Tuesday, May 23, 2017

President Pence's first two decisions

Sandy Levinson

Imagine for the moment that Donald J. Trump exits the White House.  There are, of course, four possibilities:  Death, resignation, impeachment, or the invocation of the 25th Amendment.  Should the first occur, then perhaps I should change the subject line to President Pence's first decision.  Otherwise, the subject line holds.

So what are these decisions?  The first involves his use of the Pardon Power, though it is altogether likely that our sociopathic president will be more than happy, just before he exits, to issue a general pardon beginning with Michael Flynn, and ending, perhaps, with Trump himself.  Should that occur, then Pence would presumably have little occasion to consider the fate of Gerald Ford and the costs of a potential pardon of Donald J. Trump or, say, Jared Kushner, for their various flouting of American law.  Otherwise, that will surely be something he will have to consider.  Even if Trump himself is no longer alive to receive a pardon, one has the strong suspicion that other Trumpettes, some of them facing financial ruin because of having to hire private counsel to fend off Mr. Mueller, will be in dire need of get-out-of-jail cards of the type provided by George H.W. Bush as part of the Christmas orgy of pardons before he left the presidency n 1993.  Whatever one thinks of Bill Clinton's pardon of Marc Rich (sleazy at best), it doesn't compare to Bush's use of his pardon power basically to shut down the special prosecutor looking into the various actions involving Iran and Nicaragua, some of which implicated then-Vice President Bush himself. 

But then President Pence has to make his second, surely more important decision, to nominate a new Vice President, as required by the 25th Amendment.  Gerald Ford, to his immense credit, picked someone thoroughly competent to serve as President if necessary--Nelson Rockefeller.  We could debate at length whether the same was true of Richard Nixon's selection of Gerald Ford.  Was that viewed as "impeachment insurance" or an act of unanticipated Nixonian statesmanship?  One might well say that Ford rose to the occasion, as signified by his selection of Rockefeller.  Ford was free of the various neuroses that we have come to expect in the monomaniacs who run for the Oval Office.  A more neurotic president would not have picked someone like Rockefeller, whose achievements clearly outshone Ford's (though of course he unceremoniously dumped Rockefeller in 1976 in favor of the egregious Robert Dole, who had certainly not yet become the beloved elder statesman (who, nonehtless, supported Donald J. Trump).  .

So what will Pence, who is stunningly lacking in any genuine achievement save his repeated invocation that his three primary loyalties are to Christianity, conservatism, and the Republican Party (in that order) and an unrelenting attack on non-straights and any women who believe they should be able to exercise control over their own bodies, choose to do when he takes over and gives a speech about the necessity of healing our divided nation?  Will he, like Ford (or perhaps even Nixon) try to pick "a uniter and not a divider," including one of the admirable Republicans like John Kasich who  refused to drink the Trump Kool-aid, or will he pander to the "deplorables" and double down with someone from the Freedom Caucus?

We know that Mr. Pence is already thinking of his independent campaign in 2020, having registered his domain name.  I suspect that he doesn't really expect to be the running mate for Trump's second term.  In any event, I wonder if, like the Mikado, he is compiling a "little list" either or people he'd never miss (Steve Bannon, Jared Kushner, etc.) or of those he'd see as plausible vice presidents because they would not immediate overshadow him and make people yearn for yet another succession.  Or perhaps the House would refuse to confirm anyone selected by Pence, secure in the knowledge that that would make Paul Ryan the successor should anything unfortunate happen to the hapless Hoosier.  Just thinking aloud....   We really ought to be prepared for anything and everything happening in the next while, given the possibilities allowed by our Constitution.  . 

I'd be particularly interested in whom the hard-core conservatives who like to comment would prefer as Pence's VP. 

Constitutional Torts and the War on Terror

Guest Blogger

James E. Pfander

For the symposium on James Pfander, Constitutional Torts and the War on Terror

Let me first offer a few words of thanks: to my interlocutors for spending some time with, and sharing their thoughts about, the book and to my colleague Andy Koppelman for putting together this mini-symposium. Instead of replying to particular claims, I will try to tease out and respond to some of the broader themes in the collected reviews.

My book chronicles a departure in the United States from the sharp-edged rules of the common law, in which ordinary courts applied ordinary law to government actors. While they once followed English common law, federal courts today apply a familiar collection of discretionary doctrines that often result in the denial of remedies to the victims of government wrongdoing. The failure of remedies, in turn, leads to a shortage of law; courts fail to give voice to the legal norms that regulate the officialdom. The book focuses on the remedial failure that has greeted the victims of the Bush Administration’s RDI program of extraordinary rendition, detention, and enhanced interrogation (torture). But the remedial failure extends more generally (as Will Baude, Alex Reinert, and Steve Vladeck observed). Indeed, the Supreme Court has heard argument in two cases this Term, Abassi and Hernandez, that may tell us much about the future efficacy of the Bivens action.

