will lead to far more amicus briefs, since they will be far less costly to write. That will in turn lead to far more SCOTUS clerks turning to AI to summarize the main points of those briefs. At what point, do we just appoint nine AI models to SCOTUS and call it a day?
I thought that if a plaintiff brought a state tort law claim against a particular "officer" of the US, that it could be REMOVED to Federal Court under the FTCA but that state law applied and the individual could be held liable, if not the US Govt itself. Does the Westfall Act preclude that? Is there then no recourse if Bubba ICE-officer intentionally beats you up for no reason. Can you argue that intentional torts like beating you up mean the officer was not acting within his authority? (Yes, I'll go back to your old article. But it seems horrendously relevant now that ICE is doing things like dragging peaceful protestors over the "protest line" and THEN beating them up.)
In the case of ICE, is there a distinction between beating up a migrant (because collecting migrants is within the scope of the job) and beating up a peaceful protestor (because handling "crowd control" in general isn't.
I have to remind myself that the Court is, as a general rule, a conservative institution that rules that way. The Warren Years were the exception to that rule. The exception has ended. As such, the Court takes remedial legislation (FTCA) and limits it. The same is true of 42 U.S.C. sec. 1983. Very frustrating. I recently drafted a version of 42 U.S.C. sec. 1983 for federal actors and sent it to my senator. I asked him to file it - he does not even have to say he likes it and could say he is only doing this for a constituent (a state legislator did this for me once) - and I would testify in favor of the bill. Crickets.
So, with respect to Suncor Energy Inc. v. Commissioners of Boulder County, Colorado, does the idiotic anti-scientific repeal of the Endangerment Finding of the EPA (Environmental Protection, now aka Pollution Agency) remove any basis for state-law claims seeking relief for injuries caused by greenhouse gas emissions, since according to the geniuses in the Trump Administration these emissions are not responsible for any harm and do not endanger human health?
If the war on Iran is illegal, then is the US military obeying an illegal order, and if so what does that tell us about what its leadership would do if the military were ordered to act illegally within the US? I note that the Secrteary of War (Games) stated unequivocally that "if you kill Americans we will hunt you down." Does this commitment and threat apply to ICE agents?
The Westfall Act contains difficult procedural and other issues, including certification and how the scope of employment is decided. Also, certain claims, such as defamation, are not permitted. So the certification itself can determine the outcome of the case.
I had to deal with the Westfall Act when it was first enacted. Congress did not consider the complexities involved--it primarily was concerned about shielding defendant federal employees from liability and letting the government be the defendant. It's very difficult, if not impossible, to succeed as a plaintiff in a case involving the Westfall Act. My case is Mittleman v. US, 104 F.3d 410 (D.C. Cir. 1997).
And add the essential death of any claims under Bivens. So federal employees and officers face little risk of being held accountable for torts and constitutional violations. There may not even be a viable cause of action to bring to court because there is no section 1983 available.
Those papers on the Westfall Act are really an important wake-up call about "civil action against an employee of the government . . . which is brought for a violation of the Constitution of the United States.” 28 U.S.C. § 2679(b)(2)(A). The Court's position seems to be that this statute either doesn't exist or has been preempted.
The legal profession is at least partly to blame in forgetting how to plead cases against the government. It should be remembered that federal courts have limited jurisdiction and the source of law comes necessarily from the states -- "the law of the place," as the FTCA puts it, or else Justice Brandeis in Erie R. Co. v. Tompkins (1938). This was the reason for the Tenth Amendment and the 1789 Rules of Decision Act, as Judge Friendly told it: "In Praise of Erie--and of the New Federal Common Law." NYUL rev. 39 (1964): 383.
With regard to sovereign immunity, I'm sure that Steve and others are familiar with Professor Amar's trilogy on federalism, but I've taken a lot from the exceptionally clear and direct writing of Doernberg, Donald L. "Taking Supremacy Seriously: The Contrariety of Official Immunities." Fordham L. Rev. 80 (2011): 443; "Betraying the Constitution." Baylor L. Rev. 74 (2022): 323. The states will need to assert themselves if the American experiment is to continue.
