The Demise of the Bivens Remedy is Rendering Enforcement of Federal Constitutional Rights Inequitable But Congress Can Fix It

A federal statute allows a person whose federal constitutional rights are violated by state actors to sue for damages. There is no analogous federal statute that allows a person whose constitutional rights are violated by federal actors to sue for damages. In 1971, the United States Supreme Court allowed a suit for damages against federal law enforcement officials who allegedly violated Fourth Amendment rights to proceed directly under the Constitution, creating the Bivens remedy. Beginning in 1983, the Supreme Court reversed course and issued ten consecutive decisions in which it denied a Bivens remedy because no federal statute authorizes suits against federal officials who violate federal constitutional rights.

The Supreme Court now considers recognition of a Bivens remedy to be a “disfavored judicial activity.” It is inequitable for a person whose federal constitutional rights are violated by state actors to be able to sue for damages but not if federal actors violate the same rights. Congress should address this inequity by enacting legislation that authorizes a person whose federal constitutional rights are violated by federal actors to sue for damages.