On Aug. 20, a federal judge in the Southern District of Illinois denied a motion to dismiss the Justice Department’s challenge to the Illinois Bivens Act, a recently enacted statute that creates a cause of action against federal immigration agents who violate federal constitutional rights. In its complaint, the Department contends that the law violates the Supremacy Clause because it directly regulates and discriminates against federal officers. Permitting the claim to advance, Judge David Dugan concluded that the Department’s legal allegation was at least plausible. The targeted threat of personal liability, he reasoned, burdens federal immigration enforcement.
Although the ruling could be read as a broad setback for state-law claims against federal officials, it is better read as a warning about specific design. Because the Illinois law focused on a single federal activity, immigration enforcement, the law may be particularly vulnerable to arguments that it is designed to undermine or interfere with a federal objective. In its Supremacy Clause jurisprudence, the U.S. Supreme Court has expressed concern in Haywood v. Drown about states “declar[ing] a desire to thwart” a federal law by “removing the disfavored category of claims from its courts’ jurisdiction.” To the extent a state imposes a legal claim against a disfavored category of federal enforcement, a similar concern emerges. Yet states can, and have, designed laws that reach federal constitutional violations in a manner agnostic to the function the official is performing.
The design questions have taken on increased import over the past year. For lawyers, policymakers, and everyday people concerned about accountability, the question of how to impose consequences on officials who break the law is both pressing and vexing. In January, Americans across the nation watched a video of an Immigration and Customs Enforcement officer killing Renée Nicole Good on a Minneapolis street. That same month, in the same city, Border Patrol agents shot and killed Alex Pretti. The killings were products of an extraordinary deployment of federal force into American cities like Los Angeles and Chicago. They were a sharp and perhaps the most visible representation of an executive that has, since its inception, tested constitutional boundaries by defying judicial orders, firing inspectors general, circumventing appropriations, and using federal law enforcement as a means of political retaliation.
While the killings themselves sparked shock and alarm, so did what they exposed about accountability when federal agents trample rights. There has been a near-total collapse of the machinery of redress. In the killings of both Good and Pretti, the federal government declined to open civil rights investigations and promptly labeled the deceased Americans terrorists. More baldly, federal officials refused to cooperate with Minnesota officials who had obtained a judicial search warrant for the site of Pretti’s killing. Only in July, after the state attorney general and Hennepin County sued to compel it, did federal authorities even turn over the body-camera footage, officer statements, and physical evidence. Further, federal prosecutors in Minnesota resigned amid pressure to investigate Good’s widow rather than the officer who killed her.
An Accountability Desert
The familiar mechanisms of civil accountability are also crumbling. The Supreme Court has reduced the damages remedy recognized in Bivens v. Six Unknown Named Agents to a nub, confining it to three narrow contexts from the 1970s and 1980s and repudiating its core logic. (This upcoming term, the Court will decide another case that may shrink that nub all the more.) At the same time, Justice Department officials have received guidance to stand down in investigations of alleged assaults committed by immigration officials. And although the Federal Tort Claims Act offers some recovery against the government itself, its exceptions are daunting.
The result is a federal-level accountability desert: a zone in which constitutional violations occur but where there is no institution with both the capacity and the will to impose consequences. Joanna Schwartz and I have described how such deserts form at the state level, where Section 1983 at least ostensibly authorizes suits against state officials who violate federal rights. That statute often faces its own enforcement challenges. But when the desert forms at the federal level — when the national government is simultaneously the violator, the investigator, and the entity responsible for self-correction — American law has even less to offer.
Enter the states. Illinois, Connecticut, Vermont, Oregon, and Maryland have enacted civil causes of action reaching federal officers, with Maryland’s taking effect Oct. 1. California’s “No Kings Act,” SB 747 passed the State Senate. Moreover, older state civil rights statutes are being tested as vehicles for claims the federal system can no longer support. Commentators and political leaders have sometimes used the term “reverse 1983” to describe these efforts.
The term “reverse 1983” could plausibly describe two distinct moves. The first uses state law as a substitute vehicle for enforcing federal constitutional rights. That move could apply not only to federal actors, but to state and local actors that Section 1983 already (often inadequately) reaches. Professors Joanna Schwartz, James Pfander, and Alexander Reinert have mapped that approach. The second move directs state legal machinery upward, against federal actors. And while the Justice Department has argued the second move is an affront to federal supremacy, it is the older of the two.
Recovering Collateral Accountability
For most of the nation’s history, state-law damages suits against federal officers were the ordinary mechanism of constitutional accountability. In Mills v. Martin (1821), New York’s high court imposed trespass liability on a United States marshal who had seized a citizen’s property under a void federal court-martial. Such suits were so routine that, as Justice Thomas recently observed, they were simply taken for granted from the founding until Bivens in 1971. As Judge Justin Walker of the D.C. Circuit put it in a 2023 concurrence, the Framers saw state common-law suits as an important check on federal misconduct. These observations are consistent with Henry Hart’s famous claim that state courts are “the primary guarantors of constitutional rights, and in many cases they may be the ultimate ones.”
This logic undergirded Akhil Amar’s proposal thirty years ago that states enact “converse-1983” statutes of the sort that state legislatures have increasingly embraced over the past year. Amar grounded the idea in Hamilton’s declaration in Federalist No. 28 that when a citizen’s rights are invaded by either level of government, “they can make use of the other as the instrument of redress.” Hamilton described a guarantee of legality that runs in multiple directions. Madison’s remark in Federalist No. 51 that “the different governments will control each other” is harmonious with that conception.