The nineteenth century model, and its rejection of justifications based on military necessity and national security, comes through in the decision by Justice Joseph Story in The Appollon, upholding the right of a foreign national to recover damages from US government officials who wrongly seized property overseas:

"It may be fit and proper for the government, in the exercise of the high discretion confided to the executive, for great public purposes, to act on a sudden emergency, or to prevent an irreparable mischief, by summary measures, which are not found in the text of the laws. Such measures are properly matters of state, and if the responsibility is taken, under justifiable circumstances, the Legislature will doubtless apply a proper indemnity. But this 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."

 On this view, national security concerns could well justify an award of indemnity (ie, legislative payment of any damages awarded) but could not prevent a court from reaching the merits and affording suitable redress. Special factors did not counsel hesitation, even where a foreign national sought recompense for the misconduct of U.S. officials outside the United States.

 The book then chronicles the very different state of the law today. One can describe that law with alarming simplicity: no appellate court has reached the merits of a claim challenging the Bush Administration’s RDI program. Instead, the courts have pushed these claims aside on one or more familiar bases. (Shall we recognize a right to sue? Has the law been clearly established? Does the national security context counsel hesitation?) The book next contests the justifications for judicial deference; there’s no mechanism with which to test the legality of government torture other than by suit for damages. Deference leaves the law inarticulate and victims without redress.

Finally, the book asks what can be done. Here, the challenge lies in articulating common law solutions to problems of the courts’ own making. The solutions suggested here: to presume a more robust right to sue under Bivens (as Vladeck and Carlos Vazquez have also suggested), to reach the merits of claims for nominal damages in the face of qualified immunity arguments, and to extend the reach of the Bivens remedy to government misconduct abroad, can all be sensibly instituted by the courts themselves. But the first step in reforming the law must be to reform the sense of judicial duty with which the courts approach their task. Courts must reclaim their role in addressing narrow issues of legality and leave issues of discretion and policy to the political branches.

 I was heartened by the general agreement among reviewers that the remedial shortcomings identified in the book pose a serious problem. While the reviews vary, Greg Sisk shares the view that we must improve government accountability and Will Baude, Joanna Schwartz, and Steve Vladeck all agree that courts today labor under a mistaken conception of judicial duty. The judicial mindset makes the problem especially difficult to solve through the adoption of more laws. Put in other terms, there were a host of serviceable prohibitions on torture ready to hand when the Office of Legal Counsel issued the torture memos, justifying the practices of the CIA and Department of Defense, and when the federal courts declined to adjudicate the claims of victims. That’s what makes me skeptical of the McCain-Feinstein anti-torture amendments; they proclaim rules of humanitarian interrogation but provide no system of remedies. Common lawyers know the old saying, no writ, no right. Without writs, we live in a world where victims petition for redress in humble terms and courts decide as a matter of discretion whether to allow victims to sue.

We could fix this by establishing a presumptive right to sue under Bivens, as the book contends, or by adding “color of federal law” to section 1983 as Vladeck suggests and the book acknowledges, or by amending the Federal Tort Claims Act, as Greg Sisk argues. The Sisk solution certainly deserves consideration, but raises problems of its own. First, it requires legislation, something notably difficult to come by these days. The government has resisted any change in FTCA liability that would limit its ability to proffer qualified immunity defenses to constitutional tort claims. To be sure, Sisk urges the incorporation of intentional tort theories of liability that would rest on state common law and would not so obviously give rise to immunity defenses but that expansion of government liability would surely need to overcome similar resistance. Second, the FTCA includes its own discretionary function exception that may, as Sisk recognizes, complicate the right to sue. Third, the FTCA does not apply to government conduct that causes injuries outside the territory of the United States, making the Act a poor vehicle for the redress of federal government wrongs that occur overseas.

 The reviewers also broadly agreed that the problem with the inadequacy of constitutional remedies extended beyond the war on terror, a conclusion with which I certainly agree. The book’s appendix set out to assess whether war-on-terror claims were like other Bivens claims, hard to win, or were virtually impossible to win. To do so, it adopted a metric similar to that developed by Alex Reinert, who showed in an important paper that settlements should count as successes and that litigants succeed at a much higher rate in Bivens litigation than the conventional wisdom would have us believe. Applying Reinert’s test, the appendix finds that war-on-terror Bivens claimants in cases that arise in the United States enjoy success comparable to that Reinert reported, but such claimants invariably fail when their cases have overseas elements (even when the claimants’ US citizenship solves the interesting puzzle of allegiance and protection that Baude posited). It thus appears that the systemic remedial inadequacy that plagues all constitutional tort litigation takes a special toll on Bivens claims brought by overseas claimants. While the book’s proposed solutions would aid that class of litigants, it would also surely benefit Bivens litigants across the board. Nor would mending the doctrine in the ways I suggest solve all problems; Will Baude correctly observes that we have much work to do to address instances of remedial inadequacy that shape the daily interactions between officialdom and citizenry. He argues against the legitimacy of the doctrine of qualified immunity, a view I happen to share. The half solution I propose, a lawyer’s workaround, seeks to facilitate the clarification of law in suits for nominal damages in the event qualified immunity proves hard to dislodge.

