Burnett v. Smith & Implied Rights of Action

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Sam Fendler:  Hello, everyone, and welcome to this Federalist Society virtual event. My name is Sam Fendler, and I'm an Assistant Director of Practice Groups with The Federalist Society. Today, we're excited to host "Burnett v. Smith & Implied Rights of Action." We're joined by Anya Bidwell and Erin Hawley.

Anya Bidwell is an attorney with the Institute for Justice. There, she helps lead the Institute's Project of Immunity and Accountability. Her work aims to promote judicial engagement and government accountability. Anya is an expert on the intersection between policing and the Constitution, and her writings have appeared in The Wall Street Journal, The Washington Post, National Review, and other outlets.

Erin Hawley is Senior Counsel and Vice President of Center for Life and Regulatory Practice at Alliance Defending Freedom. Erin has wide experience in the law. She has worked in private practice, litigated extensively before the U.S. Supreme Court, served in the DOJ, and taught constitutional law at Mizzou. She is a former clerk to Supreme Court Chief Justice John Roberts and regularly provides legal commentary to a number of media outlets.

If you'd like to learn more about today's speakers, their full bios can be viewed on our website, fedsoc.org. After our speakers give their opening remarks, we will turn to you, the audience, for questions. If you have a question, please enter it into the Q&A function at the bottom of your Zoom window, and we'll do our best to answer as many as we can.

Finally, I'll note that, as always, all expressions of opinions today are those of our guest speakers, not The Federalist Society. With that, Anya, thank you very much for joining us, and the floor is yours.

Anya Bidwell:  Hi, everyone. Thank you to Sam and to FedSoc for hosting this discussion, and thank you to Erin for joining me. I'm looking forward to delving into this very interesting topic that gets to the fundamental question of what courts are supposed to do versus what legislators are supposed to do when it comes to providing damages for violations of constitutional rights. It all starts from this big idea that, where there is a right, there must be a remedy because a right imposes a correlative duty to refrain from violating it.

As Alexander Hamilton wrote in The Federalist 15, if there be no penalty annexed to disobedience, the resolution or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation. The question then becomes, what does an individual need to do to obtain this remedy when his right was violated? If the right is violated by a private party, then this individual can go to court and sue in tort.

For example, if a neighbor comes into my home, steals my guns, and destroys them, I can go to a court of general jurisdiction, state court, and sue him for trespass on chattel or conversion. But what if it was a state law enforcement officer who came to my home and sees my lawfully possessed firearms and later destroyed them? Again, I can go to a state court and sue this officer for trespass on chattel. A more interesting question is whether I can also sue this officer for violating my rights under a state constitution to keep and bear arms.

Or how about a case with no tort analog? What if this law enforcement officer comes into my home in response to a noise complaint, catches me praying, and orders me to stop? Can I ask a court to order a remedy for violating my religious liberty? That's where the separation of powers question comes in.

Some state courts, like the Supreme Court in Iowa with its case, Burnett, and West Virginia, are saying that individuals can't sue directly under state constitutions unless there is an explicit authorization within that constitutional provision to sue for damages, or unless a state legislative body specifically authorizes such a lawsuit by passing a statute providing for a cause of action.

So, for example, the Michigan constitution says, "Every person shall be at liberty to worship God according to the dictates of his own conscience." So that's not enough, right? By the Iowa Supreme Court's logic, in order to be enforceable, Michigan legislature needs to pass a statute saying that there is a cause of action to sue for violations of religious rights or the text of the constitution needs to be amended to add that an official who violated the freedom of worship is liable through an action for damages.

Other state courts, like Michigan, Nevada, Montana, to name just a few—there are about 16 or 17—they are saying that providing a remedy under a state constitution is inherently a province of the courts. They say that since the founding, and even before then, people could get damages for violations of their individual rights. It shouldn't matter that, instead of suing in tort, you're suing under a state constitution.

State courts still have the common law power to order remedies for violations of rights, and they can use that power with respect to both common law torts and constitutional torts. In these states' constitutional authorization language works the other way. If ratifiers do not think that courts should be providing a damages remedy, then they must specifically say so, and they do.

Here's Michigan's Article I, Section 2, or at least a part of it. It says, "No person shall be denied the equal protection of the laws," and then it says, "The legislature shall implement this section by appropriate legislation." Those are the keywords, and they make it clear that the ratifiers intended for the judiciary to wait for a congressional authorization.

