What to do With an Alt-Right White House: The Present Need for, and Future Challenges to, Suing the Federal Government for Discrimination

By Alexander Reinert*

Many remarkable events have taken place during the first month of President Donald Trump’s Administration. Among these, the Administration’s restrictions on immigration, and the role litigants and judges have played in at least temporarily halting those restrictions, have received much deserved attention. But perhaps overlooked is that the challenges have been successful in achieving what is unusually rare: articulating and demonstrating when federal action is motivated by unconstitutional bias.

Consider this: in 2004, Richard Primus, a professor of law at the University of Michigan, wrote an article called “Bolling Alone” documenting how rare it was for courts to find that federal officials engaged in unconstitutional racial discrimination. And although there is a smattering of cases in which litigants have successfully established discrimination on the basis of other protected class categories, successfully suing federal officials for any kind of discrimination has always been difficult.

For cases like the challenges to the Executive Orders announcing immigration restrictions, in which litigants are seeking to enjoin federal action on the theory that particular executive action was motivated by unconstitutional discrimination, there have always been barriers of both proof and doctrine. As a matter of proof (and perhaps the litigation involving President Trump’s Executive Orders is the exception that proves the rule), it is usually difficult to establish through publicly available information that a policymaker is motivated by discriminatory intent. As a matter of doctrine, courts are deferential to executive power in all sorts of areas, and therefore generally resistant to looking behind the curtain to see the motivations for particular actions.

But, as it turns out, things are even harder for litigants who are seeking damages for allegedly unconstitutional discrimination by federal officials. For there, not only do the problems of proof and doctrine described above still obtain, but there is an additional barrier: the Supreme Court’s resistance to recognizing a cause of action for damages for constitutional violations by federal officials. There are two pending cases in the Supreme Court that could make things even harder for such litigants.

Recall that when litigants sue state officials for constitutional violations, whether in damages or for injunctive relief, they rely on a federal statute, 42 U.S.C § 1983. No such statute exists for litigants seeking damages from federal officials for constitutional violations – instead, plaintiffs rely on the common law constitutional tort recognized in Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). In that case, the Supreme Court held that federal officials could be sued for violations of the Fourth Amendment, and the Court has since extended Bivens to claims of sex discrimination and violations of the Eighth Amendment (which prohibits cruel and unusual punishment). But since 1980, the Court has not recognized any new Bivens remedy, and it has never formally recognized a right, say, to sue federal officials for damages for discrimination on the basis of race or religion.

Two cases pending in the Court this Term could have more to say on the topic. First, as to the general availability of Bivens remedies, in Hernandez v. Mesa the Court is considering whether the family of an unarmed Mexican teenager who was killed by a Border Patrol agent while standing on Mexican soil can bring an action for damages against the agent. On one hand, the answer would appear straightforward: the original Bivens case recognized a viable Fourth Amendment claim against federal officials, and the Hernandez family therefore does not require any new Bivens remedy to seek compensation. But enough Justices raised questions about whether this was a new Bivens “context” that it is possible the Court will decide that the remedy is not available. If so, the viability of any future Bivens actions, outside of the narrow factual confines of the pre-1980 cases, could be cast into serious doubt.

The second case (and in the interest of full disclosure, it is one in which I am part of the team that represents the plaintiffs), Ziglar v. Abbasi, involves whether federal officials may be sued under Bivens for allegedly imposing harsh conditions of confinement on immigration detainees (seized after 9/11) on the basis of race, religion, and national origin. As in Hernandez, there is a predicate question of whether a Bivens remedy even exists for this kind of conduct – the Court certainly could decide that it does not, making it that much more difficult to create deterrence and seek compensation when federal officials engage in intentional discrimination. But even if it declines to answer the predicate Bivens question (or recognizes the existence of a Bivens remedy), the Court could then decide that the plaintiffs have not provided factually sufficient allegations to establish a “plausible” claim for intentional discrimination. Given the detail provided in the plaintiffs’ allegations, a holding that there was not enough to satisfy Rule 8’s minimal pleading standards could have far-reaching reverberations in many other cases involving discrimination.

Thus, while those who are challenging President Trump’s immigration actions may ultimately have success in court, the Supreme Court stands poised to make it much more difficult to bring such actions against federal officials. And the need for precisely those kinds of lawsuits may come into sharper focus over (at least) the next four years.

*Alexander Reinert is is a professor of law at the Benjamin N. Cardozo School of Law and Director of the Center for Rights and Justice.

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