That workaround, among other things, moved Alex Reinert to ask more searching questions about the book. He doubts that the courts will embrace the reform project the book advances (fair enough) and wonders if it will do much good, even if adopted. He’s particularly concerned, and correctly so, with the denial of compensation to victims who seek to avoid qualified immunity by mounting claims for nominal damages. Better, I would agree, that we should abandon qualified immunity altogether, as Baude argues. (Joanna Schwartz has shown in other work that indemnity functions very well today to protect state and local officials from personal liability in section 1983 litigation, just as it often operated to protect officers sued personally in the nineteenth century.) But Reinert over-reads the book’s proposal to the extent he treats it as applicable to every war-on-terror or national security claimant. Nominal claims need proceed only in the shadow of unsettled law; once the law has been clarified, future litigants could point to established law as the basis for obtaining a fully compensatory award.

Reinert also questions the book’s suggestion that the Supreme Court has been more solicitous of habeas than of Bivens litigation. For Reinert, the Court’s relative assertiveness in habeas can be explained as an instance of judicial self-defense against concerted attacks by the political branches (culminating in Boumediene) whereas its lassitude in Bivens litigation represents a kind of judicial self-abnegation with the Court acting as its own governor. But I’m not persuaded that the habeas and Bivens contexts present different separation-of-powers puzzles. Consider the reaction to Rasul v. Bush (2004), which upheld district court jurisdiction to entertain both the habeas and Bivens claims of Guantanamo Bay detainees. Congress and the president responded in precisely the same way to both litigation threats: by proposing and enacting legislation that would deprive the federal courts of jurisdiction over habeas and Bivens claims by those detained as enemy combatants. The Boumediene Court pushed back, invalidating the habeas restriction, but has done nothing to restore oversight of the legality of the treatment of prisoners at Guantanamo Bay in the face of lower court decisions that have (wrongly, in the book’s view) upheld the Bivens jurisdictional restrictions.

Alex also offers a more nuanced assessment of Iqbal and its implications for qualified immunity as an affirmative defense. I bow to him on all things Iqbal. He has lived that case, and others, and has an exceptional command of the way litigants pursue and officers defend Bivens cases. But in the end, I’m not sure we disagree.  Alex believes that qualified immunity remains an affirmative defense in the sense that the government defendant still bears the ultimate burden of persuasion if the parties join issue at trial. I focused instead on the change Iqbal wrought in the burden of pleading. Listen to the Supreme Court’s account in Woods v. Moss (2014): “The doctrine of qualified immunity protects government officials from liability for civil damages “unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” As authority for asking the plaintiff to plead around qualified immunity, the Woods Court cited Ashcroft v. al-Kidd and Ashcroft v. Iqbal. This formulation would seem to cast the burden of pleading on the plaintiff; after all, the case was decided on the officers’ motion to dismiss under Rule 12(b)(6). As a formal matter, affirmative defenses are not typically resolved by mounting challenges to the sufficiency of the plaintiff’s complaint.

 Is there hope? Joanna Schwartz sees reason for guarded optimism in the lower courts’ handling of the Trump travel ban litigation. Indeed, she locates in Judge Robart’s travel ban opinion a restatement of judicial duty not unlike that Justice Story articulated nearly two hundred years ago. As she recognizes, however, that stirring declaration came in the context of a suit for injunctive and declaratory relief, a context in which the courts have more willingly articulated constitutional norms. The litigation did not face the built-in headwinds that a Bivens action might encounter. Imagine the fate of a suit for damages, brought to seek recompense for the unlawful detention of individuals under the cover of a Trump travel ban that the courts invalidated and the President has now withdrawn? One might fairly doubt that such litigation would succeed, even though most jurists apparently agreed that the first travel ban was clearly unlawful.

 To be sure, we have a less pressing need for a rigorous Bivens jurisprudence when the federal courts can reach the constitutional issue on a motion for preliminary injunctive relief. But that depends on finding a plaintiff with standing to mount the challenge, a role the State of Washington played in Robart’s case. If, as seems conceivable, the Court adjusts the rules of standing to deprive States of their preferred status in challenging federal regulation, identifying a plaintiff with standing to seek prospective relief may prove more difficult. And that brings us back to the nub of the problem: when government misconduct defies remediation through habeas or other forms of injunctive or declaratory relief, Bivens provides the only plausible remedy (as Vladeck reminds us). That’s true for torture victims (who cannot petition to end a waterboarding session) and for others who find themselves swept up in unconstitutional programs. By reviving the Bivens action, the Supreme Court can help preserve its fundamental law-saying role. It can also restore the rule-of-law premises to which James Madison, John Marshall, Joseph Story and other nineteenth century figures gave voice.

 James E. Pfander is the Owen L. Coon Professor of Law at the Northwestern Pritzker School of Law. You can reach him by email at j-pfander at

Sunday, May 21, 2017

Federal Official Liability for Intentional Wrongdoing: Recovering the Past

Guest Blogger

Gregory Sisk

For the symposium on James Pfander, Constitutional Torts and the War on Terror.

