Thursday, February 10, 2022

Judicial Remedies and Structural Constitutional Violations

Guest Blogger

For the Balkinization symposium on Aziz Huq, The Collapse of Constitutional Remedies (Oxford University Press, 2021).

Rachel Bayefsky

Professor Aziz Huq’s The Collapse of Constitutional Remedies provides a terrific 360-degree tour of the federal courts’ treatment of judicial remedies for constitutional violations.  Huq deftly traverses a range of domains, from suits against police officers to habeas petitions to antidiscrimination claims.  Highlighting patterns in federal courts’ limitations on remedies in numerous areas, Huq demonstrates the analytic benefits that redound from observing cross-doctrinal patterns instead of viewing each aspect of the law in isolation.  Further, Huq places federal courts’ treatment of constitutional remedies in rich historical perspective, emphasizing the evolution of judicial decision-making in connection with social and political trends.

One of the book’s many interesting contributions—and the point on which I will concentrate—is its argument that federal courts have taken different approaches toward different kinds of constitutional violations.  According to Huq, federal courts have restricted judicial remedies for constitutional violations stemming from police violence or infringements of individuals’ civil rights.  At the same time, federal courts have been more willing to provide remedies in suits seeking to vindicate structural constitutional principles, such as the separation of powers or federalism.  The latter types of suits are often litigated by companies objecting to administrative agency regulation.

Federal courts, Huq contends, have put up hurdle after hurdle to judicial remedies for unlawful action in suits involving government violence or civil rights: constitutional standing, qualified immunity, sovereign immunity, stringent interpretations of legal standards for writs of habeas corpus.  Yet in the context of structural challenges—such as those trained on Congress’s Commerce Clause powers or the President’s appointment and removal authorities—federal courts stand readier to provide relief:  Litigants frequently need not demonstrate that the constitutional violation “was particularly egregious,” and sometimes need not even show “that the constitutional violation caused them any harm” (145).  Thus, when Adolph Lyons was subjected to a police chokehold in Los Angeles, the Supreme Court held that he lacked standing to seek an injunction because he could not show he would encounter the same conduct in the future (146-47).  By contrast, when a Nevada accounting firm argued that a regulatory body’s members were unconstitutionally insulated from presidential removal, the Court reviewed the case on the merits and held in the firm’s favor based on, in Huq’s terms, the “possibility that a constitutional problem could have—hypothetically, at least in principle—influenced the firm’s treatment” (144). 

To be sure, each doctrine Huq describes has its own structure and history.  There may be doctrinally specific explanations for the availability or absence of constitutional remedies in any given circumstance.  At the same time, there is great value in taking account of broader trends, as Huq does when he identifies distinctions in the treatment of different types of constitutional claims. 

In considering such distinctions, however, it is important to disaggregate two issues: (1) federal courts’ willingness to provide an effective remedy; and (2) federal courts’ willingness to reach the merits of the legal claims.  With respect to effective remediation, one might question the extent to which even those challenging structural constitutional violations receive considerable relief.  As Huq notes (142), criminal defendants challenging their convictions on structural constitutional grounds do not necessarily escape government coercion when a federal court agrees that the statute of conviction is unconstitutional.  For instance, these defendants may remain subject to state prosecution. 

Recent cases involving structural violations provide all the more reason to ask about the real-world relief that parties secure.  In the 2020 Supreme Court case Seila Law LLC v. Consumer Financial Protection Bureau, for example, the firm Seila Law received an investigative demand from the CFPB and, in objecting to that demand, challenged the constitutionality of the CFPB’s structure.  In particular, Seila Law took issue with a statutory restriction on the President’s ability to remove the CFPB Director from office.  The Supreme Court, after agreeing with Seila Law that the statutory provision restricting removal was unconstitutional, severed that provision from the rest of the law establishing the CFPB and remanded for the court of appeals to consider whether the investigative demand the CFPB had issued to Seila Law was validly ratified by an official who was not afflicted by the same constitutional infirmity.  On remand, the Ninth Circuit held that the investigative demand had been, in the end, validly ratified.  From Seila Law’s perspective, the Supreme Court’s ruling may not have achieved all that much. 

To take another example of limited remediation for parties in a structural constitutional challenge:  In Free Enterprise Fund v. Public Company Accounting Oversight Board, the Supreme Court in 2010 held statutory restrictions on the removal of members of a government agency to be unconstitutional but severed these restrictions from the rest of the law creating the agency.  Those challenging the restrictions were therefore entitled not to “broad injunctive relief against the [agency’s] continued operations,” but instead to “declaratory relief sufficient to ensure that the reporting requirements and auditing standards to which they are subject will be enforced only by a constitutional agency accountable to the Executive.”  The Court provided no indication that the challengers would be free from the relevant reporting requirements and auditing standards.

Two cases that the Supreme Court issued just last Term underscore the elusiveness of expansive remedies for some parties challenging structural constitutional violations.  In Collins v. Yellen, a group of shareholders of Fannie Mae and Freddie Mac argued that the structure of the Federal Housing Finance Agency (FHFA) violated the separation of powers because the FHFA is led by a single director removable by the President only “for cause.”  The Court agreed that the FHFA’s structure violated the separation of powers but remanded for consideration of whether the unconstitutional removal restriction “inflict[ed] compensable harm.”  Presumably, the court of appeals on remand may decide that the removal restriction did not.  In that event, it is unclear what the shareholders will have gained beyond the constitutional ruling that the FHFA’s structure violates the separation of powers. 

