QUALIFIED IMMUNITY AND CONSTITUTIONAL STRUCTURE … · 2018/01/24 · * Olin-Smith Fellow and...

Please do not cite or circulate without author’s permission.

QUALIFIED IMMUNITY AND CONSTITUTIONAL STRUCTURE

Katherine Mims Crocker*

ABSTRACT

Should we reject qualified immunity? The dominant answer among

academics and much of the rest of the legal community is yes—and for good

reasons. Many denounce the governing standard from Harlow v. Fitzgerald

as allowing officials to avoid justice for unconstitutional actions. Others

attack it as being complex and confusing, disadvantaging vulnerable

communities, or resting on empirical fictions. And a recent Supreme Court

dissent endorsed an article arguing that qualified immunity “lacks legal

justification.”

Previous critiques, however, overlook the importance of Harlow’s

background in the implied cause of action against federal officials under

Bivens v. Six Unknown Named Agents (rather than in the express cause of

action against state officials under 42 U.S.C. § 1983). Two seemingly

powerful structural constitutional rationales arise from this background.

The Supreme Court’s articulation of the Harlow standard against Bivens’s

rise and retrenchment reveals a separation-of-powers rationale: that

qualified immunity responds to Bivens’s expansion of judicial power at the

expense of exclusive legislative control over creating causes of action. And

the extension of the Harlow standard into the separate Section 1983 sphere

reveals a federalism rationale: that state officials should not face more

demanding constitutional criteria than those that their federal counterparts

face.

Only once the legal community appreciates and addresses these rationales,

aims at which this Article aspires, can one conclude that the legal community

should indeed reject Harlow-style qualified immunity in both the Bivens and

Section 1983 contexts, albeit for different sets of reasons.

* Olin-Smith Fellow and Postdoctoral Associate, Duke University School of Law.

Thank you to Will Baude, Stuart Benjamin, Guy Charles, Michael Collins, Larry Crocker,

John Duffy, Ben Grunwald, John Jeffries, Cagle Juhan, Lyle Kossis, Maggie Lemos, Marin

Levy, Darrell Miller, Bill Mims, Jim Pfander, Steve Sachs, Fred Smith, James Stern, Aaron

Tang, Kevin Walsh, and Ernie Young for enormously helpful comments and guidance. And

thank you to my husband, Mark Crocker, for dissuading me from using puns involving the

biomedical concept of immunity.

TABLE OF CONTENTS

INTRODUCTION................................................................................................ 1

I. HASHING OVER HARLOW ........................................................................ 5

A. Doctrinal Overview ...................................................................... 5

B. Academic Evaluations .................................................................. 8

II. BRINGING IN BIVENS ............................................................................. 14

A. Previous Understandings ............................................................ 15

B. The Supreme Court’s Separation-of-Powers Rationale ............. 17

1. Bivens’s Rise and Retrenchment ....................................... 18

2. Justice Powell’s Approach ................................................ 22

III. EXTENDING HARLOW TO SECTION 1983 ............................................... 29

A. Previous Understandings ............................................................ 29

B. The Supreme Court’s Federalism Rationale .............................. 32

1. The Logic Behind Economou............................................ 32

2. Ensuing Entreaties Toward Equivalence .......................... 35

IV. EXPLORING THE IMPLICATIONS ............................................................ 39

A. The Supreme Court’s Separation-of-Powers Rationale ............. 39

1. If Bivens Ain’t Broke? ...................................................... 39

2. Silver Bullet or Square Peg? ............................................. 41

B. The Supreme Court’s Federalism Rationale .............................. 48

1. A False Equivalence? ........................................................ 49

2. The Fourteenth Amendment? ............................................ 53

CONCLUSION ................................................................................................. 60

Qualified Immunity and Constitutional Structure 1

INTRODUCTION

Much has been said about qualified immunity, but much remains

unsaid. Previous critiques fail to recognize and scrutinize important

rationales rooted in constitutional structure (meaning the overarching

principles that order the American governmental system) for the way that the

doctrine works today. Why, you may ask, does qualified immunity matter?

And why should its roots in constitutional structure concern us?

As for why qualified immunity matters, consider the following.

On May 29, 2011, officers from the Hayward Police

Department used a police dog to track an armed suspect who

had robbed a restaurant. The dog guided the officers to an

eight-foot wall. Without any warning, the officers lifted the

dog over the wall. On the other side of the wall was the

backyard of a mobile home belonging to Jesse Porter, an 89-

year-old who had no connection to the robbery. The dog bit

Porter on the leg, leaving a wound so severe that Porter’s leg

had to be amputated. Mr. Porter was then moved into a

residential care facility, where he died two months later.1

A federal district court granted the officers qualified immunity, sparing them

from civil damages for violating Mr. Porter’s Fourth Amendment right

against unreasonable seizures.2 Under the Supreme Court’s 1982 decision in

Harlow v. Fitzgerald,3 this doctrine provides that “government officials

performing discretionary functions generally are shielded from liability for

civil damages insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would have

known.”4

Qualified immunity does not protect only police-officer defendants.

In one Supreme Court case, for instance, several middle-school employees

benefited from the doctrine after strip-searching a 13-year-old girl suspected

of distributing prescription-strength ibuprofen and a non-prescription

painkiller to classmates.5 Given that even “settled constitutional rules” are

“daily broken,” the possible means of infringing many of people’s most basic

1 Joanna C. Schwartz, How Qualified Immunity Fails, 127 YALE L. J. 1, 67–68 (2017). 2 McKay v. City of Hayward, 949 F. Supp. 2d 971, 985 (N.D. Cal. 2013). This ruling

did not end the case because the suit also involved claims to which qualified immunity did

not apply. But the parties settled before trial. See Schwartz, supra note 1, at 68–69. 3 457 U.S. 800 (1982). 4 Id. at 818. 5 Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 377–79 (2009).

2 Qualified Immunity and Constitutional Structure

rights are endless.6 We “simply have no reliable way to know how often

zoning officials, welfare bureaucrats, or prison guards act on unconstitutional

grounds or discard mandatory procedures.”7

Nevertheless, constitutional violations have become “routinized in

some urban neighborhoods.”8 And some believe that “[t]he acquittal”

nowadays “of another Baltimore police officer charged in the death of

Freddie Gray, like the acquittal 25 years ago of the Los Angeles officers who

beat Rodney King, reveals the inadequacy of the criminal-law remedy” in an

acute way.9 Scholars and other members of the legal community have

therefore urged a reevaluation of doctrines like qualified immunity that allow

those who misuse governmental power to evade civil accountability.10

Indeed, qualified immunity is widely viewed as “the most important doctrine

in the law of constitutional torts.”11

As for why qualified immunity’s roots in constitutional structure

should concern us, consider the following. Although the conspicuous and

near-constant trend from the Supreme Court has favored increasing the

doctrine’s strength and scope,12 a significant and seemingly growing segment

of the legal community stands apart.13 Commentators attack qualified

immunity on many grounds. Many argue that the doctrine is unjust, unclear,

6 Aziz Z. Huq, Judicial Independence and the Rationing of Constitutional Remedies, 65

DUKE L.J. 1, 3 (2015). 7 Id. at 3–4. 8 Id. at 3. 9 Jon O. Newman, Opinion, Here’s a Better Way to Punish the Police: Sue Them for

Money, WASH. POST (June 23, 2016), https://www.washingtonpost.com/opinions/heres-a-

better-way-to-punish-the-police-sue-them-for-money/2016/06/23/c0608ad4-3959-11e6-

9ccd-d6005beac8b3_story.html?utm_term=.4e3c4f6de788. 10 See id.; see also, e.g., Samuel R. Bagenstos, Who Is Responsible for the Stealth Assault

on Civil Rights?, 114 MICH. L. REV. 893, 911 (2016) (reviewing SARAH STASZAK, NO DAY

IN COURT: ACCESS TO JUSTICE AND THE POLITICS OF JUDICIAL RETRENCHMENT (2015)); LDF

Statement on the Non-Indictment of Cleveland Police Officers in the Shooting Death of Tamir

Rice, NAACP LEGAL DEFENSE FUND (Dec. 28, 2015), http://www.naacpldf.org/press-

release/ldf-statement-non-indictment-cleveland-police-officers-shooting-death-tamir-rice. 11 John C. Jeffries, Jr., What’s Wrong with Qualified Immunity?, 62 FLA. L. REV. 851,

851–52 (2010). 12 See Kit Kinports, The Supreme Court’s Quiet Expansion of Qualified Immunity, 100

MINN. L. REV. HEADNOTES 62, 64 (2016) (“[T]he Supreme Court’s qualified immunity

opinions . . . have made a sub silentio assault on constitutional tort suits. In a number of

recent rulings, the Court has engaged in a pattern of covertly broadening the defense . . . .”);

Schwartz, supra note 1, at 6 (“The United States Supreme Court appears to be on a mission

to curb civil rights lawsuits against law enforcement officers, and appears to believe qualified

immunity is the means of achieving its goal.”). 13 John C. Jeffries, Jr., The Right-Remedy Gap in Constitutional Law, 109 YALE L.J. 87,

89 (1999) (“In today’s constitutional landscape, the largest, most lamented, and least

defended gap between right and remedy involves money damages.”).


or rests on assumptions that defy reality. And one recent article contends that

the doctrine lacks the historical support necessary to qualify as a background

legal principle, represents a poor analogy to the rule of lenity, and fails to

rectify the effects of a purported error in precedent that some say provides

cover. In 2017, moreover, Justice Thomas surprised observers14 by

expressing an interest in slaughtering what seems to constitute a sacred cow

to some.15 Noting in Ziglar v. Abbasi16 that the parties had not asked the

Court to reconsider qualified immunity there, Thomas urged his colleagues

to do so “[i]n an appropriate case.”17

Many prior attacks on qualified immunity are compelling. But those

who continue to support the doctrine have evidently found them

unconvincing or incomplete. Accordingly, both sides of the debate should

seek to ascertain and analyze alternative rationales for the current contours of

qualified immunity. This Article does so by identifying and evaluating

structural constitutional rationales suggested by Supreme Court opinions.

Along the way, the Article advances the important insight that, as a

descriptive matter, qualified immunity developed along separate paths for

claims against federal officials under Bivens v. Six Unknown Named Agents18

and claims against state officials under 42 U.S.C. § 1983—and that, as a

normative matter, we should evaluate the doctrine differently in these

different contexts. Indeed, qualified immunity is not necessarily susceptible

to the same criticisms in the federal common-law setting of Bivens actions as

in the statutory setting of Section 1983 suits. The Article employs different

lines of logic, therefore, to conclude that Harlow-style qualified immunity

should not survive in either context.

As for the first rationale from constitutional structure, the analysis

begins by recognizing that Harlow arose under Bivens, which established an

implied cause of action against federal officials for violating federal

constitutional rights. Examining the historical context and previous opinions

by Justice Powell, Harlow’s author, reveals that the Supreme Court seems to

14 See, e.g., Perry Grossman, Clarence Thomas to the Rescue?, SLATE,

http://www.slate.com/articles/news_and_politics/jurisprudence/2017/06/in_ziglar_v_abbasi

_clarence_thomas_signals_his_support_for_civil_rights.html. 15 See Lisa Soronen, What Does a Trump Presidency Mean for the Supreme Court?,

NAT’L LEAGUE OF CITIES (Nov. 10, 2016), http://www.nlc.org/article/what-does-a-trump-

presidency-mean-for-the-supreme-court (“Conservative Justices tend to be good for state

and local governments on issues like . . . qualified immunity . . . .”). But the Supreme

Court’s efforts to entrench and expand the doctrine have proceeded without as much

ideological division as one might have expected. See Bagenstos, supra note 10, at 909; Huq,

supra note 6, at 49. 16 137 S. Ct. 1843 (2017). 17 Id. at 1872 (Thomas, J., concurring in part and concurring in the judgment). 18 403 U.S. 388 (1971).


have been searching for a way to restrain Bivens liability because of a

separation-of-powers concern about expanding judicial power at the expense

of eliminating exclusive legislative control over creating causes of action.

Harlow offered an indirect opportunity to do so by strengthening the standard

for qualified immunity, thus providing the doctrine what appears to represent

an important source of support in the Bivens context.

As for the second rationale from constitutional structure, the Supreme

Court next addressed whether the Harlow standard should apply beyond

Bivens actions to suits arising under 42 U.S.C. § 1983, which provides an

express cause of action against state officials for violating federal

constitutional or statutory rights. The Court answered in the affirmative,

explaining that applying different standards would have been untenable.

Examining the relevant jurisprudence and underlying logic reveals that this

decision likely drew on a federalism concern about subjecting state officials

to a more rigorous constitutional code of conduct than the framework to

which their federal counterparts must adhere, thus pointing toward what

appears to represent an important source of support in the Section 1983

context.

The persuasive power of these rationales withers under inspection,

however. The separation-of-powers rationale sees qualified immunity as a

judge-made solution to a judge-made problem. But those who support the

Bivens regime would reject the premise that a problem exists in the first place.

And those who oppose the Bivens regime should be troubled by qualified

immunity for the same reason that they are troubled by courts recognizing

implied constitutional causes of action. For both inquiries allow the judiciary

to make arguably legislative-like determinations about which constitutional-

tort suits ought to proceed.

More difficult to see is the deeper logic behind the federalism

rationale—other than an intuitive belief that the federal government should

not subject state officials to a stricter constitutional-enforcement scheme than

the one under which federal officials must operate. But three theoretical

bases seem possible: one arising from an equal-sovereignty concept, one

from the incorporation doctrine associated with Section 1 of the Fourteenth

Amendment, and one from the congruence-and-proportionality principle

associated with Section 5 of the Fourteenth Amendment. None of these

theories withstand scrutiny as requiring equivalent qualified-immunity

standards for state and federal officials. Section 1983 does not infringe state

sovereignty in any way that would justify applying an equal-sovereignty

principle. And, among other shortcomings, any principle stemming from

Section 1 or 5 of the Fourteenth Amendment should govern all Section 1983

suits involving rights incorporated against the states. But qualified immunity

applies only to damages claims against executive officials for discretionary


actions. In short, although federal-state parallelism in constitutional

enforcement warrants independent attention, no particular legal principle

appears to offer sufficient support for applying the Harlow standard to

Section 1983 suits on federalism grounds.

At bottom, although the Supreme Court’s structural constitutional

rationales provide some of the most powerful justifications for the Harlow

standard in their respective contexts, they are not powerful enough to

overcome their own defects, not to mention the separate defects that previous

critiques have identified. The primary upshot is that the legal community

should reject Harlow-style qualified immunity for both Bivens actions and

Section 1983 suits, albeit for different sets of reasons.

Part I provides a doctrinal overview and reviews the road to Harlow

before outlining previous academic evaluations of qualified immunity. Part

II explores the importance of the Bivens backdrop to the Harlow standard’s

emergence and excavates the above-outlined separation-of-powers

justification from Supreme Court opinions. Part III recounts the Harlow

standard’s expansion from the Bivens environment into the Section 1983

sphere and uncovers the above-outlined federalism justification. Part IV

examines these structural constitutional rationales from a number of

perspectives, ultimately contending that although they exhibit certain

strengths, they cannot surmount their intrinsic weaknesses or the doctrine’s

many other flaws—and that the legal community should therefore reject

Harlow-style qualified immunity in whole.

I. HASHING OVER HARLOW

This Part provides a primer on the Supreme Court’s immunity

jurisprudence in the constitutional-tort context and the decisions that paved

the way for Harlow to articulate the current standard for qualified immunity.

It proceeds to consider various academic evaluations of that standard.

A. Doctrinal Overview

The Harlow formulation for qualified immunity provides that

“government officials performing discretionary functions generally are

shielded from liability for civil damages insofar as their conduct does not

violate clearly established statutory or constitutional rights of which a

reasonable person would have known.”19 Deemed “an immunity from suit

rather than a mere defense to liability,” the Supreme Court has made clear

that qualified immunity “is effectively lost if a case is erroneously permitted

19 457 U.S. 800, 818 (1982).


to go to trial.”20 The doctrine shields both state and federal personnel from

constitutional-tort suits in their personal capacities—thus providing a defense

to actions brought under either Section 1983 or Bivens.21 And where the more

selective doctrine of absolute immunity does not apply, qualified immunity

governs “across the board,” regardless of the particular constitutional right

that the plaintiff seeks to vindicate.22

The story behind the Harlow standard begins in important ways with

Pierson v. Ray,23 a 1967 Supreme Court decision stemming from the arrest

of several Freedom Riders for congregating at a Mississippi bus terminal.

Pierson said that Section 1983 “should be read against the background of tort

liability,” which, in the context of “police officers making an arrest,” includes

“the defense of good faith and probable cause.”24 Pierson thus adopted a tort-

specific concept of a historical common-law defense. But seven years later

in Scheuer v. Rhodes,25 which arose from the 1970 shooting of students at

Kent State University by members of the Ohio National Guard, the Court

expanded the good-faith defense beyond the arrest context to suits involving

state-level executive action at large. Then, in Butz v. Economou,26 a 1978

case involving far-flung claims against numerous defendants affiliated with

the U.S. Department of Agriculture, the Court further expanded the defense

to suits against federal officials under Bivens.

Harlow followed in 1982. The flagship section of Justice Powell’s

majority opinion begins by declaring that “[t]he resolution of immunity

questions inherently requires a balance between the evils inevitable in any

available alternative.”27 On the one hand, the Court said, “an action for

damages may offer the only realistic avenue for vindication of constitutional

20 Mitchell v. Forsyth, 472 U.S. 511, 512 (1985). 21 Section 1983 provides a cause of action against both state and local government

officials. For the sake of simplicity, however, I usually refer to the former only. 22 Anderson v. Creighton, 483 U.S. 635, 642–43 (1987). Absolute immunity generally

shields officials from suits for damages based on legislative, judicial, and some prosecutorial

functions. See Imbler v. Pachtman, 424 U.S. 409, 430 (1976) (prosecutorial functions);

Pierson v. Ray, 386 U.S. 547, 553–55 (1967) (judicial functions); Tenney v. Brandhove, 341

U.S. 367, 376 (1951) (legislative functions). It also protects the president from damages

liability for official acts. See Nixon v. Fitzgerald, 457 U.S. 731, 749 (1982). And sovereign

immunity generally safeguards state and federal entities, as well as individuals sued in their

official capacities, from suits for damages. See Kentucky v. Graham, 473 U.S. 159, 166–67

(1985). 23 386 U.S. 547 (1967). 24 Id. at 556–57 (internal quotation marks omitted). 25 416 U.S. 232 (1974). 26 438 U.S. 478 (1978). 27 457 U.S. 800, 813 (1982).


guarantees.”28 But on the other, “claims frequently run against the innocent

as well as the guilty—at a cost not only to the defendant officials, but to

society as a whole.”29

The Court then considered “persuasive arguments” by the defendant

government officials that the goal of terminating feeble lawsuits before trial

required “an adjustment of the ‘good faith’ standard” established by prior

decisions.30 It had become clear, the Court said, “that substantial costs attend

the litigation of the subjective good faith of government officials.”31 Such

costs were deemed to include both “the general costs of subjecting officials

to the risks of trial—distraction of officials from their governmental duties,

inhibition of discretionary action, and deterrence of able people from public

service”—and “special costs to ‘subjective’ inquiries of this kind,” like

“broad-ranging discovery and the deposing of numerous persons, including

an official’s professional colleagues.”32 These inquiries, the Court said, “can

be peculiarly disruptive of effective government,” such that “bare allegations

of malice should not suffice to subject government officials either to the costs

of trial or to the burdens of broad-reaching discovery.”33

Hence, Harlow’s holding: that “government officials performing

discretionary functions generally are shielded from liability for civil damages

insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.”34

This “objective” inquiry, the Court made clear, does not require subjective

good faith from executive officials.35

Since Harlow, the Supreme Court has addressed questions including

at what level of abstraction rights must be characterized,36 which sources of

28 Id. at 814. 29 Id. 30 Id. at 814–15. 31 Id. at 816. 32 Id. at 816–17. 33 Id. at 817–18. 34 Id. at 818. 35 Id. at 818, 819. 36 See, e.g., Anderson v. Creighton, 483 U.S. 635, 639–40 (1987) (“[I]f the test of

‘clearly established law’ were to be applied at [a high] level of generality, it would bear no

relationship to the ‘objective legal reasonableness’ that is the touchstone of Harlow.

