The False Promise of the Converse-1983 Action

Indiana Law Journal Indiana Law Journal

Volume 87 Issue 4 Article 7

Fall 2012

The False Promise of the Converse-1983 Action The False Promise of the Converse-1983 Action

John F. Preis

University of Richmond

, [email protected]

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The False Promise of the Converse-1983 Action

JOHN F. PREIS

∗

The federal government is out of control. At least that’s what many states will

tell you. Not only is the federal government passing patently unconstitutional

legislation, but its street-level officers are ignoring citizens’ constitutional rights.

How can states stop this federal juggernaut? Many are advocating a “repeal

amendment,” whereby two-thirds of the states could vote to repeal federal

legislation. But the repeal amendment will only address unconstitutional

legislation, not unconstitutional actions. States can’t repeal a stop-and-frisk that

occurred last Thursday. States might, however, enact a so-called “converse-1983”

action. The idea for converse-1983 laws has been around for some time but until

now has escaped academic treatment.

A converse-1983 action would operate similarly to the popular § 1983 action in

that it would provide a cause of action for damages where federal constitutional

rights have been violated. Unlike § 1983, however, a converse-1983 would be

enacted by a state (rather than Congress) and provide a cause of action against a

federal officer (rather than a state officer). By enacting converse-1983 laws, states

could thus punish the federal government when its officers disregard the

Constitution.

The problem with converse-1983 laws, however, is that they just won’t work. In

this Article, I explain that converse-1983 laws will always be subject to limitations

imposed by Congress or the federal courts. It can hardly be said that

converse-1983 laws are a valuable opportunity for states to rein in the federal

government if those laws can only be enforced at the pleasure of the federal

government. In making this argument, I take the reader on a tour of a variety of

topics in the field of constitutional enforcement, including officer immunity, federal

common law, the nature of Bivens actions, the constitutional right to a remedy, and

Founding-era practices through which states imposed their views on the federal

government. Together, these discussions make clear that the converse-1983 action,

which has been often cited but rarely questioned, is a cause of action without any

legal value.

NTRODUCTION.................................................................................................... 1698

I. PROFESSOR AMAR ON FEDERALISM AND CONVERSE-1983 .............................. 1703

A. FEDERALISM ......................................................................................... 1703

B. CONVERSE-1983 ................................................................................... 1705

II. THE VALUE OF THE CONVERSE-1983 ACTION TODAY .................................... 1709

A. OFFICER IMMUNITY UNDER THE SUPREMACY CLAUSE ......................... 1709

B. ABROGATION BY FEDERAL COMMON LAW ........................................... 1714

C. THE FORCE OF BIVENS .......................................................................... 1716

∗ Associate Professor, University of Richmond School of Law. Thanks to Michael

Collins, Scott Dodson, Jessica Erickson, Jim Gibson, Corinna Lain, Jennifer Mason

McAward, Jim Pfander, George Thomas, and Kevin Walsh. I also thank the participants at

the 2010 Federal Courts Junior Faculty Conference, to whom I presented an earlier version

of this Article.

1698 INDIANA LAW JOURNAL [Vol. 87:1697

D. ABROGATION BY CONGRESS ................................................................. 1721

III. THE VALUE OF THE CONVERSE-1983 ACTION AT THE FOUNDING ................. 1726

A. STATE POWER IN THEORY ..................................................................... 1727

B. STATE POWER IN PRACTICE................................................................... 1732

CONCLUSION ....................................................................................................... 1743

INTRODUCTION

The states have had it up to here with the federal government. While the states

are trying to fill potholes and keep the schools open, the Feds are trying to get

everybody to quit smoking pot

and buy health insurance.

It’s worse than that, of

course. The FBI is infiltrating local houses of worship,

the CIA is making people

disappear,

the NSA is tapping phones,

and the TSA is demanding grandmas pose

in the nude.

Next thing you know, we’ll all be forced to drive Chevy trucks.

What’s a state to do? Secession is probably too radical,

and an armed revolt can

be messy.

A somewhat more realistic option is a constitutional amendment giving

two-thirds of the states the option of repealing federal legislation—the so-called

“repeal amendment.”

But constitutional amendments are long shots, and the

repeal amendment would only provide states with the power to nullify

unconstitutional legislation. Most constitutional violations committed by the

1. See Gonzales v. Raich, 545 U.S. 1 (2005) (holding that the federal bar on marijuana

use for medical purposes was constitutional).

2. See Patient Protection and Affordable Care Act, Pub. L. No. 111-148, § 1501, 124

Stat. 119, 242–44 (2010) (requiring nearly every U.S. citizen to maintain a minimum level of

health insurance starting in 2014).

3. See, e.g., Jerry Markon, Tension Grows Between Calif. Muslims, FBI After

Informant Infiltrates Mosque, W

ASH. POST (Dec. 5, 2010), www.washingtonpost.com/wp-

dyn/content/article/2010/12/04/AR2010120403710_pf.html.

4. See e.g., David Johnston, Rendition to Continue, but with Better Oversight, U.S.

Says, N.Y. T

IMES, Aug. 25, 2009, at A8.

5. See, e.g., James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without

Courts, N.Y.

TIMES, Dec. 16, 2005, at A1.

6. See, e.g., Jeffrey Rosen, The TSA Is Invasive, Annoying - and Unconstitutional,

ASH. POST, Nov. 28, 2010, at B1.

7. See Florida ex rel. Bondi v. U.S. Dept. of Health & Human Servs., 780 F. Supp. 2d

1256, 1289 (N.D. Fla. 2011) (explaining that, if Congress can make Americans buy health

insurance, Congress could also “require that everyone above a certain income threshold buy

a General Motors automobile”).

8. See Hilary Hylton, What’s All That Secession Ruckus in Texas?, T

IME, Apr. 18,

2009, at 32 (“While crowds yelled ‘Secede! Secede!,’ [Texas Governor Rick] Perry . . .

thought out loud that secession might be the outcome if Washington does not mend its

‘oppressive’ high-spending, dictatorial ways.”).

9. See Greg Sargent, Sharron Angle Floated Possibility of Armed Insurrection, WASH.

POST (June 15, 2010, 1:32 PM), http://voices.washingtonpost.com/plum-

line/2010/06/sharron_angle_floated_possibil.html (reporting U.S. Senate candidate Sharron

Angle’s exhortation that citizens “look[] toward those Second Amendment remedies” to

fight the expansion of federal power).

10. See Randy E. Barnett & William J. Howell, The Case for a ‘Repeal Amendment,’

ALL ST. J., Sept. 16, 2010, at A23.

2012] THE FALSE PROMISE OF THE CONVERSE-1983 ACTION 1699

federal government are not products of the bicameral process.

They are simply

products of everyday interactions between citizens and federal law enforcement

officers. Persons are searched, seized, and beaten. They are denied equality and due

process. If states want to protect their citizens from these harms, the repeal

amendment will be useless. You can’t repeal a stop-and-frisk that occurred last

Thursday. So again, what’s a state to do?

Perhaps the states should take a cue from the federal government itself. In the

aftermath of the Civil War, the federal government faced the same sort of problem.

Southern states were failing to enforce the constitutional rights of their new

citizens, the former slaves, and most of the violations were not in the form of

statutes that were unconstitutional, but rather in the form of discretionary officer

action.

In response to this nonstatutory disobedience, the federal government

enacted the Ku Klux Act, now codified at 42 U.S.C. § 1983.

The statute did not

provide southern citizens with new rights; it simply provided them with a cause of

action for enforcing the constitutional rights they already possessed. Under § 1983,

if a local sheriff violates your constitutional rights, you can sue him for damages.

Given the modern success of § 1983 in state-level reform,

the states might

enact a “converse-1983” law to achieve federal-level reform. Just as the current

§ 1983 provides a federal cause of action against state officers, a converse-1983

law would provide a state cause of action against federal officers who have

violated the federal Constitution. Under these laws, federal officers who tap phones

or whisk citizens away to secret locations could be sued for constitutional

damages—regardless of whether the federal government has provided a cause of

action.

The idea is not new. Professor Akhil Reed Amar proposed such a law many

years ago

and modern commentators continue to cite the idea with only

occasional skepticism.

Professor Amar’s argument in favor of converse-1983

11. See Seth F. Kreimer, Exploring the Dark Matter of Judicial Review: A

Constitutional Census of the 1990s, 5 W

M. & MARY BILL RTS. J. 427, 427 (1997) (explaining

that the bulk of judicial review in the federal courts is of decisions by “administrative

agencies and street-level bureaucrats,” not of congressional statutes).

12. E

RIC FONER, RECONSTRUCTION: AMERICA’S UNFINISHED REVOLUTION 1863–1877, at

425–44 (1988).

13. Civil Rights Act of 1871, ch. 22, 17 Stat. 13.

14. See S

HELDON H. NAHMOD, MICHAEL L. WELLS, & THOMAS A. EATON,

CONSTITUTIONAL TORTS 1 (3d ed. 2010) (explaining the “considerable practical significance”

of § 1983 suits).

15. Professor Amar originally proposed the idea in Akhil Reed Amar, Of Sovereignty

and Federalism, 96 Y

ALE L.J. 1425, 1512–19 (1987) [hereinafter Amar, Sovereignty and

Federalism]. Thereafter, he defended the idea in Akhil Reed Amar, Five Views of

Federalism: “Converse-1983” in Context, 47 V

AND. L. REV. 1229 (1994) [hereinafter Amar,

Five Views] and in Akhil Reed Amar, Using State Law to Protect Federal Constitutional

Rights: Some Questions and Answers About Converse-1983, 64 U. COLO. L. REV. 159 (1993)

[hereinafter Amar, Questions and Answers]. He has also advanced the idea in passing in

Akhil Reed Amar, Foreword: The Document and the Doctrine, 114 HARV. L. REV. 26, 117

(2000) (defending the “the right of states to arm citizens with remedies against the federal

government when the feds violate the Constitution”).

16. See, e.g., Vikram David Amar, Converse § 1983 Suits in Which States Police

1700 INDIANA LAW JOURNAL [Vol. 87:1697

actions is largely built on a conception of federalism he traces to the Federalist

Papers.

There, James Madison explained that, under the new Constitution, the

“rights of the people” will be guarded by two governments, not just one.

The state

and federal governments “will controul each other.”

Converse-1983 laws would

seem to be the perfect expression of the state prerogative to control the federal

government.

Another argument in favor of converse-1983 suits is their similarity to early

American legal practices.

From the Founding through much of the nineteenth

century, a person aggrieved by the unconstitutional actions of a federal officer

would sue the officer using a common law cause of action—whether for damages

or relief through habeas corpus.

These common law actions suggest that state

law—and by extension, states themselves—were to play a significant role in

checking constitutional overreaching by federal officers. This evidence, combined

with Madison’s belief that the state and federal governments “will controul each

other” suggests that converse-1983 laws are “a dramatic set of progressive actions

that states may take in the service of federal constitutional rights.”

This Article disagrees. Although states have the constitutional power to enact

converse-1983 laws, the federal government possesses a superior power through

which it can limit or even abrogate these laws whenever it pleases. Because

converse-1983 laws can therefore exist only at the pleasure of the federal

government, it can hardly be said that these laws are a way for states to control the

federal government.

Federal Agents: An Idea Whose Time Has Arrived, 69 BROOK. L. REV. 1369, 1371 (2004)

(arguing that “state governments may use the Constitution as more than a shield for

themselves; they may use it to affirmatively shield the citizens from federal laws that trample

. . . on individuals’ rights”); Steven G. Calabresi, We Are All Federalists, We Are All

Republicans: Holism, Synthesis, and the Fourteenth Amendment, 87 G

EO. L.J. 2273, 2274

(1999) (referring to Professor Amar’s converse-1983 work as a “very important scholarly

contribution[] to our understanding of the law of federal jurisdiction”); John O. McGinnis &

Ilya Somin, Federalism vs. States’ Rights: A Defense of Judicial Review in a Federal

System, 99 N

W. U. L. REV. 89, 110–11 (2004) (citing converse-1983 suits as a way in which

“state governments can sometimes use their powers to block or mitigate federal violations of

fundamental individual rights”); Michael B. Rappaport, Reforming Article V: The Problems

Created by the National Convention Amendment Method and How To Fix Them, 96 V

A. L.

REV. 1509, 1576 (2010) (stating that it is “not clear that [arguments against converse-1983

laws] would be persuasive”); Robert A. Schapiro, Polyphonic Federalism: State

Constitutions in the Federal Courts, 87 C

ALIF. L. REV. 1409, 1458 (1999) (expressing

support for the “thrust” of Professor Amar’s argument); Seth P. Waxman & Trevor W.

Morrison, What Kind of Immunity? Federal Officers, State Criminal Law, and the

Supremacy Clause, 112 Y

ALE L.J. 2195, 2246–49 (2003) (supporting the converse-1983 in

part, but disagreeing with Professor Amar’s claim that states may control the scope of

federal immunity); Ann Woolhandler, The Common Law Origins of Constitutionally

Compelled Remedies, 107 Y

ALE L.J. 77, 125 n.244 (1997) (briefly noting the converse-1983

action and expressing concern about its viability).

17. Amar, Sovereignty and Federalism, supra note 15, at 1504–06.

18. T

HE FEDERALIST NO. 51, at 282 (James Madison) (J.R. Pole ed., 2005).

19. Id.

20. See Amar, Sovereignty and Federalism, supra note 15, at 1506–09.

21. See, e.g., Little v. Barreme, 6 U.S. (2 Cranch) 170, 179 (1804).

22. Amar, Questions and Answers, supra note 15, at 159.

2012] THE FALSE PROMISE OF THE CONVERSE-1983 ACTION 1701

My analysis of converse-1983 laws has two halves. In the first half, I consider

the fate of a converse-1983 law under the current law of federal supremacy and

offer four reasons why the converse-1983 action will not allow states to punish

constitutional violations by federal officers. First, federal officers sued in a

converse-1983 action would be entitled to a robust defense of immunity provided

by the Supremacy Clause.

This defense, which will immunize officers for all

reasonable and nonmalicious violations, will take much of the bite out of a

converse-1983 action. Second, converse-1983 suits will always be subject to the

creation of, and preemption by, federal common law. Using its federal common

law-making power, the Supreme Court has gutted state causes of action in this way

before, and there is good reason to think it would do just that when presented with a

converse-1983 action. Third, the success of a converse-1983 action could be

affected by the Supreme Court’s current Bivens jurisprudence—a body of federal

law allowing damages suits to be brought against federal officers.

Although the

exact effect of the Bivens doctrine is difficult to predict under the current cases,

there can be little doubt that the Supreme Court’s authority over Bivens actions

implicitly endows it with the authority to preempt converse-1983 actions. Fourth

and finally, converse-1983 actions will be vulnerable to Congress’s authority to

partially or fully preempt the causes of action. Congress’s authority to abrogate

constitutional remedies is not absolute, but given the remedies currently available

other than a converse-1983 action, Congress most surely enjoys the authority to

nullify a converse-1983 action. In sum, this half of the Article shows that converse-

1983 actions present little hope to a state desiring to punish constitutional

violations committed by federal officers.

In the second half of my analysis, I turn back the clock and consider whether

converse-1983 suits would have been any more helpful at the Founding. My

conclusion is no different, however: at the Founding, the converse-1983 action

would have been just as vulnerable to preemption (and thus useless in controlling

the federal government) as it would be in modern times. In reaching this

conclusion, I address three pieces of Founding-era evidence cited as support for

converse-1983 laws. First, I consider the claim—allegedly evidenced in the

Federalist Papers—that the Founders believed states to have a legal power to

punish federal constitutional violations. This view is flawed, I explain. The

Federalist Papers spoke of state power to check the federal government in

political, not legal, terms. State governments were to secure the rights of citizens

by “sound[ing] the alarm to the people,” not by enacting new laws.

Second, I consider the nineteenth-century practice of suing federal officers

under the common law for their constitutional violations. Although these suits

might seem to support states’ unilateral power to hold federal officers liable under

state law, a close reading of the cases actually suggests otherwise. Though

ostensibly “common law” actions, the law applied in these suits was a general

common law of officer liability that was largely disconnected with state law.

23. U.S. CONST. art. VI, cl. 2.

24. Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).

25. THE FEDERALIST NO. 26, at 141 (Alexander Hamilton) (J.R. Pole ed., 2005).

1702 INDIANA LAW JOURNAL [Vol. 87:1697

Indeed, the federal courts appeared to enjoy near total control over this body of

“common law.”

Third, I finish this half of the Article by briefly addressing the alleged

availability of state habeas actions against federal wardens in the early nineteenth

century. These actions might be read to support a state power to maintain

converse-1983 actions, but the evidence suggests otherwise. To the extent these

habeas actions were even available, they were available only at the pleasure of the

Congress. Thus, even if habeas petitions could be filed against federal officers,

these petitions do not prove that states had the unilateral power to enact them, they

simply prove that states had permission to enact them.

Together, this Article’s two halves show that the converse-1983 action is a

flawed vehicle for checking constitutional violations committed by federal officers.

But why should anyone care? The fate of converse-1983 laws matters because the

country and the academy are focused now more than ever on how states can rein in

the federal government. States are experimenting in ways unheard of in modern

times, including suing the federal government,

instructing state officers not to

enforce federal law,

and even enacting laws that attempt to nullify federal

regulations.

