Rights, Structure, and Remediation: The Collapse of Constitutional Remedies.

• Author: Willett, Don R.

REVIEW CONTENTS INTRODUCTION 2129 1. HUO's ARGUMENT: RECURRING THEMES 2132 A. The Role of Judicial Independence 2133 B. Identifying "Constitutional Wrongs" & "Constitutional Remedies" 2137 1. Methodology 2137 2. Identifying Constitutional Wrongs 2141 3. Identifying Constitutional Remedies 2145 II. DICHOTOMIES: RIGHTS V. STRUCTURE, VIOLENCE V. REGULATION 2147 A. Judicial Double Standards? 2148 1. Double Standards in Remediation? 2148 2. Double Standards in Substantive Law? 2156 B. Constitutional Costs & Benefits 2162 1. Evaluating "Rights Against Regulation" 2163 2. Evaluating Structural Principles 2165 3. Evaluating Other Rights 2174 III. REMEDIAL RATIONING: QUALIFIED IMMUNITY & BIVENS 2178 A. Qualified Immunity 2179 B. Bivens 2187 IV. PRESCRIPTIONS FOR CHANGE 2191 A. Huq's Proposal: A Cure Worse than the Imaginary Disease 2191 B. Our Alternatives 2192 CONCLUSION 2197 APPENDIX 2199 INTRODUCTION

Ever quotable, Justice Scalia shared a characteristically colorful insight in 2011 while testifying before the Senate Judiciary Committee:

[I]f you think that the Bill of Rights is what sets us apart, you are crazy. Every banana republic has a bill of rights.... [J]ust words on paper. What our Framers would have called a "parchment guarantee."... [T]he real key to the distinctiveness of America is the structure of our Government. One part of it... is the independence of the judiciary.... (1) A decade later, at Scalia's former academic home, University of Chicago Law Professor Aziz Z. Huq has set forth his own account of the relationship between constitutional structure, the judiciary, and individual liberty. In his latest work, The Collapse of Constitutional Remedies (Collapse)--which he describes as "a book about how and when we have remedies for constitutional wrongs," and "when and why we don't" (2)--Huq espouses the Scalia-esque notion that the Bill of Rights, without an institutional mechanism for effectuating its guarantees, is nothing more than ink on parchment. But Huq parts ways with the late Justice when it comes to the role of governmental structure in securing individual freedom.

Huq asserts that America's constitutional architecture has faltered, leaving courts unreliable guardians of "We the People's" rights. Indeed, he begins his case before the book is even opened, with the cover depicting a building in shambles. This construction/destruction theme is reinforced in the pithy titles of the book's five chapters: Blueprint, Building, Remedies, Collapse, and Remains. At 160 pages, Collapse itself is slim. But don't let its concision fool you. Huq undertakes an ambitious historical inquiry into "why federal courts behave as they do" (3) and, based on this analysis, calls for reforms intended to address the modern judiciary's perceived failings.

Huq's starting point is uncontroversial enough: "The Constitution contains many... rights. None enforces itself. Without a remedy, a right has no practical value." (4) The consensus melts away, however, as Huq unveils his principal thesis: when it comes to righting constitutional wrongs, "[r]emedies are not doled out in an even-handed way." (5) To illustrate his point, Huq juxtaposes the treatment of two Supreme Court litigants in 2020. Victorious was Seila Law LLC, a small California-based law firm, which persuaded the Court that restrictions on the President's authority to remove the Director of the Consumer Financial Protection Bureau (CFPB) violated the separation of powers. (6) Defeated was Alexander Baxter, a homeless arrestee whose case the Court declined to review, leaving intact a Sixth Circuit ruling that police officers who released a dog on the nonresisting Baxter were protected by qualified immunity. (7) That controversial doctrine--arguably "the main source of the right-remedy gap" in public law today (8)--shields police, among other officials, from damages liability unless they violate "clearly established" constitutional rights. (9) This is an exacting standard in practice. Qualified immunity, in its most robust iteration, has been described as protecting "all but the plainly incompetent or those who knowingly violate the law." (10)

