THE INCONSISTENT ORIGINALISM OF JUDGE-MADE REMEDIES AGAINST FEDERAL OFFICERS.

• Author: Vladeck, Stephen I.

INTRODUCTION 1870 I. DAMAGES VERSUS INJUNCTIONS: THE PRESENT DICHOTOMY 1873 II. DAMAGES AND INJUNCTIONS FROM THE FOUNDING ONWARD 1879 III. THE WEAK CASE(S) FOR INJUNCTIONS OVER DAMAGES 1882 A. Abbasi and the Normative Case Against Damages 1883 B. Hernandez and Erie 1887 C. Edelman and Sovereign Immunity 1889 CONCLUSION 1891 INTRODUCTION

[T]his Court can only look to the questions, whether the laws have been violated; and if they were, justice demands, that the injured party should receive a suitable redress. (1) The ability to sue to enjoin unconstitutional actions by state and federal officers is the creation of courts of equity, and reflects a long history of judicial review of illegal executive action, tracing back to England. (2) With the demise of federal general common law, a federal court's authority to recognize a damages remedy must rest at bottom on a statute enacted by Congress.... (3) INTRODUCTION

No statute expressly authorizes civil suits against federal officials who violate the Constitution--for any form of relief. (4) Although Congress certainly has the power to enact such legislation (and has authorized such suits against state officers), (5) it has, for a number of reasons, never chosen to provide a cause of action for constitutional violations by federal officers. Does Congress's inaction leave courts powerless to enforce the Constitution through civil litigation? Or are there circumstances in which it is not only appropriate, but necessary, for judges to fashion common-law civil remedies to vindicate constitutional rights?

As the second Justice Harlan put it in 1971, constitutional rights "are aimed predominantly at restraining the Government as an instrument of the popular will." (6) To that end, he wrote, it would be "anomalous" to conclude that courts are powerless to provide remedies to enforce those rights simply because the majority--the democratically elected political branches--has refused to do so. (7) To put it more bluntly, constitutional rights wouldn't be worth all that much if they provided nothing other than a defense to civil or criminal enforcement proceedings. More than that, judicial enforcement of the Constitution against the political branches is an essential aspect of meaningful government accountability.

And yet, in recent years, the Supreme Court has not only embraced different answers to these questions depending upon the type of relief that plaintiffs have sought; it has embraced different methodological approaches to how these questions should be answered in the first place. Indeed, even a cursory perusal of the Court's recent jurisprudence reveals profound inconsistencies as to whether (and to what extent) historical practice and Founding-era understandings of the federal judicial power can and should inform the contemporary scope of judge-made remedies for federal constitutional violations.

On one hand, the contemporary Court (unanimously) acknowledges that, per one of the epigraphs, "[t]he ability to sue to enjoin unconstitutional actions by state and federal officers is the creation of courts of equity, and reflects a long history of judicial review of illegal executive action, tracing back to England." (8) Thus, courts may fashion such relief in appropriate cases even though Congress has not expressly authorized them to do so. And one need not look far to see both high- and lower-profile Supreme Court decisions in recent years turning on just such judge-made remedies, i.e., nonstatutory injunctions against unconstitutional conduct by federal officers. (9)

On the other hand, the same Court treats as virtually irrelevant the comparably "long history" of challenging completed unconstitutional conduct by federal officers, (10) including the robust regime of judge-made damages actions that persisted well into the twentieth century in both state and federal courts." Ditto the Justices' more recent unwillingness to take seriously Founding-era understandings of the scope of habeas corpus--also a legal, as opposed to equitable, remedy--in interpreting the Constitution's Suspension Clause. (12) There, at least, the Court has claimed that it is attempting to divine the scope of the writ at least "as it existed in 1789"; (13) it's only that its historical work product has been unconvincing. (14)

The Supreme Court has never attempted to explain--or justify--the methodological (and historiographical) dichotomy between the propriety vel non of judge-made prospective and retrospective relief against federal officers. Indeed, although the tension between these lines of cases is latent, the Justices themselves have barely acknowledged that such an inconsistency even exists. Only one opinion has even attempted to make the normative case that judge-made injunctions against federal government action should generally be met with less skepticism than judge-made after-the-fact damages remedies. (15) To say the least, it fails to persuade. (16) Despite all of this, and despite the venerable maxim that "equity follows the law," rather than the other way around, (17) there seems to be widespread acceptance (or, at least, defeatism) that this is just the way it is.