At the same time, the academy has turned with renewed vigor to the

federal-state relationship. Recent articles have explored state power to resist federal

commandeering,

state discretion in enforcing federal law,

the role of state law

26. See, e.g., Florida ex rel. McCollum v. U.S. Dept. of Health & Human Servs., 716 F.

Supp. 2d 1120 (N.D. Fla. 2010) (constitutional challenge by over twenty states to the Patient

Protection and Affordable Care Act); Virginia ex rel. Cuccinelli v. Sebelius, 702 F. Supp. 2d

598, 602–07 (E.D. Va. 2010) (constitutional challenge by Virginia against same legislation).

27. Most commonly, states have resisted the enforcement of federal immigration laws as

well as antiterror laws such as the USA PATRIOT Act. For examples of such laws, see Ann

Althouse, The Vigor of Anti-Commandeering Doctrine in Times of Terror, 69 B

ROOK. L.

REV. 1231, 1253–57 (2004); Huyen Pham, The Constitutional Right Not To Cooperate?:

Local Sovereignty and the Federal Immigration Power, 74 U.

CIN. L. REV. 1373, 1382–84

(2006) (assessing state or local “sanctuary laws” intended to preclude providing assistance to

the federal government in the enforcement of federal immigration laws).

28. As of this writing, the National Conference of State Legislatures reports that at least

forty states have enacted or are considering legislation aimed at overriding the Patient

Protection and Affordable Care Act. See State Legislation and Actions Challenging Certain

Health Reforms, 2011, NCSL

(Dec. 28, 2011), http://www.ncsl.org/?tabid=18906. For a

discussion of other state initiatives, see Kirk Johnson, States’ Rights Is Rallying Cry of

Lawmakers, N.Y. TIMES, Mar. 17, 2010, at A1. A newly formed organization, the Tenth

Amendment Center, maintains updated lists of state efforts to oppose or nullify federal law.

See The 10th Amendment Nullification Movement, T

ENTH AMENDMENT CTR.,

http://www.tenthamendmentcenter.com/the-10th-amendment-movement.

29. See, e.g., Althouse, supra note 27, at 1232 (addressing state or local efforts to refuse

assistance to the federal government in the “war on terrorism”); Pham, supra note 27, at

1374, 1382–84 (assessing state or local “sanctuary laws” intended to preclude providing

assistance to the federal government in the enforcement of federal immigration laws).

30. See, e.g., Abbe R. Gluck, Intrastatutory Federalism and Statutory Interpretation:

State Implementation of Federal Law in Health Reform and Beyond, 121 Y

ALE L.J. 534, 534

(2011) (arguing “that state implementation of federal law plays many different roles, and that

those differences should affect both how statutes are interpreted and how they are conceived

from a federalism perspective”); Margaret H. Lemos, State Enforcement of Federal Law, 86

2012] THE FALSE PROMISE OF THE CONVERSE-1983 ACTION 1703

in reforming federal agencies,

and state political resistance to federal law.

assessment of converse-1983 laws thus sits at the confluence of popular and

academic interest.

This Article unfolds as follows: In Part I, I explain the conception of federalism

in which converse-1983 laws would find traction, and then explain in detail that

nature of the causes of action. Then, in Part II, I evaluate the fate of converse-1983

laws according to current understanding of federal power. In Part III, I evaluate the

Founding-era evidence supporting converse-1983 actions and then briefly

conclude.

PROFESSOR AMAR ON FEDERALISM AND CONVERSE-1983

In this Part, I lay a foundation for the analysis in Parts II and III. I first explain

Professor Amar’s understanding of American federalism and, in particular, his

view on the states’ role in checking the federal government. Then, I explain in

detail the content and operation of converse-1983 laws. Together, these two

sections convey Amar’s view that converse-1983 laws are entirely ordinary causes

of action that fit comfortably within the assumptions underlying our constitutional

design.

A. Federalism

The supposed benefits of federalism have been well rehearsed in the courts and

the academy. Robust local power is preferable, it is argued, because (1) states can

more easily experiment in public administration, (2) states can compete with other

states for citizens’ affections, (3) liberty is best protected by diffusing power, and

(4) public involvement is higher at the local level.

N.Y.U. L. REV. 698 (2011) (arguing that states can affect the force of federal law through

their control over various channels of enforcement).

31. Gillian E. Metzger, Federalism and Federal Agency Reform, 111 C

OLUM. L. REV. 1

(2011) (considering the role of state law in recent Supreme Court decisions involving

preemption); Catherine M. Sharkey, Federalism Accountability: “Agency-Forcing”

Measures, 58 D

UKE L.J. 2125 (2009) (comparing state efforts to impact federal law at

agency and congressional level).

32. See, e.g., JOHN D. NUGENT, SAFEGUARDING FEDERALISM, HOW STATES PROTECT

THEIR INTEREST IN NATIONAL POLICYMAKING 14 (2009) (focusing on how “state officials—

[including] governors, state legislators, heads of state agencies, and staff members working

on their behalf—attempt to influence federal policymaking and when, how, and why they

succeed”); Jessica Bulman-Pozen & Heather K. Gerken, Uncooperative Federalism, 118

YALE L.J. 1256 (2009) (explaining that states can often frustrate federal regulatory efforts by

formally expressing disapproval or implementing federal law in ways contrary to federal

goals); Barak Y. Orbach, Kathleen S. Callahan & Lisa M. Lindemenn, Arming States’

Rights: Federalism, Private Lawmakers, and the Battering Ram Strategy, 52 A

RIZ. L. REV.

1161, 1163 (2010) (explaining how lobbyists opposed to federal policy “harness states and

localities in order to challenge federal policies”).

33. See, e.g., Gregory v. Ashcroft, 501 U.S. 452, 458–59 (1991); FERC v. Mississippi,

456 U.S. 742, 788–89 (1982) (O’Connor, J., concurring); D

AVID L. SHAPIRO, FEDERALISM: A

DIALOGUE 75–106 (1995); Lynn A. Baker & Ernest A. Young, Federalism and the Double

Standard of Judicial Review, 51 D

UKE L.J. 75, 136–39 (2001); Steven G. Calabresi, “A

1704 INDIANA LAW JOURNAL [Vol. 87:1697

Professor Amar is familiar with these models, but believes they are incomplete.

The Founding generation expected the states to be more than simply an alternative

to the federal government, he believes; it expected states to actually check the

federal government’s operations. This check is suggested in Federalist 51, where

James Madison assures those fearful of federal power that “[t]he different

governments will controul each other.”

States might “controul” the federal

government in several ways. The most predictable is through political persuasion, a

mechanism that Professor Amar acknowledges.

But Amar believes that states also

possess a legal power to control the federal government.

Amar discerns this legal power from a symmetry he deems present in the

constitutional design.

If the federal and state governments are supposed to control

each other, and if the federal government possesses the legal power to punish state

constitutional violations, then states must possess that same power. This is the

“beauty of constitutional federalism,” Amar explains.

Where one government

fails to keep up its end of the bargain, the other can—and likely will—step in to

protect citizens’ rights. “[F]ederalism abhors a remedial vacuum,” according to

Amar.

When state power is so understood, the “Tenth Amendment appears as the

symmetrical counterpart of the enforcement clauses of the Civil War

Amendments.”

That is, just as Congress derives its power to check the states from

the enforcement clauses of the Thirteenth, Fourteenth, and Fifteenth Amendments,

the states derive their power to check the federal government from the Tenth

Amendment.

Each government has the legal—not just political—power to check

the other.

One towering case seems to stand in the way of Professor Amar’s views on

federalism: McCulloch v. Maryland.

In McCulloch, the Supreme Court held that

the state of Maryland was constitutionally prohibited from imposing a tax on a

federal bank—a bank Maryland believed was unconstitutional.

McCulloch would

thus seem to bar states from punishing the federal government for alleged

constitutional violations. Yet Amar contends that McCulloch can be easily misread.

Government of Limited and Enumerated Powers”: In Defense of United States v. Lopez, 94

ICH. L. REV. 752, 774–79 (1995); Michael W. McConnell, Federalism: Evaluating the

Founders’ Design, 54 U.

CHI. L. REV. 1484, 1493–1511 (1987) (reviewing RAOUL BERGER,

FEDERALISM: THE FOUNDERS’ DESIGN (1987)); Deborah Jones Merritt, The Guarantee

Clause and State Autonomy: Federalism for a Third Century, 88 C

OLUM. L. REV. 1, 3–10

(1988); Ernest A. Young, The Rehnquist Court’s Two Federalisms, 83 T

EX. L. REV. 1, 53–63

(2004).

34. THE FEDERALIST No. 51, at 282 (James Madison) (J.R. Pole ed., 2005).

35. See Amar, Sovereignty and Federalism, supra note 15, at 1503–04.

36. Id.

37. Id. at 1504.

38. Id. at 1505.

39. Id. at 1506.

40. The Tenth Amendment reserves to the states all law-making powers not specifically

granted to the federal government. U.S.

CONST. amend. X (“The powers not delegated to the

United States by the Constitution, nor prohibited by it to the States, are reserved to the States

respectively, or to the people.”).

41. 17 U.S. (4 Wheat.) 316 (1819).

42. Id. at 400.

2012] THE FALSE PROMISE OF THE CONVERSE-1983 ACTION 1705

The key to understanding the case for converse-1983 purposes, he explains, lies in

“how the Supreme Court structured its analysis.”

To wit:

The first question, said the Court, was whether the bank was in fact

constitutional. Only after assuring itself that the bank was indeed

consistent with the federal Constitution—“necessary and proper”—did

the Court address what it labelled as the second question in the case:

whether the state of Maryland could nonetheless impose its tax. The

structure of the Court’s analysis and several passages in the opinion

plainly imply that if the bank had indeed been unconstitutional, perhaps

state law could impose liability on the bank official, Mr. McCulloch. If

anything, all this suggests that when federal officials are acting in

violation of the federal Constitution, state law-created liability may

well be appropriate at times.

Thus, for Professor Amar, our constitutional federalism only endows states with

power to regulate the federal government’s unlawful activities. Where an action is

lawful, states must stand down. Where an action is unlawful, however, states are

free to punish the misbehavior. The federal government can hardly claim the

protection of the Supremacy Clause when it is flouting the Constitution to begin

with.

In sum, for Professor Amar, the structure of our Constitution presupposes a state

power to legally punish constitutional transgressions committed by federal officers.

With this brief introduction, I turn now to the converse-1983 laws that Amar finds

permissible under this structure.

B. Converse-1983

In many respects, converse-1983 laws are similar to the thousands of other laws

enacted by states each year. They represent a government response to a perceived

ill suffered by state citizens. In other respects, however, the laws’ application to

federal officers makes them quite distinctive. Below, I explain Professor Amar’s

description of the laws, including their necessity, creation, adjudication, remedies,

and susceptibility to preemption.

1. Necessity

In considering the propriety of converse-1983 actions, it is first important to ask

why they are even necessary. True, the federal government commits its share of

constitutional violations, but the current law already provides victims with a means

of redress. Under Bivens v. Six Unknown Named Agents,

victims of constitutional

violations can sue the offending federal officer for damages. In addition, if the

constitutional violation would be actionable as a tort (e.g., an exercise of excessive

force in violation of the Fourth Amendment will usually give rise to a claim of

43. Amar, Questions and Answers, supra note 15, at 168.

44. Id. (emphasis in original).

45. 403 U.S. 388 (1971).

1706 INDIANA LAW JOURNAL [Vol. 87:1697

common law battery), victims could make use of the Federal Tort Claims Act

(FTCA).

In Professor Amar’s view, these remedies are weak alternatives to the

converse-1983 action. For one, “Bivens could in theory be overruled tomorrow.”

This was a reasonable possibility when Professor Amar wrote that in 1993 and it

remains a possibility today.

With Bivens gone or on life support, the only remedy

available would be under the FTCA. Yet, according to Amar, the FTCA “may well

not apply” because tort law is an imperfect replacement for constitutional

interests.

Some constitutional violations will amount to private law torts, but

others will not.

Thus, it is likely that the “various margins of the Fourth

Amendment and other constitutional rights will be unenforced or underenforced.”

In Professor Amar’s view, therefore, converse-1983 actions are necessary to fill

current or future remedial gaps.

2. Creation and Adjudication

If a state felt a converse-1983 action was appropriate, how could it create one?

A state could promulgate a converse-1983 cause of action in one of two ways:

through legislative enactment or judicial creation.

The legislative route would

perhaps be the most ordinary route, as legislatures routinely enact statutes that

provide a cause of action to someone who has been harmed by a breach of some

duty. Using Professor Amar’s formulation, the statute might look nearly identical to

the current § 1983—something like this:

Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of the United States, subjects or causes to be

subjected, any citizen of this state or other person within the

jurisdiction thereof to the deprivation of any rights, privileges, or

immunities secured by the [United States] Constitution, shall be liable

to the party injured in an action at law, suit in equity, or other proper

proceeding for redress.

46. 28 U.S.C. § 1346(b)(1) (2006) (permitting suit against the federal government where

the harm suffered would be cognizable under the law of the state where the harm occurred).

47. Amar, Questions and Answers, supra note 15, at 172.

48. See James E. Pfander, Iqbal, Bivens, and the Role of Judge-Made Law in

Constitutional Litigation, 114 P

ENN. ST. L. REV. 1387 (2010) (reviewing the Bivens doctrine

and the Court’s hostility to it since the 1980s).

49. Amar, Questions and Answers, supra note 15, at 150, 175.

50. For example, a Fourth Amendment excessive force claim could often be recast as

the tort of battery, but an equal protection violation will rarely have a tort analog. For a

discussion of the overlap between tort and constitutional law, see John F. Preis, Alternative

State Remedies in Constitutional Torts, 40 C

ONN. L. REV. 723 (2008).

51. Amar, Questions and Answers, supra note 15, at 173.

52. Professor Amar notes a third way: through amendment of the state constitution. See

id. at 161. The distinction between statutory and constitutional creation is unimportant for

the purposes of this Article.

53. Id. at 160 (emphasis in original).

2012] THE FALSE PROMISE OF THE CONVERSE-1983 ACTION 1707

If a state judiciary were so inclined, it too could create a converse-1983 action.

State courts have long had the discretion to create or abolish causes of action.

Sometimes the cause of action provides a standard of care as well as the right to

sue, such as with the judicial creation of a claim for intentional infliction of

emotional distress.

Other times, however, the cause of action does not contain any

standard of care but simply creates a “right to sue” to enforce a statute containing a

standard of care. Courts essentially do this when they create negligence per se

actions, which are tort actions that incorporate a statutory duty as the appropriate

standard of care. Indeed, state negligence per se actions occasionally involve

federal law,

though no state appears to have attempted to impose liability against

a federal officer.

Though created by state institutions, converse-1983 suits would almost always

be litigated in federal court. Some plaintiffs might choose to file in federal court as

an original matter,

but even cases begun in state court would almost certainly end

up in federal court under the federal officer removal statute.

Despite being

litigated in federal court, federal judges would still be bound to apply the state

cause of action—just as they are required in standard diversity cases. As Professor

Amar explains, “Under the Rules of Decision Act and the Tenth Amendment, a

state statutory cause of action (unless it somehow violates the federal Constitution

or a constitutional federal statute) is a substantive law that federal courts must

enforce.”

3. Damages and Immunity

Being free to create a cause of action, a state would also be free to specify the

appropriate damages for a constitutional violation. Thus, if it desired, a state could

set a standard damages judgment for every violation—say $25,000. States could

not, according to Professor Amar, “provide for liability far in excess of making a

plaintiff whole, and far in excess of the quantum of damages for other state causes

of action.”

In that situation, the law would exceed the state role in preserving

liberty and simply amount to a “punitive” measure.

54. See, e.g., Harris v. Jones, 380 A.2d 611 (Md. 1977) (creating the tort of intentional

infliction of emotional distress); Womack v. Eldridge., 210 S.E.2d 145 (Va. 1974) (same).

55. See Pauline E. Calande, State Incorporation of Federal Law: A Response to the

Demise of the Implied Federal Rights of Action, 94 Y

ALE L.J. 1144 (1985) (identifying

negligence per se actions using federal law).

56. Federal jurisdiction may be based on the diversity of the parties, see 28 U.S.C.

§ 1332 (2006), or based on the presence of a federal question, 28 U.S.C. § 1331 (2006);

Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308 (2005) (holding that

federal courts have federal question jurisdiction over state law causes of action that involve

“substantial” federal questions).

57. 28 U.S.C. § 1442(a) (2006). As a practical matter, federal officers sued in state court

almost always remove the case to federal court.

58. Amar, Questions and Answers, supra note 15, at 166–67 (footnote omitted).

59. Id. at 168.

60. Id.

1708 INDIANA LAW JOURNAL [Vol. 87:1697

Closely related to the issue of damages is immunity. Professor Amar argues that

states need not provide immunity to federal officers. This is significant because the

current law of federal immunity bars recovery in a large number of civil rights

actions.

Amar acknowledges that the Court has “creat[ed] various zones of

immunity for government officials” in civil rights cases but argues that the “Court

has never said that the Constitution requires these zones of immunity. Nor, to my

knowledge, has the Court ever applied these zones of immunity where a cause of

action for unconstitutional federal conduct was created by state law, such as

trespass law.”