So what is driving this disagreement between the states? As is often the case, the United States Supreme Court is difficult to ignore. Even when its decisions are not exactly on point, state courts pay attention. In this case, there is a line of Supreme Court case law starting with Bivens v. Six Unnamed Agents of the Bureau of Narcotics, which deals with a related issue, suing federal officials in federal courts for violations of federal constitutional rights.

The U.S. Supreme Court in Bivens said that federal courts have the power to order a damages remedy for violations of the Fourth Amendment. It then extended this holding to the Fifth and Eighth Amendments, and then had a change of heart, culminating with a 2022 decision in Egbert v. Boule, where the Court essentially said, "No more; federal judiciary does not have the power to order damages unless Congress specifically says so," save for a very narrow set of circumstances.

At the heart of this Bivens rebellion is the belief by the Supreme Court, starting really with Chief Justice Rehnquist and then Justice Scalia, that federal courts were getting ahead of themselves, that by assuming that they can recognize remedies without congressional authorization, they were assuming state courts' common law powers.

As Justice Rehnquist wrote in his Carlson v. Green dissent, by recognizing damages under the Constitution, federal courts were acting like general courts of common law without having the authority to do so. Federal courts have limited jurisdiction, Rehnquist says. The powers of general government are made up from concessions by states. Congress intended to leave damages in Bivens' actions to state courts.

So our limited jurisdiction is better used elsewhere. That's the main reasoning in those cases. And, to that point, Michigan, Nevada, Montana, they agree with Rehnquist and Scalia. They say, "But we are general courts of common law, and we do have the power to order remedies, including damages remedies when rights are violated."

They say, "It doesn't matter whether we do it under common law or under state constitutions. Our role since the founding has been to enforce the law by ordering remedies, and we are acting consistent with that power. So while Bivens may be a disfavored precedent, we are fundamentally different from federal courts and don't have the same concerns."

Courts like the Iowa Supreme Court dismissed the difference between state and federal courts. To them, separation of powers is separation of powers, whether on the federal or state level. So if the text of the statute or the constitution does not explicitly provide for a damages remedy, then courts don't have the power to enforce it. To these courts, Bivens being disfavored is evidence that they are right.

I come down on the side of Michigan, Montana, and Nevada. Justices Rehnquist and Scalia won the argument in federal courts because they said federal courts are not state courts. Federal courts are courts of limited jurisdiction, and their limited resources should be spent elsewhere. These courts are also deriving their power from Congress to a much greater extent than common-law courts are deriving their powers from state legislatures.

As Chief Justice Rehnquist said, Congress has broad authority to establish priorities for the allocation of judicial resources in defining the jurisdiction of federal courts. That's simply not true with state courts. If the limited role of the federal judiciary is the argument, then it is not clear how we can now turn around and say that common-law courts also don't have the same power to enforce remedies under state constitutions.

True constitutional claims are different from common-law claims, but just like common-law claims, the underlying source are not legislators; the underlying source are the people and their intent to protect individual rights from the will of the majorities. In this situation, the default option, just like in Michigan, should be courts, not majoritarian institutions, ordering damages, not majoritarian institutions like legislatures. And if people wanted lawmakers to craft remedies, then they should have explicitly said so in the text.

To be consistent with Egbert and with all the dissents that eventually became majorities in defense jurisprudence, we should let common-law courts do what they have done since before the founding: give meaning to rights by enforcing remedies. Thank you.

Erin Hawley:  Great. Thank you so much, Anya. We agree about a lot and have a few areas of disagreement as well. And one thing that Anya picked up on—and I think it is really important for framing our discussion—is just the difference between federal courts and state courts and to what extent that difference persists. And there may be different answers in different courts, among different states, I should say.

So to set the playing field, as Anya did, in the federal courts -- and I'd be curious as to whether she agrees with them. I think she might not. But the Supreme Court has been pretty clear that it's no longer in the business of creating private causes of action for constitutional violations. Instead, as Anya said, what the Courts do is they look to Section 1983 or a different statutory provision in order to remedy those constitutional violations.

So if you are thinking about whether a private right of action can arise from a constitutional provision without congressional authorization, the real question, as Justice, I believe it was Thomas, put it in an Egbert is that the most important question is who should decide whether a damaged remedy should be provided? Is it Congress or the courts?

And so, I think in this entire field of law, as in many fields of law, administrative law or others, the question is, who decides? Is it the Congress or the courts? And what does the Constitution say about that allocation, what did state constitutions say about that allocation, and what does it mean as a policy matter?