In his new book “Constitutional Torts and the War on Terror,” Prof. James Pfander shines a bright spotlight on the “utter failure” of the federal courts to hold the United States Government accountable for unlawful harm deliberately visited on the individuals who have become collateral damage in the “War on Terror.” (61) With the litigation evidence painstakingly (and empirically) laid out by Pfander, constitutional tort actions brought by the victims of unconstitutional detention, harsh interrogation, and other outrages in the War on Terror have invariably gone down to defeat in the federal appellate courts. (167-180) Claims may be dismissed “on the ground that federal law does not create a right to sue the responsible officers for the particular form of mistreatment alleged,” or because the government has interposed a “state secrets” defense to foreclose further litigation, or because “the doctrine of qualified immunity blocks an action against the officers in question.” (xv)

Offering a historically-grounded solution, Pfander harkens back to the pre-Bivens nineteenth century practice by which federal courts entertained simple common-law trespass claims against federal officers for unlawful conduct that harmed individuals, uncomplicated by sovereign immunity or by qualified immunity for officers. These courts evaluated “the simple legality” of the governmental conduct, imposed compensatory damages on the individual officer who transgressed statutory or constitutional limits, and left the officer to seek indemnity from Congress. (7) Pfander urges our twenty-first century federal courts to craft a revived constitutional tort cause of action, one that directly adjudicates the constitutional legality of the government conduct and is not encumbered by the inappropriate political considerations and policy-justified hesitations that cloud current Bivens doctrine. (99-100) In Pfander’s view, this upgraded and enhanced Bivens constitutional tort claim would be a modern version of the nineteenth century common-law trespass action for official wrongdoing.

To get back where we started in the early Republic, Pfander argues that we do not need “the passage of more laws,” (159) but rather that the courts should “fundamentally rethink the manner in which they enforce constitutional rights protections through their Bivens jurisprudence” (xvii). Although I am persuaded that Pfander has identified a powerful paradigm for governmental accountability by resurrecting the nineteenth century practice, I suggest that “the passage of more laws” is exactly what we need. In particular, reform of the Federal Tort Claims Act would put claims against the government for intentional wrongdoing on more secure footing and do so in the simpler format of an ordinary common-law tort action.

What Pfander has highlighted in the context of the War on Terror is part of a larger legal regime in which intentional official wrongdoing at the federal level too often falls between the cracks of judicial compensation schemes. When federal agents are negligent, the injured have a well-worn path to compensation in court through the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b)(1), 2674-80. The FTCA makes the government itself liable for official carelessness under the tort law of the state in which the harm occurred. But when government officials deliberately and calculatedly direct harm against others, the road to recovery is muddy and covered with obstacles.

The FTCA excludes claims for most intentional torts, including assault and battery. 28 U.S.C. § 2680(h). While a “law enforcement proviso” permits some intentional tort claims to be pursued when the federal actor was as law enforcement agents, those who are victimized by other federal employees are left without any recourse. Even in law enforcement episodes, when the harm can be characterized as the consequence of a policy decision, the government regularly asserts the discretionary function exception to the FTCA, 28 U.S.C. § 2680(a). To make matters worse, even when the government does escapes liability through exceptions to the FTCA, the injured party may be unable to pursue an alternative claim against the individual officer under state tort law. When the federal officer was acting within the scope of employment, the Westfall Act simultaneously substitutes the United States as the only defendant and immunizes the officer from personal liability. 28 U.S.C. § 2679(b)(1).

If the victim of intentional official wrongdoing looks instead to the Bivens constitutional tort remedy, he or she will encounter doubts about whether this judicially-implied cause of action is legitimate or a relic of judicial activism. Governmental policy interests, such as military discipline or protecting national security, may be asserted as counseling against extension of the remedy to any new context. And the officer typically will assert qualified immunity against liability, contending any constitutional constrains on conduct were not clearly established at the time of the episode.

In sum, the victim of intentional federal misconduct may be barred from relief against either the federal government or the individual officer.

In my view, the solution lies not in any hope for a judicial course correction in Bivens jurisprudence, but rather in a legislative overhaul of official liability for intentional wrongdoing by the federal government and its agents. And Pfander has done us the considerable service of offering a template for legislative reform, through the model of the nineteenth century common-law remedy against federal official wrongdoing.