Thus, in Amar’s view, the scope of immunity in a converse-1983

action, if any, would be within the control of the states.

4. Interaction with Federal Law

How would converse-1983 suits be impacted by federal law? Professor Amar

does not consider how judicially created law—such as Bivens—would impact

converse-1983 suits. But he apparently believes that federal courts would be

obligated to give effect to the state actions regardless of judge-made law like

Bivens.

The preemptive impact of a federal statute, however, is a different matter.

According to Amar, Congress’s interest in “eliminating a patchwork of state law

remedies so that a federal officer’s liability will not wildly fluctuate as he moves

from state to state” justifies the creation of a federal cause of action against federal

officers.

If Congress creates such a cause of action, the converse-1983 action

must yield. Yet Professor Amar holds that Congress cannot simply replace

converse-1983 actions with some anemic federal version of a converse-1983 suit.

That is, “if Congress seeks to oust [a converse-1983 law], Congress must itself

provide a federal remedy at least as generous as the most generous state remedy

Congress seeks to preempt.”

If Congress had the “plenary power to nullify any

state remedy it disliked,” Amar explains, the “careful constitutional balance of

federalism [would be disturbed], and would ultimately imperil individual

constitutional liberty by weakening an important check against federal abuse.”

61. See Cornelia T.L. Pillard, Taking Fiction Seriously: The Strange Results of Public

Officials’ Individual Liability Under Bivens, 88 G

EO. L.J. 65, 65–66, 79–80 (1999)

(explaining that Bivens suits rarely result in an assessment of damages and that “[q]ualified

immunity is undoubtedly the most significant bar” to recovery). Even with the defense of

immunity, however, there is evidence that Bivens actions will lead to a monetary settlement

in a significant number of cases. See Alexander A. Reinert, Measuring the Success of Bivens

Litigation and Its Consequences for the Individual Liability Model, 62 S

TAN. L. REV. 809,

813 (2010) (“Bivens cases are much more successful than has been assumed by the legal

community, and . . . in some respects they are nearly as successful as other kinds of

challenges to governmental misconduct.”).

62. Amar, Questions and Answers, supra note 15, at 174 (emphasis in original).

63. Id. at 166–67 (explaining that “federal courts must enforce” a converse-1983 law

“unless it somehow violates the federal Constitution or a constitutional federal statute”).

64. Id. at 179.

65. Id.

66. Amar, Sovereignty and Federalism, supra note 15, at 1518.

2012] THE FALSE PROMISE OF THE CONVERSE-1983 ACTION 1709

* * *

In sum, Professor Amar views our Constitution as endowing states with the legal

power to check federal constitutional transgressions. This power is important

because existing remedies—whether under the Federal Tort Claims Act or

Bivens—are tenuous and limited. States could improve upon such remedies by

creating a cause of action that is not burdened by the ubiquitous defenses of

immunity. Although Congress possesses the power to override converse-1983 laws,

it cannot nullify them without providing an equally powerful replacement.

If Professor Amar is correct on these points, converse-1983 laws would give

states a powerful way to fight the federal government. The question is, however, is

Professor Amar correct?

II.

THE VALUE OF THE CONVERSE-1983 ACTION TODAY

In this Part, I argue that the converse-1983 action will be of little help to states

currently wishing to rein in the federal government. The impotency of the cause of

action derives not from its patent unconstitutionality, but from its vulnerability to

nullification by the federal government. Converse-1983 laws are relatively useless

if the federal government is free to ignore them at its pleasure.

The current vulnerability of converse-1983 laws to federal supremacy is

four-fold. First, federal officers sued in a converse-1983 action would have access

to a powerful immunity defense arising from the Supremacy Clause; second, the

federal courts could override converse-1983 laws through the creation of federal

common law; third, converse-1983 suits would possibly (though not certainly) be

preempted by the Supreme Court’s Bivens jurisprudence; and fourth, Congress

could preempt such laws without providing a remedial replacement.

A. Officer Immunity Under the Supremacy Clause

One reason that converse-1983 actions can “make a big difference,” argues

Professor Amar, is because they need not grant federal defendants the generous

immunity defenses that are normally provided in Bivens actions.

This claim,

however, ignores “Supremacy Clause immunity,” an immunity defense that shields

federal officers from liability under state law. As explained below, Supremacy

Clause immunity insulates federal officers from liability under state law for actions

taken within the general scope of their employment.

The concept of federal immunity under the Supremacy Clause can be traced to

McCulloch v. Maryland.

McCulloch arose from Maryland’s attempt to tax the

Bank of the United States, which established a branch in Baltimore.

The case is

67. Amar, Questions and Answers, supra note 15, at 174. Professor Vikram Amar

makes this same point in a later article. Amar, supra note 16, at 1379 (“Moreover, and more

important, a converse-1983 cause of action need not be saddled with the ‘qualified

immunity’ doctrines that courts have read into § 1983 and the Bivens creation.”).

68. 17 U.S. (4 Wheat.) 316 (1819).

69. Id. at 400–01.

1710 INDIANA LAW JOURNAL [Vol. 87:1697

typically cited for the scope of Congress’ power under the Necessary and Proper

Clause, but it also contains an important statement on the force of the Supremacy

Clause. The Court held that Maryland’s tax was inapplicable to the Bank because a

state has no power to interfere with “the legitimate operations of a supreme

government.”

Put differently, McCulloch holds that where the federal government

is engaged in “legitimate operations,” it is immune from state interference.

Under McCulloch, for example, a state cannot require a federal mail carrier to

obtain a state driver’s license

because the delivery of the mail is undoubtedly a

legitimate operation of the federal government.

A federal mail carrier prosecuted

for driving without a license could raise as a defense her lawful execution of a

legitimate government operation. In contrast, if the carrier was charged with the

same infraction while driving off-duty, no such defense would exist.

Sometimes the line between legitimacy and illegitimacy is much harder to draw.

What if a mail carrier, in the middle of her daily route, mistakenly perceives a

threat from a dog and kills the dog with a Taser? Was this death caused during a

legitimate government operation? On the one hand, the interference of dogs with

the delivery of mail is so routine that efforts to address that interference would

appear to be a legitimate governmental operation.

On the other hand, it seems

anomalous to conclude that the unjustified taking of an animal is a legitimate

governmental operation. The line between a legitimate and illegitimate

governmental activity is thus not an easy line to draw.

Enter the Supreme Court in 1890, which drew this line in In re Neagle.

Neagle

is a dramatic case on its facts alone. While Supreme Court Justice Stephen Field

was on a train riding circuit in 1889, a disgruntled litigant stormed the Justice’s

dining car.

A deputy marshal guarding Justice Field intercepted the intruder with

70. Id. at 427.

71. Chief Justice Marshall made this same point five years later in Osborn v. Bank of the

United States, 22 U.S. (9 Wheat.) 738, 865–66 (1824), stating:

An officer, for example, is ordered to arrest an individual. It is not necessary,

nor is it usual, to say that he shall not be punished for obeying this order. His

security is implied in the order itself. It is no unusual thing for an act of

Congress to imply, without expressing, this very exemption from State

control . . . . The collectors of the revenue, the carriers of the mail, the mint

establishment, and all those institutions which are public in their nature, are

examples in point. It has never been doubted, that all who are employed in

them, are protected, while in the line of duty; and yet this protection is not

expressed in any act of Congress. It is incidental to, and is implied in, the

several acts by which these institutions are created, and is secured to the

individuals employed in them, by the judicial power alone . . . .

72. Johnson v. Maryland, 254 U.S. 51 (1920).

73. U.S.

CONST. art. I, § 8 (granting Congress authority “[t]o establish Post Offices and

post Roads”).

74. As it turns out, the problem is so ubiquitous that the United States Postal Service has

even published a pamphlet instructing mail carriers on the proper ways to avoid dog bites.

See UNITED STATES POSTAL SERVICE, HOW TO AVOID DOG BITES: DOGS AND DOG REPELLANT

(2000), http://uspspublications.lettercarriernetwork.info/pub174.pdf.

75. 135 U.S. 1 (1890).

76. Id. at 52–53.

2012] THE FALSE PROMISE OF THE CONVERSE-1983 ACTION 1711

a gunshot, taking his life.

The marshal believed—mistakenly, it turned out—that

the assailant was armed with a knife.

The local district attorney charged the

marshal with murder.

The marshal’s vulnerability to the force of state law

eventually came before the U.S. Supreme Court. The Supreme Court held the

marshal immune. In the Court’s view,

[I]f the [marshal] is held in the state court to answer for an act which he

was authorized to do by the law of the United States, which it was his

duty to do as marshal of the United States, and if in doing that act he

did no more than what was necessary and proper for him to do, he

cannot be guilty of a crime under the law of the State of California.

Though the Court did not explain its conclusion in terms of Supremacy Clause

immunity, it is clear that the concepts of supremacy and preemption undergird the

Court’s reasoning. When pressed with the argument that preemption was inapt here

because there was “no statute authorizing any such protection as that which

Neagle” provided to Justice Field,

the Court responded by clothing the marshal’s

behavior with the mantle of federal “law”:

In the view we take of the Constitution of the United States, any

obligation fairly and properly inferrible from that instrument, or any

duty of the marshal to be derived from the general scope of his duties

under the laws of the United States, is “a law.”

The upshot of Neagle is that a federal officer is immune from liability under

state law if he is acting within the “general scope of his duties.” Because this rule

of immunity has its roots in the Supremacy Clause, it is commonly referred to as

“Supremacy Clause immunity.”

In the decades after Neagle, the Supreme Court affirmed the principle of

Supremacy Clause immunity in several cases.

Yet the key principle of the case—

that an officer is immune for actions taken within the “general scope of his

duties”—remained hazy. About the only guidance one could draw from the cases

was that the federal officer’s action must have been “necessary and proper” to the

77. Id. at 53.

78. Id.

79. Id. at 5–6.

80. Id. at 75 (emphasis in original).

81. Id. at 58 (“It is not supposed that any special act of the Congress exists which

authorizes the marshals or deputy marshals of the United States in express terms to

accompany the judges of the Supreme Court through their circuits, and act as a body-guard

to them, to defend them against malicious assaults against their persons.”).

82. Id. at 59 (emphasis added).

83. See, e.g., New York v. Tanella, 374 F.3d 141, 142 (2d Cir. 2004).

84. See, e.g, Hunter v. Wood, 209 U.S. 205 (1908); United States ex rel. Drury v. Lewis,

200 U.S. 1 (1906); Boske v. Comingore, 177 U.S. 459 (1900); Ohio v. Thomas, 173 U.S.

276 (1899).

1712 INDIANA LAW JOURNAL [Vol. 87:1697

fulfillment of his duties.

As recent debates over the meaning of the Necessary and

Proper Clause show,

the meaning of these words are far from exact.

In 1977, the Ninth Circuit articulated a more workable standard in Clifton v.

Cox.

The case involved movie-like drama: two federal agents used a helicopter to

land in a suspect’s back yard. Just after exiting the helicopter, one agent heard what

he believed to be a gunshot and, at that same moment, saw his partner fall to the

ground. There had been no gunshot, however, and the agent’s partner had simply

tripped. As the suspect retreated into his house and later into the nearby woods, the

FBI agent gave chase, ordering him several times to stop. The suspect never

stopped and the agent shot him, taking his life.

The state prosecuted the agent for

murder and the agent sought relief through a federal habeas corpus action. The

Ninth Circuit was therefore called on to determine whether the agent could, under

the facts alleged in the indictment, be guilty under state law. If the officer was

immune, the habeas petition must be granted.

The Ninth Circuit granted the agent’s petition, holding that the agent’s discharge

of his federal duties immunized him from state liability. In doing so, the Court

offered a more specific definition of Supremacy Clause immunity:

The significant question of whether the conduct [of the agent] was

necessary and proper under the circumstances must still be answered.

Essential to this determination, assuming the truth of the state’s

evidence, is whether the [agent] employs means which he cannot

honestly consider reasonable in discharging his duties or otherwise acts

out of malice or with some criminal intent.

Thus, under the Ninth Circuit’s formulation, the relevant inquiry has two prongs:

(1) whether the officer’s actions were reasonable under the circumstances, and (2)

whether the officer acted with malice. Where an officer’s action is either

unreasonable or malicious, immunity is forfeited. In the years since Clifton, the

Ninth Circuit’s formulation has become the standard for Supremacy Clause

immunity.

The scope of Supremacy Clause immunity will undoubtedly bar the

converse-1983 action—at least insofar as the action withholds immunity from the

officer as Professor Amar advocates.

Under Supremacy Clause immunity, a state

may not impose liability on officers who acted reasonably and in good faith. This

means, of course, that states can impose liability on an officer who acted

unreasonably or in bad faith. This may appear attractive to a state, since federal

85. Neagle, 135 U.S. at 75.

86. See United States v. Comstock, 130 S. Ct. 1949 (2010).

87. 549 F.2d 722 (9th Cir. 1977).

88. Id. at 724.

89. Id. at 728.

90. See, e.g., Wyoming v. Livingston, 443 F.3d 1211, 1222 (10th Cir. 2006); New York

v. Tanella, 374 F.3d 141, 147 (2d Cir. 2004); Kentucky v. Long, 837 F.2d 727, 744 (6th Cir.

1988); Maryland v. DeShields, 829 F.2d 1121, 1121 (4th Cir. 1987); Baucom v. Martin, 677

F.2d 1346, 1350 (11th Cir. 1982).

91. See supra notes 49–52 and accompanying text.

2012] THE FALSE PROMISE OF THE CONVERSE-1983 ACTION 1713

officers often act unreasonably or in bad faith. In reality, however, a converse-1983

suit saddled with Supremacy Clause immunity improves only slightly, if at all, on

the options currently available to state citizens, namely, suits pursuant to Bivens v.

Six Unknown Named Agents.

In Bivens, the Supreme Court held that a federal officer could be sued for

damages caused by “his unconstitutional conduct.”

Despite the existence of this

cause of action, officers nonetheless possess the powerful defense of “qualified

immunity.”

Similar to Supremacy Clause immunity, this standard immunizes

federal officers for any action that was reasonable under the circumstances.

The

only difference between Supremacy Clause immunity and qualified immunity is

that the former withholds immunity where the officer acted in bad faith, where the

latter has no concern with the officer’s bad faith.

This means that the only advantage of a converse-1983 action over a Bivens

action would be that a converse-1983 defendant would forfeit her immunity when

acting with malice. But this advantage is likely to be of miniscule value to the

states. There can be no doubt that some officers in the federal government

periodically act with malice, but when a constitutional violation results from such

behavior, there is a very good chance that the behavior, viewed objectively, will fall

outside the boundaries of reasonableness. If so, the behavior, viewed under the

current qualified immunity doctrine, will give rise to liability regardless of any

malice.

Thus, it is only the set of cases that involve malice but fall within the

realm of reasonableness that will be subject to liability under a converse-1983

action. This set of cases is likely to be vanishingly small.

In sum, the doctrine of Supremacy Clause immunity takes much wind out of the

sails of Professor Amar’s proposed converse-1983 action. The doctrine will not

prevent states from imposing liability on federal officials, but it will prevent states

from overcoming the immunity rules that so often stand in the way of recovery. In

this sense, the converse-1983 action is most certainly not a significant opportunity

for states to “make a big difference” in constitutional enforcement against federal

officers.

92. 403 U.S. 388 (1971).

93. Id. at 389.

94. Harlow v. Fitzgerald, 457 U.S. 800 (1982).

95. Id. at 818.

96. Id.

97. Moreover, malice is exceedingly difficult to prove. See id. at 816. At least one

circuit court has considered dropping the malice prong to Supremacy Clause immunity, thus

making the immunity identical to that of qualified immunity. See Wyoming v. Livingston,

443 F.3d 1211 (10th Cir. 2006).

98. My argument here is only that the converse-1983’s value added over a Bivens action

is slight. If Bivens were overruled, then the comparative value of converse-1983 actions

would significantly increase. As explained in the remainder of Part II, however, there are

numerous other impediments to a successful converse-1983 action.

99. See Amar, Questions and Answers, supra note 15, at 174.

1714 INDIANA LAW JOURNAL [Vol. 87:1697

B. Abrogation by Federal Common Law

Supremacy Clause immunity is only one barrier to the converse-1983 action.

Another is the federal common law. Federal common law is “law” within the

meaning of the Supremacy Clause and thus has the power to nullify any contrary

state law.

100

In this section, I explain that federal courts have the power to create

federal common law with the specific goal of nullifying converse-1983 actions. As

such, converse-1983 actions cannot be regarded as a useful tool for checking

federal officers who commit constitutional violations.

Federal courts create common law, both consciously and unconsciously, in a

multitude of settings.

101

In some instances, such as the field of Supremacy Clause

immunity, the Court does not acknowledge that its decisions amount to common

law, although if pressed the Court would likely explain them that way.

102

In other

instances, however, federal courts self-consciously engage in common-law making

when necessary “to protect uniquely federal interests.”

103

For example, in cases involving obligations on commercial paper, the Court has

created a multitude of laws to protect the federal government’s interest as a

commercial entity. Clearfield Trust Co. v. United States

104

is a classic example. In

that case, a Pennsylvania bank improperly cashed a check issued by the federal

government. After federal monies were drawn to reimburse the bank, the federal

government sued the bank for the wrongfully withdrawn funds. Under

Pennsylvania commercial paper law, however, the federal government was out of

luck. Yet the Supreme Court held that state law did not apply to the case.

