The constitutional duty to supervise.

• Author: Metzger, Gillian E.
• Position: I. The Mismatch of Constitutional Law and Government Reality C. Constitutional Law's Exclusion of Administration 2. Individual Rights b. The Denial of Supervisor Liability through II. Rethinking Administration's Constitutional Status B. Delegation, Accountability, and the Duty to Supervise 2. Supervision and Accountability of Delegated ...

b. The Denial of Supervisor Liability

The Court famously articulated the prohibition on respondeat superior liability in Monell v. Department of Social Services, basing it on the language and legislative history of Section 1983. (128) Scholars and jurists have criticized this rationale, but the Court has shown little inclination to revisit the issue. (129) Instead, it has often reaffirmed the prohibition on respondeat superior liability (130) and extended it to the context of Bivens suits against federal officers--even though the availability of Bivens suits is inferred directly from the Constitution and thus is not limited by any underlying statute. (131) Hence, although private employers are vicariously liable for actions taken by their employees in the usual course of employment, public employers are not.

At the same time as it denied respondeat superior liability, Monell ruled that a municipality could be liable under Section 1983 if "a municipal 'policy' or 'custom' ... caused the plaintiff's injury," as liability in such a case would be direct rather than vicarious. (132) In theory, Monell's policy exception represents another significant incorporation of administration into constitutional rights enforcement. In practice, however, Monell's policy exception has not lived up to its billing. Fear of violating the prohibition on respondeat superior liability has led the Court to restrict liability to actions by an official municipal policymaker with authority to establish the city's policy in a particular area; to demand a high level of culpability; and to require tight causation "between [a] policymaker's inadequate decision and the particular injury alleged." (133) These requirements not only substantially limit the exception's practical utility, but also preclude consideration of key administrative forces such as street-level decisions and practices. (134) In addition, these tight culpability and causation requirements serve to exclude liability for "'systemic' injuries," which "result not so much from the conduct of any single individual, but from the interactive behavior of several government officials, each of whom may be acting in good faith." (135)

Perhaps most importantly, the Court's denial of respondeat superior liability precludes consideration of all of the ways that government agencies control and shape actions by their employees separate from official policies or customs. The focus is put on individual employees, but individual employees' actions cannot be accurately assessed in isolation from the institutional contexts in which they occur. Instead, agency cultures, practices, and structures profoundly affect how personnel act and the weight given certain types of concerns. (136) In addition, "the threat that damages might be levied against the city may encourage those in a policymaking position to institute internal rules and programs designed to minimize the likelihood of unintentional infringements on constitutional rights." (137) Whether respondeat superior liability would lead to better deterrence of constitutional violations, overdeterrence, or even any measurable deterrence is a source of some debate. (138) But the key point for my purposes here is that the Court has largely excluded judicial consideration of such incentives on agency behavior by categorically prohibiting respondeat superior liability.* 139 To the extent the Court considers the incentive effects of liability, the Court maintains an individualistic focus in the context of developing immunity doctrines that limit government officers' personal liability. (140) And strikingly, in doing so, the Court does not consider administrative features such as near universal indemnification of governmental employees, which likely affects how individual officers respond to the possibility of being sued. (141)

The related denial of supervisory liability under Section 1983 and Bivens serves to further exclude consideration of administration in individual rights enforcement. Supervisory liability claims represent an effort to avoid Monell's ban on respondeat superior and vicarious liability by charging high-level government officials with direct liability for their deficient supervision of subordinates. (142) A recent assertion of supervisory liability appeared in Ashcroft v. Iqbal, in which the plaintiffs brought suit against the Attorney General and FBI Director for, among other things, knowing of and acquiescing in their subordinates' policy of subjecting post-9/11 detainees to harsh conditions of confinement solely on account of their race, religion, and national origins. (143) Appellate courts had allowed the possibility of such supervisory liability claims under somewhat varying standards, and the government defendants had conceded that "they would be liable if they had 'actual knowledge' of discrimination by their subordinates and exhibited 'deliberate indifference' to that discrimination." (144) Nonetheless, the Court rejected such deficient supervision as a basis for liability in terms that suggested elimination of supervisory liability altogether, stating that "[i]n a [section] 1983 suit or a Bivens action--where masters do not answer for the torts of their servants--the term 'supervisory liability' is a misnomer." (145) As a result, in order for the defendant officials to be liable, the plaintiff had to plead and prove that the officials had acted with discriminatory purpose. (146)

Iqbal's rejection of supervisory liability is not surprising. Leaving aside the Court's likely reluctance to second guess high-level officials' responses to the September 11th attacks, parsing the line between direct liability for inadequate supervision of subordinates who commit constitutional violations and vicarious liability for actions of subordinates is difficult indeed. Worse, unlike respondeat superior, which would impose liability on the governmental employer, liability for deficient supervision would attach to individual superior officers, whose ability to exercise close supervision may be seriously constrained by institutional forces over which they have little control. Inadequate supervision seems more likely to be an institutional failing than an individual one. But the fault for this misframing lies with the Court's insistence on approaching liability under Section 1983 and Bivens in individualized rather than institutional terms. Having done that, and having developed the deliberate indifference standard in other contexts, (147) the Court's preclusion of supervisory liability claims subject to this standard is difficult to defend.

4. Recurrent Themes

   This overview, spanning a variety of constitutional doctrines, suffices to demonstrate four key themes. First is the Court's deep reluctance to incorporate general government administration into constitutional law, a reluctance that is manifested in an array of doctrinal requirements and appears to have increased with time. Second, when administration does enter constitutional analysis, courts emphasize specific, identified practices rather than overall institutional functioning and formal administrative features instead of actual practice. Third, supervision makes a decidedly one-sided appearance. Although the Court demands that provision be made for the President and high-level officials to oversee the actions of lower officials, little attention is paid to whether such oversight actually occurs, and the Court is extremely reluctant to fault high-level officers for failed supervision. The net effect is that systemic administrative functioning is denied constitutional relevance, and no constitutional claim can be made simply because a government agency or institution is inadequately managed or supervised.

   The fourth theme is that underlying this exclusion of administration lie concerns about the proper judicial role. Courts sometimes voice these concerns in terms of an objection that general policy choices and priority-setting should be left to politically accountable branches and sometimes in terms of limited judicial competency, specifically the courts' lack of expertise in assessing administrative adequacy and inability to force meaningful change. Either way, the gist is clear: systemic administration is beyond the courts' legitimate purview. But even though constitutional doctrine's exclusion of systemic administration turns so heavily on distinctly judicial factors, the Court never suggests that general aspects of agency structure and functioning might carry greater constitutional weight outside the courts. Instead, at most, the Court states that the Constitution assigns responsibility for shaping administration and overseeing law execution to the President and Congress. (148)

5. Administrative Law and Systemic Administration

   A final word should be said about administrative law, which might seem to be the natural home for fuller judicial consideration of systemic administration. Administrative law, after all, is centrally concerned with how agencies operate, and systemic administrative features play a central role in determining how well an agency performs. Indeed, systemic administration constitutes a central focus of executive-branch-generated administrative law, perhaps most clearly evident in presidential creation of a centralized process for regulatory review. (149)

   Nonetheless, judicially enforced administrative law excludes many systemic aspects of agency functioning in ways very similar to constitutional law. (159) Much of this exclusion occurs through jurisdictional doctrines, with the Court reading the Administrative Procedure Act's (APA) provision for review of "final agency action" to require that suit be brought against discrete agency actions rather than against the agency's broader policies or programs that those actions reflect. (151) Although this line of cases ostensibly turns on the text of the APA, the Court's separation of powers concerns with...