Professor Carlos Vazquez and I have explained in depth why the Supreme Court's evisceration of damages remedies for constitutional violations by federal officers is analytically and historically incoherent. (18) And I have written elsewhere about the extent to which modern constitutional remedies doctrine has turned a remarkably blind eye to foundational principles of federalism--paying little more than lip service to the robust availability of common-law damages (and habeas) remedies against federal officers in state courts from the Founding through the Civil War--and, at least for damages, well into the twentieth century. (19) I don't mean to rehash (or relitigate) either argument here.

Rather, this Essay aims to build on that scholarship, asking a different question: To Justices who insist on a methodological commitment to originalism (in whatever form), (20) why has the uncontested understanding of the central role of judges in fashioning constitutional remedies against federal officers at (and well after) the Founding played such an inconsistent role in their contemporary analyses? That is to say, why is there an originalism-heavy school of thought driving the Court's modern jurisprudence of prospective relief, but not retrospective relief?

The easy and obvious answer, of course, is that even the staunchest originalists aren't originalists about everything. But cynicism aside, the goal of this Essay is to demonstrate that there is no good methodological or analytical justification for this dichotomy--for why the historical understanding has mattered with respect to injunctive relief but has proven irrelevant with respect to damages. Put another way, my thesis is that the Supreme Court's modern hostility to judge-made damages remedies against federal officers, in contrast to its solicitude toward judge-made injunctive relief, is not just inconsistent with the original understanding; it is, because of that defect, affirmatively antithetical to originalism as a modality of constitutional interpretation.

Whatever the appropriate role of courts with regard to remedies for violations of statutory rights, this Essay argues that the same principles that drive the ability of judges to fashion constitutional remedies for prospective relief ought to drive their ability to fashion such remedies for retrospective relief. (21) Insofar as the Supreme Court has allowed the latter to diverge from the former, it has not only unmoored the doctrine from any satisfying analytical tether; it has driven home that its aversion to some judge-made constitutional remedies is not just ahistorical, but is methodologically incorrect even on (a majority of) the Justices' preferred terms.

1. DAMAGES VERSUS INJUNCTIONS: THE PRESENT DICHOTOMY

   It is familiar sledding that the Supreme Court over the past two decades has become increasingly hostile to "implied" causes of action--to what Justice Scalia derided as the "ancien regime," during which federal courts often fashioned civil remedies in circumstances in which Congress had not expressly authorized them. (22) Initially, this hostility was pegged to the private judicial enforcement of federal statutory rights. After all, the argument went, courts would be arrogating legislative power were they to read statutes to provide judicial relief that the drafters of the statute--the legislature--had not expressly authorized. (23)

   But to whatever extent that argument made sense in the context of implied statutory causes of action, (24) it was quickly expanded to encompass other classes of claims--including suits to enforce federal statutes under 42 U.S.C. [section] 1983 (which, to be clear, is an express statutory cause of action); (25) suits to enforce (putatively) peremptory norms of international human rights law under the Alien Tort Statute, 28 U.S.C. [section] 1350; (26) and, as especially relevant here, suits seeking damages for constitutional violations by federal officers under the Supreme Court's 1971 Bivens decision. (27) Indeed, by 2018, this hostility to judge-made remedies had become so pervasive that Justice Kennedy, writing for a majority in Jesner v. Arab Bank, PLC, referred to it as "this Court's general reluctance to extend judicially created private rights of action." (28)

   In the specific context of "Bivens claims," i.e., suits seeking judge-made damages for constitutional violations by federal officers, there were at least three reasons why this objection made (and continues to make) no sense. First, unlike statutory (or common-law) rights, Bivens claims seek to enforce constitutional protections against federal officers. It would hardly be "arrogating" legislative power to fashion relief for substantive rights the scope of which was entirely beyond the legislature's control...