This is why it's so interesting that the Ninth Circuit has found an implied cause of action for foreigners under the Alien Tort Statute from international law in Doe I v. Cisco Systems, Inc., 73 F.4th 700 (9th Cir. 2023), but is not allowed to find the source of law enabling citizens to sue the government under our own Constitution. I truly don't know what to expect from the Supreme Court, but as a soon-to-be alien it is amusing to see who is and is not filing amicus briefs:
I have to quibble with your assertion that there's nothing much to say about the constitutional issues implicit in Trump's war on Iran. What about presidential immunity from criminal liability? The holding in Trump v. US was that the president is entitled to absolute immunity from criminal prosecution for acts committed within his core constitutional authority, and to presumptive immunity for acts committed within the penumbral scope of his authority. But the president has no constitutional authority to initiate a war, and no authority whatever to do so unless congress first authorizes it. Thus, no aggressive war-making is within a president's core constitutional authority, and no war unauthorized by congress is within his penumbral sphere (except when defending against a foreign aggressor, which is not the case here). So Trump v. US does not extend immunity, either absolute or presumptive, to the current situation. Would it not follow that a president who unilaterally attacks another country with military force is criminally liable for all that follows within American jurisdiction, including, at the very least, deaths and injuries caused and suffered by American armed forces, and the misappropriation or theft of government funds and property? Now that American troops have been killed and injured, with more presumably to follow, this question acquires salience, if not urgency. And with the jurisdictional issue comes the thorny question of universal jurisdiction. I think there's a lot to say on these matters, and I'd love to see you say it.
Steve wrote about ultra vires in post #17 Arlington, the Lees ... with reference to Kaufman v Lee, Sup Ct, Oct 1882, 196.
Could the president could be liable for ultra vires conduct if he a) exceeds authority delegated by statute and b) violates the Constitution? Does U.S. v Trump preclude this (in other words is criminal immunity of official presidential (mis)conduct a species of sovereign governmental immunity; if so can ultra vires overcome it (the criminal immunity)?
Re Footnote 1 and Hain v. Palmquist. More than 20 years ago, I was sued by a law firm that was fussing with my co-counsel in a series of cases. Plaintiff's counsel told the state court judge I was MOSTLY named to avoid diversity jurisdiction and federal court. The case went away quickly - I paid nothing - but I recall that it's really, really hard to make the case for improperly suing someone to avoid diversity jurisdiction.
Steve, wrt Iran, you wrote, "It seemed hard to justify a standalone post on the subject—not because of a lack of gravity or seriousness, but because of a lack of novelty."
Yes. Trump's incremental increase in the use of illegal force makes it hard to say anything new. But therein lies the problem. The horror becomes normalized. We have become accustomed to his behavior. Once again we are frogs in boiling water.
Still, thank you for all you do, even finding cause this week to agree, for once, with Justice Thomas. You never cease to amaze.
Thinking about your SCOTUS trivia today, it seems to me that the introduction of AI will lead to far more amicus briefs, since they will be far less costly to write. That will in turn lead to far more SCOTUS clerks turning to AI to summarize the main points of those briefs. At what point, do we just appoint nine AI models to SCOTUS and call it a day?
I thought that if a plaintiff brought a state tort law claim against a particular "officer" of the US, that it could be REMOVED to Federal Court under the FTCA but that state law applied and the individual could be held liable, if not the US Govt itself. Does the Westfall Act preclude that? Is there then no recourse if Bubba ICE-officer intentionally beats you up for no reason. Can you argue that intentional torts like beating you up mean the officer was not acting within his authority? (Yes, I'll go back to your old article. But it seems horrendously relevant now that ICE is doing things like dragging peaceful protestors over the "protest line" and THEN beating them up.)
In the case of ICE, is there a distinction between beating up a migrant (because collecting migrants is within the scope of the job) and beating up a peaceful protestor (because handling "crowd control" in general isn't.