In the historical background to his book, Pfander contends that the early Republic recognized a “sturdy common-law trespass action [that] provided individuals with an assured right to bring federal government officials to account.” (xxii) Through this common-law precursor, the courts “applied a fairly unyielding body of tort law in assessing the liability of government actors for invasions of rights to person and property,” unqualified by doctrines of official immunity. (3) In this way, the courts protected individual rights and articulated the fundamental limitations on justifiable government action. Given the doctrine of federal sovereign immunity, the federal government could not be held vicariously liable, but the equivalent was achieved by judicial imposition of damages against individual federal officers who crossed legal lines and congressional award of indemnity to the officer. (3) In the end, “Congress accepted financial responsibility for government wrongdoing.” (3)

Resurrecting this paradigm in the twenty-first century can best be accomplished through a statutory waiver of sovereign immunity, by updating the existing remedy against the government through the Federal Tort Claims Act. Rather than creating any new causes of action, the FTCA “build[s] upon the legal relationships formulated and characterized by the States” with respect to principles of tort law. Richards v. United States, 396 U.S. 1, 7 (1962). As Pfander correctly observes, the FTCA makes “no provision for constitutional suits against the federal government itself.” (19) But neither did the nineteenth century exemplar, which was grounded in the common law. By holding the federal government accountable for “ordinary common-law torts,” Dalehite v. United States, 346 U.S. 15, 28 (1953), the FTCA more closely resembles the common-law trespass remedy to curb governmental wrongdoing than does the judicially-devised Bivens constitutional tort cause of action.

The nineteenth century predecessor did not impose liability directly against the United States Government, yielding to federal sovereign immunity. However, as Pfander writes, a “striking feature of the system [was] an expectation that the officers in question would be indemnified and held harmless by Congress” by enactment of private bills that covered the amount of any judgment against the officer for damages. The FTCA accomplishes that purpose more forthrightly by shifting liability from the officer to the United States, thus holding the government directly accountable and removing the risk of undue sympathy by a trier of fact toward an individually-responsible defendant.

When enacted as an experiment in governmental liability in 1946, the FTCA was subject to a number of cautious exceptions and limitations. If the FTCA is to fulfill its promise of compensating individuals for harm by government wrongdoing, it must now be enhanced to offer relief for most forms of intentional wrongdoing. At present, claims for assault, battery, false arrest, and false imprisonment are excluded from FTCA recovery. 28 U.S.C. § 2680(h), thus eliminating the government itself as a target for liability. When the FTCA was originally enacted in 1946, the exclusion of intentional torts from the FTCA ran parallel with state respondeat superior rules that generally held the intentional tortfeasor-employee outside the scope of employment and thus subject to personal liability. With state respondeat superior rule expanding to impose vicarious employer liability for more and more intentional conduct by employees, and with the Westfall Act covering federal employees with personal immunity for actions within the scope of employment, the suit against the individual intentional tortfeasor may be barred. The evolution of the law demands repeal of the assault-and-battery exception lest the victims of intentional wrongdoing at the hands of government be left without any remedy in any court against any defendant.

By bringing intentional tort claims into the FTCA and using the vehicle of common-law torts to address governmental wrongdoing, the goal of clarity in articulating legal limits would also be achieved. As Pfander sees it, one of the great merits of the nineteenth century trespass claim against the officer was “a fairly unyielding rule of personal liability whenever an official of the United States invaded the legal rights of an individual.” (xix) Without any deflection by the doctrine of qualified immunity, early Republic courts “increasingly came to understand that their duty was to apply the law and determine . . . the legality of official action.” (9) Nor did national security or other policy concerns “trigger any hesitation on the part of the courts; they proceeded to the merits and adjudicated the claim.” (16)

An enhanced FTCA that provides a remedy for intentional torts would achieve the same clarity in legal framework for governmental action. When the United States is the defendant to a state tort law claim through the FTCA, qualified immunity is not available as a defense. Rivera v. United States, 928 F.2d 592, 609 (2d Cir. 1991) (“[Under the FTCA, t]he United States does not have the advantage of any defense of official immunity that the employee might have had[.]”) Instead, the defenses available to the federal government in an FTCA suit “are defined by the same body of law that creates the cause of action, the defenses available to the United States in FTCA suits are those that would be available to a private person under the relevant state law.”  Vidro v. United States, 720 F.3d 148, 151 (2d Cir. 2013). Because the government is directly liable under the FTCA, the concerns animating qualified immunity—about imposing personal liability for understandable legal errors by an individual—fall off the table.

Accordingly, under an FTCA regime for intentional wrongdoing at the federal level, constitutional or statutory justifications for the federal agent’s conduct would have to be raised as an affirmative defense under the pertinent state tort law. Because constitutional standards presumably would be a factor when evaluating justification for an arrest, detention, or exercise of force, those constitutional parameters would be adjudicated through the state tort vehicle. Notably, the justification affirmative defense to an intentional tort claim would turn on whether the law actually justified the agent’s conduct. Previous ambiguity in the law would not count as a valid justification for unlawful conduct. Thus, as with the nineteenth century regime, the FTCA approach should allow an individual to obtain “tort damages whenever the government official was thought to have invaded a legally protected interest without proper justification.” (xv)

There may (or may not) be a need to tweak the FTCA’s discretionary function exception, 28 U.S.C. § 2680(a), to ensure that purported policy justifications may not be raised to avoid accountability for constitutional violations. The Supreme Court already has held that the exception is not implicated unless there is room for the permissible exercise of discretion, Berkovitz v. United States, 486 U.S. 531, 536-48 (1988). If constitutional standards are not deemed sufficiently specific in direction to preclude the discretionary function exception, clarifying language would be in order to confirm that appropriate deference to policy-making prerogatives does not sanction violation of constitutional rights.