Plaintiffs would be able to convert the rule of qualified immunity that our cases plainly

establish into a rule of virtually unqualified liability simply by alleging violation of extremely

abstract rights. . . . The contours of the right must be sufficiently clear that a reasonable

official would understand that what he is doing violates that right.”).


law count in determining whether a right has been clearly established,37 and

to what extent qualified immunity holds a privileged place in the law’s

procedural scaffolding.38 But the standard articulated in Harlow remains the

analytical touchstone.39

B. Academic Evaluations

On the whole, Harlow and its offspring have experienced a hostile

reception in the academy. Indeed, “qualified immunity doctrine has been

roundly criticized as incoherent, illogical, and overly protective of

government officials who act unconstitutionally and in bad faith.”40

Perhaps the most common refrain is that the doctrine contravenes

corrective justice as a moral ideal.41 This argument, typified by Erwin

Chemerinsky, asserts that qualified immunity is insufficiently solicitous of

basic freedoms, which allows those who violate constitutional rights to evade

judicial consequences and diminishes individual dignity, governmental

accountability, and societal faith in our systems of power.42

Other evaluations disparage the doctrine as difficult to decipher in

specific respects or in general.43 As one jurist has written: “Wading through

the doctrine of qualified immunity is one of the most morally and

37 See Kinports, supra note 12, at 69–72 (explaining how the Supreme Court’s evolving

statements on this question have made it more difficult for courts to conclude that rights were

clearly established). 38 See, e.g., Mitchell v. Forsyth, 472 U.S. 511, 524–30 (1985) (holding that “a district

court’s denial of a claim of qualified immunity, to the extent that it turns on an issue of law,

is an appealable ‘final decision’ within the meaning of 28 U.S.C. § 1291 notwithstanding the

absence of a final judgment”). 39 See, e.g., Ziglar v. Abbasi, 137 S. Ct. 1843, 1866 (2017) (“Whether qualified

immunity can be invoked turns on the ‘objective legal reasonableness’ of the official’s acts.”

(quoting Harlow, 457 U.S. at 819)). 40 Schwartz, supra note 1, at 11. 41 Cf. John C. Jeffries, Jr., Compensation for Constitutional Torts: Reflections on the

Significance of Fault, 88 MICH. L. REV. 82, 93–96 (1989) (“[T]he most persuasive

nondeterrence justification for awarding tort damages to victims of government

unconstitutionality lies in the idea of ‘corrective justice.’”). 42 See, e.g., Erwin Chemerinsky, Opinion, How the Supreme Court Protects Bad Cops,

N.Y. TIMES (Aug. 26, 2014), https://www.nytimes.com/2014/08/27/opinion/how-the-

supreme-court-protects-bad-cops.html. 43 See, e.g., Jeffries, supra note 11, at 852 (“[D]etermining whether an officer violated

‘clearly established’ law has proved to be a mare’s nest of complexity and confusion.”);

Chaim Saiman, Interpreting Immunity, 7 U. PA. J. CONST. L. 1155, 1155–56 (2005) (“Despite

the almost annual ritual of doctrinal clarification, the federal reporters are crammed with

dissents and en banc decisions taking issue over the proper scope and role of qualified

immunity.”).


conceptually challenging tasks federal appellate court judges routinely

face.”44

Taking a different tack, some scholars have approached qualified

immunity from a functionalist perspective. Exemplified by Daryl Levinson

in 1999, these theorists argue that simplistic criticisms of the right-remedy

gap wrought by qualified immunity and other broadly remedial doctrines

ignore the contingent realities of actual adjudication.45 “[R]ights and

remedies are inextricably intertwined,” they contend, in that “[r]ights are

dependent on remedies not just for their application to the real world, but for

their scope, shape, and very existence.”46

This scholarship largely aims to explicate rather than to evaluate

qualified immunity and related principles. But the work of Aziz Huq

represents a counterexample, at least to some extent. Huq argues that the

Supreme Court devised fault rules like the Harlow standard “as a result of the

judiciary’s institutional interests in prestige and docket management.”47

Because these rules incline courts away from addressing the kind of routine

and fact-intensive conduct that makes up most constitutional wrongs, Huq

contends that they disadvantage vulnerable groups that are especially

susceptible to such incursions.48 In a nutshell, he claims that “the Court has

rendered most difficult to remedy” those injuries that represent “the lowest

visible forms of unconstitutional violence” and affect “many of the least

politically powerful communities in the United States.”49

Scholars have also shone a harsh light on various rationales for

qualified immunity offered by the Supreme Court. For instance, the Court

has employed empirical hypotheses to support the Harlow standard since

Harlow itself. These hypotheses remained largely untested until recently, but

Joanna Schwartz has begun to fill the gap. As Schwartz explains, for

example, one “frequently repeated” justification is that qualified immunity

“protects government officials from the burdens of financial liability.”50 Her

research, however, tends to show that “[p]olice officers are virtually always

indemnified” by state and local governments and that “officers are also

44 Charles R. Wilson, “Location, Location, Location”: Recent Developments in the

Qualified Immunity Defense, 57 N.Y.U. ANN. SURV. AM. L. 445, 447 (2000). 45 See Daryl J. Levinson, Rights Essentialism and Remedial Equilibration, 99 COLUM.

L. REV. 857 (1999); see also, e.g., Richard H. Fallon, Jr., Asking the Right Questions About

Officer Immunity, 80 FORDHAM L. REV. 479 (2011). 46 Levinson, supra note 45, at 858. 47 Huq, supra note 6, at 9–10. 48 Id. at 70–74. 49 Id. at 74. 50 Schwartz, supra note 1, at 59.


almost always provided with defense counsel free of charge.”51 She claims

that this holds true even when indemnification is “prohibited by statute or

policy” and even when defendants are “disciplined or terminated by the

department or criminally prosecuted for their conduct.”52 She thus concludes

that “qualified immunity can no longer be justified as a means of protecting

officers from the financial burdens of personal liability.”53

Other scholarship looks to “the technical legal justification[s]”

offered by the Supreme Court.54 The question here, which attracted Justice

Thomas’s attention in Ziglar v. Abbasi, is whether standard interpretive

principles render the Harlow standard legitimate as a formal theoretical

matter. Thomas’s concern revolved around the contention that “some

evidence supports the conclusion that common-law immunity as it existed in

1871”—the year that Congress passed the statute codified as Section 1983—

“looked quite different from our current doctrine.”55 For that proposition,

Thomas cited an article by William Baude,56 the conclusion of which is that

qualified immunity “lacks legal justification.”57

Baude examines, and ultimately rejects, three justifications that the

Supreme Court has advanced for Harlow-style qualified immunity. First,

“[t]he most widely known theory of qualified immunity” argues that “the

immunity is a common-law backdrop that could be read into” Section 1983

51 Joanna C. Schwartz, Police Indemnification, 89 N.Y.U. L. REV. 885, 890, 916 (2014). 52 Id. at 890. 53 Id. at 939. More recently, as Schwartz recounts, “the Supreme Court has described

‘the “driving force” behind’” qualified-immunity doctrine as “resolving ‘“insubstantial

claims” against government officials . . . prior to discovery.’” Schwartz, supra note 1, at 60

(alteration in original) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). But,

according to her analysis of Section 1983 suits against law-enforcement officers in certain

jurisdictions, just 0.6% of cases were dismissed because of qualified immunity before

discovery and just 3.2%, before trial. Id. She therefore concludes that qualified immunity

“appears to close the courthouse door far less frequently than critics have assumed—at least

once a case is filed,” id. at 65—and does not achieve the intended goal of discarding

insubstantial claims early in the litigation process, see id. at 76. Schwartz’s figures, however,

rest on certain highly debatable choices. For example, she counts a case “as dismissed on

qualified immunity grounds only if the entire case [was] dismissed as a result of the

motion”—meaning that she does not include cases where the court granted leave to amend

the complaint, where some but not all individual defendants moved for qualified immunity,

where an individual defendant moved for qualified immunity on some but not all claims, or

where there was a municipal defendant. Id. at 42–43. 54 William Baude, Is Qualified Immunity Unlawful?, 106 CAL. L. REV. 101, 102–03

(forthcoming 2018). 55 Ziglar v. Abbasi, 137 S. Ct. 1843, 1871 (2017) (Thomas, J., concurring in part and

concurring in the judgment) (alteration omitted) (internal quotation marks omitted). 56 Id. 57 Baude, supra note 54, at 142.


under common tenets of statutory interpretation.58 This justification formed

the focus of Thomas’s Abbasi concurrence.

Baude, echoing others,59 argues that several historical problems

plague this theory. There was no “general immunity” at common law.60

Instead, a defense premised on a defendant’s good faith arose as “part of the

elements of” certain torts.61 Thus, “there was no well-established good-faith

defense in suits about constitutional violations when Section 1983 was

enacted, nor in Section 1983 suits early after its enactment.”62 And in 1915,

the Supreme Court “specifically rejected the application of a good-faith

defense to constitutional suits” under Section 1983.63 In any event, recent

immunity jurisprudence has “distorted” any common-law connection in

many ways.64 Harlow consciously broke from the good-faith framework of

Pierson and its progeny, establishing a wholly objective standard grounded

solely in policy preferences.65 And the doctrine has become “increasingly

protective” of defendants in multiple respects.66

A second justification is what Baude calls the “[l]enity [t]heory” of

qualified immunity.67 Around the same time as enacting Section 1983,

Congress passed a criminal statute, now codified at 18 U.S.C. § 242, that

58 Id. at 108; see, e.g., Filarsky v. Delia, 566 U.S. 377 (2012). 59 See, e.g., David E. Engdahl, Immunity and Accountability for Positive Governmental

Wrongs, 44 U. COLO. L. REV. 1, 14–21 (1972). 60 Baude, supra note 54, at 110. 61 Id. 62 Id. Two famous cases demonstrate this assertion. First is Little v. Barreme, 6 U.S. (2

Cranch) 170 (1804) (Marshall, C.J.), which concerned a naval captain’s actions where

President Adams had authorized the capture of boats going to or coming from French ports

but where the underlying federal law allowed the capture of boats only going to, not coming

from, such ports. Second is Miller v. Horton, 26 N.E. 100 (Mass. 1891) (Holmes, J.), which

concerned the slaughter of a horse by members of a town health board on the orders of

government commissioners based on the mistaken belief that the horse had a bacterial

infection called glanders. See Baude, supra note 54, at 111–12. 63 Baude, supra note 54, at 112 (citing Myers v. Anderson, 238 U.S. 368, 378–79

(1915)). 64 Id. at 115. 65 See Anderson v. Creighton, 483 U.S. 635, 645 (1987) (conceding that Harlow

“completely reformulated qualified immunity along principles not at all embodied in the

common law, replacing the inquiry into subjective malice so frequently required at common

law with an objective inquiry into the legal reasonableness of the official action”); see also,

e.g., Wyatt v. Cole, 504 U.S. 158, 170 (1992) (Kennedy, J., concurring) (stating that Harlow

“depart[ed] from history in the name of public policy, reshaping immunity doctrines in light

of those policy considerations”). 66 Baude, supra note 54, at 116 (emphasis omitted); see Kinports, supra note 12, at 65–

78 (discussing a few). 67 Baude, supra note 54, at 124.


penalizes government officials for willfully violating federal constitutional or

statutory rights. To provide “fair warning” and avoid vagueness problems

with Section 242, the Supreme Court applies a narrowing construction

requiring “a specific intent to deprive a person of a federal right made definite

by decision or other rule of law.”68 The Court has on occasion expressly

analogized qualified immunity to this lenity-related rule,69 and Baude

contends that certain aspects of the doctrine may implicitly do the same.70

Baude identifies multiple problems with this theory too. First, lenity

is a criminal-law concept that the Court has generally invoked in civil-law

settings only where the same statutory language applies in both contexts.71

Second, the fact that Section 242 expressly encompasses only “willful[]”

violations provides a textual hook that does not exist for Section 1983 suits,72

as the latter statute says nothing about state of mind.73 Third, qualified

immunity “has come to bear little practical resemblance to the rules

applicable to criminal defendants.”74 Although the Court “has explicitly

rejected the relevance of circuit splits to the lenity inquiry,”75 judicial discord

all but answers the qualified-immunity question in the affirmative.76

Baude locates a third justification for Harlow’s qualified-immunity

standard in a dissenting opinion by Justice Scalia. In Crawford-El v.

Britton,77 Scalia admitted that “our treatment of qualified immunity under

[Section] 1983 has not purported to be faithful to the common-law

immunities that existed when [Section] 1983 was enacted, and that the statute

presumably intended to subsume.”78 Nevertheless, Scalia said, “[t]hat is

perhaps just as well,” for the Court had erroneously expanded liability under

68 Screws v. United States, 325 U.S. 91, 103–05 (1945) (plurality opinion). 69 See Hope v. Pelzer, 536 U.S. 730, 739 (2002); United States v. Lanier, 520 U.S. 259

(1997); see also Baude, supra note 54, at 126 & nn.163–64. 70 Baude, supra note 54, at 126–27. For example, Baude says, the refrain that qualified

immunity “provides ample protection to all but the plainly incompetent or those who

knowingly violate the law,” Malley v. Briggs, 475 U.S. 335, 341 (1986), calls to mind

“criminal recklessness or deliberate wrongdoing,” Baude, supra note 54, at 126–27. 71 Baude, supra note 54, at 127 (citing Leocal v. Ashcroft, 543 U.S. 1, 12 (2004); id. at

519 (Scalia, J., concurring); United States v. Thompson/Center Arms Co., 504 U.S. 505,

517–18 (1992) (plurality opinion)). 72 See id. at 127–28 (citing, e.g., Monroe v. Pape, 365 U.S. 167, 187 (1961)). 73 See Parratt v. Taylor, 451 U.S. 527, 534 (1981), overruled on other grounds by Daniels

v. Williams, 474 U.S. 327 (1986). 74 Baude, supra note 54, at 129. 75 Id. (emphasis omitted) (citing Moskal v. United States, 498 U.S. 103, 108 (1990);

United States v. Rodgers, 466 U.S. 475, 484 (1984)). 76 See id. at 130–31. 77 523 U.S. 574 (1998). 78 Id. at 611 (Scalia, J., dissenting).


Section 1983 beyond what the text could bear.79 To this point, he attacked

the holding of Monroe v. Pape,80 a 1961 decision that had, as he put it:

converted an 1871 statute covering constitutional violations

committed “under color of any statute, ordinance, regulation,

custom, or usage of any State,” into a statute covering

constitutional violations committed without the authority of

any statute, ordinance, regulation, custom, or usage of any

State, and indeed even constitutional violations committed in

stark violation of state civil or criminal law.81

No “sane Congress” could have passed such a statute, Scalia suggested.82

Baude and others have found fault lines in this reasoning as well.

“The first problem is that [the] premise—that Monroe v. Pape was wrongly

decided—appears to be wrong,” Baude says.83 Among other things, he

argues that “under color of” is a historical term of art that includes “false

claims of legal authority”84 and that aspects of Section 1983’s drafting history

suggest that the statute carries this meaning.85 Another problem is, again,

practical. Even if we grant Scalia’s premise, Baude says, “the results ought

to be nothing like the modern regime of qualified immunity.”86 Instead, they

ought to be like the system envisioned by Justice Frankfurter in his Monroe

dissent.87 As Baude summarizes Frankfurter’s position: “When the state

legalizes or immunizes an official’s conduct, federal law supplies a forum for

constitutional adjudication.”88 But “[w]hen the state remedies its officials’

own wrongs, there is no need for federal liability.”89 Qualified immunity

under Harlow “looks nothing like this,” instead “com[ing] closer to tracking

79 Id. 80 365 U.S. 167 (1961). 81 Crawford-El, 523 U.S. at 611. 82 Id. 83 Baude, supra note 54, at 118. 84 Id. at 119 (citing Steven L. Winter, The Meaning of “Under Color of” Law, 91 MICH.

L. REV. 323 (1992)). 85 Id. at 120 (citing David Achtenberg, A “Milder Measure of Villainy”: The Unknown

History of 42 U.S.C. § 1983 and the Meaning of “Under Color of” Law, 1999 UTAH L. REV.

1). 86 Id. at 121. 87 Id. at 121–24; see Monroe v. Pape, 365 U.S. 167, 203–59 (1961) (Frankfurter, J.,

dissenting in part). 88 Baude, supra note 54, at 122. 89 Id.


state common law than it does to filling in state law’s gaps.”90 Consequently,

Baude concludes that qualified immunity “lacks legal justification.”91

Of course, some scholars have risen to defend a qualified-immunity

doctrine that looks somewhat like the Harlow standard—but their arguments

often include significant caveats.92 Whatever one’s position, the point is that

a significant segment of the academy and the wider legal community stands

opposed to Harlow-style qualified immunity for numerous diverse and often

compelling reasons. Nevertheless, as Supreme Court case law shows, the

doctrine not only survives, but thrives. Attempting to uncover and confront

alternative rationales should thus prove useful in seeking steps toward

resolving the debate.

II. BRINGING IN BIVENS

Previous critiques overlook the importance of an elemental aspect of

Harlow’s provenance. The criticism at the heart of Baude’s article, for

example, relates to the standard’s validity vis-à-vis a proper interpretation of

Section 1983. As a formal matter, however, the case had nothing to do with

that statute. The plaintiff sued two senior aides to President Nixon for

eliminating his position with the Air Force in retaliation for congressional

testimony protected by the First Amendment in which he detailed various

difficulties with rolling out a certain aircraft.93 So the constitutional claim

90 Id. at 123. 91 Id. at 142. 92 John Jeffries’s work represents one example. As a general matter, Jeffries endorses

courts incorporating fault-based conditions into constitutional adjudication in the damages

context via qualified immunity and other doctrines. See Jeffries, supra note 13, at 90. He

contends that “the curtailment of damages liability for constitutional violations has deep

structural advantages for American constitutionalism,” including “foster[ing] the

development of constitutional law” through “facilitat[ing] change by reducing the costs of

innovation,” as well as “bias[ing] constitutional remedies in favor of the future.” Id. at 90.

