Mike Fox
It’s difficult to imagine a more quintessential conservative value than the idea that the government should leave peaceful people to their own devices. But that hasn’t happened, and it flows naturally that those who value traditionally conservative principles of constitutionally limited government would embrace the notion that when the government acts aggressively and outside the bounds of constitutional norms, its agents be held accountable. This should be a bipartisan stance that strikes at the core of what defines the American ideal and a free, open, and just society.
Accountability should be a bipartisan issue, yet it lacks support from the same party that decried the Obama-era IRS scandal. Those conservative groups should have been able to sue—and the same logic applies to victims of President Trump’s unconstitutional immigration crackdowns. Instead, we see a stark double standard. When Republican senators faced unconstitutional surveillance, they quickly awarded themselves massive payouts. Meanwhile, George Retes—an Army veteran and US citizen wrongfully detained by ICE—has to fight just to get into court. Special dispensation for the powerful, but no recourse for ordinary people.
What good is a right without a remedy? It’s a question that strikes at the heart of the American legal system. The Fourth Amendment is explicit:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…”
Yet, when that right is violated, the path to vindication is shockingly narrow. If you are charged with a crime, you might get evidence suppressed—but that doesn’t make you whole. And frequently those whose rights are trampled are never charged with a crime, meaning that their only recourse is a civil suit for damages.
But if the perpetrator is a federal official? Good luck.
Following the Civil War, Congress passed the Civil Rights Act of 1871, commonly known as Section 1983. Congress intended to ensure that newly freed slaves could go into federal court to sue officials acting under color of state law who violated their rights.
However, no such analog exists to sue federal officials. Perhaps that’s because, in 1871, the size and scope of the federal government were extremely limited. Unfortunately, that’s no longer the case.
Since President Trump took office, we have witnessed the weaponization of federal law enforcement against otherwise peaceful individuals at unprecedented levels. The playbook of Trump’s immigration enforcement now relies on violent street encounters by balaclava-clad secret agents—tactics reminiscent of an authoritarian regime. These flagrant civil rights abuses are enabled by a legal scheme that makes it all but impossible to sue federal agents for constitutional violations and shields them with immunity should that barrier ever be breached.
When the Framers devised the Fourth Amendment, they did so with a strong aversion to British writs of assistance and general-purpose warrants. If they saw how little respect the current administration has for the Constitution, they’d be shaken. Perhaps they’d be even more puzzled why neither Congress nor the Judiciary has meaningfully put a stop to it.
For a brief moment in history, the Court did act. In 1965, agents of the Federal Bureau of Narcotics, the precursor to the Drug Enforcement Administration, barged into Webster Bivens’ Brooklyn home without a warrant. They handcuffed him in front of his family, arrested him, and subjected him to a humiliating strip search.
When Bivens sued, the lower courts dismissed his case. But in 1971, the Supreme Court reversed those decisions in Bivens v. Six Unknown Named Agents, recognizing an implied cause of action that allowed individuals to sue federal officers for Fourth Amendment violations.
While the Bivens Doctrine was expanded over time to cover some Fifth and Eighth Amendment violations, in recent decades, the courts have narrowed Bivens so aggressively that unless your name is Webster Bivens and you are suing six unknown federal agents, you are likely without redress. With the past as prologue, if Bivens were to sue again today, the current conservative majority would probably use the case as a catalyst to gut the doctrine entirely.
We recently saw the consequences of this erosion in Noem v. Perdomo. In that case, the government stated in its brief that a damages remedy exists for individuals whose Fourth Amendment rights are violated by federal immigration officials. That was objectively false. The Supreme Court has twice declined to extend Bivens to the immigration enforcement context, citing unfounded national security implications. However, when Noem reached the Supreme Court on an application for a stay, Justice Kavanaugh noted that “To the extent that excessive force has been used, the Fourth Amendment prohibits such action, and remedies should be available in federal court.
Congress now has the opportunity to heed Justice Kavanaugh’s recommendation. Relying on the Supreme Court to embrace a doctrine it has said “it is doubtful today’s Court would have recognized” is a losing strategy. It is therefore up to Congress to step in to protect its constituents from state-sanctioned violence.
The Bivens Act, sponsored in the House by Congressmen Raskin and Johnson and in the Senate by Senator Whitehouse, would create a statutory cause of action to sue federal officials for constitutional violations, closing the loophole left by Section 1983. This step alone would provide Americans like George Retes with their day in court.
But that’s only the beginning. Congressman Johnson and Senator Whitehouse have also reintroduced their Constitutional Accountability Act. This crucial legislation would ensure that federal, state, and local law enforcement agencies face the same civil liability for officer misconduct that private employers face under the long-established legal doctrine of respondeat superior.
Currently, the 1978 Supreme Court decision in Monell v. Department of Social Services creates a massive loophole. Under Monell, state and local governments are immune from lawsuits under Section 1983 unless a plaintiff can prove that the constitutional violation was the result of an official policy or custom. In other words, it’s not enough to prove that an officer broke the law; the victim must prove that a decisionmaker within the government instructed them to do it.
The Constitutional Accountability Act would close this loophole by extending liability for constitutional violations to the departments that employ those officers. If enacted, agencies will have a financial incentive to overhaul their hiring, training, supervision, and disciplinary cultures to prevent misconduct—protecting both officers and the communities they serve.
Equally as important, this legislation would apply the doctrine of respondeat superior to federal agencies. This would fling open the courthouse doors, ensuring that when federal agents violate our rights, the agencies that employ them will be held to account. This is all the more important in an environment where leaders like Stephen Miller or Gregory Bovino direct agents to engage in a pattern of flagrantly unconstitutional conduct.
While the passage of these two pieces of legislation would represent a significant step forward, there’s still more work to be done. Only by eliminating the judicially conferred doctrine of qualified immunity will Congress send a clear message to federal officials who violate the constitutional rights of their constituents that they will be directly accountable to the people.
A free society shouldn’t tolerate masked secret agents. To hold rights violators accountable, we must know who they are and where they work. To this effect, Congress can unmask all federal agents and task force members and require those engaged in immigration enforcement to have their names and employing agencies clearly visible at all times.
The Framers envisioned that the government would fear the people, not the other way around. We accomplish that by ensuring that those whose rights are violated by federal officials will have their day in court. The American people are counting on Congress to be their champions—not the champions of an oppressive and tyrannical government.