Reconsidering Section 1983\u27s Nonabrogation of Sovereign Immunity

Motivated by civil unrest and the police conduct that prompted it, Americans have embarked on a major reexamination of how constitutional enforcement works. One important component is 42 U.S.C. § 1983, which allows civil suits against any person who violates federal rights. The U.S. Supreme Court has long held that person excludes states because Section 1983 flunks a condition of crystal clarity. This Article reconsiders that conclusion--in legalese, Section 1983\u27s nonabrogation of sovereign immunity--along multiple dimensions. Beginning with a negative critique, this Article argues that because the Court invented the crystal-clarity standard so long after Section 1983\u27s enactment, the caselaw contravenes commonsense interpretive practice, works a methodological anomaly, and offends foundational democratic values. This Article also contends that the caselaw rests on inappropriate assumptions that members of Congress during Reconstruction thought about federalism the same way members of the Court a century later did. Turning to an affirmative critique, this Article explores Section 1983\u27s semantic meaning and expected applications. Among other things, this analysis uncovers evidence that some members of the public may have initially understood the statute to reach states--and that members of Congress inadvertently amended the default definition of person in 1874. The upshot is that despite credible counterarguments, the best reading of Section 1983 may make states suable. Finally, this Article explores implications for reforming constitutional-tort law. In particular, it introduces the policy landscape and proposes a path forward with an initial focus on Fourth Amendment excessive force claims and a gradual extension to other contexts

The Supreme Court\u27s Reticent Qualified Immunity Retreat

The recent outcry against qualified immunity, a doctrine that disallows damages actions against government officials for a wide swath of constitutional claims, has been deafening. But when the Supreme Court in November 2020 and February 2021 invalidated grants of qualified immunity based on reasoning at the heart of the doctrine for the first time since John Roberts became Chief Justice, the response was muted. With initial evaluations and competing understandings coming from legal commentators in the months since, this Essay explores what these cases appear to say about qualified immunity for today and tomorrow. The Essay traces idealistic, pessimistic, and optimistic impressions of these cases\u27 importance from the perspective of a qualified-immunity critic. The Essay argues that the optimistic view probably gets things right in that the Court is taking tentative steps forward by precluding some of the doctrine\u27s most extreme consequences. The Essay then contends that this modest move nevertheless demonstrates why those concerned about qualified immunity should focus not only on the courts, but also on the other branches of government--and not only on one doctrine, but also on constitutional-tort law as a whole. In and beyond the recent reform-minded moment, we should think big about how to improve constitutional enforcement: bigger than the judiciary and bigger than qualified immunity

Constitutional Rights and Remedial Consistency

When the Supreme Court declined definitively to block Texas’s S.B. 8, which effectively eliminated pre-enforcement federal remedies for what was then a plainly unconstitutional restriction on abortion rights, a prominent criticism was that the majority would have never tolerated the similar treatment of preferred legal protections—like gun rights. This refrain reemerged when California enacted a copycat regime for firearms regulation. This theme sounds in the deep-rooted idea that judge-made law should adhere to generality and neutrality values requiring doctrines to derive justification from controlling a meaningful class of cases ascertained by objective legal criteria. This Article is about consistency, and inconsistency, in judicial decision-making—and more specifically, about the extent to which federal courts should provide similar opportunities to obtain relief for wrongs to discrete constitutional rights. The Article explores how a commitment to generality and neutrality values can translate into a paradigm promoting transsubstantivity (meaning consistent applicability across separate substantive concerns) for constitutional remedies (meaning rules for implementing and preventing or punishing the violation of constitutional rights)—and how the Supreme Court has deviated from this paradigm. Supported by an array of examples, the Article proposes a novel framework turning on the notion that remedial inconsistency can be transparent, translucent, or opaque given the clarity of doctrinal inconsistency. Prophylactic remedial doctrines (like the Miranda-warning mandate and First Amendment overbreadth) are transparently inconsistent, for instance, because they apply differently to discrete rights on their faces. And indeterminate remedial standards (like the political question doctrine for justiciability and the “plan of the Convention” doctrine for state sovereign immunity) are opaquely inconsistent because discerning their variable character requires inductive analysis of actual applications. After these descriptive claims, the Article proceeds to a normative examination of how this framework could help improve judicial approaches to constitutional remedies—while recognizing that nontranssubstantive doctrines are desirable in many circumstances. Courts, for example, should work to make doctrines of opaque and translucent inconsistency more transparent so that appropriate institutional actors can more easily assess, affirm, alter, or abandon them. And judges should consider the risk of introducing unnecessary elements of opaque inconsistency before relying on overdeterminative reasoning to reach otherwise established results. Among additional contributions, by providing innovative tools for centering remedial consistency as an important—but not absolute—aspect of constitutional law, this Article offers a potential step toward decreasing perceptions of the Supreme Court’s work as pervasively political, thereby reinforcing its legitimacy at this time of widespread skepticism

