Wednesday, February 09, 2022

The Remains of the Day, Or What is Left After the Collapse of Constitutional Remedies

Guest Blogger

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

Marin K. Levy
If we live in a world of “lumpers” and “splitters,” then Aziz Huq is a lumper—and to great effect.
He opens his most recent (and destined-to-be-classic) book, The Collapse of Constitutional Remedies, with a pair of litigants, seeking redress from the Supreme Court in 2020.  The first, Seila Law, LLC, is a firm that was under investigation by the Consumer Finance Protection Bureau; Seila Law argued it did not have to cooperate on the ground that the CFPB’s structure violated the Constitution.  The second, Alexander Baxter, is an individual who was arrested while attempting a burglary; Baxter alleged excessive force and failure to intervene on the part of two officers who released a police dog that severely injured him, in violation of the Fourth Amendment.  Seila Law ultimately prevailed at One First Street whereas Alexander Baxter, as Huq notes, “didn’t get past the courthouse door.”[1] 
In bringing together these two cases at the outset, Huq prompts two questions that frame much of the book.  First, how did it come to be that our judicial system would provide these litigants with such different outcomes?  And second, if it is increasingly the case that constitutional wrongs can be left without a constitutional remedy, how are we to understand our justice system today?  In a tour-de-force 160 pages, Huq answers both.
Regarding the first question, the early chapters of The Collapse of Constitutional Remedies provide a double origin story: how we came to have our federal courts, and how we set in motion a judicial system that would not fully live up to its promise.  The book begins with the Founding and takes us through such pivotal moments in the judiciary’s history as the Madisonian Compromise, the Judiciary Act of 1789, and the Evarts Act of 1891.  Huq lays out the early history and Article III itself as a blueprint for the judiciary; the later history then stands in to show us the building as it is constructed from the ground up.  Straying from the architecture metaphor that Huq effectively deploys, one has the sense in these chapters that a landscape is being described, knowing that some paths will later be followed, and other roads will not be taken.
Two of the paths are laid down during Reconstruction.  In a section on “The Rise of Remedies,” Huq notes the 1871 Ku Klux Klan Act (with its key provision, today known as “Section 1983”) and an 1867 amendment to the 1789 Judiciary Act that expanded the power of federal courts to issue the writ of habeas corpus.  The Collapse of Constitutional Remedies then tells the story of how the Court breathed life into these statutes in the 1950s—“part of a larger revolution in individual remedies.”  The book details other key moves within the revolution, including the creation of an “exclusion” remedy in the context of searches and seizures that violate the Fourth Amendment, and the creation of Bivens claims for damages against individual federal officials who violate the Constitution.  The overarching point is that for a period of time in the middle of the last century, the federal courts served as a Constitutional backstop, ensuring that many who had suffered a constitutional wrong would receive a remedy of some kind.
Under Huq’s careful telling, we then move into a period of remedial retrenchment or “collapse.”  Through various shifts in doctrine, the aforementioned roads to relief were narrowed substantially.  The end result is that remedies for constitutional violations are generally reserved for those instances in which it is plain that an officer acted in a “blatantly and manifestly unconstitutional way.”  Mr. Baxter is not to find relief in court today.  
And why were these roads narrowed?  The story is a complex one, with many moving pieces.  As Huq writes, “the availability of constitutional remedies at a given moment has always been shaped by the Article III blueprint, subsequent partisan dynamics, and the resulting tides of American state-building.”  One of the key strands that Huq teases out is an institutional interest in not opening the courts up to a “flood” of cases, including, but not limited to, officer suits—a point that came out in Bivens itself.     
As one nears the end of The Collapse of Constitutional Remedies, it feels like the end of the line.  If we accept that most individual constitutional wrongs will not receive a remedy, what are we left with at the end of the day? 
One response is that there is no clear path forward—and it is certainly not the task of this book to run up ahead and break it.  Instead, the contribution of this book is to have us appreciate where we currently stand (and how we got here).  Huq has a gift for bringing strands together and making us see things in ways we had not before.  This is a particularly valuable skill when applied to the world of remedies—as Huq himself notes, decisions about remedies tend to be technical, making them hard for non-specialists to parse, and they tend to grab less attention than decisions about rights creation (or elimination) as such.  And so again, it may be sufficient to appreciate the collapse without turning to rebuilding.
But if one were tempted to think about next steps, this is perhaps a place where “splitting” may be prove useful.  To begin, as The Collapse of Constitutional Remedies carefully tells, qualified immunity has played a significant role in narrowing avenues to relief.  In recent years, we have seen Justices on both sides of the ideological spectrum express concern about the doctrine and signal an openness to reconsidering it. [2]   (Indeed, in the Baxter case noted at the outset, Justice Thomas dissented from the denial of certiorari, noting that he would have granted the petition “[b]ecause our §1983 qualified immunity doctrine appears to stray from the statutory text”).  Congress, too, has expressed some interest in reforming qualified immunity of late.  And in recent days, Professors Alex Reinert, Joanna Schwartz, and Jim Pfander have made the case that states are free to enact legislation that creates a right for individuals to sue when their constitutional rights were violated by an officer—without the limitations of qualified immunity.  A few states have moved in this direction, already.  It would be something to think, after reviewing the history of the federal courts, that one way out of the current morass is to rely on states for the necessary constitutional remedies. 
Second, if part of the causal story of how we ended up in this place regards the limited capacity of the federal courts, one idea that deserves our attention is the expansion of those courts.  Specifically, Huq speaks to how various doctrines seem to have been influenced at different times by an institutional concern—that the courts not “open the floodgates” to certain types of cases.  It should not be surprising that such arguments surface when the caseload is particularly high and, or, is on the rise.  One possible response is to grow the federal bench.  Though Congress has not substantially increased the lower federal courts in over thirty years, there is some hope that it will act soon.  Indeed, Congress held hearings on the need for lower court expansion just last year, and various bills have been introduced to create a sizeable number of new judgeships.  To be sure, such an expansion, were it to take place, would not immediately undo the various problems identified by The Collapse of Constitutional Remedies.  But shoring up the foundations of the federal courts—along with other moves, such as those related to qualified immunity—could help to provide the way forward.
Back in 2015, I was fortunate to get to review one of Huq’s earlier articles on judicial independence and constitutional rights—one of the foundation stones for this book.  At the time I concluded, “Huq’s article makes substantial contributions in this area and helps to set up other important works to come.”  That important work is more than realized in The Collapse of Constitutional Remedies.  I only hope the famed promise of our Supreme Court—that “[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury”—will someday be realized as well. 
Marin K. Levy is a Professor of Law at Duke University School of Law.  You can reach her by email at

[1] Baxter’s cert petition was denied, and so the lower court’s decision denying relief on the basis of qualified immunity was undisturbed.

[2] Although we may well wonder if there is a certain hydraulics effect here—that is, if reigning in qualified immunity would come with a commensurate narrowing of some other path to relief.

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