105

What

applied instead was a new law—created by the Supreme Court in Clearfield Trust

itself. Under this new “common law” rule, the federal government would prevail.

Indeed, the Court designed the new common law rule with the specific intention

that the federal government prevail. It would be anomalous, thought the Court, if

the “rights and duties of the United States” in its issuance of millions of federal

checks were “dependent on the laws of Pennsylvania or of any other state.”

106

Under the authority of Clearfield Trust, state laws addressing commercial paper are

subject to revision or outright abrogation by the Supreme Court.

100. See Wilburn Boat Co. v. Fireman’s Fund Ins. Co., 348 U.S. 310, 314 (1955) (“States

can no more override such judicial rules [i.e., federal common law] . . . than they can

override Acts of Congress.”).

101. See Martha A. Field, Sources of Law: The Scope of Federal Common Law, 99

ARV. L. REV. 881, 890 (1986) (stating that “federal common law” “refer[s] to any rule of

federal law created by a court . . . when the substance of that rule is not clearly suggested by

federal enactments—constitutional or congressional” (emphasis in original) (footnote

omitted)).

102. See Wilkie v. Robbins, 551 U.S. 537, 538 (2007) (stating that “federal courts [in

Bivens actions] must make the kind of remedial determination that is appropriate for a

common-law tribunal”).

103. Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 640 (1981).

104. 318 U.S. 363 (1943).

105. Id. at 366–67.

106. Id.

2012] THE FALSE PROMISE OF THE CONVERSE-1983 ACTION 1715

In addition to the field of commercial paper, the Supreme Court has displaced

state law in favor of federal common law in other areas, such as contracts and

property.

107

Of particular relevance to the converse-1983 action, one area of

“peculiarly federal concern, warranting the displacement of state law, is the civil

liability of federal officials for actions taken in the course of their duty.”

108

Thus, in

Westfall v. Erwin, a suit involving the liability of a federal officer for negligent

acts, the Court explained that “the scope of absolute official immunity afforded

federal employees is a matter of federal law, ‘to be formulated by the courts in the

absence of legislative action by Congress.’”

109

Although the Court speaks of

“immunity” in Westfall, it is clear that the law-making power of the federal courts

extends far beyond the discrete issue of immunity. In fact, the federal courts have

broad authority to override state law through all sorts of doctrinal creations.

Boyle v. United Technologies is particularly illustrative of this point.

110

In Boyle,

a father claimed that United Technologies was responsible for his son’s death. The

son was killed in an army helicopter manufactured by United Technologies, a

helicopter that Boyle alleged was negligently designed under Virginia tort law. The

Supreme Court, however, displaced Virginia tort law with a law of its own design.

Now denominated the “government contractor defense,” the Supreme Court’s

creation allowed the contractor to escape liability if it could show that (1) the

government approved the helicopter’s specifications, (2) the helicopter in fact

complied with those specifications, and (3) the manufacturer warned the

government of any specifications that created a risk of injury.

111

What is significant

about Boyle is that the federal government was not even a party to the case; yet the

Supreme Court held that the case nonetheless touched on an area of important

federal concern—the costs that contractors must bear in supplying goods to the

federal government. It makes no sense, maintained the Court, for the cost of our

national security to be based in part on the whims of state tort law.

Boyle impacts the viability of converse-1983 suits in two ways. First, the case

makes clear that the liability of federal officers will undoubtedly be seen as an area

subject to the creation of federal common law. If federal common law is justified in

cases involving federal contractors, it is certainly justified in cases involving

federal officers themselves. Second, the case shows that converse-1983 actions will

be subject to revision by a Court that sees itself as having wide-ranging common

law powers in the field of federal officer liability.

On this second point, suppose that a state-created converse-1983 action did not

run afoul of Supremacy Clause immunity. Even after overcoming this barrier,

however, the cause of action would still be subject to revision by the Court in a

number of ways. The Court could modify the statute of limitations, cap the

available damages, create evidentiary presumptions, impose burdens of proof, or

simply create a blanket defense where liability would not be in the federal

107. See, e.g., United States v. Little Lake Misere Land Co., 412 U.S. 580 (1973).

108. Boyle v. United Tech. Corp., 487 U.S. 500, 505 (1988).

109. Westfall v. Erwin, 484 U.S. 292, 295 (1988) (internal quotation marks omitted); see

also Howard v. Lyons, 360 U.S. 593, 597 (1959); Barr v. Matteo, 360 U.S. 564 (1959).

110. Boyle, 487 U.S. at 500.

111. Id. at 512.

1716 INDIANA LAW JOURNAL [Vol. 87:1697

interest.

112

Any of these are within the realm of federal common law-making and

any of them, if designed in a particular way, could essentially gut the

converse-1983 action. It is not beyond the power of the federal courts to abrogate a

state cause of action in its creation of federal common law.

113

It is impossible to know at this point whether the Court would use federal

common law in this way. And I do not mean to suggest that the Court should use its

common law powers to revise a converse-1983 action if one ever came before the

Court. I mean only to note that the Court possesses—and has exercised—

significant authority to craft law in the field of federal officer liability. This stands

in stark contrast to Professor Amar’s optimism for converse-1983 actions. He

describes the laws as “a dramatic set of progressive actions that the states may take

in the service of federal constitutional rights.”

114

Yet if these actions are subject to

veto by a Supreme Court that is willing to insulate even government contractors

from liability, it can hardly be said that the states have any meaningful options. In

short, if the federal government is determined to violate constitutional rights,

converse-1983 actions will not stand in the way.

C. The Force of Bivens

In the previous section, I explained that the federal courts, by virtue of their

power to create federal common law, possess the power to strip the converse-1983

action of all or some of its force. In this section, I address a field of federal

common law currently in existence that may defeat converse-1983 laws. The

Bivens action is a species of federal common law and is essentially the federal

counterpart to the proposed converse-1983 action. Both causes of action offer the

successful plaintiff damages, and both rely on the Constitution for the standard of

112. See, e.g., Little Lake Misere Land Co., 412 U.S. 580 (replacing Louisiana state

statute addressing mineral rights with federal common law favorable to federal interests);

Howard, 360 U.S. at 597 (holding that in state law defamation suit against federal officers,

federal officer’s “claim of absolute privilege must be judged by federal standards, to be

formulated by the courts in the absence of legislative action by Congress”); Farmers Educ. &

Coop. Union v. WDAY, Inc., 360 U.S. 525 (1959) (creating federal common law privilege

for radio stations sued in state defamation action, where station was attempting to comply

with federal broadcasting requirements); Feres v. United States, 340 U.S. 135, 146 (1950)

(holding that the “[federal] Government is not liable . . . for injuries to servicemen where the

injuries arise out of or are in the course of activity incident to service,” even though the

Federal Tort Claims Act, on its face, applies to servicemen); United States v. Standard Oil

Co., 332 U.S. 301, 305 (1947) (holding that in tort suit by the federal government against a

private company, the “creation or negation of such a liability is not a matter to be determined

by state law”).

113. For recent examples of state law actions foiled by federal common law, see Al

Shimari v. CACI Intern., Inc., 658 F.3d 413, 417 (4th Cir. 2011) (holding that detainee’s

claims of torture in violation of state law “are preempted and displaced under the reasoning

articulated in Boyle v. United Technologies Corp.”) and Saleh v. Titan Corp., 580 F.3d 1, 5

(D.C. Cir. 2009) (holding that detainee’s state law claims of torture were “preempted . . .

[according to] the Supreme Court’s decision in Boyle”).

114. Amar, Questions and Answers, supra note 15, at 159.

2012] THE FALSE PROMISE OF THE CONVERSE-1983 ACTION 1717

care. The key difference

115

is that the converse-1983 cause of action is created by

state law, whereas Bivens is created by federal law. Given these similarities, it is

appropriate to consider whether a converse-1983 action would be preempted by the

Bivens doctrine as it currently stands.

The Supreme Court has never addressed this precise question, but guidance can

be gleaned from the cases. Unfortunately, the guidance points in different

directions. As explained below, some Bivens opinions suggest that Congress alone

possesses the authority over federal officer suits, while others suggest that states

can in fact participate in enforcement efforts.

1. Bivens as Barring the Converse-1983 Action

One of the most persistent themes in Bivens jurisprudence over the past thirty

years is that creating a cause of action is a legislative task, not a judicial one.

116

Take, for example, the Court’s reasoning in Bush v. Lucas.

117

In Bush, a federal

employee alleged that he was demoted for criticizing the federal government. He

thus brought a Bivens action claiming a First Amendment violation. The Supreme

Court rejected the suit because Congress had created a remedial scheme—

adjudication under the Civil Service Reform Act—specially designed to deal with

federal employment disputes. As the Court explained, “it would be inappropriate

for us to supplement that regulatory scheme with a new judicial remedy.”

118

Although Congress’s remedial scheme might not afford the plaintiff complete

relief, and a Bivens action presumably would, the Court believed that “Congress

[was] in a better position to decide whether or not the public interest would be

served by creating [a Bivens-like action].”

119

Schweiker v. Chilicky

120

tells a similar story. In Chilicky, the Supreme Court

held that a Bivens action was unavailable to social security claimants denied their

disability payments in violation of due process. Like Bush, the Court’s decision

115. Another difference, though minor, is the immunity that would apply to these suits.

For an explanation of the limited nature of this difference, see supra notes 67–90 and

accompanying text.

116. Indeed, this theme dominated Bivens itself. The majority claimed that courts have

long had the power to “adjust their remedies so as to grant the necessary relief” and that

“[h]istorically, damages have been regarded as the ordinary remedy for an invasion of

personal interests in liberty.” Bivens v. Six Unknown Named Agents, 403 U.S. 388, 392,

395 (1971) (quotation marks omitted). The dissent saw it differently, believing that “it is the

Congress and not this Court that should” create a cause of action. Id. at 430 (Blackmun, J.,

dissenting). See also id. 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. . . . Legislation is the business of the Congress, and it has the facilities

and competence for that task—as we do not.”); id. at 427–28 (Black, J., dissenting) (“If it

wanted to do so, Congress could, of course, create a remedy against federal officials who

violate the Fourth Amendment in the performance of their duties. . . . For us to do so is, in

my judgment, an exercise of power that the Constitution does not give us.”).

117. 462 U.S. 367 (1983).

118. Id. at 368.

119. Id. at 390.

120. 487 U.S. 412, 423 (1988).

1718 INDIANA LAW JOURNAL [Vol. 87:1697

rested entirely on a remedial scheme that Congress created to deal with wrongfully

withheld payments. “When the design of a Government program,” Justice

O’Connor explained, “suggests that Congress has provided what it considers

adequate remedial mechanisms for constitutional violations that may occur in the

course of its administration, we have not created additional Bivens remedies.”

121

other words, Congress was entitled to “appropriate judicial deference.”

122

As Bush and Chilicky make clear, when the Court declines to create a Bivens

action, it often does so out of respect for congressional prerogatives. It is the place

of Congress, not the Court, to choose how federal law shall be enforced, the Court

seems to be saying. What does this portend for the converse-1983 action? At first

blush, one might find the separation of powers rationale underlying Bivens to be

supportive of converse-1983 actions. That is, if the Court believes that it should not

“assume[] common-law powers to create causes of action,”

123

one might naturally

conclude that an institution that does wield common law powers—like state

courts—could create a constitutional cause of action. And just as legislatures have

always been understood to possess the “powers to create causes of action,” a state

legislature could enact a converse-1983 law without overreaching its authority.

Though creative, this argument misses the point of much—but as explained in

the following section, not all—of the Bivens case law. True, the Court often

assumes a diminutive stance when declining to recognize a Bivens action, but this

diminutive stance is simply another way of pointing out the superior position of

Congress when it comes to regulating the liability of federal officials. It could

hardly be the case that Congress is entitled to special deference from the Court in

crafting damages actions, but that no constitutional principle entitles Congress to

deference from a state.

Consider an example based on Chappell v. Wallace.

124

In Chappell, several

navy seamen brought a Bivens action alleging unconstitutional racial

discrimination. The men had no remedy against the government itself,

125

so their

only hope of obtaining relief was through a Bivens action against the responsible

officers. The Court rejected the suit, explaining:

Congress, the constitutionally authorized source of authority over the

military system of justice, has not provided a damages remedy for

claims by military personnel that constitutional rights have been

violated by superior officers. Any action to provide a judicial response

by way of such a remedy would be plainly inconsistent with Congress’

authority in this field.

126

121. Id.

122. Id.

123. Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 75 (2001) (Scalia, J.,

concurring).

124. 462 U.S. 296 (1983).

125. Relief against the government would be barred by Feres v. United States, 340 U.S.

135 (1950), which holds that the federal government is immune from liability for injuries

incident to military service.

126. Chappell, 462 U.S. at 304.

2012] THE FALSE PROMISE OF THE CONVERSE-1983 ACTION 1719

Suppose that the day after the Court issued its opinion in Chappell, the state of

Texas created a converse-1983 action to deal with the mistreatment of army

reservists in Texas. If a case was filed under this statute, it would almost certainly

be removed to federal court. The federal court would thus be presented with the

viability of a converse-1983 suit in light of the Supreme Court’s rejection of a

Bivens action in the exact same context.

Given the reasoning in Chappell, it is clear that Texas’s converse-1983 suit

would fail. The court would not find the law legitimate simply because it was

created by a government body with common law or legislative powers. The law

would be null and void because it would interfere with Congress’s “constitutionally

authorized . . . authority over the military system of justice.”

127

Put differently,

when the Court denied a Bivens action in Chappell, it did not simply decline to act

as a common law or legislative body. It held that Congress, having superior

authority on a matter of significant federal interest, was the institution that should

decide whether to create a cause of action or not.

It is important to acknowledge that context undoubtedly matters in these cases.

It is not at all surprising that the Court would hold that Congress possesses

exclusive power over the military and that common law causes of action (whether

according to Bivens or under state law) should not be permitted. In a different

context, however, it might be arguable that Congress and the states possess a

legitimate regulatory interest in the activity involved. If the alleged constitutional

violation related to food safety, for example, the Court might be less willing to

proclaim Congress the sole enforcer of constitutional rights. In the end, however,

the precise scope of Congress’s exclusive power in any particular case is

unimportant. The point here is simply that one theme underlying the Court’s Bivens

jurisprudence is that it is Congress’s place to choose the methods of constitutional

enforcement against federal officers. In many instances, this will necessarily

foreclose the states from creating converse-1983 actions.

2. Bivens as Permitting the Converse-1983 Action

In 2001, the Court’s Bivens jurisprudence took a subtle turn that might

nonetheless be quite consequential to the viability of converse-1983 actions. In that

year, the Court decided Correctional Services Corporation v. Malesko, a case

involving a federal prisoner’s Eighth Amendment claims of insufficient medical

care.

128

Like many previous Bivens cases, this one also hinged on the existence of

alternative remedies. Thus, in rejecting a Bivens action, the opinion notes that the

prisoner had “full access to remedial mechanisms established by the . . . [federal

Bureau of Prisons’] Administrative Remedy Program.”

129

Interestingly, however,

the Court also cited a new type of alternative remedy—a state remedy. The prisoner

in this case did not need a Bivens remedy, the Court explained, because he had

access to a tort remedy under state law.

130

That is, the prisoner could sue the

127. Id.

128. 534 U.S. at 61.

129. Id. at 74.

130. Id. at 72–73.

1720 INDIANA LAW JOURNAL [Vol. 87:1697

misbehaving officers for negligence in failing to provide him the proper care.

Indeed, it is far easier to prevail in a negligence action than in an Eighth

Amendment Bivens action, the Court noted.

131

Malesko was the first time the Court cited a state remedy as an alternative, but it

was not the last. In the 2007 case of Wilkie v. Robbins, the Court also “assess[ed]

the significance of any alternative remedies” available to a Bivens plaintiff.

132

Citing Malesko for the proposition that the “availability of state tort remedies” is

sufficient to preclude a Bivens action, the Court pointed to trespass and malicious

prosecution claims available to the plaintiff in that case.

133

Most recently, the

Court, in Minneci v. Pollard, refused a Bivens action to an inmate in a privately run

prison because the misconduct alleged by the prisoner “typically falls within the

scope of traditional state tort law.”

134

The ascendancy of state remedies in the Court’s recent Bivens jurisprudence

suggests a type of judicial humility not found in the cases discussed in the previous

section. In those earlier cases, the Court assumed a deferential position vis-à-vis

Congress. In these newer cases, however, the Court seems to believe that state

remedies can sometimes stand in the shoes of Bivens remedies. Seen in this way,

Malesko, Wilkie, and Minneci appear to open the door to the converse-1983

action—at least as far as Bivens is concerned.

To understand this further, consider the following hypothetical. Recall that in

Malesko, the Court held that a federal prisoner in a privately run facility could not

bring a Bivens action, in part because of the existence of state remedies. Suppose

that a state created a converse-1983 action that applied only to federal prisoners

incarcerated in the state. Using this cause of action, the prisoner sued the

misbehaving prison guards. If the case arrived at the Supreme Court, the Court

would appear to be duty-bound to approve the cause of action. How could a state

law tort action take the place of Bivens (as approved in Malesko and Wilkie) but a

converse-1983 action offend Bivens?

