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Jennifer Mascott on Bivens and Egbert v. Boule
Michael Ramsey

Jennifer Mascott (George Mason) filed this originalist amicus brief in Egbert v. Boule (pending at the Supreme Court with argument March 2), which concerns the scope of Bivens remedies.  From her summary of argument:

There is no longstanding provenance for judicially implied constitutional causes of action like those created in Bivens. Rather, there was a historical tradition of federal courts entertaining state common-law damages claims against federal officials, typically for trespass. The nature and scope of that tradition demonstrates just how far afield from historical practice Bivens strayed when it announced a new cause of action assertedly derived from the Constitution itself in 1971. In the 18th and 19th centuries when federal courts considered cases involving longstanding state common-law causes of action, courts were not “fashioning” or “creating” or even expanding causes of action but instead applying longstanding law to defendants who happened to be federal officials. The suits sought to vindicate those longstanding common-law interests, not a separate category of allegedly constitutional rights. Indeed, from 1789 when lower federal courts under the new Constitution first opened their doors after their creation in the Judiciary Act, through the Civil War, constitutional questions rarely arose in the context of lawsuits against federal officials in Article III courts. Where they did, such constitutional questions tended to arise indirectly, as defenses, not as elements of the plaintiffs’ actions. The lack of federal question jurisdiction until 1875, see Act of Mar. 3, 1875, § 1, 18 Stat. 470, led to this procedural posture, and early suits against federal officers often necessarily arose in state court. Nonetheless, that jurisdictional vacuum facilitated a legal landscape in which there was no widespread early practice of federal judicial inferences of implied constitutional claims. And even scholars who note originalist support for the existence of federal common law pre-Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), often acknowledge the limited nature of such common-law authority—in contrast to a freewheeling ability for Article III judges to create and recognize developing causes of action as they saw fit based on policy considerations. See, e.g., Caleb Nelson, The Legitimacy of (Some) Federal Common Law, 101 Va. L. Rev. 1, 1–9 (2015) (suggesting that federal common law would not improperly stray into judicial lawmaking if it incorporated firmly grounded sources of authority “such as widespread customs, traditional principles of common law, or the collective thrust of precedents from across the fifty states”); Anthony J. Bellia Jr. & Bradford R. Clark, The Original Source of the Cause of Action in Federal Courts: The Example of the Alien Tort Statute, 101 Va. L. Rev. 609, 610–16 (2015) (distinguishing federal judicial application of “general law” such as transnational legal authorities including “the law merchant, the law maritime, and the law of state-state relations” from the modern concept of “federal common law,” which the Supreme Court did not recognize “[f]rom the Founding through the nineteenth century”).

Bivens reversed course from the early practice. It created a direct cause of action for damages for violations of asserted constitutional rights—a cause of action unauthorized by any statute and previously unknown to the history and tradition of the federal judiciary. For the first time, federal courts were not just applying longstanding, generally applicable common-law damages actions to federal officials, but instead were creating new damages actions allegedly under federal law that applied solely to federal defendants. See Part I, infra. The limited nature of the federal government newly created under the 1788 Constitution is in irreconcilable tension with, and provides no basis for, a new 20th-century, judicially driven federal damages regime like the longstanding common law regime in place at the state level prior to federal constitutional ratification. The very nature of the bargain between state conventions ratifying the U.S. Constitution and the federal government was that the federal government would be constrained by the procedural and subject-matter limitations of the text that the popularly elected conventions ratified. Under that text and constitutional structure, statutes subject to rigorous Article I procedural requirements are the mandated principal source for new legal obligations, not judicially inferred damages actions from newly ratified substantive constitutional text.