So sorry again, guys. He is holding me hostage by asking for a TV show if I will agree, as he knows that I'm doing work. So a future lawyer, perhaps?

Anya Bidwell:  I'm sure.

Erin Hawley:  Yes. Yes. But as we are considering this question of who decides, when you think about the way the federal government is structured, we do have these clear separation of powers boundaries. And those boundaries, as Madison and others put it, are really liberty-affirming, and the reason they're liberty-affirming is that it takes every branch of government acting in concert before an individual's liberty can be curtailed.

So the idea is that the legislature has to enact a statute, the executive has to enforce it, and then the courts also have to find liability before someone's liberty or personal liberty can be infringed. So I'm really a proponent, a fan, of separation of powers because I do believe that they are liberty-enhancing. They are a way for the courts to put a check on the executive branch or the administrative state. And sort of the flip side --

Anya Bidwell:  Sam, are we having technical difficulties?

Erin Hawley:  The idea is that courts are in a less position -- They're not as well positioned to consider all of the policy implications as is Congress. In Egbert, for example, the Court says creating cause of action is a legislative endeavor. They have to consider a range of policy considerations, and that's not typically what we think of as within the province of courts.

Now, Anya is exactly correct that we have a different set of background rules when we are talking about federal courts and state courts. So in the state courts, the question, is do the same separation of powers principles apply? And I think the question to that is maybe. I think you look at the state constitution, the state separation of powers, and it seems like the Iowa Supreme Court has a lot going for it when they recognize the problems with judicially created remedies, the same problems that would inhere in a federal system that's creating these causes of action.

In fact, as Anya was talking, I just looked up a quick law review article. It's by Justice Scalia. It talks very much about this common-law courts in a civil law system, the role of federal courts in interpreting the Constitution and laws.

And what Justice Scalia talks about is very much this discussion, and he notes that, when you go to law school, you are trained in the law of torts and you're trained in the law of contracts. And these are all state law causes of action in which there's this body of common law that develops and changes with the cases as judges make these decisions.

He contrasts that with federal law, and he says the problem with this common-law narrative is a little word known as democracy, and we like, in the federal court system at least, the legislative power to reside in legislative hands. So it seems, as a matter of first principles, a good policy idea to separate the legislative power from the judicial power, and in that way, allow the democratic process to be involved in determining what remedies are, in fact, appropriate.

Another thing I'd point out, as something that I know Anya is aware of, is the fact that state constitutions are very unlike the federal Constitution. They actually resemble statutes much more than the constitutional law. They change all the time, they're voluminous, so it is not as arduous a task to amend a state constitution as it would be at a federal Constitution. So you don't have the logistical problems in getting an amendment that you might have at the federal level.

So I think that also counts in favor of leaving more to the legislative process, but I will admit—and I think on his right on this—that in a system of common law, then the states do have -- State court systems do have a larger prerogative under which to think about what sorts of rights might be appropriate for causes of action.

Anya Bidwell:  Yeah, I have a couple of points to respond to. I appreciate the opportunity to talk about federal officers' accountability under the federal Constitution. And what my opinion is with regards to that -- And you and I had a discussion on Egbert v. Boule with Judge Strauss.

My view there is that there actually is congressional authorization, right? And it's in the Westfall Act. So the Westfall Act is an amendment to the FTCA, and in 1988, Congress basically said, "You can no longer sue federal officials in state courts. We basically, as the federal government, will essentially come in and assume responsibility for tort-like causes of action."

But it also said, "When it comes to violations of constitutional rights, then you can still proceed with lawsuits against individual defendants." So that clause within the Westfall Act, that constitutional exception is congressional authorization to be able to sue federal officials for federal constitutional violations.

And Justice Alito, in Hernandez v. Mesa, specifically said that "Well, Congress left the Westfall Act where it founded in 1988." And so we agree with that, but what I'm saying is that, in 1988, when Congress passed the Westfall Act, that Bivens' cause of action was still robustly enforced. So, as it stands in 1988, Congress did endorse the federal constitutional cause of action.

And also definitely agree that there is this big idea that, since the founding, individuals could sue federal officials for violations of individual rights. They sued in common-law torts, then federal officials would invoke the defense of acting constitutionally, and then you would have a rebuttal that they violated the Constitution.

So that's kind of a natural progression to what we have today as the Bivens regime, but that's kind of put to the side. I think that the main argument here is, as Chief Justice Rehnquist and Justice Scalia and then-Justice Thomas and Justice Gorsuch mentioned, there is a big difference between federal courts and state courts.

