A federal statute, 42 U.S.C. 1983, allows a person whose federal constitutional rights are violated by state actors to sue them for damages to compensate for the harm caused by the constitutional violations. There is no analogous federal statute that allows a person whose federal constitutional rights have been violated by federal actors to sue them for damages to compensate for the harm caused by the constitutional violations. The United States Supreme Court allowed Webster Bivens, a man who sued federal law enforcement officials for falsely arresting and physically abusing him in violation of his Fourth Amendment rights, to sue them to recover damages directly under the Constitution even though no federal statute authorized the suit. Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics. 403 U.S. 388 (1971). The Court concluded that constitutional rights are so important that suits for damages to enforce them should be allowed even though Congress has not enacted a statute authorizing them against federal actors. In the decade after Bivens was decided, the Supreme Court recognized the Bivens remedy in two other cases in which federal actors were sued for violating a person’s federal constitutional rights.
Beginning in 1983, the Supreme Court reversed course and issued ten consecutive decisions in which it has explicitly denied a Bivens remedy, primarily because no federal statute exists that authorizes suits against federal officials who violate the federal constitutional rights of others. The Supreme Court has now decided that recognition of a Bivens remedy is a “disfavored judicial activity”. Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009). As a result of this recent line of consistent decisions of the Supreme Court denying the Bivens remedy, damages are generally no longer available to persons whose federal constitutional rights are violated by federal actors. It is inequitable for a person whose federal constitutional rights are violated by state actors to be able to sue them for damages but not be able to sue federal actors for damages for violating the same constitutional rights. It is time for Congress to address this inequity by enacting legislation that authorizes a person whose federal constitutional rights are violated by federal actors to sue them for damages to compensate for the harm caused by the constitutional violations.
Henry Rose, The Demise of the Bivens Remedy Is Rendering Enforcement of Federal Constitutional Rights Inequitable but Congress Can Fix It, 42 N. ILL. U. L. REV. 229 (2022).