Jim Pfander’s invaluable novel monograph, Constitutional Torts in addition to the War on Terror, arrives at an peculiarly fortuitous 2nd inwards the history of the Bivens doctrine—which recognizes circumstances inwards which judges tin recognize a damages remedy for victims of constitutional violations past times federal officers fifty-fifty though no statute authorizes such relief. Sometime inwards the adjacent half dozen weeks, the Supreme Court could mitt downward its most of import rulings on the range of the doctrine inwards the 46 years it’s been on the books. And at to the lowest degree based on how the oral arguments went inwards Ziglar v. Abbasi and Hernández v. Mesa (in which I’m co-counsel to the Petitioners), the signs aren’t every bit good optimistic for those who concur alongside the younger Justice Harlan, who shut his concurrence inwards Bivens alongside the observation that “it would be . . . anomalous to conclude that the federal judiciary . . . is powerless to accord a damages remedy to vindicate social policies which, past times virtue of their inclusion inwards the Constitution, are aimed predominantly at restraining the Government every bit an musical instrument of the pop will.” As Pfander’s majority explains, careful written report of the history of civil remedies arising out of federal authorities misconduct suggests that it would indeed live on anomalous to so conclude, peculiarly inwards the context of challenges to post-September xi counterterrorism policies. That the Supreme Court may even so live on on the cusp of doing so, peculiarly at this detail 2nd inwards our nation’s history, should live on deeply disturbing to fifty-fifty the most casual reader.
Bivens has been controversial since shortly afterward it was handed down, in addition to was dismissed past times Justice Scalia inwards a 2001 concurrence every bit “a relic of the heady days inwards which [the Supreme] Court assumed common-law powers to do causes of action—decreeing them to live on ‘implied’ past times the mere beingness of a statutory or constitutional prohibition.” In fact, though, every bit Pfander recounts inwards his majority (and every bit others convey explained elsewhere), Bivens was non a bolt from the blue, but rather an incremental measurement along a centuries-long historical chain that started alongside a Founding-era model inwards which federal officers were routinely held liable for damages—but nether set down laws in addition to inwards set down courts.
Unlike implied statutory causes of action, which sprang from wide (and contested) progressive theories of the judicial work vis-à-vis Congress, Bivens had its origins inwards a long-standing common-law tradition of judge-made remedies against federal officers—just alongside set down constabulary in addition to set down courts doing most of the work. Indeed, inwards Bivens itself, the Nixon Administration’s declaration against a judge-made federal damages remedy was non that the plaintiff should live on left alongside nothing, but rather that state tort constabulary was a to a greater extent than than sufficient remedy to punish the unconstitutional ship of half dozen federal narcotics agents. The Court rejected the government’s reliance upon set down law, recognizing, as I’ve suggested elsewhere, 3 flaws inwards the state-law, state-court model:
First, although it had been possible to loosely analogize sure constitutional protections to set down tort constabulary (e.g., vindicating Fourth Amendment violations through trespass), that analogy did non grip upwards good every bit applied to many of the other constitutional rights (such every bit equal protection) into which the courts were in addition to so breathing novel life. Second, the same menses saw federal courts to a greater extent than routinely asserting the mightiness to enjoin unconstitutional ship past times the federal government—even though, every bit alongside damages, no statute expressly authorized them to furnish such relief—creating both a foreign jurisdictional asymmetry betwixt prospective in addition to retrospective relief against federal officers in addition to a precedent for a to a greater extent than aggressive federal judicial role. Third, in addition to related, the 1950s in addition to 1960s brought alongside them the ascension of what Judge Henry Friendly called “the novel federal mutual law,” pursuant to which federal courts identified to a greater extent than specific—and to a greater extent than analytically coherent—grounds on which to fashion judge-made (as opposed to statutory) rules of decision, defenses, in addition to causes of action.