And state courts, they are common-law courts. They have traditionally had powers to order remedies. And from that perspective, I find it very persuasive what Michigan Supreme Court says in the Bauserman decision when it basically says, "It's a traditional role of courts to order remedies."

So when ratifiers read the Constitution and then people pass this Constitution, they assume in the background that it will be common-law courts that will be ordering remedies. So unless ratifiers specifically say, like they do in that Equal Protection Clause and the Michigan constitution, that the legislature shall implement this section by appropriate legislation, if there is that language, then, great, courts should back off because the people intended for legislature to come up with a cause of action. But if there isn't that language, then it's fair to presume that, because these are common-law courts, they will be the ones stepping in and fashioning remedies for violations of constitutional rights.

As to the point about the separation of powers and what's liberty-enhancing and what's not liberty-enhancing, I also find it persuasive this idea of -- You know, what we're talking about is the Bill of Rights, right? State Bill of Rights versus federal Bill of Rights.

And Bills of Rights are naturally anti-majoritarian documents, right, where you're basically saying, "I have a right to bear arms, and majority can't just come in and say that I don't have that right, right? The legislature can't just come in and write a law saying that they don't have that right. I have that right, and it preexists whatever the legislature wants to do."

         So that's why I think it's counterintuitive than to say, "Oh, even though this is an anti-majoritarian Bill of Rights, these are majoritarian institutions like legislatures that should be coming in and writing cause of actions, authorizing me to vindicate those rights that are supposed to be protected from the wills of the majority."

And I agree that that argument is much stronger when it comes to state courts, but I also agree, like you're saying, Erin, that state constitutions are different; there are 50 different state constitutions, and they have slightly different arrangements, but we can't forget that, fundamentally, at the end of the day, state courts are common-law courts of general jurisdiction that, even before America became America, in England, already had powers to fashion those remedies.

So from that perspective, I think courts in Michigan, in Nevada, in Montana, they stand on a very, very firm ground when they say that "We can order remedies for violations of the constitutional rights " And it's 100 percent consistent with opinions like Egbert v. Boule because, there, the Court very much is concerned with federal courts not being courts of general jurisdiction, being very limited by what they can do.

And as Justice Scalia famously said, "We're not in the heady days of assuming common-law powers, but I think that the state courts can be in those heady days because they have those powers."

Erin Hawley:  So I think that could be correct. I think, in that same law review article, Justice Scalia points out that as a whole, certainly in the federal courts, but in the state courts as well, we're moving more to a statutory-based system where more and more of our laws are codified rather than coming up, percolating up through the common-law courts.

And you certainly still have areas like torts and contracts, the areas that will hopefully—I kind of like come along—hopefully always be sort of the common-law domain. But I do wonder -- And I don't know about the answer to this, but I wonder if the assumption that the federal courts -- or, excuse me -- that state courts are the ones that are going to be fashioning the remedies. I wonder if that assumption is still true today. It could be. And I agree, certainly, if so, then that would be a factor on the scales of putting the presumption the way Anya suggests.

So I think the question is, where does the presumption lie? Is there a presumption in favor of courts being able to craft these remedies to constitutional violations, and does Congress had to do something explicit? Do the state congressional houses have to do something explicit, or does the presumption go the other way, as in the federal court system under Egbert where we presume federal courts don't have the power and authority to invent these remedies and that it's Congress's role.

So I think that's where we're at. And I think it actually makes a lot of sense for both federalism principles, as well as separation of powers principles, that maybe it's okay that we have state courts coming to different conclusions on this question. Do you think that's possible, Anya, that maybe both of the state courts are right under their view of how their state government is structured?

Anya Bidwell:  Yeah, I think that's a very interesting question. So I think that, fundamentally, state courts, since the beginning of this country -- So the most consistent originalism theory is that state courts were supposed to be common-law courts that were fashioning remedies, right? And that's the assumption under which the Republic started, and the examples that they had were the common-law courts of England.

So to be consistent with the history of the country and with the breakdown of powers when the country was started, those common-law courts should still be able to fashion those remedies, and legislators, frankly, cannot stop common-law courts from being common-law courts; that would be inconsistent with the founding idea.

But I do think that the Court in Burnett makes this interesting argument when they talk about that language that they have in their constitution, right? And it says, "The General Assembly shall pass all laws necessary to carry this constitution into effect."