At the end of the day, Pfander and I are on the same road toward greater governmental accountability, even if we are traveling in different vehicles. While I believe that a legislative transport has greater promise and proceeds on more solid pavement, Pfander’s judicial conveyance would bring us to the same destination. We both wish to see “the federal judiciary . . . bearing institutional responsibility for governmental compliance with law.” (xv)

Gregory Sisk is Laghi Distinguished Chair in Law, University of St. Thomas (Minnesota).  You can reach him by email at gcsisk at

Friday, May 19, 2017

Beyond the War on Terror

Guest Blogger

Will Baude

For the symposium on James Pfander, Constitutional Torts and the War on Terror.

Federal courts today are not eager to enforce constitutional rights against individual government officials who are alleged to violate them. Indeed, federal courts frequently dismiss such claims on various technicalities without ever confronting the substance of the rights invoked. That is notably true in 21st-Century litigation over the war on terror, where federal courts have expressed skepticism (or more) about implied causes of action, extraterritorial constitutional rights, and the damages remedy.

But was it always thus, and must it be thus, should it be thus, today? Constitutional Torts and the War on Terror, by James Pfander, sets out to answer these questions. (To all three: “No.”) Pfander frames the book by showing us that legal rights were originally enforced against government officials in a quite different way. Government action was assumed to be regulated by generally applicable law. Ordinary citizens could challenge the legality of that government action through ordinary suits at common law. And judges saw their primary duty as simply applying the law to the cases before them, leaving for lawmakers the task of indemnifying officials or changing the law where its consequences were undesirable.

This 19th-Century model of government legality may seem quaint, but it teaches important lessons today. Pfander argues that our constitutional tort regime fails to live up the structure or benefits of the old regime, and fails to justify its replacement. The common law has worked itself foul. Pfander may be right or wrong about the consequences, but I think his more important critique sounds in legal process: The federal courts might have you believe that today’s limits on constitutional torts are the result of an admirable judicial restraint – a hesitation to step into domains where judges have no commission. But the restraints are of the judiciary’s own devising, and thus in deep tension with the original judicial duty – to apply the law rather than make it.

I may be taking this point further than Pfander would, but I emphasize it because it amounts to my only real disagreement with the book – that it does not take the original model of government legality nearly far enough. Consider two points.

First, the problems with today’s doctrines of constitutional torts are not limited to the war on terror. You don’t need to look to Guantanamo Bay, extraordinary rendition, or the CIA torture report to see government lawlessness gone unchecked. Alas, unchecked constitutional violations happen every day on America’s streets, as police officers exceed their discretion to search or to use force, against both the guilty and the innocent. Constantly expanding exceptions to both civil liability and the criminal exclusionary rule make those violations difficult to remedy. And beyond the police -- schoolteachers, prosecutors, and nearly every government official is insulated from accountability by judicially-devised restraints unknown to the common law.

To see the full scope of this problem, we ought not limit our focus narrowly to the war on terror, but rather consider the broader sweep of constitutional remedies. Once upon a time, we had common-law and self-help remedies for government lawlessness. Then for a time, the judiciary oversaw the replacement of the original remedies with substitute remedies such as the Bivens action and the exclusionary rule. But in more recent years, the courts have begun to roll back the substitute remedies, yet without being willing to revive the original remedies. There are valid and hard questions about the role of common law evolution in constitutional remedies – to what extent should we return to the original remedies and to what extent should we accept sensible modern substitutes? – but we already  have too few remedies and might be on a path to even fewer. That is a real problem. The war on terror cases that Pfander writes about are simply a symptom of that broader problem.

Of course it is true that the law proceeds by halves, and so we can reform one area of doctrine without meaning to approve of what happens in a related area. But if we must prioritize, I would put domestic lawlessness against ordinary U.S. citizens at the core, and some of the abuses of the war on terror closer to the periphery. A full accounting of the original law of the war on terror may also raise technicalities that Pfander does not address – such as the allegedly reciprocal relationship between “allegiance” and “protection” in 19th-Century legal theory.

Second, and more specifically, there is the problem of qualified immunity, a judge-made doctrine which insulates government officials from suits for damages unless they violated “clearly established law.” While that formulation might seem somewhat innocuous, in practice it amounts to a super-duper rule of lenity protecting only government officials. Ambiguities in prior precedent are assumed in the officer’s favor, and a plaintiff must point to a remarkably specific precedent already adjudicating the issue or a really egregious set of facts.

Pfander provides an intriguing reform, which is to hold qualified immunity inapplicable to claims for nominal damages. This would allow plaintiffs to achieve symbolic victories and establish law for future cases, without unduly burdening or deterring government officials who are sued.