Separation of powers principles inherent to that text explain why federal courts historically avoided creating damages actions absent statutory authorization from Congress. See Part II, infra. The core feature of the federal constitutional system is its character as a government of limited powers. See The Federalist No. 45 (James Madison) (“[T]he powers delegated by the . . . Constitution to the federal government are few and defined.”). The “legislative power” to create new federal causes of action is vested with Congress pursuant to Article I, not with the courts. Article III’s limitation of federal court jurisdiction to “cases” and “controversies” provides an additional indication that the courts were founded primarily to hear causes of action created via bicameralism and presentment, not to manufacture such actions in the first instance. Moreover, by inserting courts into judgments about sovereign and political trade-offs, Bivens claims are especially corrosive to separation of powers protections.

Liberty is best protected by enforcing the Constitution’s reservation of limited powers to each branch. “In order to remain faithful to this tripartite structure, the power of the Federal Judiciary may not be permitted to intrude upon the powers given to the other branches.” Spokeo, Inc. v. Robins, 578 U.S. 330, 337 (2016). Bivens is such an intrusion. Finally, disavowal of Bivens as lacking deep-seated historical origins would have no bearing on the lawfulness of recently reaffirmed equitable doctrines like the negative injunctive power countenanced in Ex Parte Young. The injunctive relief available under Young has been tied to origins dating back to the Judiciary Act of 1789, and even earlier in English equity history, and involves limited relief to halt unlawful and unauthorized government official actions rather than affirmative implications of private causes of action for monetary damages beyond the scope of clear legal text. See Part III, infra.

I think this is mostly right, at least as to the power of the federal courts to create federal constitutional causes of action.  It's complicated by the federal court's pre-Erie use of general common law, which might have supported a claim against federal officers acting unconstitutionally even in the absence of an express state law cause of action.  But broadly speaking the original understanding presumably was that federal officers who violated individual rights could be sued under state law, and if they were acting unconstitutionally they couldn't defend on the ground that they were engaged in federal business.  As a result, a cause of action based on the Constitution, as in Bivens, wasn't needed or appropriate.

However, as I've argued on this blog, the later point only makes sense today if the traditional state law remedies are still in place, which they aren't.  The brief acknowledges this point (with a cite to the Originalism Blog): 

To the extent that some remedy is perhaps deemed constitutionally necessary to address government official actions taken without any lawful scope of authority, ... the solution is not to rely on a mode of judicial creation of relief that is in tension with underlying constitutional requirements for the creation and regulation of federal subject-matter jurisdiction. Rather, the more appropriate reconsideration would be of the constitutionally proper scope of Westfall Act limitations on relief and preemption of traditional common-law damages actions against federal officials. Cf. Michael Ramsey, “Don’t Fear Bivens,” The Originalism Blog (Nov. 12, 2019), https://originalismblog.typepad.com/the-originalismblog/2019/11/dont-fear-bivensmichael-ramsey.html (contending that “absent a Bivens remedy the Westfall Act would be unconstitutional, as applied to state law claims,” in analysis contending for the constitutionality of Bivens).

I agree with that statement: the Westfall Act, if interpreted to bar state law remedies for unconstitutional acts of federal officers, is unconstitutional (though not necessarily because "some remedy is ... constitutionally necessary," but because it's not necessary and proper for Congress to bar such remedies).  My point in the blog post was that Bivens basically stands in the shoes of the traditional common law remedies, so it is not such an anomaly as its critics suggest.  Rather, the anomaly is that today federal officials can avoid liability for constitutional violations of basic common law rights (unless they can fit their claims within the increasingly narrow scope of Bivens).

The issues presented in Egbert are:

(1) Whether a cause of action exists under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics for First Amendment retaliation claims; and (2) whether a cause of action exists under Bivens for claims against federal officers engaged in immigration-related functions for allegedly violating a plaintiff’s Fourth Amendment rights.

My answer is that there should be a remedy if state law provides a remedy, and if you need Bivens to get there, that works for me.  I wouldn't extend Bivens beyond what state law would provide (which it sounds like the first issue might be trying to do). But the second issue is a straightforward trespass claim, and as an originalist matter I can't see why it should be barred just because it's in the immigration enforcement context and so not exactly like Bivens.