So that language, I think the previous case, Godfrey, addresses it effectively because Iowa actually had back-to-back decisions, essentially, right? In Godfrey, they first say, "We have a right to recognize remedies under the Constitution," and then the judge, Judge Mansfield, who writes the dissent in that opinion, writes the majority with the new court in Iowa in this Burnett decision, right?

`        I do feel like -- I do think that the Godfrey Court addresses that particular clause effectively where they say, "The General Assembly shall pass all laws necessary to carry this Constitution into effect," means that it's essentially a transitional language from going from pre-1857 Constitution to post-1857 Constitution, that it actually didn't affect the fundamental breakdown of powers. It was just legislature, we changed the constitutions, and you now need to have all these procedural things in place to make sure that it works.

And the Institute for Justice has this database called 50 Shades of Government Accountability. Hard to forget. So I recommend everybody who is interested in that go and look at this database. We break down all the state constitutions and look at different languages.

And this kind of language really is an aberration, which makes me think that the Godfrey opinion was right about it, that it was very much talking about this transitional nature between going from one constitution to another, rather than this general role of legislatures recognizing courses of action. So I think, generally speaking, state constitutions are pretty consistent in terms of not infringing upon the common-law duties of state courts.

Erin Hawley:  Yeah, and I think that that brings up something interesting. I taught a state constitutional law class last year at Regent. We read some of Judge Sutton's books. I don't know if you've had a chance to review them, but you would love them. They're fantastic. But Judge Sutton makes the really powerful point that there is often—not always, but often—a knee-jerk, reflexive idea that the state courts should follow the federal courts, and especially the Supreme Court, in the interpretation of constitutional law.

But, of course, there are two separate layers of constitutional law. There's both the state constitution, which can be more protective of rights, not less, but can be much more protective of rights, which I think everyone agrees—at least on this call—is a good thing. And the federal Constitution sets a floor. States can go above and beyond that, as they have in a number of areas.

But Judge Sutton points out a number of cases in which state courts did take on this role of interpreting their own constitutions with really good results, and then other cases in which maybe it was more of a reflexive, "This is what the federal Constitution says, so we're going to interpret our own state constitution similarly."

So it seems like, to me, there could be two things going on in the Iowa opinion. You could have, on the one hand this recognition of federal law that seeps into state law, or on the other hand, as the opinion points out, you could have this recognition that maybe what Iowa did in changing its constitution was really separate and different and does distinguish Iowa from common-law courts of yesteryear.

So I think that's maybe two ways of looking at the Iowa decision. And I don't think any of us knows exactly which one comes closest to what's going on there, but I think that there is -- If nothing else, I think this webinar is powerful for illustrating the differences between state and federal courts and, in many ways, how those differences are also liberty-affirming.

If you are presenting a constitutional claim, you really want to raise both your state constitution and the federal constitution, and it could be that you win on the state constitutional claim. So I think that's the backdrop that's really important here and buttresses Anya's point about what states have historically done under common law.

Anya Bidwell:  Yeah. And it's such a fascinating point about how state courts react to what the federal Supreme Court is saying, even in regards to its own domain. And that's why I think these three cases are particularly fascinating: the Burnett case from Iowa, and then you have Mack from Nevada, and you have Bauserman from Michigan. Because the three of those cases came out after Egbert v. Boule where the Supreme Court basically said, "We are very, very, very skeptical of implying causes of action under the United States Constitution."

And so those three courts -- And Egbert is clearly in the background as they're thinking about this and they're trying to figure out what their role is, and especially Justice Thomas's strong words about the separation of powers and where the federal court fits within that framework.

You know, you have Iowa, you have Michigan, and Nevada all grappling with this idea about, what is our role within our separation of powers, and does the fact that we are common-law courts change that calculus?

It is fascinating. There is essentially a split that you can't really take off to the United States Supreme Court, but there is a post-Egbert split on implied rights of action. Probably that's an unfavorable term in that sense, recognizing remedies under state constitutions, as opposed to the federal constitution. And we'll see many more states will have an opportunity to answer that question.

Sam Fendler:  Well, wonderful. Thank you both. You've been great. You're making my job very easy. But we will open the floor now to audience questions. So again, if you do have a question, please enter it into the A&A function at the bottom of your Zoom window. We should have plenty of time to get through many of them.