But in my view, this is not enough. The fundamental problem with qualified immunity – or so I argue in a recent article – is that it is contrary to law, and has neither a statutory nor common-law warrant. (This argument also owes a debt to Pfander’s historical approach.) But Pfander’s nominal damages solution is less than half a solution to this problem. It exalts a secondary duty of the judiciary – to write judicial opinions that can be cited as precedent in future cases – while neglecting the more fundamental one to enforce the law in the case at hand.

At bottom, these divergences are not really about disagreement. Rather, they reflect the fact that Pfander is on to a theory of federal courts that is more consequential than even his own conclusions suggest. Pfander repeatedly notes that many issues in the war on terror are questions of ordinary law, appropriate to our ordinary procedures for vindicating legal rights. But the point also implies a reverse diagnosis: The problem with constitutional torts and the war on terror is really the broader problem of constitutional torts in our ordinary legal system.

William Baude is Neubauer Family Assistant Professor of Law at the University of Chicago Law School.

Thursday, May 18, 2017

Blind Justice, Lady Liberty, and the War on Terror

Guest Blogger

Joanna Schwartz

For the symposium on James Pfander, Constitutional Torts and the War on Terror.

The day Donald Trump announced his (first) travel ban, hundreds of lawyers set up crisis centers in airports around the country and began drafting legal challenges to the executive order. The next day, Judge Anne Donnelly of the District Court for the Eastern District of New York issued a temporary restraining order. Soon thereafter, judges in Seattle, Boston, Detroit, and Alexandria issued a variety of orders staying part or all of the ban. Trump appealed the Seattle court’s decision to the Ninth Circuit, arguing, among other things, that the President’s national security decisions were unreviewable. The Ninth Circuit denied the request for a stay, and in its decision strongly disagreed with the president’s depiction of the role of courts and the executive in national security matters. “There is no precedent to support this claim of unreviewability, which runs contrary to the fundamental structure of our constitutional democracy,” the per curiam opinion explained. “Indeed, federal courts routinely review the constitutionality of—and even invalidate—actions taken by the executive to promote national security, and have done so even in times of conflict.” After making a few angry tweets about the Ninth Circuit, and threats to take the case to the Supreme Court, Trump and his staff went to work on a new order.

During this flurry of legal challenges, a cartoon began circulating widely online. Blind Justice was staving off a pugilistic Donald Trump from the Statue of Liberty saying, calmly, “I’ve got this.”1 Trump had sought to use national security rhetoric to avoid judicial review of his immigration policies, and courts had refused to stand down.

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Wednesday, May 17, 2017

A Bivens Encomium—or Elegy

Guest Blogger

Stephen Vladeck

For the symposium on James Pfander, Constitutional Torts and the War on Terror.

Jim Pfander’s invaluable new monograph, Constitutional Torts and the War on Terror, arrives at an especially fortuitous moment in the history of the Bivens doctrine—which recognizes circumstances in which judges can recognize a damages remedy for victims of constitutional violations by federal officers even though no statute authorizes such relief. Sometime in the next six weeks, the Supreme Court could hand down its most important rulings on the scope of the doctrine in the 46 years it’s been on the books. And at least based on how the oral arguments went in Ziglar v. Abbasi and Hernández v. Mesa (in which I’m co-counsel to the Petitioners), the signs aren’t too optimistic for those who agree with the younger Justice Harlan, who closed his concurrence in Bivens with the observation that “it would be . . . anomalous to conclude that the federal judiciary . . . is powerless to accord a damages remedy to vindicate social policies which, by virtue of their inclusion in the Constitution, are aimed predominantly at restraining the Government as an instrument of the popular will.” As Pfander’s book explains, careful study of the history of civil remedies arising out of federal government misconduct suggests that it would indeed be anomalous to so conclude, especially in the context of challenges to post-September 11 counterterrorism policies. That the Supreme Court may nevertheless be on the cusp of doing so, especially at this particular moment in our nation’s history, should be deeply disturbing to even the most casual reader.

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Tuesday, May 16, 2017

The Cost of Seeking Legal Clarity

Guest Blogger

Alex Reinert

For the symposium on James Pfander, Constitutional Torts and the War on Terror.

I appreciate the opportunity to join such a distinguished group of scholars in commenting on Jim Pfander’s book “Constitutional Torts and the War on Terror.”  In his book, Jim does a fantastic job explaining how courts have strayed further and further from adjudicating the merits of constitutional challenges to executive actions taken in what is colloquially referred to as the “war on terror” (what constitutes terrorism is contested and political and sometimes tinged with Islamophobia).  Jim’s descriptive account of the problem is, for the most part, right on target -- many individuals caught up in the national security response to terrorist threats over the past 15 years have suffered serious harms, and very few of them have obtained a remedy or even a hearing.  And his prescriptive solutions are provocative and move us in the right direction.  My concern is that they may expect too much of both judges and litigants, for reasons I will explain.

