BIVENS AND THE ANCIEN REGIME.

• Author: Vazquez, Carlos M.

INTRODUCTION

In its most recent decision narrowly construing Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, (1) the Supreme Court derided Bivens as the product of an "' ancien regime,'... [in which] the Court assumed it to be a proper judicial function to 'provide such remedies as are necessary to make effective' a statute's purpose." (2) In the context of statutorily created rights, the Court has rejected this ancien regime on the ground that it reflects a mistaken understanding of the nature of the legislative process. As the Court wrote in Hernandez v. Mesa:

[W]hen a court recognizes an implied claim for damages on the ground that doing so furthers the "purpose" of the law, the court risks arrogating legislative power. No law "'pursues its purposes at all costs.'" Instead, lawmaking involves balancing interests and often demands compromise. Thus, a lawmaking body that enacts a provision that creates a right or prohibits specified conduct may not wish to pursue the provision's purpose to the extent of authorizing private suits for damages. (3) The Court's decision in Hernandez was based on the view that these considerations also apply with respect to damage remedies for constitutional violations.

This Essay considers the relevance for Bivens claims of the Court's shift to a nouveau regime to address the implication of private rights of action under statutes. Part I describes and assesses the Court's reasons for shifting to the nouveau regime in the statutory context. Part II explains why the Court's shift to a nouveau regime for implying damage remedies under federal statutes does not justify a similar shift with respect to constitutional remedies. The Constitution's omission of specific remedies for violation of the Constitution's substantive provisions does not reflect the Founders' belief that such remedies are unnecessary to give efficacy to those provisions, or that those provisions should be of only limited efficacy. The Constitution was adopted against the background of an ongoing system of common-law remedies, and the Founders understood that such remedies would be available to victims of constitutional violations. This Essay explains why this ancien regime of common-law remedies for constitutional violations retains considerable relevance to the current status and scope of Bivens remedies.

For most of our history, these remedies were regarded as neither federal law nor state law; they were understood to be part of the general common law. When the Supreme Court in Erie Railroad v. Tompkins eliminated this in-between category of law, the courts without discussion came to regard the common-law remedies as state-law remedies and, in Bivens, the Court recognized a supplemental federal remedy. Congress subsequently preempted state-law remedies against federal officials, preserving only the Bivens remedy. The Court, in turn, has been chipping away at Bivens on the ground that it constitutes improper judicial lawmaking. These developments risk leaving us with a remedial regime far narrower than that which had prevailed for most of our history. This Essay argues that the federal damage remedy recognized in Bivens could have been framed--and should now be understood--as the post-Erie manifestation of the general common-law remedial regime that prevailed since the Founding. The existence of these remedies, as supplemented by Bivens, has until now obviated substantial constitutional questions about the remedies necessary to give efficacy to the constitutional obligations of federal officials. Any further narrowing of Bivens would require the Court to confront these long-dormant questions.

1. THE NOUVEAU REGIME IN THE STATUTORY CONTEXT

   As Justice Alito's opinion in Hernandez makes clear, the nouveau regime regarding implied statutory rights of action is based on the insight that legislation does not reflect a single legislative purpose but is instead the product of a compromise among competing interests. This insight undergirds a principal critique of purposive statutory interpretation advanced by so-called "new textualists."

   [T]he framing of statutory policy entails not merely the articulation of legislative purposes, but also the specification of the means for carrying out those purposes. Since the choice of means may be the product of hard-fought legislative compromise, textualists argued that abstracting from a statute's textual details to the broader purposes behind them "dishonors the legislative choice as effectively as expressly refusing to follow the law." (4) The Court has applied this critique with particular intensity to the question of implied statutory remedies. "[A] statute is often the product of a pitched battle between competing interest groups, one outcome of which may be a compromise that the available remedies would be limited--that full compliance was neither desired nor desirable." (5) The insight that lawmaking is a matter of compromise, and that the legislative compromise is sometimes reflected in a statute's withholding of certain enforcement mechanisms, eventually led the Court to fashion a self-consciously novel approach to the implication of private rights of action under statutes. The receptive approach to inferring rights of action reflected in cases like J.I. Case Co. v. Borak (6) was replaced by the stringent approach to the issue reflected in cases like Alexander v. Sandoval. (7) Recognizing rights of action not explicitly in the statute, the Court now believes, is a usurpation of legislative power. (8)

   Whether the Court's insight about the legislative process warranted a shift of approach on the question of inferring rights of action under statutes is debatable. Whether a statute creates a private right of action is ultimately a question of statutory interpretation. (9) Congress enacts statutes against the background of past judicial decisions concerning how statutes are to be interpreted. (10) While the Court adhered to the Borah approach, that approach provided the background against which Congress enacted statutes that did not expressly provide a damage remedy. Congress can be presumed to have enacted such statutes with the understanding that the courts would construe them to authorize damage remedies in the circumstances contemplated by Barak. It is thus unclear how deference to the legislature justified Congress's replacement of the Barak background rule of interpretation with the Sandoval background rule of interpretation. Indeed, if applied retroactively, the shift in interpretive approach would appear to thwart the apparent intent of a Congress that legislated against the background of the Borak rule. If applied prospectively, a shift to a new background rule construing legislative silence as reflecting the absence of a damage remedy might be justified instead as, for example, a deliberation-forcing penalty default rule, but such rules succeed at forcing deliberation because they set as the default the result the legislators are least likely to have wanted.'' Interpretive presumptions are supposed to provide "a stable background against which Congress can legislate with predictable effects." (12) Any shift in such presumptions would appear to require a special justification, and such justifications would have to be grounded in considerations other than deference to the legislature.

   In any event, shifting to a new interpretive presumption in the statutory context entails limited costs, particularly if the new presumption is only applied prospectively. A presumption against inferring remedies places the burden of inertia on those who wish to create remedies, but the legislature can be expected to adjust to whichever presumption the Court imposes. The same cannot be said of a presumption disfavoring remedies for constitutional violations.

2. THE NOUVEAU REGIME AND CONSTITUTIONAL REMEDIES

   Even if the Court's insight that statutes are typically the product of compromise did justify its rejection of the ancien regime in the context of statutory remedies, it would not justify application of the nouveau regime to the question of remedies for constitutional violations. The inapplicability of the nouveau regime to the question of remedies for constitutional violations, was, indeed, acknowledged from its inception. If Sandoval reflects the triumph of the nouveau regime, then Justice Powell was that regime's Rousseau. (13) His dissenting opinion in Cannon v. University of Chicago laid the groundwork for the regime that ultimately prevailed. (14) In that opinion, Justice Powell clearly recognized that the new approach he favored for inferring rights of action under statutes had no applicability to the question of constitutional remedies. "[T]his Court's traditional responsibility to safeguard constitutionally protected rights," Justice Powell wrote, "as well as the freer hand we necessarily have in the interpretation of the Constitution, permits greater judicial creativity with respect to implied constitutional causes of action." (15) Beyond these structural points, which echo points made by Justice Harlan in Bivens and are discussed further below, Justice Powell directly contradicted Justice Alito's claim that inferring a damage remedy for violation of the Constitution would be inconsistent with the understanding of the legislative process that underlies the nouveau regime. "[T] he implication of remedies to enforce constitutional provisions," Justice Powell wrote, "does not interfere with the legislative process in the way that the implication of remedies from statutes can." (16)

   This Essay argues that the Court's reasons for rejecting the ancien regime for inferring remedies from statutes affirmatively supports the opposite approach with respect to constitutional remedies. For starters, the rights-creating provisions of our Constitution were adopted many years ago, during the reign of a remedial regime that was decidedly ancien. The Court has...