I want to start with a question. After hearing both of you speak about this, I want to ask about the logistics of creating remedies, the nuts and bolts here. And I want to focus first on the state level because I think that's less controversial on federalism and separation of powers grounds, but at the state level, I'm curious what each of you think is the best branch, or which branch of government is best suited to create these remedies.  Is it the legislature or is it the judicial branch?

Because one thing that sticks out to me is, even though both of you noted that state constitutions are more voluminous, perhaps there's more to draw on there. I wonder if the legislature is simply limited by not being able to see or foresee every possible incident that may happen and, therefore, create something, codify something to give citizens a right of action. Anya, we can start with you if you're okay with tackling that one.

Anya Bidwell:  Sure. Sure. So I think that calling it creating remedies puts me at a disadvantage, right? Because then it really assumes that we are doing almost like a policymaking exercise, right? And courts are not supposed to engage in policy. So I would say -- Instead of creating remedies, I'd rather say recognizing remedies, right?

And this fundamental idea that we all know from Marbury vs. Madison that, where there is a right, there must be a remedy, like what Hamilton said in the Federalist 15, that if there is no penalty, then essentially, the laws are nothing other than advice or recommendation.

So if we are talking about remedies as essentially the other side of the right, something that's necessarily pegged to the right, then we're not creating them; we are recognizing them. And there really are two big buckets of remedies. One remedy is damages, and another remedy is injunctions, prospective relief.

And what's interesting is that, when it comes to federal courts especially, federal courts have no problem recognizing injunctive remedies against government officials, even though injunctive relief is much more disruptive, right?

There is a lawsuit right now in Montana. They're suing Montana government for essentially allowing oil companies to drill and basically saying, "These are violating our rights to a clean environment," right?

And they are asking for an injunction, right? They're not asking for damages. And I think, if the court actually said to the plaintiffs here, it's going to be an injunction, that would be much more involved, then then what damages would be, which is, pay for the damage that you caused me.

So damages are a traditional relief. They're very much, if you look at the founding, of a default relief. And what is also interesting is that, in many cases, they are the only relief available because, for example, with the excessive force case.

If Bureau of Land Management law enforcement officer beat you up, you can't sue him in the future to not do that to you again. You wouldn't have standing to do that, but you can actually sue for damages for retrospective relief for what he did to you in the past. So, really, you don't have -- It's not complicated when it comes to recognizing rights for violations of constitutional rights that we're talking about, the Bill of Rights rights, right?

Damages are very much the least disruptive remedy and the most traditional remedy, and the courts are not engaging in some sort of policymaking when they are recognizing that. And Michigan Supreme Court is very good at laying out the thought process behind it.

Now, you're right, though, to zoom in on what the United States Supreme Court is concerned. And the court spends a lot of time in its opinions, like Egbert, and Hernandez and Ziglar, where it's basically saying, "The federal government is complicated. There are a lot of things that are going on, and if we are coming in, especially if it's like a national security context, and we're coming in and we're getting involved where there's already some sort of an alternative framework, we really don't want to be disrupting that very complicated administrative procedure that they all fashioned."

So there, again, it's an easier argument for why remedies shouldn't be created, I suppose, but when you're just talking about common-law tort, or, frankly, constitutional tort where it involves excessive force, or like that case -- Actually, that was from a real case where the woman was praying and the law enforcement officer went in and stopped her from doing that, right?

When you're talking about those kinds of straight-up Bill of Rights violations, then remedies against individuals -- Remedies are not complicated; remedies are just default damages for your rights being violated.

Sam Fendler:  Erin, what do you think?

Erin Hawley:  So I agree with a lot of that from a policy perspective. I think the slight pushback may be that there's not much to constrain common-law courts from going outside those traditional remedies. So if we are in a true common-law system, where the common-law judge is able to fashion remedies to remediate a right violation, then that does open up, in some ways, I think, a plethora of different remedial options.

So I think it's certainly true that judges have more than damages at their disposal. I think Anya's correct that the default would probably be the damages, at least for past harm, but there would, I think, be those situations in which, by virtue of being a common-law judge, the judge is weighing these different policy considerations.

You know, you can think about vaccine cases and the federal government has a framework for how those cases proceed. Now, you could get a state case, and the judge would be considering those same policy considerations and might come up with a very different result.

You know, I think that Justice Thomas makes some compelling arguments that a legislative body might be better able to balance those competing policy concerns, but I do agree that, ultimately, you don't have the same separation of powers concerns at the state level, at least in most states. So that does seem to be more of a judicial prerogative.

