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

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Date: May 2021
From: Notre Dame Law Review(Vol. 96, Issue 5)
Publisher: University of Notre Dame Law School
Document Type: Article
Length: 10,257 words
Lexile Measure: 2000L

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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...

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Gale Document Number: GALE|A666682353