But he also finds flaws in particular aspects of qualified-immunity doctrine. See id. at 91

(“[T]hat I defend the requirement of fault . . . does not mean that I endorse the precise

contours of existing law. On the contrary, my assessment is that current protections against

damages liability . . . are extravagant.”); see also Jeffries, supra note 11, at 854–66

(identifying “at least three problems” with qualified-immunity doctrine). An article by

Richard Fallon and Daniel Meltzer represents another example. See Richard H. Fallon, Jr.

& Daniel Meltzer, New Law, Non-Retroactivity, and Constitutional Remedies, 104 HARV. L.

REV. 1731, 1738 (1991) (“[O]ur somewhat mixed [descriptive and normative] methodology

commits us to accepting . . . some elements of our legal tradition that we find troublesome.

For example, doctrines of sovereign and official immunity . . . restrict the availability of

effective individual redress for constitutional violations far more than we would like.”). 93 Harlow, 457 U.S. 800, 802–05 (1982); see Nixon v. Fitzgerald, 457 U.S. 731, 733–

39 (1982).


arose under Bivens, not Section 1983.94 Baude, however, is hardly alone in

focusing on the latter context. The legal community at large regards

Harlow’s heritage in the Bivens context as mere historical happenstance, and

other scholarship misses the significance of Bivens to Harlow in more overt

ways, including by discussing the latter case as if it arose under Section

1983.95 But Supreme Court opinions suggest that the Bivens milieu supplied

Harlow both a methodological margin and a theoretical rationale grounded

in separation-of-powers principles.

A. Previous Understandings

On occasion, judges and commentators have noted that the

provenance of qualified immunity in a Bivens case might bear on whether the

defense proves legitimate in the separate Section 1983 context. But the

inquiry has usually stopped short of exploring this issue in any extended way.

In one dissent, for example, Justice Scalia remarked that Harlow and another

qualified-immunity decision were “technically distinguishable” from the case

at bar “in that they involved not the statutory cause of action against state

officials created by Congress in [Section] 1983, but the cause of action

against federal officials inferred from the Constitution by this Court in

Bivens.”96 Nevertheless, Scalia said, Harlow and the other decision “made

nothing of that distinction, citing [Section] 1983 cases in support of their

holdings.”97 He therefore dropped the issue.

Indeed, the literature exhibits a widespread assumption that Harlow

sought to respond to perceived problems with official immunity in general

rather than with the Bivens regime in particular. Under this view, qualified

immunity took root in a Bivens action instead of a Section 1983 suit largely

94 Harlow, 457 U.S. at 805. 95 See, e.g., David Achtenberg, Immunity Under 42 U.S.C. § 1983: Interpretive

Approach and the Search for the Legislative Will, 86 NW. U. L. REV. 497, 529 (1992)

(without mentioning the Bivens background, stating that in Harlow, “the Court abandoned

any pretense that the content of [Section] 1983 immunities should be tied to the content of

their commo[n]-law counterparts” (footnote omitted)); Sheldon Nahmod, Section 1983

Discourse: The Move from Constitution to Tort, 77 GEO. L.J. 1719, 1742 (1989) (without

mentioning the Bivens background, stating that Harlow “is the clearest illustration of the

Court’s use of cost-benefit analysis to determine the scope of [Section] 1983 relief” (footnote

omitted)); Teressa E. Ravenell, Hammering in Screws: Why the Court Should Look Beyond

Summary Judgment When Resolving § 1983 Qualified Immunity Disputes, 52 VILL. L. REV.

135, 147 (2007) (without mentioning the Bivens background, stating that the aim of Harlow

“seems to be the elimination of all factual inquiries or disputes from [Section] 1983 qualified

immunity analysis”). 96 Burns v. Reed, 500 U.S. 478, 498 n.1 (Scalia, J., dissenting). 97 Id.


by “happenstance and accident.”98 The most nuanced version permits the

possibility that the Bivens context, as an area grounded in federal common

law, supplied the methodological flexibility necessary for Harlow to loosen

the chains of statutory interpretation that had shackled qualified immunity to

historical defenses in the Section 1983 context.99 And proponents of this

possibility sometimes suggest that it was therefore improper for the Court to

expand the new standard to Section 1983 cases.100

The methodological-flexibility point seems right, especially given the

Court’s concurrent commitments to historical tradition when recognizing

immunities in the Section 1983 context.101 Moreover, in a case decided

shortly after Harlow, Justice Marshall, joined by Justice Blackmun and for

reasons endorsed by Justice Brennan, suggested that the Court enjoyed more

freedom to expand immunities in Bivens actions than in Section 1983 suits.102

But was there more to the relationship between Harlow and Bivens?

Just one scholar appears to have reasoned as a descriptive matter (and then

only briefly) that the connection ran deeper than a mere facilitative function.

In a 2010 essay, James Pfander argued that the “pressure for a uniform federal

standard that led in part to the recognition of Bivens liability” following the

98 Ilan Wurman, Qualified Immunity and Statutory Interpretation, 37 SEATTLE U. L.

REV. 939, 961 (2014). 99 See id. at 955 (“[T]he Court seems to have dramatically altered qualified immunity

doctrine in the context of Bivens actions when it had less need (if any at all) to shape the

doctrine as a matter of statutory interpretation. The doctrine may have been trending in this

direction, but it was in the context of Bivens that matters of policy took the reins completely

and the Court abandoned any common law underpinnings to immunity doctrine.”). 100 See, e.g., Jack M. Beermann, A Critical Approach to Section 1983 with Special

Attention to Sources of Law, 42 STAN. L. REV. 51, 68 (1989); Gary S. Gildin, Immunizing

Intentional Violations of Constitutional Rights Through Judicial Legislation: The Extension

of Harlow v. Fitzgerald to Section 1983 Actions, 38 EMORY L.J. 369, 384 (1989) [hereinafter

Gildin, Immunizing Intentional Violations]; Gary S. Gildin, The Standard of Culpability in

Section 1983 and Bivens Actions: The Prima Facie Case, Qualified Immunity and the

Constitution, 11 HOFSTRA L. REV. 557, 587 (1983); Laura Oren, Immunity and

Accountability in Civil Rights Litigation: Who Should Pay?, 50 U. PITT. L. REV. 935, 984

(1989); Stephen J. Shapiro, Public Official’s Qualified Immunity in Section 1983 Actions

Under Harlow v. Fitzgerald and Its Progeny: A Critical Analysis, 22 U. MICH. J.L. REF. 249,

267 (1989). 101 See, e.g., Pulliam v. Allen, 466 U.S. 522, 529–42 (1984) (regarding judicial

immunity); Imbler v. Pachtman, 424 U.S. 409, 418–28 (1976) (regarding prosecutorial

immunity). 102 Briscoe v. LaHue, 460 U.S. 325, 364 n.33 (1983) (Marshall, J., joined by Blackmun,

J., dissenting) (stating that “[i]n my view, we should be even more reluctant to import

absolute immunities into [Section] 1983 suits than into Bivens actions,” in part because “with

[Section] 1983 we deal with explicit statutory language indicating the broad scope of the

action, whereas Bivens actions have been implied by the federal courts”); id. at 346 (Brennan,

J., dissenting) (expressing agreement with the relevant portion of Marshall’s dissent).


Supreme Court’s decision in Erie Railroad Co. v. Tompkins103 “also produced

a federal immunity rule” because “[v]ictims and government officials alike

can make a strong claim for a consistent federal standard.”104 This proposal

represents a valuable, if all too inaudible, comment in the conversation about

Harlow.105 But there are good reasons to believe that it does not tell the whole

story. For instance, as Pfander points out, “the need for a uniform standard

does not necessarily entail federal judicial control of the content of the

standard or the adoption of the Harlow rule.”106

At least a couple of scholars have suggested as a more normative

matter that the legal community could view official-immunity doctrines as

curtailing the extent to which constitutional-tort causes of action are

available. Baude, for instance, says that one could “imagine a separate and

distinct two-wrongs-make-a-right argument for qualified immunity in the

Bivens context,”107 like the argument that Scalia advanced in the Monroe v.

Pape context.108 And Richard Fallon says that “one might well think of

official immunity as limiting the scope of causes of action for damages.”109

But these suggestions seem to appear in the literature only in both

hypothetical and parenthetical form. As it turns out, however, the Supreme

Court’s own opinions outline just such a rationale for the Harlow standard.

B. The Supreme Court’s Separation-of-Powers Rationale

By situating Harlow within the pertinent jurisprudential background

and by paying special attention to the prior opinions of Justice Powell, it

becomes evident that the Bivens backdrop likely loomed larger in Harlow

than previous commentators have credited. In particular, Powell’s majority

opinion appears to have attempted to counter a perceived separation-of-

powers problem underlying Bivens’s increase in liability with a

corresponding increase in immunity.

103 304 U.S. 64 (1938). 104 James E. Pfander, Iqbal, Bivens, and the Role of Judge-Made Law in Constitutional

Litigation, 114 PENN ST. L. REV. 1387, 1415–16 (2010). 105 For instance, according to a Westlaw search, only an amicus brief co-authored by

Pfander himself appears to have cited this aspect of his essay. See Brief of Amici Curiae

Professors James E. Pfander, Carlos M. Vázquez, and Anya Bernstein in Support of

Petitioners at 7, Hernandez v. Mesa, 137 S. Ct. 2003 (2017) (No. 15-118), 2016 WL

7210371, at *6. 106 Pfander, supra note 104, at 1416. 107 Baude, supra note 54, at 118 n.103. 108 See supra text accompanying notes 77–82. But, because the Supreme Court has

“mechanically equated the two sets of immunities” under Section 1983 and Bivens, Baude

declines to “consider them separately.” Baude, supra note 54, at 105 n.15. 109 Fallon, supra note 45, at 487.


1. Bivens’s Rise and Retrenchment

The Supreme Court decided Bivens in 1971. The Court

acknowledged that neither the Constitution nor any congressional enactment

provided for damages relief against federal officials for constitutional

violations.110 Nevertheless, the Court stated that “where federally protected

rights have been invaded, . . . courts will be alert to adjust their remedies so

as to grant the necessary relief.”111 The Court thus held that the plaintiff was

“entitled to recover money damages for any injuries he has suffered as a result

of the [defendants’] violation of the [Fourth] Amendment.”112

Within the next decade, the Court recognized implied constitutional

causes of action in two additional cases. The first was Davis v. Passman,113

a 1979 decision allowing an individual to sue a former congressman under

the Due Process Clause of the Fifth Amendment for firing her because of her

sex. The second was Carlson v. Green,114 a 1980 decision permitting the

family of a deceased prisoner to sue the director of the federal Bureau of

Prisons under the Punishments Clause of the Eighth Amendment for failing

to provide proper medical care.

Bivens came from a divided Court. Justice Brennan wrote the opinion

for a five-Justice majority, and Justice Harlan concurred in the judgment.

Chief Justice Burger and Justices Black and Blackmun each wrote a dissent,

all arguing that to recognize a cause of action absent congressional

authorization offended separation-of-powers principles.115 Davis and Green,

both also penned by Brennan, demonstrated continuing division. In Davis,

Burger, Stewart, Powell, and Rehnquist all dissented. In Green, only Burger

and Rehnquist dissented, but Powell, joined by Stewart, authored an acerbic

110 403 U.S. 388, 396–97 (1971). 111 Id. at 392 (internal quotation marks omitted). 112 Id. at 397. 113 442 U.S. 228 (1979). 114 446 U.S. 14 (1980). 115 Bivens, 403 U.S. at 411–12 (Burger, C.J., dissenting) (“I dissent from today’s holding

which judicially creates a damage remedy not provided for by the Constitution and not

enacted by Congress. We would more surely preserve the important values of the doctrine

of separation of powers—and perhaps get a better result—by recommending a solution to

the Congress as the branch of government in which the Constitution has vested the legislative

power.”); id. at 428 (Black, J., dissenting) (“[T]he point of this case and the fatal weakness

in the Court’s judgment is that neither Congress nor the State of New York has enacted

legislation creating such a right of action. For us to do so is, in my judgment, an exercise of

power that the Constitution does not give us.”); id. at 430 (Blackmun, J., dissenting) (“I had

thought that for the truly aggrieved person other quite adequate remedies have always been

available. If not, it is the Congress and not this Court that should act.”).


concurrence in the judgment, discussed in detail below.116 With one

unimportant exception,117 all of the separate opinions in Davis and Green

echoed the Bivens dissents by adverting to separation-of-powers concerns.118

The Supreme Court has since taken a dim view of this line of

precedent. As Ziglar v. Abbasi put the matter in 2017, to understand Bivens,

Davis, and Green,

it is necessary to understand the prevailing law when they

were decided. In the mid-20th century, the Court followed a

different approach to recognizing implied causes of action

than it follows now. During this “ancien regime,” Alexander

v. Sandoval, 532 U.S. 275, 287 (2001), the Court assumed it

to be a proper judicial function to “provide such remedies as

are necessary to make effective” a statute’s purpose, J.I. Case

Co. v. Borak, 377 U.S. 426, 433 (1964). Thus, as a routine

matter with respect to statutes, the Court would imply causes

of action not explicit in the statutory text itself.119

116 See infra Part II.B.2. 117 In Davis, Stewart dissented on the ground that the Court should have vacated the

judgment and remanded the case for the court of appeals to address “a preliminary question

that may be completely dispositive” regarding a separate potential immunity under the

Speech or Debate Clause. 442 U.S. at 251 (Stewart, J., dissenting). Rehnquist joined

Stewart’s opinion but also joined the other two dissents. 118 Id. at 249 (Burger, C.J., dissenting) (stating that “I dissent because, for me, the case

presents very grave questions of separation of powers” and that “Congress could, of course,

make Bivens-type remedies available to its staff employees—and to other congressional

employees—but it has not done so”); id. at 252 (Powell, J., dissenting) (criticizing the

majority’s discussion of the federal judiciary’s purported “obligation to entertain private suits

that Congress has not authorized” and arguing that “[i]n the present case, . . . principles of

comity and separation of powers should require a federal court to stay its hand”); Green, 446

U.S. at 29 (Powell, J., concurring in the judgment) (“In my view, the Court’s willingness to

infer federal causes of action that cannot be found in the Constitution or in a statute denigrates

the doctrine of separation of powers and hardly comports with a rational system of justice.”);

id. at 30 (Burger, C.J., dissenting) (stating that he had thought that Bivens, where he

expressed separation-of-powers concerns, was “wrongly decided”); id. at 34 (Rehnquist, J.,

dissenting) (“In my view, it is ‘an exercise of power that the Constitution does not give us’

for this Court to infer a private civil damages remedy from the Eighth Amendment or any

other constitutional provision. The creation of such remedies is a task that is more

appropriately viewed as falling within the legislative sphere of authority.” (quoting Bivens,

403 U.S. at 428 (Black, J., dissenting))). In Davis, the Justices’ concerns about inter-branch

conflict also revolved around the fact that the basis for the plaintiff’s suit was a

congressman’s personnel decision. See 442 U.S. at 254. 119 137 S. Ct. 1843, 1855 (2017) (parallel citations omitted).


Bivens, said Abbasi, essentially imported this framework from the statutory

arena into the constitutional context.120

After Bivens, “the arguments for recognizing implied causes of action

for damages began to lose their force,” Abbasi asserted.121 With its 1975

decision in Cort v. Ash,122 the Supreme Court started to sour on the practice

in the statutory context, refocusing the inquiry on congressional intent.123

And by 2001, the Court could declare in Sandoval that “[l]ike substantive

federal law itself, private rights of action to enforce federal law must be

created by Congress.”124 Thus, the Court said, “[t]he judicial task is to

interpret the statute Congress has passed to determine whether it displays an

intent to create not just a private right but also a private remedy.”125 Without

such an intent, Sandoval concluded, “a cause of action does not exist and

courts may not create one, no matter how desirable that might be as a policy

matter, or how compatible with the statute.”126

In view of this evolution, the Supreme Court has refused to recognize

implied constitutional causes of action beyond the specific circumstances of

Bivens, Davis, and Green. Justice Kennedy’s majority opinion in Abbasi left

little hope for change, repudiating Bivens’s rationale while declining to

overrule its holding. The Court stated that “it is a significant step under

separation-of-powers principles for a court to determine that it has the

authority, under the judicial power, to create and enforce a cause of action for

damages against federal officials in order to remedy a constitutional

violation.”127 Thus, Abbasi reaffirmed that “[g]iven the notable change in the

Court’s approach to recognizing implied causes of action, . . . expanding the

Bivens remedy is now a ‘disfavored’ judicial activity.”128 Indeed, Abbasi

declared it “possible that the analysis in the Court’s three Bivens cases might

have been different if they were decided today.”129

Several scholars have suggested that Abbasi “all but overrules

Bivens.”130 But at least one has argued that reports of Bivens’s death are

120 Id. 121 Id. 122 422 U.S. 66 (1975). 123 See Abbasi, 137 S. Ct. at 1855–56 (collecting cases). 124 532 U.S. 286. 125 Id. 126 Id. at 286–87. 127 Abbasi, 137 S. Ct. at 1856. 128 Id. at 1857 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)). 129 Id. at 1856. 130 Michael Dorf, SCOTUS Severely Narrows Civil Rights Suits Against Federal

Officers, DORF ON LAW (June 19, 2017, 12:44 PM),

http://www.dorfonlaw.org/2017/06/scotus-severely-narrows-civil-rights.html; see, e.g.,

Shirin Sinnar, The Ziglar v. Abbasi Decision: Unsurprising and Devastating, SLS BLOGS:


greatly exaggerated.131 For its part, the Abbasi majority said that “it must be

understood that this opinion is not intended to cast doubt on the continued

force, or even the necessity, of Bivens in the search-and-seizure context in

which it arose.”132 The Court stated that “[t]he settled law of Bivens in this

common and recurrent sphere of law enforcement, and the undoubted

reliance upon it as a fixed principle in the law, are powerful reasons to retain

it in that sphere.”133 This statement failed to assure any allegiance to Davis

or Green. But, given the Court’s current composition, Bivens seems secure

for the moment, at least in its original Fourth Amendment arena.134

How does Harlow fit into this history? In 1982, the year that it

decided Harlow, the Supreme Court had recently started rejecting the “ancien

regime” of recognizing implied statutory causes of action.135 And, fresh from

bruising battles in Davis and Green, the Court would soon begin rebuffing

attempts to expand Bivens beyond the confines of the first three cases.

Ultimately, the Court would refuse to recognize implied constitutional claims

in every subsequent case to decide the issue.136 Harlow thus stood astride a

significant jurisprudential inflection point at which Bivens faced a developing

danger from a perceived separation-of-powers problem with judges

recognizing implied causes of action.