I agree (what if "not acting within his authority"). See Steve's old post with discussion of ultra vires (Kaufman v Lee 1882).
"if [intentional refusal to deliver someone's mail] happens at a higher level [than a postal carrier], it would be much easier to challenge in court."
Why is that? (I'm not a lawyer and it's not obvious to me.)
I have to remind myself that the Court is, as a general rule, a conservative institution that rules that way. The Warren Years were the exception to that rule. The exception has ended. As such, the Court takes remedial legislation (FTCA) and limits it. The same is true of 42 U.S.C. sec. 1983. Very frustrating. I recently drafted a version of 42 U.S.C. sec. 1983 for federal actors and sent it to my senator. I asked him to file it - he does not even have to say he likes it and could say he is only doing this for a constituent (a state legislator did this for me once) - and I would testify in favor of the bill. Crickets.
Did you forget to include a check?
So, with respect to Suncor Energy Inc. v. Commissioners of Boulder County, Colorado, does the idiotic anti-scientific repeal of the Endangerment Finding of the EPA (Environmental Protection, now aka Pollution Agency) remove any basis for state-law claims seeking relief for injuries caused by greenhouse gas emissions, since according to the geniuses in the Trump Administration these emissions are not responsible for any harm and do not endanger human health?
If the war on Iran is illegal, then is the US military obeying an illegal order, and if so what does that tell us about what its leadership would do if the military were ordered to act illegally within the US? I note that the Secrteary of War (Games) stated unequivocally that "if you kill Americans we will hunt you down." Does this commitment and threat apply to ICE agents?
The Westfall Act contains difficult procedural and other issues, including certification and how the scope of employment is decided. Also, certain claims, such as defamation, are not permitted. So the certification itself can determine the outcome of the case.
I had to deal with the Westfall Act when it was first enacted. Congress did not consider the complexities involved--it primarily was concerned about shielding defendant federal employees from liability and letting the government be the defendant. It's very difficult, if not impossible, to succeed as a plaintiff in a case involving the Westfall Act. My case is Mittleman v. US, 104 F.3d 410 (D.C. Cir. 1997).
And add the essential death of any claims under Bivens. So federal employees and officers face little risk of being held accountable for torts and constitutional violations. There may not even be a viable cause of action to bring to court because there is no section 1983 available.
Those papers on the Westfall Act are really an important wake-up call about "civil action against an employee of the government . . . which is brought for a violation of the Constitution of the United States.” 28 U.S.C. § 2679(b)(2)(A). The Court's position seems to be that this statute either doesn't exist or has been preempted.
The legal profession is at least partly to blame in forgetting how to plead cases against the government. It should be remembered that federal courts have limited jurisdiction and the source of law comes necessarily from the states -- "the law of the place," as the FTCA puts it, or else Justice Brandeis in Erie R. Co. v. Tompkins (1938). This was the reason for the Tenth Amendment and the 1789 Rules of Decision Act, as Judge Friendly told it: "In Praise of Erie--and of the New Federal Common Law." NYUL rev. 39 (1964): 383.
With regard to sovereign immunity, I'm sure that Steve and others are familiar with Professor Amar's trilogy on federalism, but I've taken a lot from the exceptionally clear and direct writing of Doernberg, Donald L. "Taking Supremacy Seriously: The Contrariety of Official Immunities." Fordham L. Rev. 80 (2011): 443; "Betraying the Constitution." Baylor L. Rev. 74 (2022): 323. The states will need to assert themselves if the American experiment is to continue.
This is why it's so interesting that the Ninth Circuit has found an implied cause of action for foreigners under the Alien Tort Statute from international law in Doe I v. Cisco Systems, Inc., 73 F.4th 700 (9th Cir. 2023), but is not allowed to find the source of law enabling citizens to sue the government under our own Constitution. I truly don't know what to expect from the Supreme Court, but as a soon-to-be alien it is amusing to see who is and is not filing amicus briefs:
https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/24-856.html