Suing the federal government for constitutional violations

There is a fundamental inequity in the ability of Americans to enforce their rights under the United States Constitution.

If a person’s constitutional rights are violated by local or state government actors, the person can sue the government actors for damages to compensate for the harm suffered. However, if a person’s constitutional rights are violated by federal government actors, the person will likely not be allowed to sue the government actors for damages to compensate for the harm suffered.

Why is there a difference in the ability to seek compensation from government actors who violate their constitutional rights based on the level of government that they represent?

Within five years after the Civil War ended in 1865, three amendments to the Constitution were ratified: The 13th Amendment abolished slavery; the 14th Amendment granted citizenship to the formerly enslaved persons and also guaranteed them due process and equal protection of the laws; the 15th Amendment granted these new citizens who were male the right to vote without discrimination based on race, color or previous condition of servitude.

After these three amendments were ratified, Congress enacted a law in 1871 that authorizes a person whose constitutional rights are violated by local or state actors to sue them to recover damages for their injuries. The principal purpose of this law was to ensure that the formerly enslaved individuals could sue to enforce their constitutional rights, especially in the states where they were previously enslaved.

Congress has never enacted a law analogous to the 1871 law that authorizes a person whose constitutional rights are violated by federal actors to sue them to recover damages for their injuries. This oversight by Congress is problematic because federal actors, like their local and state counterparts, do on occasion violate the constitutional rights of Americans. Recall the many constitutional violations that were committed by agents of the Federal Bureau of Investigation when J. Edgar Hoover was its director.

The United States Supreme Court decided in 1971 that Webster Bivens, a man who sued federal law enforcement officers for falsely arresting and physically abusing him in violation of his Fourth Amendment rights, could seek damages from them even though no federal law authorized his claim. The court concluded that constitutional rights are so important that suits for damages to enforce them should be allowed even though Congress had not authorized them against federal actors.

In the next decade, the Supreme Court followed the precedent of Bivens’ case and allowed two other suits for damages to proceed against federal actors who were accused of violating Fifth Amendment and Eighth Amendment rights.

In 1983, a more conservative Supreme Court began to look askance at suits against federal actors seeking damages for their violation of constitutional rights. In 10 consecutive decisions from 1983 to 2020, the Supreme Court dismissed suits for damages against federal actors accusing them of violating constitutional rights.

The consistent theme in these 10 decisions is that suits for damages against federal actors for violating constitutional rights should be authorized by Congress and not by the courts. People seeking enforcement of their constitutional rights in these 10 cases sought compensation for their losses of the basic necessities of life (employment, food, health care and shelter) and, in one case, the loss of life itself.

Despite the gravity of these losses, the Supreme Court rejected the efforts of these individuals to enforce their constitutional rights and shut the courthouse doors to future suits.

There is an obvious solution to the problem of the gap in the enforcement of constitutional rights. Congress should enact a law like the 1871 law, allowing suits for damages against federal actors who violate constitutional rights.

Most constitutional rights exist to protect Americans from government overreach. But our constitutional rights are diminished when they are not fully enforceable against federal actors who violate them. It is time for Congress to end this inequity and enact a law that authorizes suits for damages against federal actors who violate constitutional rights.

Henry Rose is Curt and Linda Rodin Professor of Law and Social Justice at the Loyola University Chicago School of Law.

IJ is a public interest law firm. We represent clients free of charge in cutting-edge litigation defending vital constitutional rights. You can join us by supporting our work here: ij.org/support

Arlington, Va.—In a unanimous opinion issued today by the U.S. Supreme Court, and authored by Associate Justice Clarence Thomas, the Court ruled in Tanzin v. Tanvir that individuals may seek damages as a remedy when federal officers violate their rights. The opinion closely tracks an amicus brief submitted by the Institute for Justice.

The case involved FBI agents who retaliated against Muslim-Americans and green-card holders who followed the dictates of their faith and refused to cooperate with the FBI by spying on their own communities. As a result of their refusal to cooperate, these individuals were placed on the No Fly List, which caused significant hardship, such as the inability to travel to visit family or for work. Luckily, Congress provided a statutory authorization to sue for violations of religious rights, allowing a plaintiff to receive “appropriate relief against the government.”

Not surprisingly, in the lawsuit against the FBI agents, the government argued that the words “appropriate relief” do not include damages. According to the government, damages might be an appropriate remedy against private actors, but damages should not be allowed if the person who violated your rights happens to work for the government.

The Institute for Justice filed an amicus brief arguing against this radical notion. IJ’s brief outlined how suits for damages against government officials are the historical cornerstone of government accountability, how damages are often the only way to vindicate constitutional rights, and how none of the government’s policy justifications against damages have a basis in reality. IJ further explained that matters of policy should be left to Congress, not courts.

In a unanimous opinion, the Supreme Court agreed.

According to the Court, “in the context of suits against Government officials, damages have long been awarded as appropriate relief.” And that has been true not only for state and local officials, but also federal officials, like those employed by the FBI. Moreover, the Court highlighted that damages are important because they are often the only remedy available. For example, for one of the plaintiffs, Muhammad Tanvir, who lost his job because of his placement on the No Fly List, it is damages or nothing. Finally, in response to the government’s argument that policy favors denying a damages remedy against government officials, Justice Thomas, just like Justice Story two centuries before him, emphasized that it is the job of Congress to engage in policy making: “[T]here are no constitutional reasons why we must do so in its stead.”

“The Court today has provided its full-throated endorsement of damages as a necessary and historic mechanism for constitutional accountability,” said Scott Bullock, IJ’s president and general counsel. “In doing so, the Court also reiterated its support for the foundational principles of this country, such as that damages can be awarded to check the government’s power and that it is Congress’ job to engage in policy making. The Court’s job is to interpret the law, not to do policy.”

IJ’s support for the individuals who sued the government in this case is part of its Project on Immunity and Accountability, which is devoted to the simple idea that government officials are not above the law; if citizens must follow the law, then the government must follow the Constitution. IJ’s recent U.S. Supreme Court case Brownback v. King is also a part of this Project. It similarly asks the Court to stay true to this nation’s original promise by allowing James King—an innocent college student who was brutally beaten by police—his day in court, to hold accountable the government workers who violated his constitutional rights and to seek damages for the harm they caused him.

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