Jim Pfander’s invaluable new monograph,
Constitutional Torts and the War on Terror, arrives
at an especially fortuitous moment in the history of the Bivens doctrine—which recognizes
circumstances in which judges can recognize a damages remedy for victims of
constitutional violations by federal officers even though no statute authorizes
such relief. Sometime in the next six weeks, the Supreme Court could hand down
its most important rulings on the scope of the doctrine in the 46 years it’s
been on the books. And at least based on how the oral arguments went in Ziglar v. Abbasi and Hernández v. Mesa (in which
I’m co-counsel to the Petitioners), the
signs aren’t too optimistic for those who agree with the younger Justice
Harlan, who closed his concurrence in Bivens
with 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, by virtue of their
inclusion in the Constitution, are aimed predominantly at restraining the
Government as an instrument of the popular will.” As Pfander’s book explains,
careful study of the history of civil remedies arising out of federal
government misconduct suggests that it would indeed be anomalous to so conclude,
especially in the context of challenges to post-September 11 counterterrorism
policies. That the Supreme Court may nevertheless be on the cusp of doing so,
especially at this particular moment in our nation’s history, should be deeply
disturbing to even the most casual reader.
Bivens has been
controversial since soon after it was handed down, and was dismissed by Justice
Scalia in a 2001
concurrence as “a relic of the heady days in which [the
Supreme] Court assumed common-law powers to create causes of action—decreeing
them to be ‘implied’ by the mere existence of a statutory or constitutional
prohibition.” In fact, though, as Pfander recounts in his book (and as others
have explained elsewhere), Bivens was
not a bolt from the blue, but rather an incremental step along a centuries-long
historical chain that started with a Founding-era model in which federal
officers were routinely held liable for damages—but under state laws and in
state courts.
Unlike implied statutory causes
of action, which sprang from broad (and contested) progressive theories of the
judicial role vis-à-vis Congress, Bivens
had its origins in a long-standing common-law tradition of judge-made remedies
against federal officers—just with state law and state courts doing most of the
work. Indeed, in Bivens itself, the
Nixon Administration’s argument against a judge-made federal damages remedy was
not that the plaintiff should be left with nothing, but rather that state tort law was a more than
sufficient remedy to punish the unconstitutional conduct of six federal
narcotics agents. The Court rejected the government’s reliance upon state law,
recognizing, as I’ve
suggested elsewhere, three flaws in the state-law, state-court model:
First, although it had been possible to loosely analogize
certain constitutional protections to state tort law (e.g., vindicating Fourth Amendment violations through trespass),
that analogy did not hold up well as applied to many of the other constitutional
rights (such as equal protection) into which the courts were then breathing new
life. Second, the same period saw federal courts more routinely asserting the
power to enjoin unconstitutional
conduct by the federal government—even though, as with damages, no statute
expressly authorized them to provide such relief—creating both a strange
jurisdictional asymmetry between prospective and retrospective relief against
federal officers and a precedent for a more aggressive federal judicial role. Third,
and related, the 1950s and 1960s brought with them the rise of what Judge Henry
Friendly called “the new federal common law,” pursuant to which federal courts
identified more specific—and more analytically coherent—grounds on which to
fashion judge-made (as opposed to statutory) rules of decision, defenses, and
causes of action.
It would be easy enough for
contemporary critics of Bivens to argue
for a return to the state-law, state-court model. But as Pfander explains, the
reason why state remedies aren’t usually available in similar circumstances
today is because of the 1988 Westfall Act, which,
whether intentionally or not, preempted such state-law claims, leaving most plaintiffs
in modern Bivens cases with a choice
of damages under Bivens or nothing.
Thus, whereas early critiques of Bivens
tended to suggest that such remedies were unnecessary because of existing state
law alternatives, today’s arguments sound more in attacks on the judicial power
to recognize damages under any source
of law—by identifying classes of cases in which courts ought to stay their hand
before fashioning damages remedies in the absence of more specific legislative
authorization.
That’s the frame in which the Abbasi and Hernández cases have 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 treatment while detained as
part of the post-9/11 roundup of Muslim and Arab immigrants in and around New
York (a divided panel of the Second Circuit had said “yes”). On the same day
that the Court agreed to hear the federal government’s petition for review of
that decision, the Justices also granted review in Hernández—a case arising out of a U.S. Border Patrol agent’s allegedly
unconstitutional cross-border shooting of an unarmed 15-year-old Mexican
national. And, most curiously, although the lower court rulings in Hernández had focused on whether the
Constitution even applied in such a
case (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 in Hernández the question whether “the
claim in this case [may] be asserted under Bivens.”
It therefore seems clear that the Justices themselves have decided to re-enter
the Bivens fray—although it remains
to be seen (and we may soon discover) whether their goal is to reinvigorate the
doctrine or inter it once and for all.
Hence, the propitious timing of
Pfander’s book, which provides a simply stunning historical, doctrinal, and
normative account of why damages
remedies for unconstitutional federal conduct are so important—especially, as
the book’s title suggests, in the context of post-September 11 counterterrorism
policies in general, and detainee mistreatment in particular. As Pfander
explains late in the Introduction, “[t]his book shows that the officer suit for
damages, a workhorse of the common-law tradition, has a key role to play in our
system of government accountability. . . . With a revived action
at their disposal, federal courts can put aside political, geographical, and
national security considerations and confront the fact of government-sponsored
torture in the war on terror.”
But perhaps the most important
feature of Pfander’s work is its overclaimed modesty. Although the monograph
points to the torture of post-September 11 detainees as the constitutional
violation most in need of judicial accountability via Bivens, the sobering reality is that it has become increasingly
difficult for plaintiffs to invoke Bivens
across the board, including in contexts increasingly removed both
geographically and substantively from contemporary counterterrorism policy.
Congress, of course, could solve this problem by enacting a federal statute
akin to 42 U.S.C.
§ 1983 (which provides a cause of action for violations
of federal law by state officers).
But it’s never shown an interest in doing so before, and surely won’t be in a
hurry to do it now.
That’s why, as Pfander rightly
concludes, the resurrection of Bivens
is going to have to be a common-law project—led by courts, if at all. It would
be hard for even the most skeptical jurist to read Pfander’s book and not be
convinced that judge-made damages remedies for constitutional violations by
federal officers are both a necessary and appropriate exercise of judicial
power in most (if not all) cases. Instead, the real question about Pfander’s
book is whether, with decisions in Abbasi
and Hernández in the offing, its essential
lessons will reach their intended audience too late.
Stephen Vladeck is Professor of Law at the University of Texas
School of Law. You can reach him by
email at svladeck at law.texas.edu.