It would live on slow plenty for contemporary critics of Bivens to debate for a render to the state-law, state-court model. But every bit Pfander explains, the argue why set down remedies aren’t unremarkably available inwards similar circumstances today is because of the 1988 Westfall Act, which, whether intentionally or not, preempted such state-law claims, leaving most plaintiffs inwards modern Bivens cases alongside a selection of damages nether Bivens or nothing. Thus, whereas early on critiques of Bivens tended to advise that such remedies were unnecessary because of existing set down constabulary alternatives, today’s arguments audio to a greater extent than inwards attacks on the judicial mightiness to recognize damages nether any source of law—by identifying classes of cases inwards which courts ought to rest their mitt earlier fashioning damages remedies inwards the absence of to a greater extent than specific legislative authorization.
That’s the frame inwards which the Abbasi in addition to Hernández cases convey reached the Supreme Court this Term. In Abbasi, one of the questions presented is whether non-citizen immigration detainees could pursue a Bivens claim arising out of their allegedly unconstitutional handling spell detained every bit percentage of the post-9/11 roundup of Muslim in addition to Arab immigrants inwards in addition to approximately New York (a divided panel of the Second Circuit had said “yes”). On the same twenty-four lx minutes menses that the Court agreed to take heed the federal government’s petition for review of that decision, the Justices also granted review inwards Hernández—a illustration arising out of a the States Border Patrol agent’s allegedly unconstitutional cross-border shooting of an unarmed 15-year-old Mexican national. And, most curiously, although the lower courtroom rulings inwards Hernández had focused on whether the Constitution fifty-fifty applied inwards such a illustration (and, if it did, the agent’s entitlement to a qualified immunity defense—which the en banc Fifth Circuit unanimously sustained), the Justices added to the cert. grant inwards Hernández the enquiry whether “the claim inwards this illustration [may] live on asserted nether Bivens.” It thus seems clear that the Justices themselves convey decided to re-enter the Bivens fray—although it remains to live on seen (and nosotros may shortly discover) whether their destination is to reinvigorate the doctrine or inter it 1 time in addition to for all.
Hence, the propitious timing of Pfander’s book, which provides a only stunning historical, doctrinal, in addition to normative concern human relationship of why damages remedies for unconstitutional federal ship are so important—especially, every bit the book’s championship suggests, inwards the context of post-September xi counterterrorism policies inwards general, in addition to detainee mistreatment inwards particular. As Pfander explains belatedly inwards the Introduction, “[t]his majority shows that the officeholder adapt for damages, a workhorse of the common-law tradition, has a telephone commutation work to play inwards our organization of authorities accountability. . . . With a revived activeness at their disposal, federal courts tin position aside political, geographical, in addition to national safety considerations in addition to facial expression upwards the fact of government-sponsored torture inwards the state of war on terror.”
But maybe the most of import characteristic of Pfander’s function is its overclaimed modesty. Although the monograph points to the torture of post-September xi detainees every bit the constitutional violation most inwards take of judicial accountability via Bivens, the sobering reality is that it has move increasingly hard for plaintiffs to invoke Bivens across the board, including inwards contexts increasingly removed both geographically in addition to substantively from contemporary counterterrorism policy. Congress, of course, could solve this job past times enacting a federal statute akin to 42 U.S.C. § 1983 (which provides a campaign of activeness for violations of federal constabulary past times state officers). But it’s never shown an involvement inwards doing so before, in addition to certainly won’t live on inwards a hurry to do it now.
That’s why, every bit Pfander rightly concludes, the resurrection of Bivens is going to convey to live on a common-law project—led past times courts, if at all. It would live on hard for fifty-fifty the most skeptical jurist to read Pfander’s majority in addition to non live on convinced that judge-made damages remedies for constitutional violations past times federal officers are both a necessary in addition to appropriate practice of judicial mightiness inwards most (if non all) cases. Instead, the existent enquiry well-nigh Pfander’s majority is whether, alongside decisions inwards Abbasi in addition to Hernández inwards the offing, its essential lessons volition achieve their intended audience every bit good late.
Stephen Vladeck is Professor of Law at the University of Texas School of Law. You tin achieve him past times electronic mail at svladeck at law.texas.edu.
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