Remedies and the Constitutional Crash

An interesting remedial angle to the attempts to litigate against the ongoing constitutional crash.

It demonstrates the limits on declaratory and injunctive relief in the face of large-scale government wrongdoing. Injunctions take time, with stays and immediate review. Some enforcement takes place in the meantime, even if it might prove invalid. That enforcement chills others, who do not engage in some conduct (e.g., coming to or remaining in the United States), not knowing how that litigation will turn out. Those who have to wait it out suffer harm--consider federal employees seeking to avoid termination or to get their jobs back. And the Administration gains political points from being seen to take aggressive action, even if that action is ultimately declared unlawful--he can tell the public that it tried but soft liberals such as John Roberts stopped him. In other words, the government has an incentive to continue arguably unlawful activity; the risk of litigation defeat and injunction may not stop it from engaging in in the moment and while it can get away with it, daring the court to stop it. And that is before we get to DOJ's litigation misconduct. Judge Boasberg's actions show that courts will take small, measured steps and build a careful record before dropping the contempt or sanctions hammer on government attorneys. That creates more delays and more opportunities for the government to stall, with the attendant harms to rights-holders.

Damages should fill this gap, imposing liability and providing a remedy for past injuries caused by misconduct. Government cannot act unlawfully until told to stop, because a person can recover damages for that interstitial unlawful behavior. This reflects the consequence of the more-or-less-death of Bivens and how difficult (if not impossible) it is to obtain damages against federal officials. It is not damages-or-nothing for a Venezuelan non-gang-member, a person born in the US to parents on student Visas, or to federal employees, because they can get injunctive relief. But the lag creates its own harms. Of course, Bivens is not the only problem. Even if Congress enacted a federal equivalent to § 1983, qualified immunity would defeat most damages claim. I doubt any court would say it was clearly established on March 15 that the government could not remove people from the country under the Alien Enemies Act or that it could not detain a Green Card-holder for his expressive activities--because no Administration had previously tried.

Constitutional litigation has long flipped the remedial hierarchy, preferring equitable remedies (injunctions) to legal remedies (damages). Current events reveal some unique problems with that flip.