Professional commentators have expressed their surprise at the extent to which the national political establishment has been upended in this election cycle by the populist campaigns of unconventional outsiders. The experts should have seen it coming. The trust and respect that Americans feel for the federal government have been on the decline for years.
Last fall, Gallup reported that trust in government is the lowest it has been in a decade. Fewer than one in five Americans trust Washington to do what is right on a regular basis, and almost half believe that government poses an immediate threat to the rights and freedoms of ordinary citizens.
The Pew Research Center reported that four in five Americans feel frustrated or angry with the government, fewer than half view the Department of Justice favorably, and one in four think of government as an enemy.
How have we come to such a point? This disturbing alienation and antipathy is caused, in part, by federal officials who overreach the bounds of their legitimate authority and abuse their office by trampling on due process and the constitutional rights of their fellow citizens.
The stories of abuse have become all too familiar: the targeting by IRS officials of conservative organizations and individuals; the raids of farms and factories by heavily armed inspectors; the threats of prosecution or agency enforcement action to punish dissent and extract shakedown settlements; and the retaliation against whistleblowers within the executive branch.
Is it any wonder that a large number of Americans view the federal government as an enemy?
The anger that Americans feel about such conduct is further fueled by the fact that individual federal officials are seldom, if ever, held to account. Stonewalled Congressional hearings came to nothing. Slow-rolled internal agency reviews conclude with some shuffling of personnel and bland assurances of continued commitment to mission and service.
Typically, the individual officials involved in these scandalous activities may be reassigned with generous relocation payments, or they may retire with full pensions, benefits, and final bonuses. They suffer no significant personal consequences for the rights they have violated.
With the legislative and executive branches of the federal government unable or unwilling to hold abusive officials to account, the individuals whose rights have been violated are largely left to seek redress on their own through the courts.
Although it is at least theoretically possible for an aggrieved citizen to sue federal officials and seek to recover money damages directly from those officials to compensate for the harm caused by the rights violation, such suits face legal obstacles that are virtually impossible to overcome. For one thing, no federal statute explicitly authorizes this kind of suit.
In 1971, the U.S. Supreme Court did find that a Mr. Bivens could sue to recover damages from certain federal officials for their violation of his Fourth Amendment rights, despite a lack of any federal statute authorizing his suit. The Court found that Bivens had an implicit right to sue the officials, a right to sue that was grounded in the Constitution itself.
Since 1971, however, the courts have steadily chipped away at this central principle of the Bivens decision, defining exceptions and exclusions such that little remains in case law to support a citizen’s suit for damages against federal officials for their violation of his constitutional rights.
Some of the citizen litigation filed against IRS officials for their political targeting of conservatives has suffered setbacks due to the limits that courts have placed on theBivens decision.
Something needs to be done to revitalize the essential principle of the Bivensdecision — and clearly establish the right of a citizen to sue the individual federal officials who have violated his rights.
This is especially important in light of the woeful lack of meaningful relief available to an aggrieved citizen through any other means. A turbulent period in our nation’s past provides a dramatic example of the kind of action that has been taken, and could be taken again, to protect the rights of citizens from abusive public officials.
During Reconstruction, in 1870 and 1871, Congress passed a series of civil rights acts to facilitate enforcement of the rights set forth in the recently enacted Thirteenth, Fourteenth and Fifteenth Amendments to the Constitution. One section of the Civil Rights Act of 1871 was later designated as Section 1983 of Title 42 in the U.S. Code of federal statutes.
Section 1983 provides an explicit basis for any citizen whose constitutional or legal rights have been violated by a person acting under state government authority to sue that person for money damages and equitable redress to account for the harm resulting from the rights violation.
Over the years, Section 1983 has proven to be a powerful tool for citizens to enforce their rights and to hold abusive state actors personally accountable. The statute has been broadly construed to apply to virtually any sort of state action, authorized or not, whether it is carried out by a government employee or by an associated private party.
The legal immunity that persons acting for the executive branch can invoke to protect themselves from personal liability is limited.
Citizens can sue for punitive damages in addition to their actual damages, and they can collect reimbursement for their legal bills if they prevail in their litigation.
Congress enacted Section 1983 during Reconstruction to help protect the constitutional rights of citizens against abuses perpetrated by individuals acting under the authority of their state governments. Today, Americans have a growing concern about the threat posed to constitutional rights by individuals acting under the authority of the federal government.
In light of the disturbing situation that now confronts us, Congress should revisit Section 1983 and the Bivens decision. Legislators should enact a new statute that would replicate the provisions of Section 1983 and supplement it by allowing for the same type of citizen litigation against federal officials and associated private parties.
Section 1983 has proven to be an effective weapon against official abuse. The new statute would be an important new weapon in the ongoing battle to protect our constitutional rights.
Perhaps the new statute could be designated in the U.S. Code as Section 1984.
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J. Kennerly Davis is an attorney and a former deputy attorney general for Virginia who lives in Richmond. Contact him at firstname.lastname@example.org.