Constitutional Remedies in Federalism's Forgotten Shadow

Abstract

For decades, courts and commentators have vigorously debated how the relationship between common-law and statutory writs of habeas corpus in pre-revolutionary England should inform our understanding of the U.S. Constitution's Suspension Clause, which, as the Supreme Court has held, enshrines access to the writ "at least as it existed in 1789." One of the many lessons to emerge from this discourse is how the elimination of access to the common-law writ in state court, through a combination of legislation and judicial decisions, raised the constitutional stakes when Congress later sought to restrict federal statutory habeas, as manifested in the Supreme Court's landmark (if controversial) 2008 ruling in Boumediene v. Bush. In this essay, prepared in conjunction with the California Law Review's symposium on Professor Amanda Tyler's new book, "Habeas Corpus in Wartime," I seek to take some of the lessons from the habeas debates and apply them to a different species of constitutional remedy—damages suits against federal officers for constitutional violations, today known as "Bivens" claims after the 1971 decision that first recognized such judge-made remedies under federal law. As in the habeas context, a combination of statutory intervention and judicial constriction has all-but eliminated what used to be a rich and robust array of judge-made constitutional remedies against federal officers in state courts and under state law. As late as 1963, the Supreme Court thought it uncontroversial that, "[w]hen it comes to suits for damages for abuse of power, federal officials are usually governed by local law." Thanks to a series of intervening developments, victims of constitutional violations by federal officers today, in contrast, are often left to judge-made federal damages remedies or nothing—and, especially in light of the Supreme Court's 2017 ruling in Ziglar v. Abbasi, increasingly, nothing. More often than not, modern judicial hostility to judge-made damages remedies against federal officers is pitched, as in Abbasi, in terms of the separation of powers—and the extent to which unelected federal judges should stay their hand before providing damages remedies that Congress has not seen fit to expressly authorize. But as this essay argues, this reasoning reflects historical amnesia as to the role of state law and state courts in holding federal officers to account, leaving observers with the misimpression that serious separation-of-powers concerns arise from federal judicial recognition of implied causes of action when the true question these cases present—or, at least, should present—actually sounds in federalism. Although that conclusion may itself suggest that the relevant decisionmakers should be more amenable to allowing federal constitutional claims to be resolved by state courts and/or under state law in the first instance, at the very least, it suggests that federal judges should not take quite as dim a view as has become commonplace regarding their authority to fill existing gaps.