One has to be careful not to overread these cases. Just as in the previous section,

context undoubtedly affects the Court’s views on these issues. Moreover, even

though the Court has allowed state remedies to replace Bivens in some instances, it

has signaled that state remedies may not always be sufficient to replace Bivens.

135

But given that Malesko, Wilkie, and Minneci are the Court’s most recent

pronouncements on the state remedy issue, it appears more likely than not that

Bivens would not stand in the way of a converse-1983 action.

* * *

The above analysis of Bivens cases does not yield a simple answer to the fate of

converse-1983 laws. It suggests that, in some cases, converse-1983 laws would be

impermissible, while in others, the laws would be a welcome addition to the

131. Id. at 73.

132. 551 U.S. 537, 551 (2007).

133. Id.

134. 132 S. Ct. 617, 623 (2012).

135. Id. at 626 (admitting that the Court cannot be “totally certain that the features of

state tort law” in a different case will preclude the recognition of a Bivens action).

2012] THE FALSE PROMISE OF THE CONVERSE-1983 ACTION 1721

constitutional enforcement mechanisms already in use. At the very least, however,

it is clear that the Court’s Bivens jurisprudence will play a role in the viability of

converse-1983 laws, and that at least in some cases, the Bivens doctrine could—

either today or in the future—impose obstacles that effectively bar the state cause

of action.

D. Abrogation by Congress

Even if converse-1983 laws could survive the effect of Supremacy Clause

immunity, federal common law, and Bivens, they might still falter when subjected

to the preemptive power of federal legislation. When it comes to congressional

power, Professor Amar and I agree that Congress has the power to enact federal

causes of action that explicitly or impliedly preempt converse-1983 laws.

136

Where

we disagree, however, is on the extent of federal power. Professor Amar believes

that “if Congress seeks to oust [a converse-1983 action], Congress must itself

provide a federal remedy at least as generous as the most generous state remedy

Congress seeks to preempt.”

137

As explained below, this is incorrect.

Professor Amar’s view of Congress’s obligations stems from his belief in the

“remedial imperative.”

138

If “the Constitution draws its life from postulates that

limit and control lawless governments,” he contends, then the Constitution

necessarily contemplates “full redress whenever [constitutional] rights are

violated.”

139

As noted by Professor Amar, remedies must be more than generally

available; a remedy must exist for every constitutional violation. As he puts it,

“[f]ew propositions of law are as basic today—and were as basic and universally

embraced two hundred years ago—as the ancient legal maxim, ubi jus, ibi

remedium: Where there is a right, there should be a remedy.”

140

If the Constitution

requires every right to have a remedy, then Congress most certainly does not have

the power to bar converse-1983 suits without supplying a replacement.

141

Or so the

argument goes.

136. Congress’s power to bar converse-1983 actions is enumerated in § 5 of the

Fourteenth Amendment. U.S.

CONST. amend. XIV, § 5 (granting Congress the power to

“enforce, by appropriate legislation, the provisions of [Sections 1–4 of the Fourteenth

Amendment]”). Under that clause, Congress may choose the mechanisms through with the

substantive rights contained in the Fourteenth Amendment (including those rights

incorporated into the Amendment) shall be enforced. See Katzenbach v. Morgan, 384 U.S.

641, 651 (1966) (referring to Congress’s § 5 power as a “power authorizing Congress to

exercise its discretion in determining whether and what legislation is needed to secure the

guarantees of the Fourteenth Amendment”). If Congress dictates that federal officers shall

only be sued in tort (thus barring constitutional tort actions against federal officers), that law

will necessarily preempt any contrary state law.

137. Amar, Questions and Answers, supra note 15, at 179.

138. Amar, Sovereignty and Federalism, supra note 15, at 1484.

139. Id. at 1485.

140. Id. at 1485–86.

141. It is unclear here whether Professor Amar’s view as to congressional preemption

assumes the nonexistence of the Bivens action. If a vigorous Bivens were available to remedy

every violation of right, then the remedial imperative would be honored and converse-1983

suits could be abrogated without violating any constitutional norm. For this reason, I assume

1722 INDIANA LAW JOURNAL [Vol. 87:1697

Few can quibble with Amar’s remedial imperative as an aspirational matter. Its

foundation in law is a different issue, however. Remedies in constitutional tort

actions are routinely—if not typically—barred by immunity laws. A judge who

orders a young woman sterilized without her knowledge is immune from suit,

notwithstanding the fact that the order was patently unconstitutional.

142

prosecutor who fails to disclose exculpatory evidence is immune from suit, even

though an innocent man might go to jail.

143

A warden who orders routine strip

searches of low-level prisoners need not pay a dime in damages, even though the

searches were all unconstitutional.

144

These examples are not aberrations in the

field of constitutional torts; they are routine. Because of the law of official

immunity, enormous numbers of constitutional violations go without remedies.

145

This is not to say that the current levels of immunity are properly calibrated as a

normative matter.

146

It is simply to say that the immunization of officers from

liability does not offend the Constitution. It follows therefore that Congress can bar

converse-1983 suits without offending the Constitution.

Professor Amar is aware of these immunity doctrines but counters that the

“Court has never said that the Constitution requires these zones of immunity.”

147

That is true enough, but it misses the relevant point. The key issue here is not

whether the Constitution requires immunity, but simply whether it permits the

federal government (via statute or precedent) to create zones of immunity for

federal officers. On this point, there can be little dispute. The federal government

quite clearly has such authority.

148

As Richard Fallon and Daniel J. Meltzer have

observed, “the structure of substantive, jurisdictional, and remedial doctrines that

existed at the time of the Constitution’s framing and that evolved through the

nineteenth century by no means guaranteed effective redress for all invasions of

legally protected rights and interests.”

149

To suggest otherwise would contradict not

only the enormous weight of current practices, but also a body of historical

practices reaching back to the Founding.

throughout this section that Professor Amar is speaking to congressional authority in the

absence of the Bivens action.

142. Stump v. Sparkman, 435 U.S. 349 (1978).

143. Imbler v. Pachtman, 424 U.S. 409 (1976).

144. Savard v. Rhode Island, 338 F.3d 23, 28–32 (1st Cir. 2003).

145. One could of course argue that modern law has departed from Founding-era

principles. There is significant evidence, however, that even at the Founding, Amar’s

remedial imperative was aspirational rather than mandatory. See Anthony J. Bellia, Jr.,

Article III and the Cause of Action, 89 I

OWA L. REV. 777, 784 (2004) (stating that, at the

time of the Founding, “[U]bi jus, ibi remedium was not a black letter legal doctrine; it was

merely a platitude.”); see also Ann Woolhandler, Patterns of Official Immunity and

Accountability, 37 C

ASE W. RES. L. REV. 396, 422 (1987) (showing that officer immunity

has frustrated constitutional remedies since at least 1840).

146. See John C. Jeffries, Jr., What’s Wrong with Qualified Immunity?, 62 F

LA. L. REV.

851 (2010) (critiquing current official immunity law).

147. Amar, Questions and Answers, supra note 15, at 174.

148. See Waxman & Morrison, supra note 16, at 2248 (“[A]s we have observed,

qualified immunity is not constitutionally required. But neither is it constitutionally

prohibited.” (emphasis in original) (footnotes omitted)).

149. Richard H. Fallon, Jr. & Daniel J. Meltzer, New Law, Non-Retroactivity, and

Constitutional Remedies, 104 H

ARV. L. REV. 1731, 1780 (1991) (footnote omitted).

2012] THE FALSE PROMISE OF THE CONVERSE-1983 ACTION 1723

There is, however, an important caveat to this conclusion. To say that Congress

can bar remedies is not to say that Congress could bar all remedies all of the time.

It is well accepted that “the Founders . . . positioned the judiciary to keep the

political branches within the bounds of their lawful authority.”

150

It is similarly

clear that the central way through which the judiciary discharges this role is

through issuing remedies. Thus, lest the federal judiciary be shorn of its

constitutional role, Congress may not bar every remedy.

151

If Congress can bar some remedies (e.g., the converse-1983 suit) but cannot bar

every remedy, which, or how many, remedies may it bar? There is no universally

accepted answer to this question, but there is significant agreement that “Congress

necessarily has a wide choice in the selection of remedies”

152

subject to the

requirement that the chosen remedies be sufficient to “keep government, overall

and on average, tolerably within the bounds of law.”

153

This means that Congress could bar the converse-1983 suit as long as there

existed some other remedy or remedies that would keep federal officers more or

less within the bounds of law. One remedy that currently serves this goal is the

150. Jonathan T. Molot, Reexamining Marbury in the Administrative State: A Structural

and Institutional Defense of Judicial Power over Statutory Interpretation, 96 N

W. U. L. REV.

1239, 1283 (2002).

151. I leave to the side here the issue of whether state courts (rather than state laws) are

competent to check federal legislative or executive overreaching. To the extent that state

courts lack the power to enjoin or otherwise sanction a federal defendant, the constriction of

the lower federal courts’ jurisdiction would compromise the constitutional checks thought to

be maintained by judicial review. See Theodore Eisenberg, Congressional Authority to

Restrict Lower Federal Court Jurisdiction, 83 Y

ALE L.J. 498 (1974) (considering state

judicial power in examining the scope of congressional authority to modify federal

jurisdiction); Martin H. Redish & Curtis E. Woods, Congressional Power to Control the

Jurisdiction of Lower Federal Courts: A Critical Review and a New Synthesis, 124 U.

PA. L.

REV. 45 (1975) (considering the same).

152. Henry M. Hart, Jr., The Power of Congress to Limit the Jurisdiction of Federal

Courts: An Exercise in Dialectic, 66 H

ARV. L. REV. 1362, 1366 (1953) (“Congress

necessarily has a wide choice in the selection of remedies, and . . . a complaint [that one

remedy rather than another is available] can rarely be of constitutional dimension.”); see also

John C. Jeffries, Jr., Disaggregating Constitutional Torts, 110 Y

ALE L.J. 259 (2000)

(highlighting the importance of alternative remedies in the Court’s constitutional remedies

calculus).

153. Richard H. Fallon, Jr., Some Confusions About Due Process, Judicial Review, and

Constitutional Remedies, 93 C

OLUM. L. REV. 309, 311 (1993). Congressional control over

remedies can also be viewed in jurisdictional terms. See, e.g., Lauf v. E.G. Shinner & Co.,

303 U.S. 323 (1938) (applying jurisdiction-stripping analysis to statute that prohibited

federal courts from granting injunctions in certain labor cases). In this respect, the claim that

federal courts must possess remedial power sufficient to “keep government, overall and on

average, tolerably within the bounds of law” bears kinship with the essential functions thesis

common in the jurisdiction-stripping arena. Fallon, supra, at 311; see also Hart, supra note

152, at 1364–65 (arguing that Congress may not restrict federal jurisdiction if doing so

would compromise the “essential functions” of the federal courts); Lawrence Gene Sager,

Foreword: Constitutional Limitations on Congress’ Authority to Regulate the Jurisdiction of

the Federal Courts, 95 H

ARV. L. REV. 17 (1981) (same).

1724 INDIANA LAW JOURNAL [Vol. 87:1697

Bivens action. The Bivens action has its limitations,

154

of course, but there is

evidence that it serves its purpose sufficiently well.

155

Even if Bivens were deemed

insufficient (or overruled), however, there would still exist other remedies.

Take, for example, the Federal Tort Claims Act (FTCA). Under the FTCA, an

individual harmed by a federal employee’s tortious behavior can sue the federal

government for relief.

156

Thus, if a federal prison guard beats an inmate without

cause, the inmate will be able to bring a battery claim against the federal

government to obtain compensation. A battery claim is not, in name at least, the

same as a Fourth or Eighth Amendment claim. But it will provide the plaintiff with

compensation

157

and, in that sense, mimic Bivens and converse-1983 actions in

“keep[ing] government, overall and on average, tolerably within the bounds of

law.”

158

The FTCA action is not a perfect substitute for the Bivens or converse-1983

action. In some ways, it will be superior

159

and in other ways it will be inferior.

160

154. The cause of action is unavailable where “alternative remedies” or “special factors”

are present. See Wilkie v. Robbins, 551 U.S. 537, 550 (2007). For a summary of the

doctrine, see Pfander, supra note 48.

155. Reinert, supra note 61, at 813 (arguing that “Bivens cases are much more successful

than has been assumed by the legal community, and that in some respects they are nearly as

successful as other kinds of challenges to governmental misconduct”).

156. 28 U.S.C. § 1346(b)(1) (2006). Whether an officer’s behavior qualifies as tortious is

determined according to the “law of the place” where the allegedly wrongful behavior

occurred. Id.

157. For a defense of the role of subconstitutional law in enforcing constitutional norms,

see John F. Preis, Constitutional Enforcement by Proxy, 95 V

A. L. REV. 1663 (2009).

158. Fallon, supra note 149, at 311. It should go without saying that this is an empirical

question. If, for example, private contractors were routinely committing constitutional

violations, and state law had immunized the contractors from liability, one could quite easily

conclude that the remedial apparatus necessary to keep government within bounds was

constitutionally deficient.

159. Unlike constitutional tort actions, FTCA actions are not saddled with the defense of

qualified immunity. If a federal officer violates state tort law, compensation may issue,

regardless of whether the tort law was “clearly established.” See 28 U.S.C. § 1346(b)(1)

(2006) (imposing liability on the United States “under circumstances where the United

States, if a private person, would be liable to the claimant in accordance with the law of the

place where the [negligent or wrongful] act or omission occurred”); United States v. Olson,

546 U.S. 43, 44 (2005) (stating that, because “the United States waives sovereign immunity

‘under circumstances’ where local law would make a ‘private person’ liable in tort,” any

official or municipal immunity created by state law is not applicable in FTCA suits against

the federal government (emphasis in original)).

160. See 28 U.S.C. § 2680(h) (2006) (barring claims of “assault, battery, false

imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander,

misrepresentation, deceit, or interference with contract rights” committed by non-law

enforcement officers). One common bar to recovery under the FTCA—the “discretionary

function exception”—is of questionable application in the constitutional enforcement setting.

Under that exception, relief is unavailable where the harm alleged occurred during the

officer’s discharge of a discretionary function. Plaintiffs often argue that behavior in

violation of the Constitution cannot be regarded as “discretionary” within the meaning of the

FTCA. Four circuits have agreed with this view, see Raz v. United States, 343 F.3d 945 (8th

2012] THE FALSE PROMISE OF THE CONVERSE-1983 ACTION 1725

The FTCA is not the only possible substitute, however. Other federal statutes often

protect citizens from behavior that would be unlawful if measured against the

Constitution. For example, federal officers are statutorily barred from

discriminating against federal employees and are liable for damages if they do

so.

161

Indeed, this cause of action effectively replaced a Bivens action in the federal

employment context.

162

This phenomenon can be seen in other cases as well.

163

This is not to say that the current framework of remedies is superior to remedies

that might be provided by a converse-1983 law. But that issue is of no

constitutional relevance. The constitutional enforcement question presented here is

not whether the converse-1983 action is better or worse than various alternatives; it

is simply whether the remedies available in a world without converse-1983 are

sufficient in and of themselves to uphold the rule of law. If they are, then Congress

is free to prefer that the Constitution be enforced through those mechanisms rather

than the converse-1983 mechanism.

It is perhaps impossible in the space of this Article to conclusively show that the

currently available remedies are sufficient to “keep [the federal] government,

overall and on average, tolerably within the bounds of law.” Although there might

be general agreement that the current availability of remedies is sufficient to this

task, there will undoubtedly be areas where constitutionally intolerable remedial

gaps can be found. It is unnecessary to canvass the entire spectrum of remedies,

however, to argue that the susceptibility of converse-1983 laws to congressional

preemption is significant in light of the remedies currently available through

Bivens, the FTCA, and other federal statutes. There may exist one or another

situation in which no alternative to converse-1983 can be found, but that hardly

supports Professor Amar’s blanket claim that “if Congress seeks to oust [a

converse-1983 action], Congress must itself provide a federal remedy at least as

generous as the most generous state remedy Congress seeks to preempt.”

164

* * *

In sum, Part II demonstrates that converse-1983 laws are not a reliable way for

states to rein in federal officers who violate the Constitution. Such laws would be

Cir. 2003); Medina v. United States, 259 F.3d 220 (4th Cir. 2001); Nurse v. United States,

226 F.3d 996 (9th Cir. 2000); Prisco v. Talty, 993 F.2d 21 (3d Cir. 1993), while two have

disagreed, see Castro v. United States, 608 F.3d 266 (5th Cir. 2010), cert. denied, 131 S. Ct.

902 (2011); Kiiskila v. United States, 466 F.2d 626 (7th Cir. 1972).

161. See, e.g., 42 U.S.C. § 2000e-16(a) (2000) (prohibiting discrimination “based on

race, color, religion, sex, or national origin” by the federal government).

162. See Davis v. Passman, 442 U.S. 228 (1979) (holding that federal employee

dismissed from job because she was a woman could bring a Bivens action to assert her equal

protection rights).