Indeed, the defendant government officials’ oral advocate in Harlow

sought to frame the matter along exactly these lines. In his opening statement,

the attorney characterized his clients’ bid for immunity as a means of

preventing “the already slack criteria for inferring a private cause of action

LEGAL AGGREGATE (June 20, 2017), https://law.stanford.edu/2017/06/20/the-ziglar-v-

abbasi-decision-unsurprising-and-devastating/; Steve Vladeck, On Justice Kennedy’s

Flawed and Depressing Narrowing of Constitutional Damages Remedies, JUST SECURITY

(June 19, 2017, 5:49 PM), https://www.justsecurity.org/42334/justice-kennedys-flawed-

depressing-narrowing-constitutional-damages-remedies/. 131 Richard M. Re, The Nine Lives of Bivens, PRAWFSBLAWG (June 22, 2017, 8:30 AM),

http://prawfsblawg.blogs.com/prawfsblawg/2017/06/the-nine-lives-of-bivens.html. 132 Abbasi, 137 S. Ct. at 1856. 133 Id. at 1857. 134 Abbasi was decided by a six-member bench because of recusals by Justices

Sotomayor and Kagan and because the oral argument occurred before Justice Gorsuch joined

the Court. The majority thus consisted only of Chief Justice Roberts and Justices Kennedy,

Thomas, and Alito. The slim line-up seems unimportant, however, for there is little reason

to believe that Gorsuch in some future case would disagree with the majority’s cabining of

Bivens. One might speculate that a Court with an additional new appointee (especially in

place of Kennedy, who authored Abbasi) might exhibit an increased interest in overruling

Bivens altogether. But it seems unlikely that Roberts would join the effort, especially given

the prominence of police-misconduct cases and his apparent desire to maintain the Court’s

reputation as an apolitical institution. 135 Alexander v. Sandoval, 532 U.S. 275, 287 (2001). 136 See Abbasi, 137 S. Ct. at 1855.


from a constitutionally protected right” from being “stretch[ed] completely

out of shape.”137 The chronological context thus implies a separation-of-

powers connection between Bivens and Harlow, as evidenced and amplified

by the defendants’ attorney himself.

2. Justice Powell’s Approach

Important to understanding the separation-of-powers connection

between Bivens and Harlow are the views of Justice Powell, Harlow’s author,

on recognizing implied constitutional causes of action. Dissenting in Davis

and concurring in the judgment in Green, Powell staked out an idiosyncratic

and ambivalent approach—one that seems to have subsequently resonated

throughout Harlow.

Powell’s Green opinion conveys a deep discomfort with the Bivens

regime on separation-of-powers grounds. “In my view,” Powell said, “the

Court’s willingness to infer federal causes of action that cannot be found in

the Constitution or in a statute denigrates the doctrine of separation of powers

and hardly comports with a rational system of justice.”138 And he expressed

similar sentiments in Davis. The majority asserted that individuals without

an effective alternative remedy “must be able to invoke the existing

jurisdiction of the courts for the protection of their justiciable constitutional

rights.”139 Powell countered that he “kn[e]w of no precedent of this Court

that supports such an absolute statement of the federal judiciary’s obligation

to entertain private suits that Congress has not authorized” and that “[i]n the

present case, . . . principles of comity and separation of powers should require

a federal court to stay its hand.”140

Questioning the Bivens regime for separation-of-powers reasons was

hardly unusual, even at the time that Powell was writing.141 But rather than

137 Transcript of Oral Argument, Nixon v. Fitzgerald, 457 U.S. 731 (1982) (No. 79-

1738), 1981 U.S. Trans. LEXIS 17, at *14. The defendants’ attorney also argued that

qualified immunity could curb more practical effects of the Bivens regime, voicing approval

for adopting a wholly objective standard on the ground that doing so “would be a contraction

of the very wide ramifications of the combination of Butz against Economou on the one side

and Bivens on the other, the combination of which has been to generate over 2,000 Bivens

type cases now pending, of which to date only nine have resulted in the award of damages.”

Id. at *20–21. He characterized this as “an enormous volume of litigation with dubious

public policy benefit.” Id. at *21. The briefing was of a piece. See Reply Brief for

Petitioners Harlow and Butterfield, Nixon v. Fitzgerald, 457 U.S. 731 (No. 79-1738), 1981

WL 390512, at *8–9 & n.5. 138 Carlson v. Green, 446 U.S. 14, 29 (1980) (Powell, J., concurring in the judgment). 139 Davis v. Passman, 442 U.S. 228, 242 (1979). 140 Id. at 252 (Powell, J., dissenting). 141 See supra notes 115–118 and accompanying text.


repudiate Bivens outright, Powell embraced the decision’s broad

understanding of the judicial role by advocating a wide berth for “principled

discretion.”142 Specifically, he contended that because “[a] plaintiff who

seeks his remedy directly under the Constitution asks the federal courts to

perform an essentially legislative task,” courts “‘should take into account [a

range of policy considerations] at least as broad as the range of those a

legislature would consider with respect to an express statutory authorization

of a traditional remedy.’”143 He thus condemned doctrinal developments that,

he believed, restrained the discretion of judges to decide whether to recognize

implied constitutional causes of action on a case-by-case basis.144

These features of Powell’s Bivens opinions—his uneasiness at courts

trespassing on congressional territory and simultaneous eagerness to flex the

ensuing policy-making muscle—are difficult to reconcile. Part of this tension

stemmed from Powell’s commitment to Justice Harlan’s conception of the

discretion afforded courts in conducting Bivens analyses, which Harlan set

forth in his Bivens concurrence and which Powell invoked in both Davis and

Green.145 This commitment reflected Powell’s view of Harlan “as the model

of what a judge should be—a fair-minded arbiter of disputes, carefully

adapting past precedents to present realities in a process more pragmatic than

ideological.”146 Harlan, however, derived his idea of Bivens-related

discretion in part from the Supreme Court’s practice of recognizing implied

causes of action in the statutory setting.147 And Powell rejected that practice

as improper. In Green, for instance, he cited his 1979 dissent in Cannon v.

University of Chicago,148 a case in which the majority recognized an implied

statutory cause of action.149 In Cannon, Powell declared that “the

142 Green, 446 U.S. at 26 (Powell, J., concurring in the judgment) (internal quotation

marks omitted); Davis, 442 U.S. at 252 (Powell, J., dissenting). 143 Green, 446 U.S. at 28 (Powell, J., concurring in the judgment) (second alteration in

original) (quoting Bivens v. Six Unknown Named Agents, 403 U.S. 388, 407 (1971) (Harlan,

J., concurring in the judgment)); Davis, 442 U.S. at 252 (Powell, J., dissenting) (quoting

Bivens, 403 U.S. at 407). 144 See Green, 446 U.S. at 27 (Powell, J., concurring in the judgment) (decrying the

“drastic curtailment” of judicial discretion that the majority’s opinion allegedly entailed as

“inconsistent with the Court’s long-standing recognition that Congress is ultimately the

appropriate body to create federal remedies”). 145 Id. at 28; Davis, 442 U.S. at 252 (Powell, J., dissenting). 146 JOHN J. JEFFRIES, JR., JUSTICE LEWIS F. POWELL, JR. 263 (1994). 147 See Bivens, 403 U.S. at 403–04 & n.4. 148 441 U.S. 677 (1979). 149 Green, 446 U.S. at 29 (Powell, J., concurring in the judgment) (citing Cannon, 441

U.S. at 730–49 (Powell, J., dissenting)).


unconstitutionality of the course pursued has now been made clear and

compels us to abandon the implication doctrine.”150

Powell apparently attempted to elide any paradox by pitching his

separation-of-powers concerns in the Bivens context at a subconstitutional

level. In Davis, for instance, he stated that “at least since Bivens,” it had

“been clear” that “in appropriate circumstances private causes of action may

be inferred from provisions of the Constitution.”151 But, he said, “[e]ven

where the authority of one branch over a matter is not exclusive, so that a

federal court properly may accept jurisdiction over the dispute,” the Supreme

Court had “recognized that the principle of separation of powers continues to

have force as a matter of policy.”152 And with the same breath in which he

cited his Cannon dissent in Green, Powell stated that courts possessed a more

expansive prerogative to recognize implied causes of action in the Bivens

context than in the statutory context.153

Moreover, Powell did not believe that judicial discretion to shape the

contours of constitutional adjudication was limited to the question of whether

to recognize implied causes of action. In Davis, he declared it “settled” that

“where discretion exists, a variety of factors rooted in the Constitution may

lead a federal court to refuse to entertain an otherwise properly presented

constitutional claim,” citing a number of federalism-related abstention

decisions.154 Of particular relevance in this regard, Powell implicitly

acknowledged that qualified immunity could provide a functional backstop

to undesired increases in the ambit of the Bivens regime. In Green, the

majority reasoned that concerns about overdeterring officials from effectively

performing their duties were irrelevant to the Bivens analysis because

“qualified immunity . . . provides adequate protection.”155 Powell belittled

this line of reasoning. In doing so, however, he plainly recognized the push-

pull that the majority’s understanding of the two doctrines entailed: Bivens

would begin where qualified immunity ended.156

150 441 U.S. at 742 (Powell, J., dissenting). 151 Davis v. Passman, 442 U.S. 228, 252 (1979) (Powell, J., dissenting). 152 Id. at 253. 153 446 U.S. at 29 n.2 (Powell, J., concurring in the judgment) (“I do not suggest that

courts enjoy the same degree of freedom to infer causes of action from statutes as from the

Constitution.”). 154 442 U.S. at 253 n.2 (Powell, J., dissenting). 155 Green, 446 U.S. at 19. 156 Id. at 27 (Powell, J., concurring in the judgment) (“A defendant also may defeat the

Bivens remedy under today’s decision if ‘special factors’ counsel ‘hesitation.’ But the Court

provides no further guidance on this point. The opinion states simply that no such factors

are present in this case. The Court says that petitioners enjoy no ‘independent status in our

constitutional scheme’ that would make judicially created remedies inappropriate. But the

implication that official status may be a ‘special factor’ is withdrawn in the sentence that


This, too, echoed Harlan’s Bivens concurrence. There, the majority

remanded the case for the court of appeals to consider the defendants’

official-immunity defense in the first instance.157 Harlan purported to

“express no view on the immunity defense offered in the instant case.”158

But, he said, “interests in efficient law enforcement of course argue for a

protective zone with respect to many types of Fourth Amendment

violations.”159 He thus “deem[ed] it proper to venture the thought that at the

very least,” a claim “would be available for the most flagrant and patently

unjustified sorts of police conduct.”160 And he cited his majority opinion in

an official-immunity decision that turned on weighing the “‘evils inevitable’”

in erring in either direction, including that the threat of legal process would

“‘dampen the ardor of all but the most resolute, or the most irresponsible, in

the unflinching discharge of their duties.’”161 Thus, in Bivens itself, Harlan

contended that official-immunity doctrine could cure overdeterrence

concerns arising from recognizing implied constitutional causes of action.

Accordingly, Powell thought that although courts possessed the

discretionary power to sanction Bivens suits, they should employ that power

sparingly for policy reasons grounded in separation-of-powers principles.

Moreover, he endorsed applying a similar framework to other areas in which

courts exercised some measure of discretion. And he indicated that he was

aware that official-immunity doctrine could limit the effects of recognizing

implied constitutional causes of action under the Bivens regime.

It does not take much imagination to see how all of this maps onto

Powell’s majority opinion in Harlow, which expanded official-immunity

protections in the context of a Bivens matter. Significantly, Harlow

insinuated an anxiety grounded in separation-of-powers principles about the

possibility of expanding Bivens to a new class of claims. The Court set aside

the question of whether the plaintiff could pursue a Bivens cause of action

under the First Amendment,162 as the issue was not properly presented for

multiple reasons.163 But the Court placed a statement on that issue in close

follows, which concludes that qualified immunity affords all the protection necessary to

ensure the effective performance of official duties.” (internal citation omitted)). 157 Bivens v. Six Unknown Named Agents, 403 U.S. 388, 397–98 (1971). 158 Id. at 411 (Harlan, J., concurring in the judgment). 159 Id. 160 Id. 161 Barr v. Mateo, 360 U.S. 564, 571–72 (1959) (quoting Gregoire v. Biddle, 177 F.2d

579, 581 (2d Cir. 1949) (Hand, C.J.)), cited in Bivens, 403 U.S. at 411 (Harlan, J., concurring

in the judgment). 162 Harlow v. Fitzgerald, 457 U.S. 800, 820 n.36 (1982). 163 See Brief for Respondent, Nixon v. Fitzgerald, 457 U.S. 731 (1982) (No. 79-1738),

1981 WL 389866, at *42 (“The district court’s ruling that Fitzgerald has constitutional and


proximity to the Justices’ views on the two implied statutory claims that the

plaintiff attempted to assert:

We do not view petitioners’ argument on the statutory

question as insubstantial. Cf. Merrill Lynch, Pierce, Fenner

& Smith, Inc. v. Curran, 4[56] U.S. 353, 377–378 (1982)

(controlling question in implication of statutory causes of

action is whether Congress affirmatively intended to create a

damages remedy); Middlesex County Sewerage Auth. v.

National Sea Clammers Assn., 453 U.S. 1 (1981) (same);

Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S.

630, 638–639 (1981) (same). Nor is the Bivens question. Cf.

Bush v. Lucas, 647 F.2d 573, 576 (CA5 1981) (holding that

the “unique relationship between the Federal Government and

its civil service employees is a special consideration which

counsels hesitation in inferring a Bivens remedy”).164

These remarks were dicta. But their inclusion seems to show that the majority

believed that it was important to signal the Court’s growing skepticism of the

Bivens regime on policy-tinged separation-of-powers grounds.

Consequently, Harlow offered an opportunity to blunt the impact of

Bivens in a case where the Court indicated an interest in doing so. Under

these circumstances and given his prior opinions, one could and should

suspect that Powell—widely considered a paradigmatic pragmatist165—saw

adapting immunity doctrine to policy goals as a suitable substitute for reining

in Bivens itself, just as Harlan, his “judicial hero,” had.166

Other aspects of Harlow’s text provide further support for this

hypothesis. Powell grounded the discussion of the proper standard for

qualified immunity in the proposition that “[t]he resolution of immunity

questions inherently requires a balance between the evils inevitable in any

implied statutory causes of action was not appealable as a collateral order, nor was it certified

for interlocutory appeal under 28 U.S.C. § 1292(b). The issue was not before the court of

appeals. In their petition for a writ of certiorari, Harlow and Butterfield did not present the

question for review. Rather, they expressly informed this Court that the issue was not

‘immediately appealable’ and that it was not included in their notices of appeal to the court

of appeals.”). 164 457 U.S. at 820 n.36 (parallel citations omitted). 165 See, e.g., Craig Evan Klafter, Justice Lewis F. Powell, Jr.: A Pragmatic Relativist, 8

B.U. PUB. INT. L.J. 1, 1 (1998); James F. Simon, Judging the Justices, 49 STAN. L. REV. 173,

179 (1996) (reviewing ROGER K. NEWMAN, HUGO BLACK: A BIOGRAPHY (1994); JEFFRIES,

supra note 146). 166 JEFFRIES, supra note 146, at 263; see supra text accompanying notes 157–161.


available alternative,”167 an apparent nod to Harlan’s Bivens concurrence.168

And “[i]n situations of abuse of office,” Powell said, “an action for damages

may offer the only realistic avenue for vindication of constitutional

guarantees,” citing Bivens and Butz v. Economou, a Bivens case.169 Harlow

thus drew the Court’s authority to adjust the standard for qualified immunity

by balancing competing policy priorities at least in part from the Bivens line

of precedent.

Powell also pointed up the “separation-of-powers concerns” inherent

in pursuing discovery in “suits against the President’s closest aides.”170 And

his majority opinion in Harlow’s companion case, Nixon v. Fitzgerald,171

made this connection even clearer. Among numerous other references to

separation-of-powers principles in determining the scope of presidential

immunity,172 Powell stated that “a court, before exercising jurisdiction, must

balance the constitutional weight of the interest to be served against the

dangers of intrusion on the authority and functions of the Executive

Branch.”173 The immediate subject of these statements was a concern about

interfering with the executive rather than the legislative branch. But they

make clear that separation-of-powers principles were at the front of Powell’s

mind when crafting official-immunity standards in these crucial cases.

* * *

In sum, there are solid reasons to think that Harlow responded to a

perceived separation-of-powers problem underlying the Bivens regime by

increasing the official-immunity protections available there. Before

proceeding, however, one note and one wrinkle bear considering.

The note: a separate opinion in Abbasi lends additional credence to

this understanding. Dissenting from the majority’s position on the Bivens

regime, Justice Breyer, joined by Justice Ginsburg, described both a causal

function flowing from Bivens to Harlow and a curative function flowing from

Harlow to Bivens.174 Breyer first framed the Harlow standard as responding

to the effects of Bivens liability. Specifically, he stated that “the courts, in

order to avoid deterring federal officials from properly performing their

167 457 U.S. at 813. 168 See supra text accompanying note 161. 169 457 U.S. at 814. 170 Id. at 817 n.28. 171 457 U.S. 731 (1982). 172 See id. at 748, 749, 753, 754. 173 Id. at 754. 174 Ziglar v. Abbasi, 137 S. Ct. 1843, 1872, 1883 (2017) (Breyer, J., joined by Ginsburg,

J., dissenting).


work, have developed safeguards for defendants, including . . . the defense of

‘qualified immunity,’” citing Harlow.175 He then argued that Bivens actions

should “continue to exist” because, among other things, “Bivens comes

accompanied with a qualified-immunity defense,” again citing Harlow.176

Breyer thus demonstrated a belief that the Harlow standard was expected and

continues to restrain the alleged excesses of the Bivens regime.

The wrinkle: in Harlow, the plaintiff sued not only under Bivens to

vindicate his First Amendment rights, but also under two federal statutes to

vindicate subconstitutional rights to testify before Congress.177 As mentioned

above,178 neither of these statutes “expressly create[d] a private right to sue

for damages,” and the Court remanded the question of whether it was

appropriate to recognize implied causes of action for the lower courts to

consider alongside the Bivens issue.179 One could thus argue that Harlow

was not a pure Bivens case in the way that the Supreme Court’s supposed

separation-of-powers rationale might suggest.

Any such argument should not detain us long. For notwithstanding

the presence of statutory claims, the Court focused on the First Amendment

claim in fashioning the standard for qualified immunity, often (but not

always) discussing the doctrine as if it applied only in the constitutional

context.180 And Justice Brennan’s concurrence, which Justices Marshall and

Blackmun joined, discussed qualified immunity vis-à-vis constitutional

claims exclusively.181 In light of all of the evidence outlined here, therefore,

there is little reason to think that the incidental presence of statutory claims

weakens the contention that Harlow represented a particularized response to

175 Id. at 1872. 176 Id. at 1883. 177 457 U.S. 800, 805 & n.10 (1982) (“The first of these statutes, 5 U.S.C. § 7211 (1976

ed., Supp.IV), provides generally that ‘[t]he right of employees . . . to . . . furnish information

to either House of Congress, or to a committee or Member thereof, may not be interfered

with or denied.’ The second, 18 U.S.C. § 1505, is a criminal statute making it a crime to

obstruct congressional testimony.” (alterations in original)). 178 See supra text accompanying note 164. 179 Harlow, 457 U.S. at 805 n.10, 819–20 & n.36. 180 See, e.g., id. at 813–14 (“The resolution of immunity questions inherently requires a

balance between the evils inevitable in any available alternative. In situations of abuse of

office, an action for damages may offer the only realistic avenue for vindication of

constitutional guarantees.”); id. at 815 (“Decisions of this Court have established that the

‘good faith’ defense has both an ‘objective’ and a ‘subjective’ aspect. The objective element

involves a presumptive knowledge of and respect for ‘basic, unquestioned constitutional

rights.’” (quoting Wood v. Strickland, 420 U.S. 308, 322 (1975))). 181 See, e.g., id. at 820–21 (Brennan, J., joined by Marshall and Blackmun, JJ.,

concurring) (“I agree with the substantive standard announced by the Court today, imposing

liability when a public-official defendant ‘knew or should have known’ of the

constitutionally violative effect of his actions.”); id. at 821 (“[T]he clever and unusually well-

informed violator of constitutional rights will not evade just punishment for his crimes.”).


the Bivens regime. Indeed, for the reasons discussed anon, the Court treated

the violence that a qualified-immunity standard arising in the Bivens context

might do to statutory causes of action as collateral damage at worst and a

welcome consequence at best.