Sam Fendler:  I want to ask next about -- So let's raise it to the federal level. You know, of course, the clash here is the federalism and separation of powers on one hand and probably a robust guarantee of constitutional rights on the other.

So, for those in the audience who are conservative or a libertarian-minded person, you would imagine that this person believes firmly in both of those, believes in limited government, believes in strict separation of powers, and believes in a robust guarantee of constitutional rights.

And so, one day, a federal agent walks into your home and steals your laptop without a warrant or something like this. And you're rightly outraged, you go to sue, and it doesn't work out the way you wanted it to in federal court because there's perhaps no prescribed right of action there.

Now, I may have the facts on that wrong, but assuming a situation somewhat like this, how would a conservative or libertarian-minded person walk through the clash between how to maintain separation of powers and a robust guarantee of constitutional rights?

Anya Bidwell:  So, basically, the separation of powers -- That whole idea of policy is really a tough one, right? And that's where qualified immunity is problematic, for example. It's very much the prerogative of the legislature to do policy, and it's very much the prerogative of the courts to do law.

So just a story in the Apollon [sp] has this famous quote where he orders damages against this federal official. He says, "The legislature might very well choose to indemnify the guy, and they're free to do that, but what I'm going to do is what I'm supposed to do as a judge: I'm going to look at whether the law was violated and order a remedy if it was violated."

So, in this context of separation of powers, as well as preserving individual liberties, courts should be the ones determining whether a law was violated and ordering that remedy if it wasn't. The Supreme Court is actually itself doing policy, for example, in the qualified immunity jurisprudence when it's saying qualified immunity is balancing two evils, right? 

On the one hand, we don't want the evil of the law enforcement official to be deterred from fully exercising his duty because he's afraid of litigation. On the other hand, we want to ensure -- We have to balance the evil of the individual rights being violated. But if you are talking about what's consistent with the separation of powers, the court doesn't need to be doing this balancing of policy concerns. It should just be looking at whether the right was violated and ordering a remedy. That's consistent with both this belief in individual rights and the belief in separation of powers. Erin, you're muted.

Erin Hawley:  Oh. Can you hear me now?

Anya Bidwell:  Yep.

Sam Fendler:  We got you.

Erin Hawley:  Great. Great. So I think I quibble a little bit with that last part. It does seem like, for obvious reasons, the remedy matters, and because the remedy matters, I don't think it's entirely correct to say that what courts do are simply determining whether a right violation has occurred and then fashioning a remedy. I think that second part is doing a lot of action, and I think that that is not the typical role that you see from the federal courts.

When you're thinking about legislation, you would expect both that Congress says, "It is a violation of the Affordable Care Act or whatnot for an employer to do X." You would also expect Congress to say, and for that violation, maybe it's a $5000 penalty. Maybe if it occurs again, the penalty doubles, those sorts of things.

So I think it's not as easy as saying courts look to see whether rights were violated and then give a remedy. That may be true in the common-law setting, but I think with our separation of powers principles, we do expect that second question, what is the appropriate remedy, to also be one that is subject to democratic debate and to the legislative process.

Anya Bidwell:  I agree with it to the extent that we are carving out the Bill of Rights provision that's out of it. So whether we're talking about the First Amendment, Second Amendment, Fourth Amendment, then I think it's a much simpler remedial process than what you're talking about, which I 100 percent agree that it's much more complicated.

Sam Fendler:  Is there any way to make these rights express as opposed to implied?

Anya Bidwell:  They are express.

Erin Hawley:  The remedies aren't, though.

Sam Fendler:  Anya, tell us more.

Anya Bidwell:  No. So there is actually an interesting term called self-execution, whether the provision is self-executing or not, and what it means, right? And if you look through these state court decisions, for example, Mack decision from Nevada engages in a very elaborate discussion of, what it is for provision to be self-executing, and to actually have a remedy in it.

So it says that -- When the Constitution says the government shall not unreasonably seize or search you, there is this prohibition baked in it, or the right shall not be infringed, right? There is this prohibition built into it that already means a remedy inside it.

However, if the language is more advisory or talking about much broader concepts, then the Mack court in Nevada says, "We would be much more skeptical." The easiest example of a self-executing provision is the Takings Clause where, there, they're specifically talking about the compensation.

The question is whether you need that kind of explicit language in other constitutional provisions, and consensus among state courts is that you don't, that self-executing language is much broader than a specific legislature, that it is the court that shall be able to determine this. It's just as rights shall not be infringed means that you should be able to sue and get a remedy for your rights.