Another case last Term, United States v. Arthrex, involved an Appointments Clause challenge to the structure of the Patent Trial and Appeal Board, an executive adjudicatory body.  The Board held an Arthrex patent to be invalid, and Arthrex challenged the constitutionality of appointments provisions for the Board’s Administrative Patent Judges (APJs).  The Supreme Court agreed with Arthrex that the Board’s structure was inconsistent with the Constitution, because the nature of the APJs’ responsibilities was not compatible with their method of appointment.  But the Court declined to dismiss the administrative proceeding in which Arthrex’s patent was held invalid.  Instead, the Court held that APJs’ decisions must be subject to review by the Director of the Patent and Trademark Office (PTO), and in those circumstances the statute was constitutional.  The Court then remanded to the acting Director of the PTO to decide whether to rehear the case.  A few months later, an official performing functions of the Director denied Arthrex’s request to review the case; that denial is now on appeal to the U.S. Court of Appeals for the Federal Circuit.  The bottom line:  Any relief that would affect the validity of Arthrex’s patent seems quite far away.  

Relief for parties challenging structural constitutional violations, therefore, may be limited in practice.  True, this point may be most applicable to recent structural challenges that the Supreme Court has decided.  For example, many of today’s removal cases involve situations in which the President has not tried to remove an official.  By contrast, an official who seeks back pay after the President attempts removal (as in the 1935 case Humphrey’s Executor) could have a better shot at a more robust remedy.  Nonetheless, significant cases in the past few years suggest that relief for structural constitutional violations is at times ephemeral. 

One might contend that a court order requiring government action to be carried out by a constitutionally legitimate officer is a meaningful remedy even if the substance of government regulation remains the same.  In fact, I have argued elsewhere that a declaration that one’s constitutional rights are being violated may itself constitute proper federal judicial relief because it could redress dignitary harm.  Perhaps federal courts today are especially prepared to treat “intangible” remedies as genuine forms of relief in the particular context of structural constitutional challenges.  If such an approach exists, however, it requires justification. 

Although parties raising structural constitutional objections may not receive anything close to the remedies they seek, federal courts may still treat their suits differentially in another sense.  Specifically, federal courts may be more willing to reach the merits of structural claims, at a minimum those involving removal.  The Supreme Court in Seila Law stated that “a litigant challenging governmental action as void on the basis of the separation of powers is not required to prove that the Government’s course of conduct would have been different in a ‘counterfactual world’ in which the Government had acted with constitutional authority.”  Although this statement can be interpreted in multiple ways, it raises questions about the threshold requirement of constitutional standing (consistent with Huq’s observations, 121-22).  Are regulated parties’ financial harms “fairly traceable” to a structural constitutional violation if there is no indication that a properly removable government regulator would have acted differently?  A standing problem that might have been fatal in another suit seemed to have less bite in the structural removal setting. 

Times could be changing.  Recent separate writings in the Supreme Court, particularly by Justice Thomas, suggest an interest in taking a closer look at justiciability and remedies questions in structural constitutional cases.  Dissenting in Arthrex, Justice Thomas doubted the Court’s power to issue a remedy given that “[n]o constitutional violation has occurred” if one accepted the Court’s view that granting the agency director the power to review Board decisions rendered the statute constitutional.  Concurring in Collins, Justice Thomas questioned whether the mere existence of an unlawful removal restriction was sufficient for a court to rule in favor of those challenging that restriction.  In his view, parties must instead show that the actual government action at issue was unlawful.  Justice Thomas’s separate writings—and arguments by Professor John Harrison that Justice Thomas referenced—may provide fodder for the view that federal courts should be more reluctant to decide the merits of structural constitutional challenges when the injury is ill defined or when the relationship between injury and remedy is nebulous.

Justice Thomas’s increased attention to harm and remedy may be based on a formalist approach, but those more pragmatically inclined have reason to focus on these issues as well.  When federal courts declare agency structures unconstitutional, as dissents by Justices Breyer and Kagan have argued, they risk overstepping the judicial role by imposing a particular vision of political accountability that may not closely fit the incentives and structures of the real world.  The concern about judicial overextension applies as well when courts decide to sever statutes instead of declaring an entire scheme unconstitutional; federal courts are arguably not well suited to restructuring the chains of command within administrative agencies.  Apprehension about the judicial role in structural constitutional challenges may call for enhanced use of the “passive virtues”—application of tools like standing and mootness to limit the circumstances in which courts reach the merits of a constitutional claim.  At the least, courts should not reach out to decide structural constitutional issues in cases that do not cleanly present these questions. 

In sum, Huq’s book provides invaluable context and insight as courts and scholars debate federal courts’ proper approaches toward relief for constitutional violations.

Rachel Bayefsky is an Associate Professor of Law at the University of Virginia School of Law.  You can reach her by email at 

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