163. See Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 74 (2001) (suggesting that

the “remedial mechanisms established by the . . . [Federal Bureau of Prisons’]

Administrative Remedy Program” would provide federal prisoners with opportunities to

vindicate their Eighth Amendment rights); Schweiker v. Chilicky, 487 U.S. 412 (1988)

(holding that the procedural due process violation alleged in Bivens action could be

adequately addressed through administrative procedures supplied by the Social Security

Act).

164. Amar, Questions and Answers, supra note 15, at 179.

1726 INDIANA LAW JOURNAL [Vol. 87:1697

saddled with generous immunity defenses, subject to override by federal common

law or Bivens actions, and vulnerable to abrogation by congressional statute.

Although this is an accurate statement of the current law, it does not address

Founding-era conceptions of state power relied upon by Professor Amar. It is to

that topic that I now turn.

III.

THE VALUE OF THE CONVERSE-1983 ACTION AT THE FOUNDING

Under current doctrine, converse-1983 laws are a nonstarter. But perhaps our

modern conception of federal supremacy has broken free of its original moorings.

Perhaps, at the time of the Founding, it was understood that states would have the

power to impose liability on a federal officer for disobeying the federal

Constitution. In defending converse-1983 laws, Professor Amar draws on a

conception of state power articulated by James Madison in Federalist 51. In that

paper, Madison argued that states would play a vital role in checking federal

misbehavior:

In the compound republic of America, the power surrendered by the

people, is first divided between two distinct governments [the federal

and the state], and then the portion allotted to each, subdivided among

distinct and separate departments. Hence a double security arises to the

rights of the people. The different governments will controul each

other; at the same time that each will be controuled by itself.

165

Madison’s view of state power would seem to embrace converse-1983 laws. Such

laws quite plainly seek to protect the “rights of the people” by “controul[ing]” the

federal government.

In addition to the theory of state power, however, Professor Amar also invokes

the apparent practice of state power at the Founding. His first example of this

practice is the nineteenth-century tort action brought against federal officers for

unconstitutional acts. If a federal officer searched your home without a warrant, for

example, the officer was not sued in a Bivens-style action at the Founding; instead,

the officer was simply sued for trespass under the common law—a suit that

suggests that states did have the unilateral power to render federal officers liable for

damages. Professor Amar’s second example of this practice is state habeas

proceedings against federal officers. According to Amar, “[s]tate habeas [during the

first half of the nineteenth century] offered a way for those imprisoned by federal

officers in violation of their federal constitutional rights to win their freedom.”

166

Although providing injunctive relief rather than damages, these suits too would

seem to lend support to a Founding-era converse-1983 action.

In this Part, I argue that Professor Amar is incorrect about the theory and

practice of state power at the Founding. I first explain that the theory of state power

expressed in the Federalist Papers does not support a power to impose liability on

the federal government, even for the federal government’s unlawful behavior. The

165. THE FEDERALIST NO. 51, at 282 (James Madison) (J.R. Pole ed., 2005) (emphasis

added).

166. Amar, Sovereignty and Federalism, supra note 15, at 1509.

2012] THE FALSE PROMISE OF THE CONVERSE-1983 ACTION 1727

state role in checking the federal government expressed there was political, not

legal. Second, I explain that the state practices that Amar cites are not in fact

evidence of a power to enact converse-1983 laws. The officer actions to which

Amar refers were controlled by a common law theory of officer liability that was at

best loosely connected with state law. Nor do the state habeas laws cited by Amar

prove the existence of any autonomous state legal power. These laws existed only

at the pleasure of Congress and thus could not have been a way for states to protect

their citizens from constitutional violations by federal officers.

To be sure, my arguments in this section are aimed only at disproving Professor

Amar’s claims. Disproving his claims does not conclusively prove what the

Founders did think about state power, or what power states did have. There thus

exists the possibility that, as a theoretical or practical matter, state legal power

could be located at the Founding. This Part suggests, however, that that possibility

is unlikely and that Professor Amar has failed to adduce sufficient evidence

proving otherwise.

A. State Power in Theory

To understand the idea of state power contemplated by the Founding generation,

one must first understand the circumstances that produced the Constitution itself.

Though generalizations are always dangerous, historians tend to agree that the

robust and irresponsible use of power by the states was the chief impetus for the

Constitutional Convention in 1787.

167

During the 1780s, “[t]he states had become

increasingly jealous of their power and in fact through their handling of public

lands and public debts were fast moving to absorb the major political and economic

groups, creating a vested interest in state sovereignty.”

168

This jealousy

impoverished national power and “left the United States at the mercy of other

nations,” particularly in matters of international trade.

169

A robust state power could perhaps be defended if states were models of local

government. They were anything but, however. Having freed themselves of British

oversight after the Revolution, states quickly descended into an era of legis-mania.

The solution to every problem, real or imagined, was legislation. “[I]ncompetent

legislators were passing too many laws, and these poorly drawn acts were being

repealed or revised before anyone could discover how well they were actually

working. Such proceedings brought the very concept of law into contempt.”

170

The

multiplicity of laws was not the only problem, however; another problem was that

167. See GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC 1776–1787, at

467 (1998).

168. Id. at 361.

169. See P

AULINE MAIER, RATIFICATION: THE PEOPLE DEBATE THE CONSTITUTION, 1787–

1788, at 12 (2010) (“One incident after another demonstrated that Congress’s sorry financial

state left the United States at the mercy of other nations.”).

170. J

ACK N. RAKOVE, JAMES MADISON AND THE CREATION OF THE AMERICAN REPUBLIC

47 (1990).

1728 INDIANA LAW JOURNAL [Vol. 87:1697

the laws themselves were often fundamentally unjust.

171

“By the 1780s, it seemed

as if the majorities of the popular legislatures had become just as dangerous to

individual liberties as the detested royal governors had been.”

172

Members of the Constitutional Convention were thus determined to rein in the

state governments. One idea for accomplishing this goal was put forward by James

Madison. He proposed that Congress be given the power to veto “all [state] laws

which . . . shall appear improper,” regardless of whether the law was fundamentally

just or not.

173

The “corner stone of an efficient national Govt,” required federal

power to nullify state laws that “destroy[ed] the order & harmony of the political

system.”

174

But alas, the national veto proved too much for the Convention to

swallow.

175

It was not the idea of federal supremacy, however, that was scrapped,

only the mechanism. In its place, the Convention adopted what we know today as

the Supremacy Clause. The Supremacy Clause retained the absolute supremacy of

federal law, but referred the task of superintending state law to the courts rather

than Congress.

176

In considering state power in our federalist system, therefore, one must keep

first and foremost in mind two fundamental truths. First, the Constitutional

Convention was called in 1787 chiefly to rein in the “evils operating in the

states.”

177

Second, the Convention reined in the states in large part through the

Supremacy Clause, a provision that subordinated the states’ legal—but not

political—power to that of the national government. With these two truths in mind,

the stage is set for a consideration of Founding-era thoughts on the scope of state

power. As explained below, these writings suggest—not surprisingly—that states

were understood to possess political, not legal, power to check the federal

government.

171. Id.; see also THE FEDERALIST NO. 62, at 334 (James Madison) (J.R. Pole ed., 2005)

(blaming the “embarrassments of America” on the state governments who were continually

“repealing, explaining and amending laws”).

172. G

ORDON S. WOOD, EMPIRE OF LIBERTY: A HISTORY OF THE EARLY REPUBLIC, 1789–

1815, at 19 (2009); see also W

OOD, supra note 167, at 467 (“It was ‘the vile State

governments,’ rather than simply the feebleness of the Confederation, that were the real

‘sources of pollution,’ preventing America from ‘being a nation.’ It was ‘the corruption and

mutability of the Legislative Councils of the States,’ the ‘evils operating in the States,’ that

actually led to the overhauling of the federal government in 1787.”).

173. James S. Liebman & William F. Ryan, “Some Effectual Power”: The Quantity and

Quality of Decisionmaking Required of Article III Courts, 98 C

OLUM. L. REV. 696, 719

(1998) (quoting statements of Convention participants).

174. Id.

175. See id. at 730 (“Madison’s arguments notwithstanding, the negative fell, seven states

to three.”)

176. Id. at 730 (explaining that the Supremacy Clause “delegate[d] to judges (state and

federal) what previously had been the [national] veto’s function of voiding state law contrary

to federal law”); see also Jack N. Rakove, The Original Justifications for Judicial

Independence, 95 G

EO L.J. 1061, 1068–69 (2007) (“The significance of the Supremacy

Clause cannot be overstated. It not only confirmed the status of the Constitution as

fundamental law, but it also made the enforcement of its essential division of power between

the Union and the States an inherently judicial function.”).

177. WOOD, supra note 167, at 467 (quotation marks omitted).

2012] THE FALSE PROMISE OF THE CONVERSE-1983 ACTION 1729

Madison’s assertion that state governments “will controul” the federal

government appeared in the Federalist Papers, so it is sensible to explore those

writings further to better understand the assertion. One must be cautious in relying

on the Federalist Papers, of course, for they were explicitly partisan. Yet on the

issue of using state power to check the federal government, their views are quite

representative of the thinking at the time.

178

With that in mind, the first Paper to

consider is Federalist 46. There, James Madison rendered the idea of state power

more concrete by articulating the states’ “means of defeating [federal]

encroachments.”

179

[S]hould an unwarrantable measure of the federal government be

unpopular in particular states, which would seldom fail to be the case,

or even a warrantable measure be so, which may sometimes be the

case, the means of opposition to it are powerful and at hand. The

disquietude of the people, their repugnance and perhaps refusal to

co-operate with the officers of the union, the frowns of the executive

magistracy of the state, the embarrassments created by legislative

devices, which would often be added on such occasions, would oppose

in any state, difficulties not to be despised; would form in a large state

very serious impediments, and where the sentiments of several

adjoining States happened to be in unison, would present obstructions

which the federal government would hardly be willing to encounter.

180

To Madison, therefore, it was the spirit of the polity that would turn federal

encroachments away, not the force of state law. The “disquietude of the people,”

the “frowns of the executive magistracy,” and embarrassing “legislative devices”

(which were almost certainly nonbinding resolutions

181

) would all “present

obstructions” to an overbearing federal government.

178. As Larry Kramer has put it,

Using The Federalist to gauge the perceptions of other participants in the

Founding can be problematic, and it is sometimes misleading to rely too

heavily on this one source. . . . But not on the question of federalism. On this

issue, what Publius had to say was no different from what everyone else was

saying, just more clearly and fully articulated.

Larry D. Kramer, Putting the Politics Back into the Political Safeguards of Federalism, 100

OLUM. L. REV. 215, 257 (2000).

179. T

HE FEDERALIST NO. 46, at 257–58 (James Madison) (J.R. Pole ed., 2005).

180. Id.

181. There are two reasons this is so. First, Madison makes clear that these legislative

devices would be used to oppose both unconstitutional (“unwarranted”) and constitutional

(“warranted”) federal laws. Even if one accepts that states might regulate unconstitutional

federal behavior, it is virtually unthinkable that Madison (who himself proposed the national

veto) was suggesting that states could oppose lawful federal action through the enactment of

binding state law. Instead, he was almost certainly referring to nonbinding resolutions.

Second, there is prominent evidence that states engaged in this exact form of shaming in

response to federal constitutional transgressions. For instance, in response to the Alien and

Sedition Acts enacted in 1798, the legislatures of Virginia and Kentucky both passed

resolutions denouncing the Acts as unconstitutional. See K

ENTUCKY RESOLUTIONS (Nov. 10,

1798, Nov. 14, 1799), reprinted in 5 T

HE FOUNDERS’ CONSTITUTION 131–35 (Philip B.

1730 INDIANA LAW JOURNAL [Vol. 87:1697

Alexander Hamilton strikes the same chord in Federalist 28. He begins first

with a description of local resistance to state authority—which he deems rather

spare. “In a single state,” he explains, “if the persons entrusted with supreme power

become usurpers, [the citizens] can take no regular measures for defence. [They]

must rush tumultuously to arms, without concert, without system, without resource;

except in their courage and despair.”

182

But if the “usurper” is the federal

government, citizens have significantly more power because they can rely on the

local “organs of civil power,” that is, the state governments. State governments are

centralized and organized; they possess “all the resources of the community.” They

thus “can readily communicate with each other in the different states . . . and [can]

unite their common forces for the protection of their common liberty.”

183

In Hamilton’s view, therefore, states are not legal bullies; instead, they are

public relations agents. State governments aggregate popular opinion and then join

“forces” with like-minded states in an effort to protect the “common liberty.” This

is not a picture of legal regulation; it is a picture of grassroots political activism.

Further evidence that states were to check the federal government through

political—as opposed to legal—means can be found in Hamilton’s classic

explanation of competition between the state and federal governments:

Power being almost always the rival of power; the general government

will at all times stand ready to check the usurpations of the state

governments; and these will have the same disposition towards the

general government. The people, by throwing themselves into either

scale, will infallibly make it preponderate. If their rights are invaded by

either, they can make use of the other, as the instrument of redress.

184

Hamilton thus sees protection for the people in the “prepondera[nce]” of popular

will, not in a legal mechanism enacted by a state legislature. Further evidence of

this perspective abounds in the Federalist Papers. Both Federalist 26 and 46

explain that federal encroachments need not be feared because state legislatures

will undoubtedly “sound the alarm” to warn the citizens.

185

Federal encroachments,

Kurland & Ralph Lerner eds., 1987); JAMES MADISON, VIRGINIA RESOLUTIONS (Dec. 21,

1798), reprinted in id. at 135–36. These resolutions were self-consciously nonbinding,

amounting merely to “expressions of opinion, unaccompanied with any other effect than

what they may produce on opinion, by exciting reflection.” J

AMES MADISON, REPORT ON THE

RESOLUTIONS (Jan. 1800), reprinted in 6 THE WRITINGS OF JAMES MADISON 402 (Gaillard

Hunt ed., 1906). Neither state attempted to legally bind the federal government to obey the

First Amendment. Nor did any victim of prosecution under the Acts apparently sue federal

officers in a common law action.

182. THE FEDERALIST NO. 28, at 150 (James Madison) (J.R. Pole ed., 2005).

183. Id. at 150–51.

184. Id. at 150.

185. T

HE FEDERALIST NOS. 26, at 141, 46 (James Madison) (J.R. Pole ed., 2005)

(“Independent of parties in the national legislature itself, as often as the period of discussion

arrived, the state legislatures, who will always be not only vigilant but suspicious and jealous

guardians of the rights of the citizens, against encroachments from the federal government,

will constantly have their attention awake to the conduct of the national rulers and will be

ready enough, if any thing improper appears, to sound the alarm to the people and not only

to be the VOICE but if necessary the ARM of their discontent.”) (“But ambitious

2012] THE FALSE PROMISE OF THE CONVERSE-1983 ACTION 1731

explains Madison, would be a battle of political wills: “one set of representatives

would be contending against thirteen sets of representatives, with the whole body

of their common constituents on the side of the latter.”

186

This view of states as political—rather than legal—challengers to the federal

government is confirmed by Larry Kramer’s study of constitutional enforcement

during the Founding era. State power to control the federal government, he

explains, existed primarily in “real politics, popular politics: the messy, ticklish

stuff that was (and is) the essence of republicanism.”

187

Let Congress try to misuse its powers, [the Federalists] said over and

over again, and federal lawmakers would find themselves facing

formidable resistance from local leaders—leaders who could, and

would, drum up outrage and opposition among the people, establish

committees of correspondence with like-minded leaders in other states,

and force federal lawmakers to back down through protest and

remonstrance or by actively campaigning to oust unsatisfactory

representatives.

188

Kramer finds the Founders’ reliance on politics unsurprising because “[t]heir

history, their political theory, and their actual experience all taught that popular

pressure was the only sure way to bring an unruly authority to heel.”

189

In contrast

to modern reliance on positive law and judicial review, the “Founding generation

had a different paradigm in mind, and the idea of depending on courts to stop a

legislature that abused its power simply never occurred to the vast majority of

participants in the [Founding] debates.”

190

In light of this discussion, Professor Amar’s assertion that states possessed some

measure of legal power over the federal government at the Founding is without

sufficient evidence. He appears to be aware of much of the evidence discussed

above and agrees that state political power was a major component of state power

to control the federal government.

191

His arguments in favor of legal power,

however, cite no additional evidence. Instead, he simply invokes a principle of

symmetry: if the federal government can control the states by creating a damages

cause of action, then states can control the federal government by creating the same

encroachments of the federal government, on the authority of the state governments, would

not excite the opposition of a single state or of a few states only. They would be signals of

general alarm. Every government would espouse the common cause. A correspondence

would be opened. Plans of resistance would be concerted. One spirit would animate and

conduct the whole.”).

186. T

HE FEDERALIST NO. 46, at 256 (James Madison) (J.R. Pole ed., 2005) (“If therefore,

as has been elsewhere remarked, the people should in future become more partial to the

federal than to the state governments, the change can only result, from such manifest and

irresistible proofs of a better administration, as will overcome all their antecedent

propensities. And in that case, the people ought not surely to be precluded from giving most

of their confidence where they may discover it to be most due . . . .”).

187. Kramer, supra note 178, at 257.

188. Id.

189. Id. at 266.

190. Id.

191. See Amar, Sovereignty and Federalism, supra note 15, at 1500–03.

1732 INDIANA LAW JOURNAL [Vol. 87:1697

cause of action.