III. EXTENDING HARLOW TO SECTION 1983

The Supreme Court soon extended the Harlow standard beyond the

Bivens environment into the separate Section 1983 domain. This Part begins

by considering previous academic appraisals of that maneuver. It then

reconsiders the Court’s own reasoning, which reveals a federalism rationale.

A. Previous Understandings

There was no Section 1983 claim at issue in Harlow. Nevertheless,

the majority chose to address that context in the following footnote, which

quoted the Supreme Court’s 1978 opinion in Butz v. Economou:

This case involves no issue concerning the elements of the

immunity available to state officials sued for constitutional

violations under 42 U.S.C. § 1983. We have found

previously, however, that it would be “untenable to draw a

distinction for purposes of immunity law between suits

brought against state officials under [Section] 1983 and suits

brought directly under the Constitution against federal

officials.”182

A few scholars have suggested that this remark represents a mere statement

of fact, such that the Court reserved for another day the question of whether

the new qualified-immunity standard would govern Section 1983 suits.183

But the apparent majority of commentators has long viewed Harlow as

having answered that question.184 Moreover, just four days after announcing

182 Harlow, 457 U.S. at 818 n.30 (quoting Butz v. Economou, 438 U.S. 478, 504 (1978)). 183 See, e.g., Shapiro, supra note 100, at 267 & n.122. 184 See, e.g., Note, Stephanie E. Balcerzak, Qualified Immunity for Government

Officials: The Problem of Unconstitutional Purpose in Civil Rights Litigation, 95 YALE L.J.

126, 133 n.34 (1985); Jack M. Beermann, Qualified Immunity and Constitutional Avoidance,

2009 SUP. CT. REV. 139, 148 n.38 (2009); Comment, Harlow v. Fitzgerald: The Lower

Courts Implement the New Standard for Qualified Immunity Under Section 1983, 132 U. PA.

L. REV. 901, 915 n.81 (1984); Richard H. Fallon, Jr., Three Symmetries Between Textualist

and Purposivist Theories of Statutory Interpretation—And the Irreducible Roles of Values

Judgment Within Both, 99 CORNELL L. REV. 685, 691 n.31 (2014); Seth P. Waxman &


Harlow, in a Section 1983 case called Sanborn v. Wolfel,185 the Court granted

the petition for certiorari, vacated the judgment, and remanded the matter

with instructions for the court of appeals to consider Harlow. As is customary

with such “GVR” dispositions, the Court provided very little reasoning. But

it did include a quotation of the same statement from Economou on which the

footnote in Harlow relied.186

In any event, Davis v. Scherer,187 issued two years later by a Court

with the same composition as in Harlow and also authored by Justice Powell,

unambiguously declared that the Harlow standard governed Section 1983

suits. There, the Court blessed applying Harlow to the Section 1983

proceeding at bar with the following portion of a footnote, which again cited

Economou: “Harlow was a suit against federal, not state, officials. But our

cases have recognized that the same qualified immunity rules apply in suits

against state officers under [Section] 1983 and in suits against federal officers

under Bivens . . . .”188 This footnote also pointed out that Harlow’s holding

referenced “clearly established statutory or constitutional rights,”189 which

the Court said embraced the statutory-rights component of Section 1983.190

Accordingly, the claim that the Bivens backdrop appears to have

provided a separation-of-powers impetus for Harlow-style qualified

immunity is one of inclusion rather than exclusion. Although a separation-

of-powers response to the Bivens regime likely played an important part in

producing the Harlow standard, it did not comprise the whole picture.

Instead, the Supreme Court seems to have simultaneously accepted and even

welcomed the prospect of extending the new standard into the Section 1983

setting for many possible reasons, including policy priorities (e.g., preventing

overdeterrence and unfairness to government officials), docket pressures

(e.g., believing that constitutional-tort suits were growing out of control), or

following precedent (i.e., adhering to the statement from Economou).191

Trevor W. Morrison, What Kind of Immunity? Federal Officers, State Criminal Law, and the

Supremacy Clause, 112 YALE L.J. 2195, 2209 n.42 (2003). 185 458 U.S. 1102 (1982). 186 Id. at 1102 (citing Economou, 438 U.S. at 504). 187 468 U.S. 183 (1984). 188 Id. at 194–95 & n.12. 189 Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). 190 Scherer, 468 U.S. at 194 n.12 (“In Harlow, the Court acknowledged that officials

may lose their immunity by violating ‘clearly established statutory . . . rights.’ This is the

case where the plaintiff seeks to recover damages for violation of those statutory rights, as

in Harlow itself, and as in many [Section] 1983 suits.” (first alteration in original) (citations

omitted)). 191 Huq discusses docket management, including in association with rising crime and

incarceration rates, as a dominant reason that the Supreme Court instituted a fault-based

regime for constitutional-tort suits. See Huq, supra note 6, at 52–63. And Marin Levy has


Only the latter of these additional reasons is strictly legal, however,

and for two likely reasons, only a few previous commentators have paid it

much attention. Many scholars apparently fail to appreciate the path-

dependent history of the Court’s initial implementation of the Harlow

standard. And even those who do appreciate the history seem often simply

to accept the Court’s snippet-like references to Economou as sufficient to

justify importing the Harlow standard from the Bivens arena to the Section

1983 setting.192 A small handful of scholars, however, has dug a bit deeper.193

In Economou, the Court stated that it would be “untenable to draw a

distinction for purposes of immunity law between suits brought against state

officials under [Section] 1983 and suits brought directly under the

Constitution against federal officials.”194 As framed by an argument offered

by the defendant government officials, the question to which the Court was

responding was whether to ramp down the protection previously afforded

federal officials in some actions, absolute immunity, to match that afforded

state officials in Section 1983 suits, good-faith immunity.195 The Court

answered in the affirmative, explaining that applying absolute immunity as a

matter of course would have eviscerated the Bivens regime.196

Thus, the argument from some scholars goes, Economou established

the “equivalency between the two kinds of constitutional tort cases . . . in a

case which reduced the insulation afforded federal officials to the same level

as that of their state counterparts, in order to preserve the efficacy of a parallel

remedy that the Court created judicially.”197 With and after Harlow,

connected qualified immunity to concerns about opening “the floodgates of litigation” more

generally. See Marin K. Levy, Judging the Flood of Litigation, 80 U. CHI. L. REV. 1007,

1060–62 (2013). Moreover, we know that Justice Powell was troubled by a perceived

“litigation explosion commencing with this Court’s 1971 Bivens decision.” Nixon v.

Fitzgerald, 457 U.S. 731, 750 n.31 (1982); see Harlow, 457 U.S. at 817 n.29. And he appears

to have been just as troubled by a perceived post-Monroe upsurge in Section 1983 suits. In

a case decided three days before Harlow, he expressed distress over the escalating number

of civil-rights cases in federal courts, focusing on claims asserted under Section 1983. See

Patsy v. Bd. of Regents of State of Fla., 457 U.S. 496, 533 & n.20 (1982) (Powell, J.,

dissenting). 192 See, e.g., sources cited supra note 184. 193 See, e.g., Oren, supra note 100, at 982–85; Gildin, Immunizing Intentional Violations,

supra note 100, at 382. 194 438 U.S. 478, 504 (1978). 195 See id. at 485–504. 196 Id. at 501 (“The Government argues that the cases involving state officials are

distinguishable because they reflect the need to preserve the effectiveness of the right of

action authorized by [Section] 1983. But . . . the cause of action recognized in Bivens . . .

would similarly be drained of meaning if federal officials were entitled to absolute immunity

for their constitutional transgressions.” (internal quotation marks omitted)). 197 Oren, supra note 100, at 982–83 (emphasis omitted).


however, the Court did the opposite by increasing the insulation afforded

federal officials to a higher level than that of their state counterparts and then

increasing the insulation afforded state officials to a corresponding degree.198

This exercise, the argument concludes, improperly elevated the mere means

by which the Court adjusted official-immunity standards in Economou

(rendering the standards equivalent) above the more important ends for which

it did so (preserving a rights-protective cause of action).199 Put differently,

some scholars see the original sin against Economou as Harlow’s election to

strengthen the protection available to federal officials beyond that previously

available to state officials because that decision ruptured the parallel nature

of the doctrine in the Bivens and Section 1983 contexts. For those scholars,

the Court’s subsequent election to extend the same protection to state officials

served to obscure rather than to absolve the initial transgression.200

B. The Supreme Court’s Federalism Rationale

The preceding argument from prior scholarship looks more to the

broader context than the actual reasoning of Economou. Aside from

preserving Bivens by declining to endorse absolute immunity for such causes

of action in particular, why did the Supreme Court believe it important for

state and federal officials to bear equivalent constitutional burdens in

general? And why did Harlow and its progeny come to the same conclusion

under much different circumstances? Venturing answers to these questions

uncovers a murky federalism rationale lurking beneath the Court’s decision

to extend the Harlow standard into the Section 1983 sphere.

1. The Logic Behind Economou

Recall that in 1974, the Supreme Court expanded the availability of

good-faith immunity in Section 1983 suits from the false-arrest context of

Pierson to state-level executive action at large in Scheuer v. Rhodes.201

There, while acknowledging that the question was “essentially a matter of

198 Id. at 983. 199 See id. at 982–83. 200 See Gildin, Immunizing Intentional Violations, supra note 100, at 382 (stating that

the reasoning in the Harlow footnote extending the new qualified-immunity standard to

Section 1983 cases “is facially unassailable, which no doubt accounts for its universal

acceptance by the Supreme Court and lower federal courts,” but that “[w]hen it made the

policy judgment to abrogate the subjective tier of the immunity in Harlow, the Court

abandoned the leading premise of its syllogism—that the immunity of federal officials must

be no greater than the immunity of state officers”). 201 See supra text accompanying notes 23–25.


statutory construction,”202 the Court outlined various policy-based

justifications for good-faith immunity.203

Economou, which followed in 1978,204 endorsed some of these

justifications. The first involved avoiding “‘the injustice, particularly in the

absence of bad faith, of subjecting to liability an officer who is required, by

the legal obligations of his position, to exercise discretion.’”205 The second

involved avoiding “‘the danger that the threat of such liability would deter

[the officer’s] willingness to execute his office with the decisiveness and the

judgment required by the public good.’”206 And Economou also quoted

Scheuer for the proposition that “executive branch officers must often act

swiftly and on the basis of factual information supplied by others, constraints

which become even more acute in the ‘atmosphere of confusion, ambiguity,

and swiftly moving events’ created by a civil disturbance.”207

Economou proceeded to hold that the same official-immunity

standard governed both Section 1983 suits and Bivens actions. The Court’s

reasoning suggests as many as four explanations for why. And analyzing

those explanations highlights the fourth as a particularly credible candidate

for elucidating what one might call the equivalence directive.

The first explanation is a broad understanding of binding precedent.

“The Court’s opinion in Scheuer,” said Economou, “relied on precedents

dealing with federal as well as state officials, analyzed the issue of executive

immunity in terms of general policy considerations, and stated its conclusion

in the same universal terms.”208 Consequently, Economou concluded, “[t]he

analysis presented in [Scheuer] cannot be limited to actions against state

officials.”209 But to the extent that Scheuer, a Section 1983 case, said

anything about Bivens actions, it was plainly dicta.

Of course, the rationales for applying a particular immunity standard

in the Section 1983 context could have carried persuasive force in the Bivens

context even if a previous opinion did not dictate the same result. Hence, the

second explanation for the equivalence directive: Economou stated that

“Scheuer was intended to guide the federal courts in resolving th[e] tension”

between “the plaintiff’s right to compensation” and “the need to protect the

decisionmaking processes of an executive department” in “the myriad factual

202 Butz v. Economou, 438 U.S. 478, 497 (1978). 203 416 U.S. 232, 238–49 (1974). 204 See supra text accompanying note 26. 205 438 U.S. at 497 (quoting Scheuer, 416 U.S. at 240). 206 Id. (quoting Scheuer, 416 U.S. at 240). 207 Id. (quoting Scheuer, 416 U.S. at 246–47). 208 Id. at 503–04. 209 Id. at 504.


situations in which it might arise.”210 Thus, the Court continued, “we see no

reason why [Scheuer] should not supply the governing principles for

resolving this dilemma in the case of federal officials.”211 One could view

this statement and others as asserting that the same policy principles that

supported employing good-faith immunity in the Section 1983 context of

Scheuer obtained in the Bivens context of Economou.

But even assuming that policy principles are an appropriate source of

law in the Bivens arena, it is not obvious that the considerations driving the

way that courts adjudicate constitutional claims against state officials

necessarily apply to suits against federal officials. Basic non-interference

principles of federalism would at least warrant pausing over that proposition.

The Supreme Court had declared just a few years before Economou, for

instance, that the concept of “Our Federalism” occupies “a highly important

place in our Nation’s history and its future.”212 And this concept, the Court

said, requires respect for the principle that “the National Government,

anxious though it may be to vindicate and protect federal rights and federal

interests, always endeavors to do so in ways that will not unduly interfere

with the legitimate activities of the States.”213

Arising from the same discussion of Scheuer is the third explanation

for the equivalence directive: that a two-track standard for qualified

immunity—one for state officials and one for federal officials—would prove

unworkable. Certainly, a single standard would be most convenient. But

official-immunity doctrines are transsubstantive, such that courts would

confront only a couple of criteria rather than the panoply of principles that

would govern if, say, the substance of every constitutional right differed for

state versus federal officials. And in Economou, the losing contender for the

standard to govern federal officials was absolute immunity, which is quite

simple to apply. It is not extraordinary, moreover, for different standards to

constrain the conduct of state versus federal officials. Various federal statutes

pertain only to federal actors, for instance.214 Likewise, “a handful of the Bill

of Rights protections remain unincorporated” against the states.215 And to

210 Id. at 503. 211 Id. 212 Younger v. Harris, 401 U.S. 37, 44–45 (1971). 213 Id. at 44. 214 The Hatch Act provides one prominent example. See Hatch Act, OSC.GOV OFFICE

OF SPECIAL COUNSEL, https://osc.gov/Pages/HatchAct.aspx (explaining that the Hatch Act

“limits certain political activities of federal employees, as well as some state, D.C., and local

government employees who work in connection with federally funded programs”). But other

provisions abound. E,g., 5 U.S.C. § 7352 (“An individual who habitually uses intoxicating

beverages to excess may not be employed in the competitive service.”). 215 McDonald v. City of Chicago, 561 U.S. 742, 765 (2010).


the extent that law-enforcement endeavors and officials sometimes proceed

in joint federal-state capacities, the Supreme Court could make clear how to

assess which cause of action and which affiliated immunity principles

apply.216 And mechanisms like intergovernmental indemnification

agreements could alleviate lingering concerns.

The fourth and final explanation for the equivalence directive is that

“[t]o create a system in which the Bill of Rights monitors more closely the

conduct of state officials than it does that of federal officials is to stand the

constitutional design on its head.”217 As Economou made clear, the Bill of

Rights originally restrained the conduct of federal actors only: incorporation

against the states came later, with the Fourteenth Amendment.218

Accordingly, this logic suggests that the equivalence directive rested on the

proposition that allowing federal officials to escape liability for violating

individual rights where their state counterparts could not would have

offended historical norms woven into the fabric of our constitutional

tradition.

2. Ensuing Entreaties Toward Equivalence

The Supreme Court relied on Economou to justify extending the

Harlow standard from the Bivens arena to the Section 1983 setting in Harlow

itself, in Wolfel, and in Scherer.219 Was that appropriate? The above analysis

of Economou’s actual reasoning complicates prior analyses of its broader

context.220 According to the above analysis, historical conventions played a

relatively compelling role in producing the equivalence directive. One could

contend that the Court’s decision to apply the Harlow standard to Section

1983 suits honored those conventions, for doing so ensured that state officials

would not suffer harsher treatment for constitutional violations than federal

officials would. Harlow itself, however, spurned historical conventions by

eliminating the good-faith inquiry. It is therefore difficult to characterize the

216 For example, issues surrounding officials acting in joint federal-state capacities often

arise with respect to the National Guard. See In re Sealed Case, 551 F.3d 1047, 1049 (D.C.

Cir. 2009) (explaining that “the National Guard’s dual federal-state status has been described

as ‘murky and mystical’” (quoting Bowen v. United States, 49 Fed. Cl. 673, 676 (2001)). In

this context, courts seem generally to hold that constitutional-tort suits sound in Section

1983, not in Bivens—and, in any event, that the Feres doctrine and its offspring (which bar

damages actions deriving from military-related disputes, see Feres v. United States, 340 U.S.

135 (1950)) dispose of such claims. See, e.g., Watson v. Ark. Nat. Guard, 886 F.2d 1004,

1005–08 (8th Cir. 1989). 217 Economou, 438 U.S. at 504. 218 See id. 219 See supra text accompanying notes 182–188. 220 See supra text accompanying notes 193–199.


opinion’s treatment of Section 1983 claims as turning on a commitment to

upholding tradition, at least exclusive of some other objective.

Indeed, it seems that the Court wanted to safeguard state actors in the

name of federalism by requiring them to comply with no more demanding

constitutional commands than those governing their federal counterparts.

Again, both the jurisprudential context and Justice Powell’s opinions reveal

this rationale. As for context, “the Burger Court sought to revitalize

constitutional federalism” in multiple areas,221 and a handful of scholars have

long perceived a vague federalism justification for applying qualified

immunity in the Section 1983 setting.222 As for Powell, he penned not only

Harlow and Scherer (which declared Harlow applicable in the Section 1983

context223), but also several other opinions directly indicating a desire to rein

in litigation against state-affiliated defendants or implicating state-affiliated

interests for federalism-related reasons.

