Executive Immunity

• Author: Theodore Eisenberg
• Pages: 943-944

Page 943

In tracing the development of executive immunity in the United States, one should separate immunity for constitutional violations from immunity for nonconstitutional violations and immunity of federal officials from immunity of state officials. State officials' immunity for nonconstitutional violations is a matter left to each state's laws. At least since enactment in 1871 of SECTION 1983, TITLE 42, UNITED STATES CODE, state officials have been liable for some federal constitutional violations. Until well into the twentieth century, however, their immunity in constitutional cases had not been fully explored because there were relatively few federal constitutional restrictions on state officials' behavior. By the middle of the twentieth century, federal officials, who are not covered by section 1983, seemed immune from actions for both constitutional and nonconstitutional misbehavior. Within a few decades, however, with the exception of the President, no executive official, state or federal, was fully immune from damage actions for constitutional violations.

In the Massachusetts case of Miller v. Horton (1891) Justice OLIVER WENDELL HOLMES, writing for the majority, narrowly restricted state officials' state-law immunity from suit. Even reasonable, good-faith behavior might trigger liability if found to violate the Constitution or some other legal limit. But in Spaulding v. Vilas (1896) and other cases, the Supreme Court was more protective of federal executives. And in subsequent years, many states provided their executives with more generous protection from suits in state courts, particularly when their acts were viewed as discretionary rather than ministerial.

Gregoire v. Biddle (1949) highlighted the movement away from Miller v. Horton. In an influential opinion by Judge LEARNED HAND for the United States Court of Appeals, Gregoire suggested that a federal executive officer's malice would not render him liable for an otherwise lawful act. Gregoire was read as conferring broad immunity upon federal officials. Barr v. Matteo (1959) accentuated this trend when, in a case generating no majority opinion, the

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Supreme Court seemed to hold federal officials absolutely immune from defamation suits.

After Barr, the Supreme Court paused in its treatment of federal executive immunity to explore the liability, under section 1983, of state officers charged with constitutional violations. In a series of cases...