States Target Federal Agent Immunity With Decades-Old Legal Theory

The article by Adam Liptak describes a significant gap in American constitutional accountability—one that has grown more troubling as the Supreme Court has systematically dismantled remedies for federal constitutional violations. The broader context reveals this is not just a theoretical legal problem but an urgent crisis in civil rights enforcement.

The Historical Context of Constitutional Remedies

The asymmetry Liptak describes has deep historical roots. Before the Civil War, constitutional violations were addressed through common-law suits where constitutional claims functioned as "a supremacy clause trump card" rather than independent causes of action. Importantly, during the early years of the Republic, lawsuits against officials for constitutional violations did not generally permit a good-faith defense—officials were held strictly accountable. Chief Justice Marshall's 1804 opinion in Little v. Barreme exemplified this strict accountability, holding a federal naval captain liable for mistakenly capturing a Danish vessel even when following broader presidential instructions.

This historical context underscores how far we've retreated from the Founders' vision of official accountability—exactly the opposite trajectory from what Professor Amar's federalism argument suggests the framers intended.

The Collapse of Bivens Remedies

While the article mentions that the Supreme Court has "essentially abandoned" the Bivens approach, the situation is even more dire than Liptak's description suggests. Recent scholarship describes the Bivens remedy as "essentially nonexistent," with the Supreme Court having "largely closed the door on Bivens actions by limiting them to highly specific circumstances and repudiating Bivens's core logic." This represents a complete reversal from the Court's position over 50 years ago when it first established in Bivens v. Six Unknown Named Agents that plaintiffs could sue federal officials for constitutional violations.

The practical impact is stark: federal actors cannot be sued under Section 1983, which provides remedies against state and local officials, leaving victims of federal constitutional violations with virtually no recourse.

The Inadequacy of Existing Remedies

The article doesn't fully explore why this gap matters so urgently. Victims of constitutional violations by federal officials currently face severely limited options. Injunctive or declaratory relief—which only addresses prospective injuries—is unavailable for past government misconduct. Even for future violations, the Supreme Court's decision in City of Los Angeles v. Lyons (1983) denied a victim of a police chokehold any injunctive relief because he could not show he was likely to suffer the same violation again.

The Federal Tort Claims Act (FTCA), which might seem like an alternative, "establishes the exclusive remedy for victims seeking damages from the federal government for most state-law torts, largely preempting common-law tort suits against federal officials." But the FTCA doesn't cover constitutional violations—only traditional tort claims.

Why This Matters Now: Immigration Enforcement

The timing of Professor Amar's idea gaining traction is no coincidence. Congress recently approved new funds to expand immigration enforcement and detention, making high-stakes encounters with federal law enforcement more commonplace. This expansion occurs precisely when accountability mechanisms have collapsed, creating a perfect storm of increased federal enforcement power with diminished individual protection.

The Illinois law targeting ICE agents specifically reflects this concern, though the article hints at its vulnerability to legal challenge. The law's focus on immigration enforcement may actually undermine its constitutional validity, as Vikram Amar notes, because "it suggests that what you're trying to do is influence federal enforcement in an area of policy that you disagree with, rather than trying to make sure everyone stays within the Constitution."

The Qualified Immunity Shield

An additional complication the article doesn't address is qualified immunity. Even if state-created causes of action survive legal challenges, they would likely still face the doctrine of qualified immunity established in Harlow v. Fitzgerald, which protects public officials performing discretionary functions unless their conduct violates "clearly established federal statutory or constitutional rights." This immunity is characterized as "immunity from suit rather than a mere defense to liability," meaning cases can be dismissed before trial.

The Federalism Paradox

Professor Amar's argument invokes federalism and originalism—typically conservative principles—to support what many would view as a progressive goal: holding immigration enforcement accountable. This creates an unusual political alignment. The proposal asks states to act as a check on federal power precisely when the federal courts have abdicated that responsibility.

The concept has been termed "converse 1983"—essentially the mirror image of the 1871 statute (42 U.S.C. § 1983) that provides remedies against state and local officials but "offers no relief for federal action." Professor Amar first introduced this concept nearly four decades ago, describing "state-created causes of action for damages against federal officials who violate federal constitutional rights."

Notably, commentators have pointed to the Westfall Act's "plain language and legislative history" as supporting the argument that it allows for "state actions seeking relief for federal constitutional violations." This suggests there may be stronger textual support for Professor Amar's theory than the article initially indicates.

The Strategic Purpose: Forcing Congressional Action

Vikram Amar's observation about the "larger purpose" of such state laws is particularly significant. He suggests these laws could create a "patchwork of different state regulations and different remedies" that would essentially force Congress to act because it's "unlikely that Congress would want to leave" such disuniformity.

This reveals a sophisticated strategic vision: states aren't just filling a gap—they're creating productive chaos that makes federal inaction politically untenable. If multiple states adopt different standards and remedies, the resulting legal complexity could pressure Congress to establish uniform federal legislation, something it has failed to do despite the Supreme Court repeatedly saying such legislation is necessary.

Implications for Constitutional Structure

The broader implication concerns the structural relationship between federal power and individual rights. When the Supreme Court retreats from recognizing constitutional remedies and Congress fails to act, we face what might be called a "remedial gap crisis"—constitutional rights that exist in theory but lack any practical enforcement mechanism.

Professor Amar's proposal suggests that constitutional federalism might work vertically as well as horizontally: not just protecting states from federal overreach (the traditional federalism concern), but empowering states to protect individuals from federal violations. This represents a reimagining of the states' role in the constitutional system—from autonomous political entities to guardians of individual constitutional rights against federal abuse.

The question is whether courts dominated by federalism-minded conservatives will embrace this logic when it empowers states to constrain federal immigration enforcement, or whether federalism principles will prove selectively applicable based on preferred policy outcomes.