To provide a few examples: as discussed above, in Davis v. Passman,

Powell cited numerous abstention decisions grounded in federalism for the

proposition that “where discretion exists, a variety of factors rooted in the

Constitution may lead a federal court to refuse to entertain an otherwise

properly presented constitutional claim.”224 And as discussed below, he was

a late proponent of applying more lenient substantive standards to state actors

than to federal actors when incorporating constitutional rights against the

states, in part because of a federalism rationale about states acting as

221 Richard H. Fallon, Jr., Why Abstention Is Not Illegitimate: An Essay on the

Distinction Between “Legitimate” and “Illegitimate” Statutory Interpretation and Judicial

Lawmaking, 107 NW. U. L. REV. 847, 868 (2013). 222 See, e.g., Kit Kinports, The Buck Does Not Stop Here: Supervisory Liability in

Section 1983 Cases, 1997 U. ILL. L. REV. 147, 168 (stating that qualified immunity “ensures

that a supervisor will not be held liable simply because a federal court ‘second-guessed’ her

decisions and prevents federal judges from intruding unnecessarily into areas of state and

local prerogative”); Sheldon Nahmod, The Long and Winding Road from Monroe to

Connick, 13 LOY. J. PUB. INT. L 427, 427–28 (2012) (“The Court’s interest in federalism in

the [Section] 1983 setting includes an increasing concern with federal judicial intervention

in, and second-guessing of, the decisions of local governments. Federalism, broadly defined,

has affected . . . the extent of the absolute and qualified immunity of state and local

government officials.”); Aaron L. Nielson & Christopher J. Walker, The New Qualified

Immunity, 89 S. CAL. L. REV. 1, 59 (2015) (stating that “in the qualified immunity

context, . . . federal courts exercise discretion to decide the constitutionality of acts

committed by state officials against the backdrop of federalism concerns”). 223 See supra text accompanying notes 187–190. 224 442 U.S. 228, 253 n.2 (1979) (Powell, J., dissenting); see supra text accompanying

note 154.


laboratories for policy experimentation.225 Powell was also a strong

supporter of state sovereign immunity, as evidenced by his opinions in

Pennhurst State School and Hospital v. Halderman226 and Atascadero State

Hospital v. Scanlon, for instance.227 And dissenting in Patsy v. Board of

Regents of the State of Florida,228 decided three days before Harlow, he made

an impassioned argument that Section 1983 plaintiffs should be required to

exhaust state administrative remedies before bringing suit.229 Such a rule, he

argued, was “dictated . . . by common sense, as well as by comity and

federalism”; would “permit[] the States to correct violations through their

own procedures”; and would align with principles “that apply whenever

federal courts are asked to review state action.”230

Finally and perhaps most pertinently, Powell authored a vigorous

dissent in Owen v. City of Independence,231 where the majority held that

official immunity was unavailable for Section 1983 claims against municipal

entities. Writing for himself, Chief Justice Burger, and Justices Stewart and

Rehnquist, Powell argued that “[i]mportant public policies” supported

extending official immunity to local governments.232 Among other things,

Powell contended, withholding official immunity “may restrict the

independence of local governments and their ability to respond to the needs

of their communities.”233 Powell’s concern in the official-immunity context

with the independence and responsiveness of lower-level government actors

would have naturally translated into a belief that qualified-immunity doctrine

should not require state officials to face a more intrusive constitutional

standard of conduct than their federal counterparts face.

In sum, the Supreme Court repeatedly justified extending the Harlow

standard from the Bivens environment to the Section 1983 sphere by referring

to the statement from Economou that it would be “untenable to draw a

distinction for purposes of immunity law” between these contexts.234 Some

prior scholarship has rejected Economou as inapposite, but examining the

225 See Johnson v. Louisiana, 406 U.S. 366, 375–76 (1972) (Powell, J., concurring in

Johnson and concurring in the judgment in Apodaca v. Oregon, 406 U.S. 404 (1972)); infra

text accompanying notes 310–315. 226 465 U.S. 89 (1984) (holding that federal courts may not order state officials to comply

with state law). 227 473 U.S. 234 (1985) (establishing a clear-statement rule for Congress to abrogate

state sovereign immunity by statute). 228 457 U.S. 496 (1982). 229 See id. at 531–36 (Powell, J., dissenting). 230 Id. at 532–33, 536. 231 445 U.S. 622 (1980). 232 Id. at 667 (Powell, J., dissenting). 233 Id. at 668. 234 438 U.S. 478, 504 (1978).


Court’s actual reasoning paints a more complicated picture. To wit, Harlow

appears to have exploited the equivalence directive not only for the historical

principle underlying Economou, but for some other objective. Jurisprudential

clues and Justice Powell’s opinions suggest that the aim was to safeguard

state actors in the name of federalism by subjecting them no more demanding

constitutional commands than those that governed their federal counterparts.

* * *

To review, prior scholarship has missed something significant about

qualified immunity. The governing standard arose in Harlow, a Bivens

action, and ample evidence suggests that this milieu may have contributed to

the Supreme Court’s reasoning in multiple important and underappreciated

respects. These include supplying two overlooked justifications for

increasing the ambit of qualified immunity, both of which sound in

constitutional structure. First, in articulating the Harlow standard, the Court

appears to have attempted to counter a perceived separation-of-powers

problem underlying Bivens’s increase in liability with a corresponding

increase in immunity. Second, in expanding the Harlow standard from

Bivens actions to Section 1983 suits, the Court appears to have relied on a

federalism-related imperative not to hold state officials to a higher bar than

federal officials for constitutional compliance.

A couple of qualifications are appropriate at this point. First, the

focus here is on the Supreme Court’s structural constitutional justifications

for qualified immunity—and, therefore, on Harlow, which most clearly

crystallized those justifications. But the intent is not to imply that we should

view these rationales as the only, or even the primary, inputs in producing

and potentially vindicating the doctrine—or that we should see Harlow’s

publication as the only moment that matters in the history of qualified

immunity. Other forces and events (including cross-context overdeterrence

and caseload concerns) have surely played a role in shaping the Court’s

thinking. But previous scholarship has already done much to undermine their

persuasive power in justifying the resulting jurisprudence.

Second and relatedly, this examination relies rather heavily on Justice

Powell’s positions. Exploring opinions by Powell proves a valuable exercise

not only because he authored Harlow (and Davis v. Scherer, which confirmed

that Harlow governed in the Section 1983 context), but also because his

writings stand as underappreciated representatives of several larger

movements of relevance here. That said, on the one hand, a single Justice

does not a Supreme Court make. And on the other, additional individual

jurists have doubtless made significant marks on qualified-immunity doctrine

as well.


IV. EXPLORING THE IMPLICATIONS

The discussion so far has mostly sought to establish the Supreme

Court’s structural constitutional rationales for qualified immunity as a

descriptive matter. This Part explores their normative purchase. The ultimate

conclusion is that neither separation-of-powers principles nor federalism

concerns provide sufficiently persuasive support for retaining the Harlow

standard for Bivens actions or Section 1983 suits, respectively.

Some preliminary observations provide an important preface. To wit,

scholars rarely analyze qualified immunity in a bifurcated way. But the

doctrine developed along separate paths for Bivens actions and Section 1983

suits, which helps to illustrate why we should evaluate the doctrine differently

in these different contexts. Indeed, qualified immunity is not necessarily

susceptible to the same criticisms in the federal common-law setting of

Bivens actions as in the statutory setting of Section 1983 suits. Thus, even if

the doctrine runs afoul of good policy and principles on an a priori basis in

the Section 1983 domain on grounds that others have identified, the academy

cannot rest its case against qualified immunity without confronting several

subsequent questions. Chief among them, is the Harlow standard

nevertheless justifiable in the Bivens context? And, if so, does that render it

justifiable on an a posteriori basis in the Section 1983 context?

Attempting to provide answers, this Part assesses the merits and

demerits of the Supreme Court’s separation-of-powers and federalism

rationales for qualified immunity. These insights from constitutional

structure are powerful in many respects. But they ultimately fail to provide

a convincing vindication of the Harlow standard in the distinct spaces in

which they apply.

A. The Supreme Court’s Separation-of-Powers Rationale

Inherent in several Supreme Court opinions is the notion that the

Harlow standard for qualified immunity lessens the damage done by Bivens

in allowing courts to recognize implied constitutional claims. To assess the

legitimacy of this separation-of-powers justification, the analysis must

account for the perspectives of both Bivens advocates and Bivens antagonists.

1. If Bivens Ain’t Broke?

For those who believe that the Bivens regime rests on a lawful

foundation, two primary possibilities present themselves. First, invoking the

maxim ubi jus, ibi remedium (where there is a right, there is a remedy), some

observers have argued that the Constitution commands that courts recognize

Bivens claims, at least for some alleged violations or at least absent an


effective alternative means for fully vindicating constitutional rights.235

These arguments have often enlisted, to quote a proponent, “one of the most

important and inspiring passages”236 from Marbury v. Madison.237 This

passage proclaims that “[t]he 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”—and that “[o]ne of the first duties of government is to

afford that protection.”238

Second, some commentators think that the Constitution permits, but

does not require, the judiciary to recognize implied constitutional causes of

action—at least, again, absent an effective alternative means of redress.239 A

prominent version of this view contends that the Bivens doctrine simply

provides a damages remedy where both a legal right and jurisdiction to

adjudicate that right already exist—and that courts have long possessed

authority to select among traditional remedies under such circumstances.240

Someone who backs the Bivens regime on either of these bases is

unlikely to perceive a separation-of-powers problem necessitating a

235 Akhil Amar has advanced a well-known version of this argument. See Akhil Reed

Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425, 1485 (1987) (“The legal rights

against governments enshrined in the Constitution strongly imply corresponding

governmental obligations to ensure full redress whenever those rights are violated.”); id. at

1507 (discussing how Bivens “partially fulfilled” this principle). And John Harrison provides

an interesting take. See John Harrison, Ex Parte Young, 60 STAN. L. REV. 989, 1021 (2008).

(stating that “[t]he Fourth and Eighth Amendments . . . are among the Constitution’s closest

analogs to the law of tort,” such that if “the tort-like rules that they impose on government

officers differ from the rules the ordinary private law imposes on private people, then it is

certainly plausible to say that they must have their own tort-like remedy because they have

their own tort-like content”). For other work in this general vein, see, e.g., Susan Bandes,

Reinventing Bivens: The Self-Executing Constitution, 68 S. CAL. L. REV. 289 (1995). 236 Amar, supra note 235, at 1486. 237 5 U.S. (1 Cranch) 137 (1803). 238 Id. at 163. 239 Fallon and Meltzer’s theory of constitutional remedies fits into this category.

Arguing that “Marbury’s apparent promise of effective redress for all constitutional

violations reflects a principle, not an ironclad rule,” they contend that the fact that “[t]here

historically always have been, and predictably will continue to be, cases in which effective

individual redress is unavailable” is “regrettable, but tolerable.” Fallon & Meltzer, supra

note 92, at 1789. But “[w]hat would be intolerable,” they continue, “is a regime of public

administration that was systematically unanswerable to the restraints of law.” Id. at 1789.

Thus, they conclude, the primary question in deciding whether to afford constitutional

redress should be whether “an overall structure of remedies adequate to preserve”

government accountability exists. Id. at 1790. 240 See, e.g., Davis v. Passman, 442 U.S. 228, 236–48 (1979); Bivens v. Six Unknown

Named Agents, 403 U.S. 388, 405 (1971) (Harlan, J., concurring in the judgment).


qualified-immunity solution.241 Under the starkest version of the former

view, in which the violation of every constitutional right requires the

availability of a damages remedy, qualified immunity is necessarily

unconstitutional. And even under the latter, more lenient view, adherents

would seem likely to believe that for judges to recognize implied

constitutional causes of action represents “a central means of vindicating,

rather than aggrandizing, separated powers” because “the purpose of

constitutional rights is to constrain the political branches, and not the other

way around.”242

In any event, because these pro-Bivens positions afford courts a great

deal of policy-making leeway, the question at best becomes whether the

contours of qualified immunity make good sense. The separation-of-powers

justification uncovered here provides little assistance in answering that

question, especially in light of the many competing considerations. But for

all of the reasons that others have adduced (ranging from Chemerinsky’s

perceived injustices to Huq’s distributive concerns to Schwartz’s practical

problems—and beyond243), any attempt at defending the Harlow standard on

pure policy grounds faces an uphill battle.

Accordingly, the Supreme Court’s separation-of-powers rationale for

qualified immunity, which arises from the ostensibly restorative relationship

of Harlow to Bivens, appears unlikely to persuade those who see no need to

restore anything in the first place. If Bivens ain’t broke, don’t fix it, the

thinking would go.

2. Silver Bullet or Square Peg?

Others, of course, reject Bivens, viewing the regime as a judicial

usurpation of legislative power (either as an original or ongoing matter,

setting aside different theories of stare decisis). Should these people see

qualified immunity as a silver bullet for some portion of the Bivens problem,

or should they view Harlow as having tried to fit a square peg into a round

hole? The essence of the Supreme Court’s separation-of-powers rationale is

that qualified immunity serves as a judge-made fix to a judge-made failure.

241 This also holds true for those who back the Bivens regime on a third basis: that

subsequent legislative developments have “preserve[d] and ratif[ied] the Bivens remedy” in

a manner that “puts the Bivens action on a much firmer federal statutory foundation,

analogous if not identical to [Section] 1983.” James E. Pfander & David Baltmanis,

Rethinking Bivens: Legitimacy and Constitutional Adjudication, 98 GEO. L.J. 117, 121, 123

(2009). 242 Vladeck, supra note 130 (emphasis omitted). 243 See supra Part I.B.1.


But for those who are even amenable to such consequentialist thinking, the

rationale should fail for reasons well captured by Adrian Vermeule.

Drawing on work by philosopher David Hume, Vermeule describes

counteracting institutional maneuvers in constitutional implementation as

“compensating adjustments.”244 Put simply, this is “the idea that multiple

departures from the optimal or first-best constitutional arrangements might

offset each other,” thereby “ensur[ing] constitutional equilibrium.”245 Under

this model, one seeks “simultaneously to identify both a departure from

optimal constitutional design and an offsetting institutional adjustment that

compensates for the initial defect.”246 For instance:

If constitutional doctrine has permitted excessive delegations

from Congress to the President—excessive on either an

originalist or a functional account—then a laudable

compensating adjustment would be to allow the legislative

veto, congressional restrictions on the appointments power,

and other structural innovations intended to check the

presidential power, even if those innovations would otherwise

be unconstitutional.247

And:

If the President’s veto power has been effectively undermined

by the increasing incidence of omnibus legislation, which puts

the President to an illegitimate all-or-nothing choice, then a

laudable compensating adjustment would be to treat the

Constitution as affording the President a line-item veto, even

244 Adrian Vermeule, Hume’s Second-Best Constitutionalism, 70 U. CHI. L. REV. 421

(2003). Others described the concept of compensating adjustments in American

constitutional implementation before Vermeule’s article. See, e.g., Randy E. Barnett,

Reconceiving the Ninth Amendment, 74 CORNELL L. REV. 1, 26 (1988); Peter B. McCutchen,

Mistakes, Precedent, and the Rise of the Administrative State: Toward A Constitutional

Theory of the Second Best, 80 CORNELL L. REV. 1, 3 (1994). And still others have made

valuable contributions to our understanding of the concept since Vermeuele’s article. See,

e.g., Ernest A. Young, Making Federalism Doctrine: Fidelity, Institutional Competence, and

Compensating Adjustments, 46 WM. & MARY L. REV. 1733 (2005). I focus on Vermeule’s

work, however, in large part because of the relative clarity and detail with which he isolates

and addresses the particular theoretical issues discussed here. 245 Vermeule, supra note 244, at 421. 246 Id. 247 Id. at 432 (footnote omitted).


if that is not the best textual or original interpretation of the

veto power.248

Other examples abound.249

Vermeule calls this theory “second-best constitutionalism” for a

reason.250 The whole idea rests on the notion that some other first-best

arrangement exists, which itself rests on the notion that the constitution in

question provides a determinative-enough rule of decision along whatever

dimension the interpreter favors (originalism, pragmatism, etc.).

This observation produces two pertinent corollaries. First, only where

the first-best option is actually or practically unavailable should one accept a

second-best state of affairs. Thus, it may be preferable to insist on restoring

the former, if possible, rather than to assent to enduring the latter.251 Second,

not all compensating adjustments are created equal. “A standard conceptual

objection is that the policy of adjustment is indeterminate, as the interpreter

may choose the margin on which the adjustment is made,” Vermeule

explains.252 For instance, “[i]f sweeping delegations produce excessive

presidential power, why adjust by upholding the legislative veto, as opposed

to, say, granting Congress the commander-in-chief power?”253 This

objection, Vermeule argues, is “only partly persuasive” because “there are

easy cases for second-best constitutionalism as well as for first-best

interpretive theories.”254 For instance, “[i]f the growth of omnibus legislation

has undermined the veto power, we need no elaborate theoretical apparatus

to appreciate that permitting the (otherwise suspect) line-item veto is a more

fitting compensating adjustment than, say, making the veto immune from

congressional override.”255

Vermeule thus argues that some compensating adjustments are better

than others, but he leaves why mostly unwritten. Baude advances the ball a

bit. He draws a connection between appropriate compensating adjustments

248 Id. 249 See, e.g., id. at 429–33; see also Adrian Vermeule, Foreword: System Effects and the

Constitution, 123 HARV. L. REV. 4, 20–23 (2009). 250 Vermeule, supra note 244, at 421. 251 Thus, Vermeule assumes “an irreversible departure from, or violation of, ideal

constitutional design,” id. at 426, and notes that “[t]he analogy here is to a technical idea in

economics” that applies “[i]f perfect efficiency cannot be obtained,” id. at 431 (citing R.G.

Lipsey & R.K. Lancaster, The General Theory of Second Best, 24 REV. ECON. STUD. 11

(1956)). 252 Id. at 433–34. 253 Id. at 434. 254 Id. 255 Id.


on the one hand and Justice Scalia’s justification for qualified immunity in

Crawford-El v. Britton on the other.256 Recall that this justification suggests

that we should accept qualified immunity because Harlow contracted liability

after Monroe v. Pape had incorrectly enlarged it.257 Baude points out that

“[i]f one looks with a wide enough lens, one might say that it’s enough that

the first decision erroneously expanded the number of lawsuits and the

second decision will decrease the number of lawsuits.”258 But, he asserts,

“with the lens that wide nearly every doctrine of constitutional law and civil

procedure would be swept in,” meaning that “[t]he theory would not provide

special justification for the doctrine of qualified immunity.”259 Instead, “to

the extent that the original scheme had an animating purpose or logic, one

would expect the adjustment to be consistent with that purpose.”260

What Vermeule and Baude appear to be aiming at is a distinction

between the scope and the substance of compensating adjustments. The best

compensating adjustments, this thinking goes, address not only the

quantitative aspects of the initial departure from optimal constitutional design

by offering a modification of roughly analogous scope. They also respond to

the qualitative aspects of the initial departure by offering a modification of

roughly antagonistic substance. This latter feature seems to entail advantages

of both principle and practicality, allowing compensating adjustments to

address the underlying problem in a particularized way and to operate where

those problems actually exist. Consequently, one might say that an action

ought to have both an equal and opposite reaction in the context of

compensating adjustments.

This framework helps to show why upholding the legislative veto

would be preferable to granting Congress the commander-in-chief power. To

wit, the legislative veto would both reduce the problematic scope of

presidential power in this context—its “excessive” quantity, to quote

Vermeule261—and better address the problematic substance of such power—

its legislative quality. Permitting the line-item veto would be superior to

256 See Baude, supra note 54, at 118 nn.100–01 (“Justice Scalia’s theory is an example

of what various scholars have called ‘compensating adjustments’ or ‘equilibrium

adjustments’ . . . .” (footnote omitted)). 257 See supra text accompanying notes 77–82. 258 Baude, supra note 54, at 123. 259 Id. 260 Id. Thus, with respect to Scalia’s Crawford-El justification for qualified immunity,

Baude says that “it would be a far closer approximation to the Frankfurterian scheme to

require that Section 1983 claims be exhausted or to substantively alter the doctrine for certain

kinds of constitutional claims.” Id. (footnote omitted); see supra notes 86–90 and

accompanying text. 261 Vermeule, supra note 244, at 434.


making the veto immune from congressional override on similar grounds.