What the Founders envisioned, the early Republic embraced, and Amar proposed is what we might call collateral accountability: a coordinate sovereign exercising its power to redress unlawful conduct when the primary system of federal self-correction has collapsed. By collateral, I mean parallel, reciprocal, and activated by the failure of a self-policing system.
The Supremacy Clause’s Anti-Discrimination Principle
Some early assessments of the Illinois Act, and the Justice Department’s complaint, have analyzed the constitutional question primarily through McCulloch v. Maryland’s prohibition on state interference with federal instrumentalities. While that framing is not inapt, the Supremacy Clause’s impact on converse-1983 can be overstated. McCulloch addressed a state’s attempt to destroy a lawful federal instrument, the Bank of the United States. It did not concern liability for federal officers who exceed their constitutional authority. In McCulloch, before turning to the Supremacy Clause, the Court first satisfied itself that the federal law was constitutional.
At bottom, an officer who uses unconstitutional force does not carry out federal policy. He exceeds it. Federal supremacy protects only federal action that comports with the Constitution, and unconstitutional conduct falls outside that shield. We know this for at least three reasons. First, preemption works this way. State law yields only to valid exercises of federal power. Supremacy depends on validity. Second, the Supreme Court has held that when privately employed personnel at a federal prison violate the Eighth Amendment, the remedy lies in state tort law. If state law reaches private contractors performing core federal functions, it is hard to see why it cannot reach federal officers who exceed their constitutional authority. Third, the McCulloch taxation analogy cuts the other way, given that federal officers pay state income tax on their salaries without any constitutional difficulty. If McCulloch tolerates state taxation of an officer’s lawful service, it is doubtful that it forbids state liability for his unlawful conduct.
To be sure, state limitations on federal officials can overstep. In April, for example, the Ninth Circuit enjoined California’s “No Vigilantes Act,” which required federal agents to display visible identification. It reasoned that the Supremacy Clause forbids state law from directly regulating federal operations “even if the law regulates state operations in the same manner.” But that reasoning is distinguishable from the causes of action litigants and state legislatures are embracing. The No Vigilantes Act’s demands outpaced the federal Constitution’s, requiring visible identification in the field. A damages action for a completed constitutional violation, by contrast, demands only what the Constitution already requires. A state may attach consequences to constitutional violations, or to torts committed beyond an officer’s constitutional authority; it cannot otherwise add affirmative conduct rules of its own. Damages remedies of this kind existed for nearly two centuries before Bivens, and the Westfall Act itself expressly preserves them for civil actions “brought for a violation of the Constitution of the United States.”
One of the most apt Supremacy Clause frameworks likely comes from Testa v. Katt, Haywood v. Drown, and Felder v. Casey, which ask whether a state law unduly obstructs federal law or discriminates against federal claims. On obstruction, collateral accountability for illegal acts does not obstruct the federal Constitution because it enforces it. Discrimination is the more complex question. The anti-discrimination principle traditionally polices states that disfavor federal claims. But a state law that singles out federal officers for greater liability than their state and local counterparts, or that strips qualified immunity only from federal defendants, raises a mirror-image concern.
Design as Destiny
This reframes the stakes of the Illinois litigation. The problem is not the imposition of individual damages liability — punitive damages or otherwise — against officers who violate the United States Constitution. Punitive damages, after all, are a standard feature of Section 1983 litigation and have never been treated as an affront to state sovereignty. Instead, the vulnerability is the Act’s exclusive focus on federal immigration enforcement, which creates the risk, and perhaps the reality, of singling out federal officers for disfavored treatment. For example, the punitive damages provision itself is not generally aimed at all reckless or purposeful conduct. As a district court recently noted, it directs courts to consider “whether face coverings were used, whether the person properly identified themselves, whether the officer wore a mandated body camera, whether the vehicle used displayed no license or ‘non-Illinois plate’, whether the officer used crowd control equipment, and whether the officer violated or failed to comply with a court order.” Several of those considerations — face coverings, body cameras, license plates — concern conduct the Constitution itself does not forbid. The provision thus stumbles both by singling out one federal function and by embedding conduct rules of the state’s own making. That is the thread the Justice Department pulled, and that Judge Dugan found plausible. A general statute with punitive damages almost certainly stands on firmer ground.
The lodestar, then, should be evenhandedness between (1) how state and federal officers are treated, and (2) what the Constitution and the statute demand. A state law that simply requires constitutional compliance, and applies that standard uniformly, leaves considerably less room for a charge of discrimination. California’s Bane Act, which reaches “any person, whether or not acting under color of law” and has been read to deny qualified immunity to all law enforcement defendants, reflects that ideal. Likewise, the author of California’s No Kings Act put the principle plainly on the Senate floor: “We’re going to treat all the same, on an equal and level field.” Maryland’s new law similarly reaches anyone acting “under color of law.” Vermont’s statute is broad in scope and applicable to all officials.
Getting these choices right matters beyond the present peril. The architecture states build now will outlast this administration. Well-designed collateral accountability offers a feature that the remedial landscape has increasingly lacked: a judicial check on federal overreach that does not depend on the federal government’s willingness to police itself. And the most durable versions of collateral accountability are general statutes that vindicate constitutional rights, apply neutrally to all government actors, and treat federal officers no worse than their state and local counterparts.
When one sovereign fails to restrain itself, the coordinate sovereign steps in. The Founders built two governments for exactly this moment.