192

The Tenth Amendment, Amar explains, “appears as the

symmetrical counterpart of the enforcement clauses of the Civil War

Amendments.”

193

The problem with this, however, is that the Tenth Amendment did not endow

states with powers symmetrical to the federal government. It simply endowed states

with “powers not delegated to the United States by the Constitution.”

194

Where the

federal government has the power to act, the Supremacy Clause conclusively

elevates federal law above any law enacted by the states. The federal government

quite clearly had the power at the Founding to enact its own cause of action against

federal officers. It follows, therefore, that states possessed no unilateral power to

enact converse-1983 laws.

I now consider state power from a different perspective. Unlike in this section,

where I considered how the Founders conceived of state power, I now turn to the

practices cited by Professor Amar as proof of state legal power.

B. State Power in Practice

In defending state power to enact converse-1983 laws, Professor Amar has

pointed to two historical practices: state common law tort suits against federal

officers and state habeas corpus actions filed by federal prisoners. At first glance,

the existence of these actions during the early nineteenth century would seem to

confirm state power to enact converse-1983 laws. Upon close inspection, however,

this view does not hold up. In this section, I first explain that the tort suits cited by

Amar were based not on state law but rather on a general common law of officer

liability detached from state law. Then, I explain that state habeas actions, to the

extent they were used against federal officers in the early Republic, only existed at

the pleasure of the federal government.

1. Officer Suits

The civil rights actions we know today are modern inventions. In past times,

constitutional enforcement worked quite differently. During the nineteenth century,

for example, constitutional rights were often enforced through ordinary tort actions.

The 1806 case of Wise v. Withers

195

is a good example. In that case, a federal

militia officer by the name of Withers believed that Wise, a resident of Alexandria,

Virginia, had dodged his military obligations and was thus obliged to pay a fine.

Desiring to collect the fine, Withers, with the approval of a federal court, entered

Wise’s home and seized his personal property. There was only one problem with

this plan, however: Wise was actually exempt from military service. After these

events unfolded, Wise brought a common law trespass action against Withers and

the federal judicial officer. Finding that Wise was exempt from military service, the

Court held that the officers’ conduct was unjustified. Without this justification, the

192. See id. at 1504.

193. Id. at 1506.

194. U.S.

CONST. amend. X.

195. 7 U.S. (3 Cranch) 331 (1806).

2012] THE FALSE PROMISE OF THE CONVERSE-1983 ACTION 1733

Supreme Court wrote, “[t]he court and the officer [were] all trespassers” in

violation of state law.

196

Or put differently, the Court held that the federal actors

who violated the Constitution were subject to liability for trespass.

197

The case reporters

198

and law reviews

199

confirm that Wise is not an aberration.

Where citizens suffered a constitutional violation, “[t]he predominant method of

suing officers in the early nineteenth century was [through] an allegation of

common law harm, particularly a physical trespass.”

200

Yet cases like Wise do not,

on their own, show that states had the unilateral power to impose liability on

misbehaving federal officers. A close reading of these cases reveals that state law

played a small role, or even no role at all. Instead, these cases were controlled by a

“general common law” under the control of the federal courts.

The concept of “general common law” (sometimes called simply “general law”)

does not easily square with our modern sensibilities about adjudication. In modern

times, courts are quite concerned with the source of law—that is, whether a law is

196. Id. at 337.

197. In these suits, the Constitution would often arise in connection with the officer’s

defense. The officer would defend his behavior by arguing that it was justified under his

general police power, whereupon the plaintiff would argue that the Constitution (usually the

Fourth Amendment) prohibits the exercise of such police power. The court would then be

called upon to determine the scope of the plaintiff’s constitutional rights. See Woolhandler,

supra note 145, at 399.

198. See, e.g., Leroux v. Hudson, 109 U.S. 468, 474–77 (1883) (trespass action brought

against federal marshal for improper attachment); Buck v. Colbath, 70 U.S. (3 Wall.) 334

(1865) (trespass against federal official for unjustified attachment of property); Teal v.

Felton, 53 U.S. (12 How.) 284 (1851) (tort action against post officer for improper

assessment of postage); Little v. Barreme, 6 U.S. (2 Cranch) 170, 179 (1804) (holding that

navy captain was personally liable under the common law for improperly seizing a Danish

vessel); Freeman v. Robinson, 7 Ind. 321 (1855) (assault and battery suit brought against

federal marshal); Sandford v. Nichols, 13 Mass. 285 (1816) (trespass action brought against

revenue officer for entering dwelling and seizing goods without cause); Wilson v.

Mackenzie, 7 Hill 95 (N.Y. 1845) (assault and battery suit brought against naval officer);

Ward v. Henry, 19 Wis. 87 (1865) (trespass action brought against federal marshal for

improper attachment).

199. See, e.g., Michael G. Collins, “Economic Rights,” Implied Constitutional Acts, and

the Scope of Section 1983, 77 G

EO. L.J. 1493, 1510 (1989) (explaining that government

officers “were liable at common law for injuries inflicted in the course of their employment,”

including constitutional injuries); Alfred Hill, Constitutional Remedies, 69 COLUM. L. REV.

1109, 1122–23 (1969) (noting that, in the nineteenth century, “the view developed that the

governmental officer acting under a void statute, or outside the bounds of a valid statute,

may be regarded as stripped of his official character, and answerable, like any private

citizen, for conduct which, when attributable to a private citizen, would be an offense against

person or property”); John C. Jeffries, Jr. & George A. Rutherglen, Structural Reform

Revisited, 95 C

ALIF. L. REV. 1387, 1400 (2007) (stating that, in early America, “there was no

distinctively federal cause of action to remedy constitutional violations,” so “[a]ctions

against officers typically alleged a common law harm”).

200. Woolhandler, supra note 145, at 399. Although the complaint often spoke in

common law terms, “[t]he issue of whether the action was authorized by existing statutory or

constitutional law was introduced by way of defense and reply when the officer pleaded

justification.” Id.

1734 INDIANA LAW JOURNAL [Vol. 87:1697

state or federal, or common law or statutory, and so on. Adjudication worked quite

differently at the Founding, however. “No jurist in the early nineteenth century, for

example, seriously questioned . . . that in declaring the law judges could look to a

variety of sources, some written and some unwritten, some foreign and some

indigenous, some specific and some general in their nature.”

201

When a rule of law

was constructed from these multifarious sources, it was impossible to say that the

rule was “attached to any particular sovereign.”

202

Instead, the rule was simply

understood as a general law over which the federal courts, having created the law,

enjoyed authority over its application and development.

General law played a prominent role in federal adjudication at the Founding. It

applied in maritime disputes,

203

commercial disputes,

204

disputes involving foreign

diplomats,

205

and so on.

206

This is not to say that state law never applied; it

certainly did.

207

But where a dispute concerned peculiarly federal interests, general

law often played a significant role.

One subject of particular interest to the federal government was the liability of

federal officers for actions taken in the scope of their employment. Despite

Professor Amar’s assertions that these suits were controlled by state law, I explain

below that these suits were often controlled by general law beyond the reach of

states. The general law in these cases manifested itself in two ways: (a) in the

Court’s creation of immunities for federal officers; and (b) in the Court’s control

over the merits of officer actions.

201. 3–4 G. EDWARD WHITE, THE MARSHALL COURT AND CULTURAL CHANGE, 1815–35,

in H

ISTORY OF THE SUPREME COURT OF THE UNITED STATES 112–13 (Paul A. Freund &

Stanley N. Katz eds., 1988).

202. William A. Fletcher, The General Common Law and Section 34 of the Judiciary Act

of 1789: The Example of Marine Insurance, 97 H

ARV. L. REV. 1513, 1517 (1984); see also

Hill, supra note 199, at 1133 (“The fact is that the common law in its substantive aspect has

always consisted of an admixture of federal and state law, applicable alike in the state and

federal courts (apart from the aberration of Swift v. Tyson).”).

203. See Preble Stolz, Pleasure Boating and Admiralty: Erie at Sea, 51 C

ALIF. L. REV.

661, 718 (1963) (“From the beginning admiralty judges have retained the inventiveness and

initiative characteristic of common law courts in private law areas.”).

204. See Edwin Dewitt Dickinson, The Law of Nations as Part of the National Law of the

United States, II, 101 U.

PA. L. REV. 792, 796–97 (1953).

205. See Bradford R. Clark, Federal Common Law: A Structural Reinterpretation, 144 U.

PA. L. REV. 1245, 1311–21 (1996).

206. For an excellent historical account of common law created by federal courts sitting

in equity, see Kristin A. Collins, “A Considerable Surgical Operation”: Article III, Equity,

and Judge-Made Law in the Federal Courts, 60 D

UKE. L.J. 249, 272–91 (2010) (describing a

body of equitable procedure, remedies, and rights created by the federal courts in the early

nineteenth century).

207. Fletcher, supra note 202, at 1532 (explaining that federal courts applied state law

“when the subject matter was of peculiarly local concern,” and where the “existence and

meaning [of state law] were clearly established”).

2012] THE FALSE PROMISE OF THE CONVERSE-1983 ACTION 1735

a. General Law in Officer Actions: Immunity

Just as federal immunity law currently plays a significant, if not dominant, role

in civil rights actions against federal officers,

208

so too did it affect officer actions

in the decades following the Founding. Although the scope of immunity varied

over time, there can be no doubt that the immunity doctrine was under the control

of the Supreme Court and played a crucial role in officer actions.

To understand federal immunity law, a useful place to start is with Marbury v.

Madison.

209

Although famous for its jurisdictional holding, the case nonetheless

provides insight into standard immunity law in the early nineteenth century. The

facts of Marbury are familiar. William Marbury, believing himself to be entitled to

a commission as a justice of the peace, sought a mandamus compelling Secretary of

State James Madison to deliver the commission. One issue in the case was whether

the remedy of a mandamus was the proper remedy for Marbury’s harm. The

availability of the remedy, according to the Court, depended on whether the

delivery of the commission was a “ministerial” or “discretionary” act. Ministerial

acts were acts imposed by law. If a statute ordered a federal officer to take some

specific act, and the officer failed to perform that act, a mandamus would be

available to compel the officer to do so. In contrast, discretionary acts were simply

“political acts” such as the “power of nominating to the Senate.”

210

Political acts,

being inherently discretionary, were not subject to a mandamus.

In Marbury, the Court held that Marbury’s entitlement to his commission had

already “vested,” thus providing him with a legal right, as opposed to a mere

political interest.

211

Being legally entitled to the commission, a mandamus was an

appropriate remedy (provided, of course, the Court had jurisdiction to issue a

mandamus). The test in Marbury was thus one of discretion: if an officer breaches a

legal (i.e., nondiscretionary) duty, he is subject to suit. If the officer disappoints

another through the exercise of discretion, however, the officer is “immune” from

judicial interference.

Discretion was thus the touchstone of immunity, and the existence of such

discretion could be declared by Congress or by the Court. An early example of

congressionally declared discretion involved the Embargo Act of 1808, a federal

statute that authorized “the [federal] collectors of the customs . . . to detain any

vessel . . . whenever in their opinions the intention [of the vessel’s captain] is to

violate or evade any of the provisions of the [embargo] acts.”

212

Just as with any

police seizure, vessel owners would occasionally argue that the seizure was

unjustified and pursue a common law officer action for relief.

Several of these cases came before the Supreme Court in the second decade of

the nineteenth century.

213

Time and again, the Court held that the collectors could

not be sued under the common law, even if the seizure was unjustified. This was

208. See supra notes 123–27 and accompanying text.

209. 5 U.S. (1 Cranch) 137 (1803).

210. Id. at 166–67.

211. Id. at 167.

212. § 11, 2 Stat. 501.

213. See, e.g., Otis v. Walter, 15 U.S. (2 Wheat.) 18, 21 (1817); Otis v. Watkins, 13 U.S.

(9 Cranch) 339, 344–45 (1815); Crowell v. M’Fadon, 12 U.S. (8 Cranch) 94, 98 (1814).

1736 INDIANA LAW JOURNAL [Vol. 87:1697

because the statute endowed the officers with discretion. That is, officers were

authorized to seize ships when, in their opinion, a violation of the embargo

occurred, regardless of whether a violation actually occurred. In the Supreme

Court’s view, so long as the collector “honestly entertained the opinion under

which he acted,” he was immune from suit. This was true, even if the collector’s

opinion was “incorrect and formed hastily or without sufficient grounds.”

214

“The

law places a confidence in the opinion of the officer,” the Court explained.

215

long as the officer “honestly exercises” his opinion, “he cannot be punished for

it.”

216

Where discretion was not specifically authorized by statute, the Supreme Court

was called on to determine the scope of an officer’s discretion by virtue of his

office. As noted above in the discussion of Marbury, the early Court applied a

narrow definition of discretion that amounted almost to a “legality” test. That is, if

the behavior of the officer was beyond the bounds of federal law, the federal officer

could not claim immunity from suit. The Court applied this same rule the year after

Marbury in Little v. Barreme.

217

In that case, a federal officer seized a ship based

on the order of the president. The president, however, did not have authority to

order the seizure, and the owner of the ship sued the federal officer who effectuated

the seizure. The defendant argued that, although the seizure was unjustified, he

should escape liability because he relied in good faith upon the instructions of the

president. Chief Justice Marshall, joined by the remainder of the Court, rejected

this argument. The bottom line was that the seizure was unlawful, and the

president’s “instructions cannot change th[at] nature.”

218

Marbury, Little, and other cases thus held that federal officers only possessed

discretion—and thus immunity—when they were acting within the confines of

federal law. That is, obedience to a valid federal law immunized the officer from

214. Watkins,13 U.S. at 355–56.

215. Crowell, 12 U.S. (8 Cranch) at 98.

216. Id. One must be careful not to overstate the importance of these cases, for it appears

quite possible that the Court would have taken a different view in the 1860s. In 1863,

Congress enacted a statute that immunized federal officers from personal liability for wrongs

committed while fighting for the North in the Civil War. Act of March 3, 1863, § 4, 12 Stat.

756. When federal officers were sued for battery or false imprisonment, they often asserted

this statute as a defense. Two courts considered the constitutionality of the statute and

both—a federal circuit court and the Indiana Supreme Court—found it unconstitutional. See

Milligan v. Hovey, 17 F. Cas. 380 (C.C. Ind. 1871); Griffin v. Wilcox, 21 Ind. 370, 372–373

(1863). Although the United States Supreme Court never had the opportunity to rule on the

statute, dicta in an 1884 opinion suggests that the Court would have found the statute

unconstitutional. See Mitchell v. Clark, 110 U.S. 633, 640 (1889); see also David Engdahl,

Immunity and Accountability for Positive Governmental Wrongs, 44 U.

COLO. L. REV. 1, 50

(1972) (discussing Mitchell).

Despite the reasoning in these cases, it should be remembered that they came fifty to

seventy-five years after the embargo cases discussed in the text. Thus, even if the reasoning

in the embargo cases would not have survived in the second half of the nineteenth century,

they are still powerful evidence of the Supreme Court’s view of officer immunity at the

Founding.

217. 6 U.S. (2 Cranch) 170 (1804).

218. Id. at 179.

2012] THE FALSE PROMISE OF THE CONVERSE-1983 ACTION 1737

state law liability. It is tempting to conclude that this rule actually supports

Professor Amar’s claims, for the rule seems to suggest that federal unconstitutional

behavior rendered the misbehaving officer subject to a state law suit. This is true in

a sense, but it ignores a crucial fact implicit in the decisions: immunity was a

question of federal law over which the federal courts had exclusive control. The

immunity law applied in Marbury, for example, bore no connection with state law.

The Supreme Court was simply applying a general rule of immunity not “attached

to any particular sovereign.”

219

Federal control over the law of officer immunity is proven more clearly by the

Supreme Court’s gradual expansion of immunity during the nineteenth century.

Decatur v. Paulding

220

was an important step in this process.

221

Susan Decatur,

widow of navy hero Stephen Decatur, sought to collect two pensions after her

husband’s death—one provided in a general pension statute and the other provided

in specific legislation. The Secretary of the Navy, based on his own interpretation

of the legislation, refused to issue both pensions. Mrs. Decatur sought a writ of

mandamus ordering him to do so, but the Supreme Court refused it. As to the

existence of a legal duty to pay both pensions, the Court explained:

The duty required by the resolution [to pay an additional pension] was

to be performed by [the secretary] as the head of one of the executive

departments of government, in the ordinary discharge of his official

duties. In general, such duties, whether imposed by act of Congress or

by resolution, are not mere ministerial duties.

222

In the Court’s view, therefore, the secretary’s position, “as the head of one of the

executive departments of government,” possessed an inherent discretion to decide

whether Mrs. Decatur should receive the second pension.

223

In this sense, Decatur

was an expansion of immunity for high-ranking federal officers.

224

Immunity was

no longer controlled by the exact contours of the law but rather by an undefined

penumbra of authority extending beyond the law itself.

Although Decatur was a mandamus action, the Court applied the same rule in a

damages action several years later.

225

In Kendall v. Stokes, the Supreme Court was

asked to determine whether the Postmaster General was personally liable for the

219. Fletcher, supra note 202, at 1517.

220. 39 U.S. (14 Pet.) 497 (1840).