The line-item veto would both strengthen the veto power and do so in a

manner that bears a closer relationship to the cause of increasing omnibus

legislation, Congress’s insistence on putting the president to “an illegitimate

all-or-nothing choice.”262

Applying this framework to the issue at hand, qualified immunity

appears not to constitute an appropriate compensating adjustment for the

separation-of-powers problem ostensibly underlying the Bivens regime.

Returning to the two corollaries outlined above demonstrates why.263

First, a compensating adjustment is necessary only where there has

been a departure from optimal constitutional design, and the better course

may be to reverse that departure rather than to embrace yet another one.264

From an anti-Bivens perspective, the departure here is a separation-of-powers

problem: in recognizing implied constitutional causes of action, courts

allegedly invade the rightful domain of Congress. But that problem does not

arise in the Section 1983 context, and the same form of qualified immunity

applies there too. Of practical necessity, the scope of a solution may

sometimes exceed the scope of the corresponding problem. That would

appear to be the case for both of the primary examples drawn from

Vermeule’s work here.265 If one accepts the legislative veto, it would be

difficult to limit its use to sweeping delegations for all of the reasons that the

non-delegation doctrine is difficult to implement. And similar challenges

would beset efforts to confine the line-item veto to omnibus legislation. But

there are good reasons why the Harlow standard need not govern both Bivens

actions and Section 1983 suits.266 Furthermore, overruling Bivens may be

better than continuing to tolerate Harlow-style qualified immunity. This is

especially so because Congress could take control by providing an express

cause of action in place of Bivens claims, thereby alleviating the separation-

of-powers ailment allegedly afflicting the present system.

Second, the best compensating adjustments respond to the departure

from optimal constitutional design in both scope and substance. Here, again,

the scope of Harlow’s separation-of-powers solution is overinclusive as

applied in the Section 1983 setting because there is no separation-of-powers

problem to which qualified immunity could respond there. But it may also

be overinclusive, underinclusive, or both as applied in the Bivens arena. We

simply do not know and cannot realistically ascertain the number or nature

of Bivens actions that Congress would want courts to eliminate via an

262 Id. at 432. 263 See supra text accompanying notes 251–255. 264 See supra text accompanying note 251. 265 See supra text accompanying notes 247–248. 266 See supra text accompanying notes 210–216.


immunity-like mechanism. So the scope question is intractably empirical and

essentially unanswerable.

More significantly, as for substance, the supposed solution here

fundamentally fails to address—and instead exacerbates—the theoretical

problem. Just as many scholars believe that Congress rather than the

judiciary should craft federal causes of action, many (and maybe many more)

believe that Congress rather than the judiciary should craft federal defenses,

subject to the general understanding that legislation incorporates common-

law defenses absent an express indication to the contrary.267 But, as Pfander

has observed, the Court’s “remarkable willingness to re-fashion the rules of

qualified immunity . . . without awaiting legislative guidance” contrasts

sharply with its determination to restrict the Bivens regime through unilateral

action.268 This creates a “juxtaposition” indicative of a “Janus-faced,” “on-

again, off-again attitude toward the legitimacy of judge-made law.”269

A comparative peek at two passages from Ziglar v. Abbasi illustrates

this point. In addressing whether a Bivens action was available, the Supreme

Court explained that “separation-of-powers principles” mandate the

principled consideration of “who should decide whether to provide for a

damages remedy, Congress or the courts?”270 The majority declared that

“[t]he answer most often will be Congress.”271 In particular, the Court said,

“[w]hen an issue involves a host of considerations that must be weighed and

appraised, it should be committed to those who write the laws rather than

those who interpret them.”272 For “[i]t is not necessarily a judicial function

to establish whole categories of cases in which federal officers must defend

against personal liability claims in the complex sphere of litigation, with all

of its burdens on some and benefits to others.”273 In the Bivens context, the

Court said, those burdens include both the monetary costs “in the form of

defense and indemnification” wrought by claims against government

officials and “the time and administrative costs attendant upon intrusions

resulting from the discovery and trial process.”274

267 See, e.g., William Baude & Stephen E. Sachs, The Law of Interpretation, 130 HARV.

L. REV. 1079, 1099 (2017) (“Statutes of course trump unwritten rules, just as new statutes

trump old ones. But an unwritten legal rule, like an old statute, governs of its own force until

something else abrogates it. A common law duress defense might interrupt the operation of

a criminal statute, even though the statute outranks the defense.”). 268 Pfander, supra note 104, at 1391. 269 Id. at 1391, 1405. 270 137 S. Ct. 1843, 1857 (2017) (internal quotation marks omitted). 271 Id. 272 Id. (internal quotation marks omitted). 273 Id. at 1858. 274 Id. at 1856.


A few pages later, Abbasi addressed qualified immunity. There, the

Court described how its own precedent “seeks a proper balance between two

competing interests.”275 The Court remarked that, on the one hand, “damages

suits may offer the only realistic avenue for vindication of constitutional

guarantees.”276 But, the Court said, on the other, “permitting damages suits

against government officials can entail substantial social costs, including the

risk that fear of personal monetary liability and harassing litigation will

unduly inhibit officials in the discharge of their duties.”277 Thus, Abbasi

explained with approval, “[a]s one means to accommodate these two

objectives,” the Court has sought through qualified immunity to “give[]

officials breathing room to make reasonable but mistaken judgments about

open legal questions.”278

These passages are facially inconsistent. How can it be illegitimate

for the judiciary to determine which constitutional claims should proceed

based on competing social costs in the Bivens context and perfectly fine for

it to do the same thing in the qualified-immunity context? The Court must

have been only half serious in saying that such issues “should be committed

to those who write the laws rather than those who interpret them.”279

Consequently, the two ostensible separation-of-powers wrongs

represented by these passages do not make a constitutional right in the same

manner as the compensating adjustments that Vermeule describes. And that

is so for reasons similar to why qualified immunity represents an

inappropriate response to the problem purportedly underlying the Monroe

regime on Scalia’s Crawford-El account.280 Even if the doctrine addresses

the scope of the departure from optimal constitutional design in a

proportional way, which is far from clear, it fails to address the substance of

the departure in a principled manner.

One could ask what an appropriate adjustment might look like in this

context. To the extent that Bivens empowers the courts at the expense of

Congress, a fitting modification would involve empowering Congress at the

expense of the courts along some related line. Perhaps, for example, we

should allow the legislature to nullify the outcome of Bivens verdicts, contra

Plaut v. Spendthrift Farm, Inc.281 and possibly due-process principles. A less

drastic maneuver (although not a classical compensating adjustment) might

275 Id. at 1866. 276 Id. (internal quotation marks omitted). 277 Id. (internal quotation marks omitted). 278 Id. (internal quotation marks omitted). 279 Id. at 1857 (internal quotation marks omitted). 280 See supra notes 86–90 and accompanying text. 281 514 U.S. 211 (1995).


involve conditioning the availability of Bivens actions on the absence of an

effective alternative congressional remedy. As it happens, however, Bivens

doctrine has long incorporated just such a principle (albeit not limited to

federal statutory relief),282 which may simply show that Bivens has not taken

us as far afield from optimal constitutional design as some suggest. In any

event, the point is that variations like these, unlike the Harlow standard,

embody some attempt to respond to the substance, not just the scope, of the

separation-of-powers concern over which many criticize the Bivens regime.

These impressions are all contestable, of course. Radical

consequentialists could refuse to worry themselves with the means of

undermining judges’ ability to recognize implied constitutional claims where

the ends of qualified immunity accomplish that goal.283 But anti-Bivens

individuals would seem more likely to subscribe to formalist than

consequentialist modes of constitutional reasoning. Otherwise, they would

be unlikely to embrace the relatively rigid separation-of-powers principles

that lead one to reject the Bivens regime in the first place. Other skeptics

might contend that three-plus decades of legislative silence in declining to

supersede Harlow by statute demonstrates approval of the decision.284 But

inaction is a thin reed on which to rest a doctrine as momentous as qualified

immunity. And numerous institutional forces combine to favor stasis over

advance even in some instances where a majority of congresspeople would

endorse a proposal in the abstract. On balance, therefore, the separation-of-

powers rationale for qualified immunity in the Bivens context does not justify

applying the Harlow standard there.

B. The Supreme Court’s Federalism Rationale

Now assume, contrary to the above argument, that something special

about the Bivens context does justify applying the Harlow standard there.

Does some principle of federalism require treating federal actors and their

state counterparts identically with respect to official immunity—and thus

justify applying the Harlow standard in the Section 1983 context, as Harlow

and its progeny suggested by relying on the equivalence directive from Butz

v. Economou? Three such theories bear considering: an equal-sovereignty

concept arising from structural inferences, the incorporation doctrine arising

282 See Abbasi, 137 S. Ct. at 1858. 283 See Baude, supra note 54, at 123 (stating that “the power” of the similar criticism

represented by Scalia’s Crawford-El dissent “depends a lot on how brutal a compensating

adjustment is allowed to be”). 284 Cf. id. at 135 (“Because qualified immunity has been on the books for years and

Congress has declined to revisit it, it may have obtained a belated Congressional

imprimatur.”).


from Section 1 of the Fourteenth Amendment, and the congruence-and-

proportionality idea arising from Section 5 of the Fourteenth Amendment.

1. A False Equivalence?

“Equal sovereignty” is a prominent yet provocative concept. The

notion became notorious after the Supreme Court’s 2013 decision in Shelby

County v. Holder,285 where Chief Justice Roberts’s majority opinion declared

that “[n]ot only do States retain sovereignty under the Constitution, there is

also a ‘fundamental principle of equal sovereignty’ among the States.”286

Shelby County acknowledged that the concept first emerged in the context of

“the admission of new States” into the Union.287 The Court insisted,

however, that “the fundamental principle of equal sovereignty remains highly

pertinent in assessing subsequent disparate treatment of States.”288 Shelby

County proceeded to invalidate an important provision of the Voting Rights

Act for unjustifiably subjecting different states to different standards.289

Justice Ginsburg’s dissent countered that, beyond the admission

context, equal sovereignty existed only as dictum in another opinion authored

by Roberts,290 Northwest Austin Municipal Utility Number One v. Holder.291

Scholars tend to agree.292 Indeed, Shelby County “prompted savage criticism

not only from the left, but also from the right.”293

Shelby County’s conception of equal sovereignty as presumptively

proscribing disparate treatment among the states is controversial enough. No

one appears to have endorsed a similar principle proscribing disparate

treatment between the states on the one hand and the federal government on

285 133 S. Ct. 2612 (2013). 286 Id. at 2623 (quoting Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193,

203 (2009)). 287 Id. 288 Id. at 2624. 289 Id. at 2624–31. 290 Id. at 2648–50 (Ginsburg, J., dissenting). 291 557 U.S. 193 (2009). 292 See, e.g., Jon Greenbaum et. al., Shelby County v. Holder: When the Rational

Becomes Irrational, 57 HOW. L.J. 811, 852–54 (2014); Richard L. Hasen, Shelby County

and the Illusion of Minimalism, 22 WM. & MARY BILL RTS. J. 713, 732–33 (2014); Neal

Kumar Katyal & Thomas P. Schmidt, Active Avoidance: The Modern Supreme Court and

Legal Change, 128 HARV. L. REV. 2109, 2133–34 (2015); Leah M. Litman, Inventing Equal

Sovereignty, 114 MICH. L. REV. 1207, 1208–12 (2016). 293 Thomas B. Colby, In Defense of Equal Sovereignty, 65 DUKE L.J. 1087, 1089–90 &

nn.5–9 (2016) (collecting sources); see Jeffrey M. Schmitt, In Defense of Shelby County’s

Principle of Equal State Sovereignty, 68 OKLA. L. REV. 209, 210 & nn.8–14 (2016)

(collecting sources) (stating that “[s]cholars have attacked the equal sovereignty principle

with a surprising degree of unanimity and contempt”).


the other. The text of the Supremacy Clause and the very nature of our

governmental structure would militate against such an attempt,294 and history

would not appear to provide much support either.295 So the foundation for

any hint by Harlow and its offspring that something about federalism favors

the equal treatment of state and federal actors in all circumstances is indistinct

at best and illusory at worst.

Some scholars, however, have offered a more nuanced and appealing

understanding of equal sovereignty. The key, they claim, is not equal

treatment in all circumstances, but equal respect for fundamentally sovereign

functions.296 And because the states retained and the federal government

received the basic attributes of sovereignty under the constitutional

commitment to a dual-sovereign arrangement at the founding,297 a theory of

equal sovereignty limited to fundamentally sovereign functions would

require a baseline equivalence between the two levels of government. Under

this view, one could argue that because constitutional-tort litigation infringes

sovereign prerogatives in various ways, the same standard for qualified

immunity should govern both Bivens actions and Section 1983 suits.

But this argument should fail for at least two reasons relating to the

premise. First, important to any contention concerning incursions on state

sovereignty is a theory about what the concept entails. Timothy Zick, for

instance, invokes social-construction theory to derive four “constitutive

rules” of state sovereignty.298 These include the “rule of preservation,” which

protects the “necessary existence” of states within our system; the “rule of

separateness,” which provides that states retain “exclusive control” over

294 See U.S. CONST. art. VI, cl. 2 (“This Constitution, and the Laws of the United States

which shall be made in Pursuance thereof; and all Treaties made, or which shall be made,

under the Authority of the United States, shall be the supreme Law of the Land; and the

Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any

State to the Contrary notwithstanding.”). 295 To see why, consider Jeffrey Schmitt’s converse historical argument for the reason

that the Constitution contains no express mention of equal sovereignty among the states. See

Schmitt, supra note 293, at 222–23 (“In the Constitution, the people delegated power to the

federal government and imposed some limitations on state power. The Constitution,

therefore, does not create the states or grant them their sovereign power. . . . Because the

states existed prior to Ratification, it is not surprising that the framers omitted any mention

of equal state sovereignty.”). 296 See Colby, supra note 302, at 1148–59; Schmitt, supra note 293, at 219–22. 297 See Printz v. United States, 521 U.S. 898, 918–19 (1997) (“It is incontestible that the

Constitution established a system of dual sovereignty. Although the States surrendered many

of their powers to the new Federal Government, they retained ‘a residuary and inviolable

sovereignty.’” (some internal quotation marks omitted) (citations omitted) (quoting THE

FEDERALIST NO. 39, at 245 (James Madison) (Clinton Rossiter ed., 1961)). 298 Timothy Zick, Are the States Sovereign?, 83 WASH. U. L.Q. 229, 288 (2005).


composing their governments; the “rule of participation,” which “preserves a

substantial role for the states in national governance”; and the “rule of

interpretive independence,” which “provides that the states should generally

be free to interpret their own laws and constitutions.”299 Zick notes that these

rules define a baseline rather than the boundaries of state sovereignty.300 But

there is little reason to think that Section 1983 suits transgress these tenets or

affront any other plausible model of the concept.

States, of course, have no legitimate interests in allowing their

officials to violate federal constitutional rights. And states are not required

to satisfy Section 1983 judgments from their public fiscs. The contention that

constitutional-tort litigation offends state sovereignty thus runs counter to the

principle that suits against government officials in their personal capacities

do not impose burdens on the states qua states.301 Naturally, responding to

such suits may effectively require states to expend resources (by, say,

handling discovery requests302). But indirect obligations in analogous

contexts are not generally considered constitutionally suspect.303 And the

magnitude of the financial burden does not seem significant enough to raise

the kind of state-sovereignty concerns that have caused the Supreme Court to

condemn federal actions in other areas.304 At bottom, the constitutional

dimensions of Section 1983 neither require nor forbid any “primary conduct”

that the Bill of Rights, through the Fourteenth Amendment, does not already

regulate.305 The notion that constitutional-tort litigation infringes any

fundamentally sovereign state prerogative thus appears implausible.

299 Id. at 288–93. 300 See id. at 292. 301 See, e.g., Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 104–05 (1984).

Although this principle is concededly contestable in the injunction environment, it stands on

firmer logical and historical footing in the damages domain. See id. at 109 n.21. 302 See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (stating that “[j]udicial inquiry

into subjective motivation . . . may entail broad-ranging discovery and the deposing of

numerous persons, including an official’s professional colleagues”). 303 See South Carolina v. Baker, 485 U.S. 505, 523 (1988) (“[U]nder current

intergovernmental tax immunity doctrine the States can never tax the United States directly

but can tax any private parties with whom it does business, even though the financial burden

falls on the United States, as long as the tax does not discriminate against the United States

or those with whom it deals. . . . The rule with respect to state tax immunity is essentially the

same, except that at least some nondiscriminatory federal taxes can be collected directly from

the States even though a parallel state tax could not be collected directly from the Federal

Government.” (citations omitted)). 304 See, e.g., Nat’l Fed. of Indep. Bus. v. Sebelius, 567 U.S. 519, 580 (2012) (plurality

opinion) (holding the Affordable Care Act’s Medicaid expansion unconstitutionally coercive

for threatening states with potentially crippling budgetary losses). 305 Tennessee v. Lane, 541 U.S. 509, 559–60 (2004) (Scalia, J., dissenting).


Second, even someone who advocates a relatively broad notion of

state sovereignty can recognize that federal authority may reach its zenith—

and equal-sovereignty concerns, their nadir—when the federal government

implements the Reconstruction Amendments,306 as Section 1983 does.307 To

quote Thomas Colby to this effect:

Reconstruction probably did not radically alter the basic

architecture of federalism generally, including the inherent

structural principle of equal state sovereignty, but it did bring

about a sea change in the federal-state balance in one

particular regard: the ability of the federal government to

protect the fundamental rights of the people from state

infringement. And it was in service of this goal that the

Reconstruction Congress both felt the need to create new

federal powers and felt entitled, under the circumstances, to

sometimes limit the sovereignty of only the Southern states.308

Put simply, “the history supports a claim that Congress should be afforded

greater leeway to bend the equal sovereignty principle when it is acting

pursuant to its Thirteenth, Fourteenth, and Fifteenth Amendment

enforcement powers.”309

All in all, no one seems to have proposed that the equal-sovereignty

principle applies to the relationship between the states and the federal

government; any equal-treatment manifestation of that principle appears

306 See Colby, supra note 293, at 1159–70; cf. Schmitt, supra note 293 at 248–51

(arguing that Reconstruction legislation comported with the equal-sovereignty principle

because it infringed state sovereignty in a manner sufficiently connected to protecting

individual rights). Thomas Colby’s conception of state sovereignty is relatively broad

because he includes within its ambit the hypothetical ability of states to regulate across the

full spectrum of concurrent federal-state jurisdiction. See Colby, supra note 293, at 1115

(“[T]he Supremacy Clause gives Congress the greater, ultimate authority in . . . areas of

concurrent sovereignty, in the sense that Congress gets the final word. But the states retain

genuine sovereignty within those spheres nonetheless. And so, federal laws in those areas

implicate and infringe state sovereignty, even though they do not generally violate the

Constitution.” (footnotes omitted)). As I have suggested elsewhere, whether states have

sovereign interests in actions that they notionally could have taken is a more difficult

question than whether they have sovereign interests in actions that they actually have taken.