Qualified Immunity and Constitutional Structure

A range of scholars has subjected qualified immunity to a wave of criticism—and for good reasons. But the Supreme Court continues to apply the doctrine in ever more aggressive ways. By advancing two claims, this Article seeks to make some sense of this conflict and to suggest some thoughts toward a resolution.First, while the Court has offered and scholars have rejected several rationales for the doctrine, layering in an account grounded in structural constitutional concerns provides a historically richer and analytically thicker understanding of the current qualified-immunity regime. For suits against federal officials, qualified immunity acts as a “compensating adjustment” to the separation-of-powers error ostensibly underlying the Court’s decision to allow such suits without congressional approval. For suits against state officials, qualified immunity addresses federalism concerns by leveling the field for constitutional enforcement so that state defendants do not face harsher penalties than their federal counterparts do.Second, while this structural account situates the doctrine within powerful constitutional currents, it does not justify the current qualified-immunity regime. For suits against federal officials, the structural account articulates a poor compensating adjustment because qualified immunity supplies an awkward solution to any separation-of-powers problem. For suits against state officials, the structural account appears to rest on a notion of “freestanding federalism” that is too far removed from the actual constitutional design.Alongside prior scholarship, and for different reasons for suits against federal and state officials, this analysis leaves the present model of qualified immunity ripe for rejection or replacement with a more rights-protective alternative

Qualified Immunity, Sovereign Immunity, and Systemic Reform

Qualified immunity has become a central target of the movement for police reform and racial justice since George Floyd’s murder. And rightly so. Qualified immunity, which shields government officials from damages for constitutional violations even in many egregious cases, should have no place in federal law. But in critical respects, qualified immunity has become too much a focus of the conversation about constitutional-enforcement reform. The recent reappraisal offers unique opportunities to explore deeper problems and seek deeper solutions. This Article argues that the public and policymakers should reconsider other aspects of the constitutional-tort system—especially sovereign immunity and related protections for government entities— too. Qualified immunity arises from and interacts with sovereign immunity in doctrinal and functional terms. Both rest on concerns about defense-side expenses and federal-court dockets. Both create harm given the impacts of indemnification and the economics of unconstitutional acts. In important ways, the problem with qualified immunity is actually sovereign immunity. As one possible strategy, this Article recommends incremental yet systemic reform, contending that Congress should remove qualified immunity and allow entity liability at all levels of government for Fourth Amendment excessive-force claims while paving the way for further-reaching changes. Like qualified immunity, sovereign immunity and related protections for government entities fall hardest on populations that suffer a disproportional share of constitutional harm, including communities of color in the context of police violence. Increasing accountability in this area should help provide equal justice under law while showing that peeling away unwarranted defenses should not wreak havoc on individual or government finances, the judicial system, or substantive rights

An Organizational Account of State Standing

Again and again in regard to recent high-profile disputes, the legal community has tied itself in knots over questions about when state plaintiffs should have standing to sue in federal court, especially in cases where they seek to sue federal-government defendants. Lawsuits challenging everything from the Bush administration’s environmental policies to the Obama administration’s immigration actions to the Trump administration’s travel bans have become mired in tricky and technical questions about whether state plaintiffs belonged in federal court. Should state standing cause so much controversy and confusion? This Essay argues that state plaintiffs are far more like at least one other category of so-called “aggregate litigants,” organizational plaintiffs, than the literature has previously recognized. In short, one can see state standing and organizational standing as fitting either side by side (in the sense that state standing runs parallel to organizational standing) or hand in glove (in the sense that state standing represents a species of organizational standing). And a preliminary comparison of institutional features suggests that state plaintiffs should have at least as strong a claim to standing in federal court as associational plaintiffs do. These contentions lead to the conclusion that if the legal community feels comfortable with the wide scope of organizational standing, it should feel equally—and probably more—comfortable with the wide scope of state standing