221. See id.

222. Id. at 515.

223. Id.

224. See Gaines v. Thompson, 74 U.S. (7 Wall.) 347, 351 (1868) (reaffirming the

doctrine of official discretion recognized in Decatur v. Paulding, which barred the remedy of

mandamus, even when it was “clear” that the plaintiff “had no other legal remedy”); Reeside

v. Walker, 52 U.S. (11 How.) 272, 291–92 (1850) (denying a mandamus remedy even

though the plaintiff's only other available “remedy” for an alleged rights violation was a

petition to Congress).

225. See Woolhandler, supra note 145, at 425 (noting that, throughout the Marshall and

Taney Courts, the “theories for availability of damages and coercive remedies were

consistent”).

1738 INDIANA LAW JOURNAL [Vol. 87:1697

value of services rendered to the post office.

226

In prior litigation, a court ordered

the then-postmaster to credit the plaintiff’s account for money owed, but the

postmaster had failed to do so. When the new Postmaster General, Amos Kendall,

took office, he also failed to credit the plaintiffs’ account. The plaintiffs thus sued

Kendall personally for the amount of the credits. Writing for the Court, Chief

Justice Taney explained the immunity rule as such:

We are not aware of any case in England or in this country in which

it has been held that a public officer, acting to the best of his judgment

and from a sense of duty, in a matter of account with an individual, has

been held liable to an action for an error of judgment. . . . Sometimes

erroneous constructions of law may lead to the final rejection of a claim

in cases where it ought to be allowed. But a public officer is not liable

[for a decision] . . . in relation to which it is his duty to exercise

judgment and discretion; even although an individual may suffer by his

mistake.

227

Viewing the facts of the case, the Court held that the postmaster “committed an

error in supposing that he had the right to set aside allowances for services

rendered . . . . But as the case admits that he acted from a sense of public duty and

without malice, his mistake in a matter properly belonging to the department over

which he presided can give no cause of action against him.”

228

Kendall v. Stokes largely presages the immunity doctrine that is still in use

today,

229

though it would take the Court a half-century or more to definitively

choose that model. Spaulding v. Vilas,

230

decided in 1896, reiterates the Kendall

rule,

231

and the twentieth century cases Gregoire v. Biddle

232

and Butz v.

Economou

233

carried the rule into the modern era. The precise scope of immunity,

however, is unimportant here. It is only important for the present purposes to point

out that the immunity of federal officers, whatever its scope, was controlled by the

federal government, either through statute or judicial decision. There is no

indication in the case law that the federal government was without authority to craft

226. 44 U.S. (How.) 87 (1845).

227. Id. at 97–98.

228. Id. at 98–99.

229. See Woolhandler, supra note 145, at 429 (“Decatur and Kendall [] showed that error

of law had ceased to be the prevailing standard for high level officials’ amenability to both

coercive relief and damages.”).

230. 161 U.S. 483 (1896).

231. Id. at 499 (holding that when an agency head “acts, having authority, his conduct

cannot be made the foundation of a suit against him personally for damages, even if the

circumstances show that he is not disagreeably impressed by the fact that his action

injuriously affects the claims of particular individuals”).

232. 177 F.2d 579, 580–81 (2d Cir. 1949) (Hand, J.,) (finding officers immune, despite

their acting with “full[] aware[ness] that they had no legal warrant,” because the officers

acted with the “scope of [their] powers”).

233. 438 U.S. 478 (1978) (granting federal officers qualified immunity for actions taken

within the scope of their employment).

2012] THE FALSE PROMISE OF THE CONVERSE-1983 ACTION 1739

immunity doctrine, whether it be crafted narrowly (as it was soon after the

Founding) or more broadly (as it was in later decades).

Against this backdrop, it cannot be maintained that nineteenth-century officer

suits prove state power to hold federal officers liable for unconstitutional wrongs.

To the extent federal officers were held liable under state law, this liability was

imposed at the pleasure of the federal government. If the federal government

withheld such permission through statute or case law, states could not have held

federal officers liable for federal constitutional violations.

b. General Law in Officer Actions: Merits

Other officer actions display general law outside the immunity context. In these

suits, the federal courts appear to be taking control of the merits of the applicable

law and deciding the cases without regard for the content of state law.

234

Take, for

instance, Elliot v. Swartwout.

235

There, a taxpayer in New York sued a federal tax

collector in assumpsit for taxes collected in excess of the lawful rate. The collector

defended himself by arguing that, even if the taxes exceeded the lawful rate, the

plaintiff had paid the taxes voluntarily and without objection.

236

If suits against

federal officers were controlled by state law, one would expect the Court to

measure this defense against New York state law. The Court, however, did

anything but this. Instead, it searched the opinions of English courts, locating a

“doctrine” that was “peculiarly applicable” to the case.

237

The doctrine held that

taxpayers may not sue a tax collector for “voluntary payments made by mistake.”

238

English law did not merely dominate the discussion; it was the only law cited.

239

State law was nowhere to be found. This suggests that at least some of the officer

actions relied upon by Professor Amar were not controlled by state law but rather

by a species of general common law.

Elliot is by no means an outlier. In Bend v. Hoyt,

240

a case involving similar

facts, Justice Story, again, turned to English law to resolve the issue.

241

After

adducing from English law the principle that one who pays a tax without objection

may not thereafter challenge the tax as unlawful, Story concluded: “[w]e think the

principle a sound one, and should not hesitate to adopt it, even if there were no

234. I recognize that “merits” is a term of many meanings and that questions of immunity

could just as easily be cataloged as merits questions. Yet the cases in this subsection make

no mention of immunity, and, for ease of organization, I present them separately.

235. 35 U.S. (10 Pet.) 137 (1836).

236. Id. at 153.

237. Id. at 154–55 (explaining, for example, that Lord Eldon “approves the doctrine”).

238. Id. at 155–56.

239. See, e.g., id. at 154–55 (citing Morgan v. Palmer, (1824) 107 Eng. Rep. 554 (K.B.);

Brisbane v. Dacres, (1813) 128 Eng. Rep. 641, 645–46 (C.P.); Bromley v. Holland, (1802)

32 Eng. Rep. 2, 10 (Ch.); Buller v. Harrison, (1777) 98 Eng. Rep. 1243, 1244–45 (K.B.);

Townson v. Wilson, (1808) 170 Eng. Rep. 997, 997–98 (K.B.); Sadler v. Evans, (1766) 98

Eng. Rep. 34, 35–36 (K.B.)).

240. 38 U.S. (13 Pet.) 263 (1839).

241. See id.

1740 INDIANA LAW JOURNAL [Vol. 87:1697

authority to support it.”

242

These are not the words of a Court that sees state law as

authoritative; the Court quite clearly believes it has the power to adopt a particular

rule of decision regardless of the “authority to support it.”

What these cases illustrate is that the liability of federal officers was, in some

cases at least, controlled completely by a body of law discovered and crafted by the

federal courts. Although they appeared to involve routine causes of action like

trespass or assumpsit, the dispositions of the cases did not turn on the ordinary

common law rules connected with a particular state. Instead, these cases were

resolved according to an undefined, but quite real, law of officer liability.

Admittedly, Elliot and Bend are just two examples. But the analysis employed in

the cases is entirely consistent with the views of other scholars who have studied

officer actions. These actions were not “merely a reflection of the private law”

affecting debts but rather evidence of a “law of government remedies” created and

controlled by the U.S. Supreme Court.

243

When these observations are combined

with the robust evidence of federal immunity law explained in the previous section,

there can be little doubt that federal law played a significant role in the liability of

federal officers and that state law, if it was even involved, was subject to the

superior force of this federal law.

2. Habeas Corpus Actions

In addition to citing common law officer actions as evidence of state legal power

at the Founding, Professor Amar also cites state power to issue writs of habeas

corpus against federal officers. “The ability of states to vindicate constitutional

values through injunctive relief,” Amar states, “was perhaps nowhere more

dramatic than in early state habeas corpus cases: State habeas offered a way for

those imprisoned by federal officers in violation of their federal constitutional

rights to win their freedom.”

244

In making this claim, Professor Amar is forced to acknowledge the

nineteenth-century cases of Ableman v. Booth

245

and Tarble’s Case,

246

both of

which hold that state courts may not issue state law writs of habeas corpus against

federal officers. He admits that these cases refute his claims about state power, but

argues that “the Court’s analysis in these cases was shaky, and its language quite

sloppy.”

247

Professor Amar is far from alone in his criticism of these cases.

248

The

242. Id. at 270.

243. Ann Woolhandler, Old Property, New Property, and Sovereign Immunity, 75 N

OTRE

DAME L. REV. 919, 922 n.18 (2000); see also Daniel J. Meltzer, Congress, Courts, and

Constitutional Remedies, 86 G

EO. L.J. 2537, 2554 (1998) (“There is no doubt that many

nineteenth century suits against officers relied on forms of action (for example, trespass)

developed and commonly found in suits against private defendants. However, within the

forms of action recognized by the general law in the nineteenth century were distinctive

kinds of proceedings that were largely if not exclusively directed against official action so as

to keep government within the bounds of law.”).

244. Amar, Sovereignty and Federalism, supra note 15, at 1509.

245. 62 U.S. (21 How.) 506 (1859).

246. 80 U.S. (13 Wall.) 397 (1871).

247. Amar, Sovereignty and Federalism, supra note 15, at 1509.

2012] THE FALSE PROMISE OF THE CONVERSE-1983 ACTION 1741

central criticism seems to be that the cases ignore the import of the Madisonian

Compromise. If Congress is free not to create lower federal courts (a principle at

the heart of the Compromise), then the only way habeas relief could be obtained

against the federal government would be through state courts.

249

But if state courts

lack the power to issue habeas relief, and some type of habeas relief must arguably

be available simply as a matter of due process,

250

troubling questions of

constitutional law would be presented.

Just because Ableman and Tarble’s Case cannot be reconciled with the

Madisonian Compromise, however, does not mean that the Constitution guarantees

to states the power to issue writs against federal officers. There is nothing to stop

Congress from creating federal courts and endowing them with exclusive

jurisdiction over matters of federal law.

251

Congress has done this with issues of

intellectual property and securities law, for example, and it is certainly free to do

the same with habeas actions against federal officers.

252

Congress’s power to do so

was clear at the Founding,

253

and many commentators today believe that Ableman

248. See, e.g., LARRY W. YACKLE, FEDERAL COURTS 135–36 (2d ed. 2003) (“[The Tarble

Court] neglected the conventional understanding that Congress might never have created the

lower federal courts and might have relied, instead, on state courts to police the system,

subject to appellate review by the Supreme Court.”); Michael G. Collins, Article III Cases,

State Court Duties, and the Madisonian Compromise, 1995 WIS. L. REV. 39, 101–02

(claiming that, if Tarble’s Case is based on an interpretation of the Constitution, it “runs

headlong into the traditional understanding that Congress was under no obligation to create

lower federal courts”); Richard H. Fallon, Jr., The Ideologies of Federal Courts Law, 74 V

L. REV. 1141, 1205 (1988) (“Tarble’s Case, if read literally as founded on propositions of

constitutional law, strikes directly at one of the foundation stones of the Federalist model:

the proposition that state courts enjoy constitutional parity with federal courts.”); Waxman &

Morrison, supra note 16, at 2225–26 (explaining that, if Tarble’s Case holds “that the

Constitution prohibits the States from subjecting federal officials to habeas corpus

jurisdiction, . . . [then the case] seems inconsistent with the Madisonian Compromise during

the framing of the Constitution, which produced the Article III provision that authorizes, but

does not require, Congress to establish lower federal courts”).

249. Recent scholarship suggests that habeas relief might be available from individual

justices as an original, rather than appellate, matter. As a practical matter, however, the

justices’ capacity to superintend unlawful detentions on a nationwide basis is “necessarily

limited.” See Lumen N. Mulligan, Did the Madisonian Compromise Survive Detention at

Guantánamo?, 85 N.Y.U.

L. REV. 535, 539 (2010).

250. See Martin H. Redish & Colleen McNamara, Habeas Corpus, Due Process and the

Suspension Clause: A Study in the Foundations of American Constitutionalism, 96 VA. L.

REV. 1361 (2010) (arguing that the Due Process Clause restricts Congress’s authority to

suspend habeas corpus).

251. See Tafflin v. Levitt, 493 U.S. 455 (1990) (holding that Congress can vest the

federal courts with exclusive jurisdiction in any matter it deems appropriate).

252. See 15 U.S.C. § 78aa (2000) (securities actions); 28 U.S.C. § 1338(a) (2006)

(intellectual property).

253. In Federalist 82, Alexander Hamilton explained that “the state courts would have a

concurrent jurisdiction in all cases arising under the laws of the union, where it was not

expressly prohibited.” T

HE FEDERALIST NO. 82, at 438 (Alexander Hamilton) (J.R. Pole ed.,

2005) (emphasis added). Similarly, when the first Congress enacted the statute that created

the lower federal courts, it explicitly endowed them with exclusive jurisdiction over several

different subjects. See Act of Sept. 24, 1789, ch. 20, § 9, 1 Stat. 73, 76–77.

1742 INDIANA LAW JOURNAL [Vol. 87:1697

and Tarble’s Case can be justified only if the federal habeas statute enacted in 1789

is read to endow federal courts with exclusive habeas jurisdiction over federal

officials.

254

Whether that reading of the statute is in fact correct is unimportant

here,

255

for there is no dissent on the view that Congress, if it desired, could have

divested state courts of their habeas jurisdiction over federal officers. Thus, state

courts at the Founding did not possess a unilateral power to “vindicate

constitutional values through injunctive relief.”

256

Their power to vindicate federal

rights against federal officers was subject to revision by Congress.

Professor Amar agrees with much of this, but certainly not all of it. He agrees

that Ableman and Tarble’s Case “can be justified only if” they are based on

Congress’s power to vest federal courts with exclusive jurisdiction.

257

Exclusive

jurisdiction, according to Amar, will not displace the state habeas remedies against

federal officers, however, for “federal courts would be obliged to enforce the

vertically-pendent state law habeas remedy.”

258

This assumes, however, that

Congress lacks the power to preempt a state cause of action against a federal officer

with a federal cause of action—something that, as discussed in Part II.D, is untrue.

As noted above, were Congress to bar state remedies but fail to provide some other

avenue for the vindication of constitutional rights, a constitutional problem might

well arise.

259

But there is no rule of constitutional law that prohibits Congress from

ever touching state remedies against federal officers.

254. See, e.g., Richard H. Fallon, Jr., Applying the Suspension Clause to Immigration

Cases, 98 C

OLUM. L. REV. 1068, 1074 n.31 (1998) (stating that, while the Court in Tarble’s

Case appeared to perceive a constitutional basis for its holding, the holding “can be

rationalized more plausibly on the ground that federal statutes” implicitly created an

exclusive federal remedy for federal prisoners); Nicole A. Gordon & Douglas Gross,

Justiciability of Federal Claims in State Court, 59 N

OTRE DAME L. REV. 1145, 1174–75

n.114 (1984) (“Tarble’s Case should be read to rest upon an implied congressional intent

that habeas actions to release enlisted soldiers from the military be restricted to federal

court.”); Redish & Woods, supra note 151, at 101 (stating that Tarble’s Case establishes a

presumption against state-court jurisdiction in habeas cases involving federal prisoners—a

presumption that “can be overcome only by a carefully considered, conscious decision by

Congress”); Amanda L. Tyler, Is Suspension a Political Question?, 59 S

TAN. L. REV. 333,

400 (2006) (“[T]he most defensible reading of Tarble’s Case is that the Court interpreted

Congress's provision for federal court habeas jurisdiction with respect to federal petitioners

as impliedly exclusive of state courts.”); Waxman & Morrison, supra note 16, at 2227

(arguing that Tarble’s Case is best understood as resting upon a determination that “the

pertinent statutes reflected an implicit congressional determination that state jurisdiction was

not appropriate”).

255. Professor Todd Pettys has argued that, although Congress certainly had the authority

to divest state courts of habeas jurisdiction in the Judiciary Act of 1789, Congress did not, in

fact, do so. See Todd E. Pettys, State Habeas Relief for Federal Extrajudicial Detainees, 92

INN. L. REV. 265, 297–307 (2007).

256. Amar, Sovereignty and Federalism, supra note 15, at 1509.

257. Id. at 1510.

258. Id.

259. See supra notes 131–145 and accompanying text.

2012] THE FALSE PROMISE OF THE CONVERSE-1983 ACTION 1743

CONCLUSION

The converse-1983 action is not a promising way for the states to check

constitutional abuses by federal officers. The force of the action would be severely

limited by the doctrine of Supremacy Clause immunity, and the very existence of

the action would be contingent upon the creation of federal common law, the

Bivens doctrine, and congressional acquiescence with the cause of action.

Moreover, these doctrines are not misadventures of a modern Court infatuated with

federal supremacy. Professor Amar’s arguments that the Founding generation not

only believed that states had legal power over the federal government, but practiced

that belief as well, are unavailing. The Federalist’s discussions of state power relied

on by Amar pertain only to state political power, not state legal power. And the

state causes of action he cites were either subject to general law controlled by the

federal courts or subject to congressional override through changes in jurisdiction

or substantive law.

In sum, states dissatisfied with federal officers who violate the Constitution

would be unwise to rely on a converse-1983 action. Although the action might not

be immediately abrogated, it would always be subject to federal disapproval. This

is hardly a reliable way to check federal constitutional abuses.