I want to begin with one riddle that is in many ways at the heart of the problem Jim painstakingly describes in his book: the apparent conflict between the Supreme Court’s Guantanamo habeas cases (putting limits on executive action) and its Bivens national security cases (failing to find or enforce a remedy for executive misconduct).  This is a riddle to be solved, and Jim suggests (at pp. 87-89) many plausible solutions, but I would also be careful not to overstate the apparent tension.

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Monday, May 15, 2017

Constitutional Rot and Constitutional Crisis


No one could accuse Donald Trump’s presidency of being boring.  The first hundred days have careened wildly through scandals, revelations, outrages, and fracturing of political norms. Every time Trump does something remarkable, like the recent firing of Director James Comey, pundits ask whether we are in a constitutional crisis.

However, as I noted in a previous post, constitutional crisis refers to something different: A constitutional crisis occurs when there is a serious danger that the Constitution is about to fail at its central task of keeping disagreement within the boundaries of ordinary politics instead of breaking down into lawlessness, anarchy, violence, or civil war.

As Sandy Levinson and I have explained, there are three types of constitutional crises. In Type One crises, political leaders announce that they will no longer abide by the Constitution or laws (for example, because of emergency), or they openly flout judicial orders directed at them. In Type Two crises, people follow what they believe the Constitution requires, leading to political paralysis or disaster. In Type Three crises, political disagreement about the Constitution becomes so intense that the struggle goes beyond the bounds of ordinary politics. People take to the streets; there are riots; the military is called out to restore order (or suppress dissent); political figures threaten violence or engage in political violence; or parts of the country revolt and/or attempt to secede,

Constitutional crisis is very rare, and nothing that has yet happened in the Trump Administration -- including the Comey firing-- comes even close. But people are right to think that something important-- and dangerous--is happening to our political institutions.  That is why, I think, people so often reach for the term "constitutional crisis" to describe it.

In this essay, I want to introduce a new idea to explain our current predicament. I will distinguish constitutional crisis, which is very rare, from a different phenomenon, which I think better describes what is happening in the United States today. This is the idea of constitutional rot.

Although the Comey firing is not an example of constitutional crisis, it is an example of constitutional rot.  For this reason, people are right to worry about it.
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Call for Papers -- Constitutional History: Comparative Perspectives

Jason Mazzone

Below the jump is the call for papers for the third annual conference on Constitutional History: Comparative Perspectives to be held in Bologna, Italy on November 13 & 14, 2017.
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Symposium on James Pfander, Constitutional Torts and the War on Terror

Andrew Koppelman

This week and next at Balkinization we are featuring a symposium on James Pfander's new book, Constitutional Torts and the War on Terror (Oxford University Press, 2017). We'll have contributions from Alexander Reinert (Cardozo), Gregory Sisk (St. Thomas), Joanna Schwartz (UCLA), William Baude (University of Chicago), and Stephen Vladeck (Texas). At the conclusion, Jim will respond to the essays.

Friday, May 12, 2017

For one family, war has tragic costs. For others, not so much.

Mary L. Dudziak

The lead story in the print version of today’s New York Times is a story that barely breaks through in our fast-paced digital communications: a family mourns a fallen soldier. Staff Sgt. Mark De Alencar "fought and died in a war that most Americans say is not worth fighting, according to some polls. It is a war that seemed to be over in 2014, when President Barack Obama announced the end of the original United States combat mission,” wrote reporter David Zucchino. "Honestly, I thought the war was over before Mark got sent there" the soldier’s sister-in-law said. 

War is present and personal for deployed American soldiers and their families. It is far off the radar screen of most Americans, exacerbated, it seems, by our digital algorithms. The “top stories” in my digital version of the New York Times this morning did not mention Sargent De Alencar at all.
"The war didn't seem to affect anyone outside the military," remarked De Alencar’s widow, Natasha De Alencar. His son Deshaun De Alencar emphasized: "His life was not taken: It was given to his country," in an echo of Paul Kahn’s powerful work on the soldier’s willing sacrifice.

A soldier’s giving of his life for others – for our disconnected and distracted polity – generates a powerful duty that has been ignored. At the very least, a soldier's death in a war fought in our name requires that we pay attention to it. Engagement is our responsibility.

But simple attention is not weighty enough to honor this family’s sacrifice. There are renewed calls for Congress to reengage with American armed conflict. De Alencar died in Afghanistan “while fighting Islamic State militants.” Congress has declined to authorize armed conflict against ISIS or in Syria, so that presidents rely instead on creative interpretations of preexisting authorizations for the use of force. This puts the task of defining war’s limits within the Office of Legal Counsel, which defines them in secret memos. This is hardly a source of democratic limits on presidential war power.

Though the blame for the absence of restraint falls, in part, on Congress, blame is shared by the American people. I have seen no demands in the recent town hall meetings in congressional districts for congressional engagement with the nation’s use of force. Americans care about what they feel personally. As Natasha De Alencar said, most Americans seem unaffected by the conflict that cost her children their father. The most important democracy deficit in contemporary armed conflict is that a citizenry isolated from war's cost enables ongoing war without restraint.

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