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Don't Fear Bivens
Michael Ramsey

Today is the Supreme Court oral argument in Hernandez v. Mesa, the cross-border shooting case.  One important background to the case is the suspicion with which originalist and originalist-leaning judges (including the late Justice Scalia) have viewed Bivens claims (Hernandez seeks to bring a Bivens claim against Mesa, a border patrol officer, for the shooting).

I think that suspicion is unjustified.  True, the Bivens case itself is poorly reasoned from an originalist perspective, and the Court's description of the Bivens process as an implied right of action under the Constitution is unfortunate.  But the basic proposition that persons harmed by federal officers acting unconstitutionally can bring claims against them was central to the framers' understanding of constitutional limits on federal power.  In the framers' world -- and indeed the world until Bivens was decided -- these claims would typically be state common law claims.  And, so long as state common law claims remained viable, Bivens was indeed an anomaly. 

But then (post-Bivens) Congress abolished state law claims against federal officers in the Westfall Act.  In my view, absent  a Bivens remedy the Westfall Act would be unconstitutional, as applied to state law claims based on unconstitutional behavior.  Congress lacks power to eliminate a remedy for unconstitutional behavior, as that action is not necessary or proper in support of any constitutional power.  The Westfall Act is constitutional only because Congress likely assumed Bivens remedies would remain in place.  Thus in the post-Westfall Act world, Bivens remedies take the place of the common law remedies assumed by the framers.  Sharply curtailing or eliminating Bivens, as Justice Scalia wished, would radically alter the checks on federal officers, as compared to the original constitutional design.

This amicus brief by the Institute of Justice, supporting the petitioners in Hernandez, makes a similar argument.  From the summary:

Bivens’s pedigree dates back to the English common law, which allowed damages actions for violations of fundamental rights. William Blackstone famously proclaimed that without a method for “recovering and asserting” fundamental rights, “in vain would rights be declared, in vain directed to be observed.” 1 William Blackstone, Commentaries on the Laws of England 55-56. The Founders were so committed to the common law tradition of holding government agents personally liable that anti-federalists, like Luther Martin and George Mason, opposed ratification of the U.S. Constitution in part because they feared that the newly created federal judiciary would take away this common law remedy. Federalists like John Marshall sought to reassure the delegates that the remedy would most definitely live on. After all, our constitutional rights are meaningless if courts cannot redress their violation.

As a result of this history, individuals, for much of America’s existence, could subject federal officers to common law tort liability for violations of constitutional rights. Such cases were heard in state and federal courts (depending on the subject matter), with the common law being the source of the tort remedy in both.

In Bivens, the Court allowed a direct constitutional remedy in federal court, as a supplement to common law remedies, concerned that in the post-Erie world, “leaving the problem of official liability to the vagaries of common-law actions” would hurt federal interests, such as the need to enforce the Constitution without being bound by state precedent. Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 409 (1971) (Harlan, J., concurring). Thus, in the seventeen year period between the Bivens decision and the passage of the Westfall Act, individuals could vindicate their constitutional rights either directly under the Constitution or through the system of common law remedies.

By passing the Westfall Act, Congress precluded all tort suits, including constitutional ones, against federal officers under state common law. But it preserved the right of aggrieved citizens to bring claims “for a violation of the Constitution of the United States.” 28 U.S.C. § 2679(b)(2)(A). This language, the Court has found, is an “explicit exception for Bivens claims.” Hui v. Castaneda, 559 U.S. 799, 807 (2010). In other words, Congress has passed the torch of accountability for constitutional violations from the system of common law remedies to Bivens. By shutting the door on recovery under state common law and still authorizing claims for violations of the Constitution in federal court, Congress made Bivens into the one and only mechanism for holding federal officers personally liable for unconstitutional conduct. ...

The key to this argument, as the brief emphasizes, is to see Bivens not as an anomaly but as a continuation of the common law and constitutional tradition, dating back to the founding, of suing federal officers for unconstitutional acts.  Thus to the extent Congress acknowledged Bivens in the Westfall Act, it should be understood as acknowledging not just claims on the specific facts of Bivens, but the broader tradition.