So that's why I say that there already is a remedy in provisions of the Bill of Rights that guarantee the right to bear arms, the right to be free from unreasonable searches and seizures. The right of action are baked in there, and if you want to unbake them, then the provision needs to specifically say that, you know, not the other way around.

Erin Hawley:  But again, the Fourth Amendment does bake it in, and the other amendments do not.

Sam Fendler:  Okay. Well, let's see. I think we have time for a couple more questions. Anya, one of the things that you've been talking about quite a bit is the idea that, where there is a right, there must be a remedy. So I think this is probably an outgrowth of the last question, are there provisions, perhaps constitutional provisions, that you think are clearer than others?

You mentioned the Second Amendment shall not be infringed. How do we get the remedy out of -- How do we pull the remedy out of constitutional rights, Bill of Rights guarantees where there's some sort of debate here?

Anya Bidwell:  Yeah. It goes back to this idea of law versus an advisory statement, right? So if it is law, then there needs to be some sort of enforcement attached to it because, if there isn't an enforcement attached to it, then it's nothing other than, in Judge Ho's words, "a parchment promise," right?

But there are interesting discussions about it. For example, Judge McConnell, now Professor McConnell, he talks about -- Like when we talk about First Amendment, and it says Congress shall pass no law, what does that mean? Is it about Congress passing a law, or are we talking about individual officials violating individual rights, and then you have a remedy?

There are definitely debates to be had on this more concentrated level, but I think we can never forget the big idea of parchment promise, advisory statement versus constitutional guarantees, constitutional laws, because those really need to have teeth attached to them. Otherwise, what's the point of even having them there?

Sam Fendler:  Right. Erin? 

Erin Hawley:  Yeah. So I think I cut out for a little bit there, but it seems to me, when you go back to the question presented in Bivens, does the federal court have the ability to create a private right of action? And we're not just talking, I think, about a remedy; we're talking about whether someone, a private individual, can come into court and sue a federal official.

So that, as a whole, is a sort of proposition. Of course, we have sovereign immunity, and the government waives that. But we're not just talking about a remedy; we're talking about an express private right of action to come into federal court to raise a constitutional issue, and then for the judiciary to craft a remedy.

So it seems like, when we're talking about the separation of powers province -- And the Constitution is certainly unique. I think the same arguments apply, but I agree with Anya that it's unique. When we're talking about legislation, I think it's crystal clear. If you have a statute that says this is a right, then we expect Congress to also say, "And this is the remedy." We don't expect federal courts to be able to craft their own remedy.

For my part, I think the same thing really applies in the constitutional context as well because I would prefer that, under our separation of powers principles, we've got the legislature that's coming in and crafting those remedies—Section 1983, the Westfall Act, other things—rather than having the federal courts come in and say, "Not only can you sue, not only do you have to recover --"

Anya Bidwell:  Almost. But I --

Sam Fendler:  Yeah. So we have about a minute left, Anya. What are your parting thoughts?

Anya Bidwell:  So, basically, I want to end on like a note of agreement, really, because what Erin was talking about, federal courts and how federal courts' power is very limited, the problem with federal officials' accountability today is that Congress took away the power to be able to go to state courts, to the common-law courts, and sue there for violations of individual rights.

So if we are also concerned with the limited nature of federal courts, then let's give people an ability, again, to go to common-law courts, to state courts, and sue federal officials there. We are in agreement that, when state and local officials violate people's rights and you go to state courts, then state courts pretty much can fashion remedies, right? We're in agreement on that. Erin and I both think that's right.

So now that one last piece is federal officials. It can't be that federal courts have a limited power and you can't sue federal officials in federal courts, but you also can't go back to state courts. So it is important then, in that case, to make sure that people again can go back to state courts and sue federal officials in state courts for violation of constitutional rights. That's the parting thought. Common-law courts are on much stronger footing than federal courts, so we should be able to sue federal officials in common-law courts.

Sam Fendler:  A strong way to close it out, and I greatly appreciate your time today, Anya, and, of course, we appreciate Erin's time as well. And on behalf of The Federalist Society, I also want to thank you for the benefit of your time and expertise today. A wonderful conversation about state and federal courts.

Thank you also to our audience for joining us today. We greatly appreciate your participation. Please check out our website, fedsoc.org, or you can follow us on all major social media platforms @fedsoc to stay up to date with announcements and upcoming webinars. Thank you all once more for tuning in, and we are adjourned.

 

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