According to Huq, the disparate outcomes in the Seila Law and Baxter cases evince a pattern: litigants who "bridle against government regulation tend to have an easy glide path into federal court," particularly when their complaints relate to the Constitution's "structural limits on the power of government," such as "separation of powers and federalism.... But when an individual challenges illegal violence... as a violation of constitutional rights," federal courts are "less hospitable." (11) Huq cites a variety of legal rules, including qualified immunity, that purportedly exemplify this double standard. (12) Their combined effect, Huq argues, is that today, "most individual constitutional wrongs that reach a federal court yield no remedy"-and that "judicial action on constitutional questions deepens economic, social, and racial hierarchies." (13)

Aziz Huq has written a rabble-rousing book. With evocative prose, Collapse makes its case insistently--albeit, in our view, incompletely and ideologically--and asks questions worth asking, even if its answers sometimes spur more head-scratching than head-nodding. Respectfully, however, while there are trenchant insights to be found within its pages, Collapse ultimately falls short of its intended objective of explaining "how and when we have remedies for constitutional wrongs." (14) This is so, we believe, for two principal reasons. First, Huq's project is undercut by his lack of a principled basis for identifying which wrongs are constitutional in nature and which are not, and his resulting failure to appreciate the range of forms that unconstitutional coercion may take. Second, many of Huq's descriptive claims about courts' jurisprudence and behavior, as well as about the real-world impacts of legal doctrine, lack empirical support or are simply mistaken. Worse, and partly based on such missteps, Huq goes on to propose "reforms" that threaten the very principles of judicial independence and the rule of law that he professes to champion. The audacity of his proposals regrettably obscures some good points that might otherwise resonate with readers having different ideological priors.

The aims of this Book Review are twofold. First, we evaluate the main descriptive claims Huq makes in explaining how and when remedies for constitutional wrongs are available. It is of course true that federal courts have at times come up short in dispensing remedies for constitutional violations. But the problem is neither as calamitous nor as uniformly "regressive" in orientation (in the sense in which Huq uses that term) as Collapse leads readers to believe. Second, relying on our argument to that effect, we set forth an alternate perspective to Huq's suite of normative prescriptions--which are neatly summed up by his proposal that" [i] nstead of thinking about federal courts as primarily bastions of the rule of law," we should regard them as "instruments for the redistribution of the valuable quasi-public goods of constitutionality and legality." (15)

We advocate doing precisely the opposite. Even if Huq were right about the extent to which the judiciary has failed to uphold the rule of law, it would not follow that we should burn it all down and cynically refashion federal courts into political playthings. Better solutions to any troubling trends in judicial decision making may be devised by invoking the very principles of constitutional structure that Huq waves off. His dystopian call for courts to "redistribute]" legality rests on the false premise that there is a finite supply of conformity with law--and reflects an apparent conviction that some constitutional rules are good and therefore worthy of judicial protection, while others are bad and therefore unworthy of the same. We disagree. In explaining why, we hope to show both the virtues of the constitutional principles that Huq derides and the vices of those he romanticizes. More generally, we highlight the danger to the rule of law posed by the notion that courts may broaden or contract constitutional provisions' scope based on judges' own balancing of policy considerations.

This Book Review proceeds as follows. In Part I, we discuss two recurring topics that feature prominently in Huq's analysis: the role of judicial independence and the proper criteria for identifying what qualifies as a "constitutional wrong" or a "constitutional remedy." (16) In Part II, we identify some fundamental dichotomies on which many of Huq's arguments, descriptive and normative, are founded--such as the Constitution's structural provisions versus its guarantees of individual rights, and its protections against "violence" versus its protections against "regulation." We object to the arguments Huq constructs around these binaries. In our view, his claims of judicial partiality for certain litigants or doctrines are largely wrong, and his arguments for favoring some constitutional provisions over others are unconvincing. In Part III, we examine Huq's criticisms of two specific doctrines--qualified immunity and Bivens--about which he raises valid concerns, but perhaps gives other competing concerns less attention than they deserve. Finally, in Part IV, we evaluate Huq's proposed solutions to the problems he perceives in federal courts' decision making. We counter with alternative proposals that we believe are less inimical to the rule of law and more conducive to achieving Huq's professed aims.

1. HUq'S ARGUMENT: RECURRING THEMES

   This Part discusses two recurring topics that figure significantly in Huq's analysis and likewise figure significantly in our critique: the role of judicial independence and the proper criteria for identifying "constitutional wrongs" and "constitutional remedies."

   1. The Role of Judicial Independence

      At the heart of Collapse...