Late last term, the United States Supreme Court all but eliminated the ability of individuals to imply a damages remedy[1] directly under the United States Constitution. In Egbert v. Boule, it held that unless Congress specifically authorizes a cause of action under the Constitution, plaintiffs are generally out of luck.[2] In the Court’s view, to hold otherwise would be an act of judicial policymaking.[3] After all, federal courts have a limited mandate and cannot assume common law powers of state courts.[4]

But what about state courts? Given they have these common law powers, can they recognize remedies directly under their state constitutions?

The Michigan Supreme Court’s answer is yes. In a divided opinion, the court held that the ability to recognize a damages remedy is “[i]nherent in the judiciary’s power . . . unless the Constitution has specifically delegated enforcement of the constitutional right at issue to the Legislature or the Legislature has enacted an adequate remedy for the constitutional violation.”[5] This means that Michigan is now one of 16 states[6] that allow suits directly under their constitutions. For those reluctant to pursue their claims against state and local officials in federal courts, these states provide an alternative remedy for vindicating their individual rights.

Facts and Procedural Background

Two plaintiffs filed a class action lawsuit against Michigan’s Unemployment Insurance Agency directly under Michigan’s constitution.[7] The plaintiffs, who were recipients of state unemployment benefits, claimed that the agency “systemically, and by way of concerted and coordinated actions, unlawfully intercepted their state and federal tax refunds, garnished their wages, and forced them to repay unemployment benefits” without complying with minimum due process requirements as guaranteed by Article I, Section 17 of the Michigan Constitution.[8]

The State of Michigan moved to dismiss for failure to state a claim.[9] The case eventually made its way up to the Michigan Supreme Court on the question of whether the plaintiffs “have alleged cognizable constitutional tort claims allowing them to recover a judicially inferred damages remedy.”[10]

Majority Opinion

In the principal opinion, written by Justice Megan Cavanagh, the court held that violations of Michigan’s Constitution are compensable through actions seeking monetary damages.[11] That’s because “[t]he recognition and redress of constitutional violations are quintessentially judicial functions, required of us by the Separation of Powers Clause.”[12] To come to this conclusion, the majority cited Bivens, the very case hollowed out by the U.S. Supreme Court in Egbert. In the majority’s view, Bivens rightly “saw nothing extraordinary about the availability of monetary damages: ‘Historically, damages have been regarded as the ordinary remedy for an invasion of personal interest in liberty.’”[13] Furthermore, as Bivens pointed out, “the very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.”[14] But the majority emphasized that “[o]ur holding today does not rely on Bivens at all, but on the authorities that Bivens discussed.”[15] After all, “[t]he plaintiffs’ cause of action is created by our state Constitution . . . [and] our holding today is grounded in the constitutional rights relied on by plaintiffs as well as our authority and duty to say what the law is.”[16]

There are now only two limitations on this implied right of action under the Michigan Constitution: (1) an explicit enactment by the Michigan legislature of an adequate remedy for the constitutional violation; or (2) an explicit delegation, by the Michigan Constitution, of the enforcement of the constitutional right at issue to the legislature.

The majority pointed out that this holding is consistent with the practices of many other states, including North Carolina, Iowa, New Jersey, California, Illinois, Louisiana, and Maryland.[17]


In her concurrence, Justice Elizabeth Welch agreed that “a party has the ability to directly sue the state for monetary damages on the basis of an alleged violation of our Constitution.”[18] As a deciding vote, however, she specifically limited this cause of action to the Michigan Constitution’s Declaration of Rights.[19] She also emphasized that “constitutional-tort claims are, and will continue to be, rare given that adequate alternative remedies to an implied monetary-damages remedy exist in most cases.”[20] The majority defined alternative remedies relatively narrowly, though, stating that the remedy must be such as to specifically vindicate the substantive rights at issue.[21] Justice Welch clarified that “an adequate remedy need not necessarily make a plaintiff ‘whole’ in every circumstance.”[22]


While the majority reasoned that the separation of powers required the court to recognize remedies directly under the constitution, Justice David Viviano’s dissent, which was joined by Justice Brian Zahra, argued that “it is a violation of the separation of powers for courts to create causes of action for money damages for constitutional violations.”[23] In Justice Viviano’s view, by implying remedies, “the Court wields legislative power, unjustified by our common-law authority or the text and history of the Constitution itself.”[24]

Acknowledging that Bivens dealt with implying a remedy in federal courts and the federal constitution, Justice Viviano nonetheless pointed out that doing the same under the state constitution poses the same separation of powers concerns highlighted in Egbert.[25] In his view, it is the legislative power that encompasses the power to create causes of action.[26] When the legislature is silent, no damages remedy should be recognized.[27]

Justice Viviano was unpersuaded by the argument that state courts can imply causes of action under their common law powers, saying “[t]his view fundamentally misunderstands our common-law powers. . .[W]e certainly do not claim that power when it comes to statutes, and there is no history supporting the creation of such torts for violations of the Constitution.”[28]

In addition to laying out a historical and textualist case for why damages should not be implied under the Michigan Constitution, Justice Viviano also explained three reasons why, in his view, plaintiffs would not have been allowed a remedy under Smith v. Department of Public Health.[29] Smith recognized monetary damages claims against the state for violations of rights protected by the Michigan Constitution so long as the state violated the right by through its own customs or policies. First, the constitutional violation in this case was not caused by a custom or policy; second, nothing in the text or history of the Due Process Clause supports a damages remedy; third, there was an adequate remedy available, even if it did not specifically address the right at issue; and fourth, there are no other factors relevant to this case that would justify a damages remedy.[30]

Justice Elizabeth Clement agreed with this reasoning and dissented based on her belief that “under that test,” no damages remedy should be inferred “in the instant case.”[31]


In this closely divided decision, the Michigan Supreme Court ruled that it has an obligation, consistent with the separation of powers, to imply a damages remedy for violations of the Michigan Constitution. Judge Welch’s concurrence cabined this holding specifically to violations of the Michigan’s Declaration of Rights and clarified that the availability of an alternative remedy could foreclose this route for plaintiffs, even if this remedy would not necessarily make a plaintiff whole.

[1] Also known as a Bivens remedy, after a 1972 Supreme Court decision that allowed implied rights of action under the U.S. Constitution. Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971).

[2] 142 S. Ct. 1793, 1803 (2022).

[3] Id.

[4] Id.

[5] Bauserman v. Unemployment Insurance Agency, 2022 WL 2965921, at *3 (Mich. 2022).

[6] Megan Cairns, 50 Shades of Government Immunity, Institute for Justice (Jan. 25, 2022), available at

[7] Bauserman, 2022 WL 2965921, at *3.

[8] Id. at *4–5.

[9] Id. at *5.

[10] Id.

[11] Id. at *6–8.

[12] Id. at *6.

[13] Id. at *10 (citing Bivens).

[14] Id. (citing Bivens).

[15] Id.

[16] Id. (citing Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)) (emphasis added).

[17] Id. at *8–10.

[18] Id. at *16.

[19] Id.

[20] Id.

[21] Id. at *15.

[22] Id. at *19.

[23] Id. at *21.

[24] Id.

[25] Id. at *24.

[26] Id.

[27] Id.

[28] Id.

[29] 428 Mich. 540 (1987).

[30] Id. at *41–42.

[31] Id. at *42.


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