Constitutional Rights and Remedial Consistency

When the Supreme Court declined definitively to block Texas’s S.B. 8, which effectively eliminated pre-enforcement federal remedies for what was then a plainly unconstitutional restriction on abortion rights, a prominent criticism was that the majority would have never tolerated the similar treatment of preferred legal protections—like gun rights. This refrain reemerged when California enacted a copycat regime for firearms regulation. This theme sounds in the deep-rooted idea that judge-made law should adhere to generality and neutrality values requiring doctrines to derive justification from controlling a meaningful class of cases ascertained by objective legal criteria.This Article is about consistency, and inconsistency, in judicial decision-making—and more specifically, about the extent to which federal courts should provide similar opportunities to obtain relief for wrongs to discrete constitutional rights. The Article explores how a commitment to generality and neutrality values can translate into a paradigm promoting transsubstantivity (meaning consistent applicability across separate substantive concerns) for constitutional remedies (meaning rules for implementing and preventing or punishing the violation of constitutional rights)—and how the Supreme Court has deviated from this paradigm. Supported by an array of examples, the Article proposes a novel framework turning on the notion that remedial inconsistency can be transparent, translucent, or opaque given the clarity of doctrinal inconsistency. Prophylactic remedial doctrines (like the Miranda-warning mandate and First Amendment overbreadth) are transparently inconsistent, for instance, because they apply differently to discrete rights on their faces. And indeterminate remedial standards (like the political question doctrine for justiciability and the “plan ofthe Convention” doctrine for state sovereign immunity) are opaquely inconsistent because discerning their variable character requires inductive analysis of actual applications.After these descriptive claims, the Article proceeds to a normative examination of how this framework could help improve judicial approaches to constitutional remedies—while recognizing that nontranssubstantive doctrines are desirable in many circumstances. Courts, for example, should work to make doctrines of opaque and translucent inconsistency more transparent so that appropriate institutional actors can more easily assess, affirm, alter, or abandon them. And judges should consider the risk of introducing unnecessary elements of opaque inconsistency before relying on overdeterminative reasoning to reach otherwise established results. Among additionalcontributions, by providing innovative tools for centering remedial consistency as an important—but not absolute—aspect of constitutional law, this Article offers a potential step toward decreasing perceptions of the Supreme Court’s work as pervasively political, thereby reinforcing its legitimacy at this time of widespread skepticism

A Prophylactic Approach to Compact Constitutionality

From COVID-19 to climate change, immigration to health insurance, firearms control to electoral reform: state politicians have sought to address all these hot-button issues by joining forces with other states. The U.S. Constitution, however, forbids states to “enter into any Agreement or Compact” with each other “without the Consent of Congress,” a requirement that proponents of much interstate action, especially around controversial topics, would hope to circumvent. The Supreme Court lets them do just that. By interpreting “any Agreement or Compact” so narrowly that it is difficult to see what besides otherwise unlawful coordination qualifies, the Court has essentially read the Compact Clause out of existence. Scholars have offered substitute standards. But those efforts serve to corroborate the analytical point on which current caselaw rests: that the infinite variety of ways in which states can collaborate makes separating constitutionally suspect from safe agreements impossible. This Article presents a prophylactic path forward focused not on what “any Agreement or Compact” means, but on how “the Consent of Congress” works. It argues that Congress should encourage possible-compact reporting by establishing a system where submission plus silence can equal consent. This approach is prophylactic because it avoids difficult constitutional questions by preventing debatable constitutional violations. And it does so while preserving much of the state-favoring functionality of the current system. The Article contends that this approach makes theoretical sense given situations supporting regulatory safe harbors and juridical and political sense given court and congressional precedent. It also argues that the proposed approach facilitates balancing the efficiency, democracy, and community values underlying regional-governance mechanisms better than the current system does