Katherine Mims Crocker, Note, Securing Sovereign State Standing, 97 VA. L. REV. 2051,

2078 & n.131 (2011). 307 See Monroe v. Pape, 365 U.S. 167, 171 (1961) (stating that Section 1983 represents

“one of the means whereby Congress exercised the power vested in it by [Section] 5 of the

Fourteenth Amendment to enforce the provisions of that Amendment”). 308 Colby, supra note 293, at 1167–68 (footnotes omitted). 309 Id. at 1168.


groundless, especially in the federal-state context; any sovereign-functions

manifestation of that principle appears inapposite here given the actual

impact of personal-capacity constitutional-tort suits on states qua states; and

Section 1983’s foundation in the Fourteenth Amendment renders the appeal

of equal sovereignty in this arena especially tenuous. Accordingly, any

theory along these lines for extending the Harlow standard from Bivens

actions to Section 1983 suits would import a false equivalence into the

principle of equal sovereignty.

2. The Fourteenth Amendment?

Contemplating the Fourteenth Amendment calls to mind two more

potential bases for the equivalence directive, the first sounding in Section 1

and the second, in Section 5.

According to Supreme Court doctrine,310 the Due Process Clause in

Section 1 of the Fourteenth Amendment performs the function of

incorporating the Bill of Rights against the states.311 Early cases held that

“even when a right set out in the Bill of Rights was held to fall within the

conception of due process, the protection or remedies afforded against state

infringement sometimes differed from the protection or remedies provided

against abridgement by the Federal Government.”312 But the Court later

“abandoned” that idea as “‘incongruous,’” holding that “incorporated Bill of

Rights protections ‘are all to be enforced against the States under the

Fourteenth Amendment according to the same standards that protect those

personal rights against federal encroachment.’”313

Justice Powell, however, disagreed, distinguishing between the

content of the Bill of Rights and the content of due process.314 The Court’s

contrary position, Powell contended, “derogates principles of federalism that

are basic to our system,” especially allowing the laboratory-like “freedom to

experiment” with policies “different from the federal model.”315

310 See McDonald v. City of Chicago, 561 U.S. 742, 758–59 (2010). 311 See U.S. CONST. amend. XIV, § 1 (“No State shall . . . deprive any person of life,

liberty, or property, without due process of law. . . .”). 312 Id. at 761 (citing Wolf v. Colorado, 338 U.S. 25, 27–28 (1949), overruled by Mapp

v. Ohio, 367 U.S. 643, 655 (1961); Betts v. Brady, 316 U.S. 455, 473 (1942), overruled by

Gideon v. Wainwright, 372 U.S. 335, 345 (1963)). 313 Id. at 765 (quoting Malloy v. Hogan, 378 U.S. 1, 10–11 (1964)). 314 See Johnson v. Louisiana, 406 U.S. 366, 373 (1972) (Powell, J., concurring in

Johnson and concurring in the judgment in Apodaca v. Oregon, 406 U.S. 404 (1972)); see

also McDonald, 561 U.S. at 766 n.14 (explaining that Powell alone held this view in

Apodaca). 315 Johnson, 406 U.S. at 375–76 (Powell, J., concurring).


The question of whether the Harlow standard should govern Section

1983 suits does not concern incorporation, of course. But it does concern

whether “incorporated Bill of Rights protections ‘are all to be enforced

against the States under the Fourteenth Amendment according to the same

standards that protect those personal rights against federal encroachment.’”316

And it also concerns the extent to which states enjoy the “freedom to

experiment” with policies “different from the federal model” in the

constitutional-enforcement context.317 Consequently, one could view the

equivalence directive as an analogical compromise between the majority’s

position and Powell’s position on the incorporation issue.

One could also look to Section 5 of the Fourteenth Amendment to

support Harlow’s reliance on the equivalence directive.318 In 1997, the

Supreme Court articulated the contours of Congress’s power under that

provision in City of Boerne v. Flores,319 which invalidated the Religious

Freedom Restoration Act (RFRA) as applied against the states. For Congress

to legislate under Section 5, Flores said, “[t]here must be a congruence and

proportionality between the injury to be prevented or remedied and the means

adopted to that end.”320 The Court concluded that because RFRA reinstated

the framework for the First Amendment’s Free Exercise Clause from before

the decision in Employment Division v. Smith,321 the relevant provision was

substantive rather than preventive (or prophylactic) or remedial in nature and

thus ran afoul of the congruence-and-proportionality principle.322 That, the

Court declared, constituted “a considerable congressional intrusion into the

States’ traditional prerogatives and general authority to regulate for the health

and welfare of their citizens.”323

What does Flores have to do with Harlow? Although Harlow was

formally a remedial decision, one could characterize it as functionally

restricting the substantive import of individual constitutional rights in the

context of damages suits against federal officials. Indeed, it is not unusual

for scholars to do so.324 And because the Fourteenth Amendment

incorporates individual rights established elsewhere, any restriction

316 McDonald, 561 U.S. at 765 (quoting Malloy, 378 U.S. at 1). 317 Johnson, 406 U.S. at 375–76 (Powell, J., concurring). 318 See U.S. CONST. amend. XIV, § 5 (“The Congress shall have power to enforce, by

appropriate legislation, the provisions of this article.”). 319 521 U.S. 507 (1997). 320 Id. at 520. 321 494 U.S. 872 (1990). 322 Flores, 521 U.S. at 529–36. 323 Id. at 534. 324 See, e.g., Fallon, supra note 45, at 485 (“[O]fficial immunity doctrines perform an

equilibrating function by diminishing the social costs that constitutional rights would have if

officers who violated them were always strictly liable in suits for damages.”).


applicable to individual rights generally would carry into that context. Under

this view, to read Section 1983 as enforcing the Fourteenth Amendment more

broadly against state officials than courts applying Harlow could enforce

individual constitutional rights against federal officials would have violated

the congruence-and-proportionality principle (or an anticipatory variant of

that principle, since Harlow and the other cases invoking the equivalence

directive in the qualified-immunity context predate Flores). Put differently,

one could contend that Section 1983 represents an appropriate remedial

measure under the federalism principles embodied in Section 5 only if it

includes the defense of Harlow-style qualified immunity. The protection

afforded by that standard, after all, stands as the lowest common denominator

available between the schemes for holding state officials versus federal

officials accountable in damages for constitutional grievances.

Thus, by enforcing individual constitutional rights against state and

federal officials in the same fashion, the Harlow regime adheres to a norm of

parallelism reflected in some relevant areas—but by no means in all such

areas, with the Court’s unwillingness to expand the Bivens regime to embrace

the full range of constitutional claims amenable to prosecution under Section

1983 representing a prominent counterexample. Federal-state parallelism in

constitutional enforcement warrants independent attention. But for now, it

must suffice to say that in each context explored here, the Supreme Court has

located the norm not in some general notion of policy or political legitimacy,

but in a particular legal principle. And in doing so, the Court has

appropriately declined to subscribe to an overly abstract notion of

“freestanding federalism,” one that transgresses a consistent understanding

of the actual commitments articulated in public legal texts.325

Additional examples support this understanding of the Court’s

jurisprudence. Brown v. Board of Education,326 for instance, prohibited racial

segregation in public schools. Brown’s holding, however, applied only to the

states because it arose from the Fourteenth Amendment’s Equal Protection

Clause. In Bolling v. Sharpe,327 issued the same day as Brown, the Court held

that the Fifth Amendment’s Due Process Clause required the same result with

325 John F. Manning, Federalism and the Generality Problem in Constitutional

Interpretation, 122 HARV. L. REV. 2003, 2004 (2009); see Ernest A. Young, Alden v. Maine

and the Jurisprudence of Structure, 41 WM. & MARY L. REV. 1601, 1604 (2000) (arguing

that a “big ideas” approach to constitutional structure “will frequently be helpful” in

“offer[ing] determinate answers when more familiar sources, such as text and specific

history, run out” but that adherents must maintain an “appropriate awareness” of “potentially

serious liabilities” that “aris[e] from its tendency to press courts toward more complete

theorization of constitutional issues”). 326 347 U.S. 483 (1954). 327 347 U.S. 497 (1954).


respect to Washington, D.C. The Court stated that “[i]n view of our decision

that the Constitution prohibits the states from maintaining racially segregated

public schools, it would be unthinkable that the same Constitution would

impose a lesser duty on the Federal Government.”328 But the actual basis for

the Court’s decision was a preexisting due-process principle. “Segregation

in public education is not reasonably related to any proper governmental

objective,” the Court held, and thus imposes a burden on black students “that

constitutes an arbitrary deprivation of their liberty in violation of the Due

Process Clause.”329

A similar case is Hurd v. Hodge,330 which held that federal courts may

not enforce racially restrictive covenants, just as Shelley v. Kraemer331 had

held for state courts under the Fourteenth Amendment’s Equal Protection

Clause. In Hurd, the Court stated that “[w]e cannot presume that the public

policy of the United States manifests a lesser concern for the protection of

such basic rights against discriminatory action of federal courts than against

such action taken by the courts of the States.”332 But the actual basis for the

Court’s decision was a federal statute and, in the alternative, the preexisting

contract-law principle that “[t]he power of the federal courts to enforce the

terms of private agreements is at all times exercised subject to the restrictions

and limitations of the public policy of the United States as manifested in the

Constitution, treaties, federal statutes, and applicable legal precedents.”333

Does a particular legal principle embodied in the incorporation

doctrine or the congruence-and-proportionality concept justify employing the

equivalence directive to extend the Harlow standard into the Section 1983

sphere? These theories provide plausible bases for reaching that outcome,

but numerous apparent criticisms cause them to come up short. For starters,

the Supreme Court does not seem to have described the scope of the Harlow

standard as bearing any relationship to Section 1 or 5 of the Fourteenth

Amendment. By contrast, the Court has intermittently made clear that

Harlow was a policy-making venture rather than a statutory-interpretation

decision,334 meaning that the intent likely had nothing to do with avoiding

constitutional problems under these provisions.

More importantly, any principle produced by interpreting Section 1

or 5 ought to govern all matters implicating those provisions—meaning, at a

328 Id. at 500. 329 Id. 330 334 U.S. 24 (1948). 331 334 U.S. 1 (1948). 332 334 U.S. at 35–36. 333 Id. at 30–36. 334 See supra note 65 and accompanying text.


minimum, all Section 1983 claims involving incorporated rights (for Section

1 undergirds the general ability to enforce such rights against the states, and

Section 5 undergirds the specific ability to do so via a congressionally created

cause of action). But qualified immunity applies only to claims for damages

against executive officials for discretionary conduct. It does not apply, for

instance, to Section 1983 claims for injunctive relief,335 Section 1983 claims

against municipal entities,336 or Section 1983 claims against executive

officials for non-discretionary behavior.337 If some model of qualified

immunity represents a constitutional minimum required by Section 1 or 5, the

model should reach those contexts as well.

Perhaps most importantly in the Section 5 context, there is no reason

to think that Section 1983 functions as a backdoor attempt to dictate the

content of constitutional rights. Section 1983 is far more plainly remedial in

character than RFRA, simply making available a cause of action against

“[e]very person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of the United States or other

person within the jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws” of the United

States.338 And the Supreme Court believes that although reasonable minds

can “disagree[] regarding the scope of Congress’s ‘prophylactic’ enforcement

powers under [Section] 5 of the Fourteenth Amendment, no one doubts that

[Section] 5 grants Congress the power to ‘enforce . . . the provisions’ of the

Amendment by creating private remedies against the States for actual

violations of those provisions.”339 That seems right.

In any event, to say that Harlow restricted the substantive import of

individual constitutional rights conflates rights and remedies in a fashion

antithetical to Flores itself, which maintained a “decisive distinction”

between the two.340 Or, paradoxically, if the functionalist literature is correct

335 See Pearson v. Callahan, 555 U.S. 223, 242 (2009). 336 See Owen v. City of Independence, 445 U.S. 622 (1980). 337 Some decisions hold that this principle means that qualified immunity does not apply

to Section 1983 suits challenging merely ministerial actions. See, e.g., Groten v. California,

251 F.3d 844, 851 (9th Cir. 2001). Others hold that this principle means that qualified

immunity does not apply to Section 1983 suits challenging conduct that falls beyond the

scope of the defendant’s job responsibilities. See, e.g., Holloman ex rel. Holloman v.

Harland, 370 F.3d 1252, 1265–66 (11th Cir. 2004). 338 42 U.S.C. § 1983; see Tennessee v. Lane, 541 U.S. 509, 559–60 (2004) (Scalia, J.,

dissenting). 339 United States v. Georgia, 546 U.S. 151, 158 (2006) (internal citations omitted). 340 Levinson, supra note 45, at 865; see City of Boerne v. Flores, 521 U.S. 507, 519

(1997) (“Congress’ power under [Section] 5 . . . extends only to ‘enforc[ing]’ the provisions


that rights and remedies are ontologically inseparable ideas,341 the

congruence-and-proportionality principle cannot logically support an

argument under Section 5 in the first place. Levinson, for instance, argues

that “the question of whether prophylactic rules are really remedies or really

redefinitions of rights” is “empty and indeterminate” because “[i]f the very

same prophylactic rules . . . may either be built into the definitions of rights

or stand apart as remedies, nothing about the nature of any given prophylactic

rule will reveal whether it is ‘really’ a remedy or a right.”342

In sum, equal sovereignty and Sections 1 and 5 of the Fourteenth

Amendment provide plausible theoretical hooks for the otherwise amorphous

inkling that federalism requires courts to apply equivalent standards of

qualified immunity to state and federal officials. But these are probably

bridges too far for all of the reasons just recited—as well as others. Indeed,

two additional points that lead to the same conclusion bear emphasizing.

First, the particular details of the previous discussion should not

obscure the general nature of the circumstances under consideration.

Congress has provided an express damages action against state officials, but

not federal officials, for violating constitutional rights. There are good

reasons to think that the absence of a statute in the latter context encouraged

the Supreme Court to apply an especially protective standard for official

immunity to federal defendants. If that is right, the Court’s subsequent

decision to extend the same standard to state officials constricted a

congressionally enacted statute to conform to federal common law, which

would and probably should strike many as exactly backward.

Second, the very viability of the equivalence directive depends on

both the extent of and rationale for Harlow’s legitimacy in the Bivens

environment. If qualified immunity is improper with respect to Bivens, the

inquiry should presumably end with respect to Section 1983 for reasons that

others have identified. Thus, given the many grounds for skepticism on the

Bivens front,343 the validity of the Harlow standard in the Section 1983

domain seems all the more doubtful. And if qualified immunity is proper in

the Bivens arena but for reasons that do not require equivalence in the Section

1983 sphere, the legal community should tolerate the possibility of applying

different standards in the different settings.

of the Fourteenth Amendment. The Court has described this power as ‘remedial.’ The

design of the Amendment and the text of [Section] 5 are inconsistent with the suggestion that

Congress has the power to decree the substance of the Fourteenth Amendment’s restrictions

on the States. . . . Congress does not enforce a constitutional right by changing what the right

is. It has been given the power ‘to enforce,’ not the power to determine what constitutes a

constitutional violation.” (second alteration in original) (citation omitted)). 341 See supra text accompanying notes 45–46. 342 Levinson, supra note 52, at 917. 343 See supra Part IV.A.


* * *

The above discussion addresses the doctrine’s roots in constitutional

structure, but what is the upshot for qualified immunity more generally? The

primary answer is that the legal community should reject the concept, at least

with respect to the Harlow standard. Prior scholarship has undercut policy

rationales to the extent that they apply in Bivens actions or Section 1983 suits

and legal rationales that apply in the latter setting. The present analysis

undercuts two remaining legal rationales, one that applies in the Bivens

context and one that applies in the Section 1983 context. Since no persuasive

rationale appears to provide support in either area, rejecting the doctrine in

whole would be most appropriate.

A secondary answer is that one could reject the Harlow standard in

part, viewing qualified immunity as legitimate in the Bivens environment but

illegitimate in the Section 1983 sphere. An important contribution of the

present analysis is the contention that we should evaluate the doctrine

differently in these different areas. If one agrees with the view that the

statutory setting of Section 1983 creates constraints on the range of relevant

defenses, policy rationales for qualified immunity should fall away in this

context. And legal rationales, in turn, should fail for reasons reflected in prior

scholarship and here. The Bivens regime’s origins in federal common law

present a separate set of considerations, such that even if the contentions

advanced above are correct, one could balance arguably incommensurable

policy priorities (for instance, providing full vindication to victims of

governmental mistreatment on the one hand and preventing overdeterrence

and unfairness to executive officials on the other) in such a way as to accept

qualified immunity in this context. For reasons adduced by others, however,

this option should prove unappealing.

Finally, a tertiary answer is that one could view qualified immunity

as legitimate in both the Bivens environment and the Section 1983 sphere

despite crediting that the legal community should evaluate the doctrine

differently in these different areas. To do so in a manner consistent with the

contentions offered here, however, would require that one both reason along

the lines sketched in the previous paragraph and reject either the view that

the statutory setting of Section 1983 creates constraints on the range of

relevant defenses as an initial matter or prior scholarship undercutting legal

rationales that apply in Section 1983 suits. Again for reasons adduced by

others, however, these options should prove unappealing.

The possibility of rejecting the Harlow standard in whole or in part

begs the question of whether the legal community should substitute an

alternative model of qualified immunity in the present doctrine’s place.

Tackling this question constitutes a critical next step for academic attention.


CONCLUSION

Qualified immunity is a suspect solution in search of an exculpating

problem. Prior scholarship, however, overlooks an important aspect of the

issue by focusing, for example, on whether the doctrine comports with a

proper interpretation of Section 1983. The governing Harlow standard

emerged in the much different Bivens context, and that provenance points

toward much different rationales. As Supreme Court opinions reflect, two

rationales sound in constitutional structure. One involves separation of

powers: that the Harlow standard rights the Bivens regime’s wrongs by

cutting back on a cause of action that expands judicial power at the expense

of a previously exclusive congressional prerogative. And the other involves

federalism: that equivalent standards must govern in the Section 1983 and

Bivens contexts to avoid holding state officials to more rigorous

constitutional requirements than those that their federal counterparts face.

These underappreciated rationales for qualified immunity are

descriptively important and appear normatively compelling. But they

ultimately prove unconvincing. With respect to the separation-of-powers

rationale, a compensating-adjustments framework provides an apt mode of

analysis. For those who support the Bivens regime, there is no departure from

optimal constitutional design for qualified immunity to offset. And for those

who oppose the Bivens regime, qualified immunity should represent an

inappropriate response in both scope and substance. The theory underlying

the federalism rationale is far from clear, and more work remains on

questions concerning federal-state parallelism in constitutional enforcement.

But to the extent that some support may seem to come from an equal-

sovereignty concept, the incorporation doctrine, or the congruence-and-

proportionality principle, the equivalence directive as applied in Harlow and

its progeny stretches each area beyond recognition.

At bottom, the Supreme Court’s structural constitutional rationales

are inadequate to rescue the Harlow standard from the cloud of suspicion that

rightly surrounds it. And the dangers of denying what often embodies the

only possible form of redress for constitutional violations are too significant

to rest on a doctrine that lacks legitimacy. Qualified immunity thus illustrates

how a solution that fails to find a problem is no solution at all.

QUALIFIED IMMUNITY AND CONSTITUTIONAL STRUCTURE … · 2018/01/24 · * Olin-Smith Fellow and...

Documents

Transcript of QUALIFIED IMMUNITY AND CONSTITUTIONAL STRUCTURE … · 2018/01/24 · * Olin-Smith Fellow and...