Response to Moreno, Postell, and Greve

     

I would first of all like to thank Professors Moreno, Postell, and Greves for their insightful responses to my essay. Each brings up important issues about Dicey’s legacy and the history of American administrative law that I could not or did not explore in my own piece.

Moreno shows that labor issues were always at the center of the growth of the administrative state, both in terms of expanding administrative authority and expanding the immunity of certain actors. Postell demonstrates that Dicey’s critique of the administrative state extended, and should extend, beyond just the issue of officer liability, and into the necessity of judges overseeing the legality of all administrative actions. Greve shows that the Supreme Court’s jurisprudence on qualified immunity itself arose out of the Supreme Court’s own ham-handed attempts to craft sui generis judicial remedies against government officials.

These pieces all question how any fundamental reform to the judicial review of administrative actions, such as that envisioned by Dicey, could be implemented in the modern age. In other words, is Dicey dead?

Only in fact, although not in spirit. There are indeed many lawsuits against government officers today, which Dicey would understand and appreciate. But, as Greves points out, these suits almost all use a single federal law known as Section 1983. This once forgotten part of the so-called Ku Klux Klan Act of 1871 was revived by the Supreme Court in the 1961 case of Monroe v. Pape. Any debate about reviving Dicey’s own ideas of judicial review and officer liability needs to tackle what this line of cases means for the control of official actions.

In Monroe, as in so many other cases of that era, the Supreme Court confronted the twin issues of pervasive racism and state disinterest in confronting it. That case involved Chicago police officers who invaded the home of a black family without a warrant and forced the parents to stand naked in their living room while ripping their home apart and shouting racial slurs. The court said that the family could use the long-neglected Section 1983 to sue those officers, based on the officers’ invasion of the individuals’ constitutionally protected rights under the Fourteenth Amendment. [1] Clearly, the Monroe family needed some sort of remedy, and the Supreme Court found one, or invented one.

Over the subsequent decades, small libraries have been filled on Section 1983 claims, and the Supreme Court has in turn created, expanded, and cabined rights under that section, including through the “qualified immunity” of officers doctrine.[2] This has been a jury-rigged process, largely untethered from legal text or history.[3]

But what if, instead of relying on the ever-expanding corpus of Section 1983 cases, we returned to the “common law” claims of trespass and tort against government officers, and pared back their immunity even while keeping the more meretricious claims out of court, as Greves suggests?

On the one hand, this would expand the ability of the courts to control executive action, and not limit them to specially “constitutionally protected” rights under the Bill of Rights and Fourteenth Amendment. On the other hand, it would limit the federal government’s ability to uphold these rights against state governments, even as it allowed states to again enforce rights against federal officers.

Such a profound shift in jurisprudence would be unlikely in our lifetime. Yet infusing more of the law of officer liability and judicial review of government actions with common law precedents would not be impossible and could find friends on both the right and the left of the courts.

For instance, instead of allowing suits based on whether the executive actions are “arbitrary and capricious,” for administrative agencies, or violate “clearly established law” for individual officers with qualified immunity, they could be judged on the same reasonableness standards as common law torts.

There is an understandable concern that such a shift to common law standards would make judges effective executives themselves, setting the limits on what officers could and couldn’t do based on their own conceptions of “reasonableness.” But such a shift would instead just revert back to an older understanding of the executive, as a branch which didn’t create immunities or rights, but which merely had authority over the employment of officers. This was indeed the case for most of American history, where judges acted as regular overseers of officers’ actions. Congress was the branch that really controlled such officers, and, although it could not fully immunize them, it could set the boundaries for acceptable rights and actions, and left it to courts to enforce those.[4]

Sometimes, officer liability meant government employees would face the tough decision of obeying their superiors or obeying the courts. But Dicey recognized this dilemma as regards to military officers even in the 19th century. He said that the legislature could indemnify them, and the executive could pardon them.[5] Post facto indemnity was thus a compliment, instead of a substitute, for officer liability.[6]

We don’t have to make all executive officers answerable to courts for every action, as was common in the 19th century, but Congress and courts can at least allow lawsuits to constrain their near unfettered discretion today. Such a movement could make officer liability, and judicial review, a vehicle for once-common common law claims, and could help control administrative actions. It would make Dicey’s celebration of common law procedure and remedies look prescient. Equally important, such prescience would have strong precedents in our law and history.

[1]Monroe v. Pape, 365 U.S. 167 (1961). The main debate among the members of the Court was whether, as Justice William Douglas for the majority stated, Section 1983 allowed suits against officers or individuals even if they had not been acting directly under state orders, or whether, as Justice Felix Frankfurter said in dissent, such suits had to be confined to actions that the state directly sanctioned, or for which there were no state remedies.[2] See, e.g., William Baude, “Is Qualified Immunity Unlawful?” California Law Review 106 (2018): 45-90
[3] Section 1983 allowed lawsuits only against those acting “under color of” state laws, but in 1971 the Court, most definitely out of whole cloth, created so-called Bivens claims, against federal officers, using the same basic framework. Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).
[4] See discussion in Karen Orren, “Officers’ Rights: Toward a Unified Field Theory of American Constitutional Development,” Law & Society Review 34, no. 4 (2000): 873-909.
[5]A.V. Dicey, Introduction to the Study of the Law of the Constitution (Indianapolis: Liberty Fund, 1982), 180-200, 406-410.
[6] See the discretion given to the Secretary of Treasury in America in the 19th century to indemnify certain officers when performing their duties “without willful negligence or intention of fraud.” 4 Statutes at Large 597, the Remission Act of July 14, 1832.