Person:

Koenig, Thomas

The Supreme Court has repudiated Bivens on the grounds that it arrogated legislative power to the federal judiciary. As the Court steps back, Congress is free to undo what remains of Bivens or strengthen it. So can the States. Much like they did at common law, the States can supply the cause of action that the federal judiciary cannot. Specifically, as things stand now, States are free to arm their citizens with a cause of action for damages against federal officers who violate their federal constitutional rights. Federalism principles do not stand in their way. Nor does Supreme Court precedent. Nor does the Westfall Act.

Moreover, these state causes of action need not cloak federal executive officials with any particular set of immunities. Federal courts would lack the necessary authority to craft immunities as a matter of federal common law. There’s no special federal concern in protecting federal officials who take actions unauthorized by federal law. And federal law may not authorize any federal official to violate federal constitutional rights. Statutory authorization to craft immunities would likewise be lacking. The immunities the Supreme Court has crafted under Bivens are unique to Bivens actions. When federal courts create a cause of action, they may fill in the gaps by providing statutes of limitations, burdens, and crucially, immunities. But federal courts will not have created converse-1983 actions, and there will be no gaps to fill. If converse-1983 is to fall, it must fall at the hands of Congress — not the federal courts.