ROADMAP FOR RENEWAL 
Protect the Courts As a Check on the Other Branches In Order to Uphold 
the Constitution  
 
XII.

Ensure courts may remedy violations of constitutional rights while 
addressing the possibility for overreach through single-judge 
injunctions 
 

The Constitution provides important rights to individuals, among them the right to be free 
from unlawful searches and seizures, the right to due process, and the right to equal 
protection of the laws. When those rights are violated, individuals should be able to seek 
redress from the government for their injuries. 
 
Congress should: 
● Enact a statutory ​Bivens r​ emedy to clarify that individuals whose constitutional 
rights are violated by federal officials are entitled to recover for their injuries; 
● Enact a law to eliminate qualified immunity for both the statutory ​Bivens ​remedy 
and ​state ​government officials; and   
● Enact a law clarifying that plaintiffs should have standing to challenge government 
actions when they have a reasonable basis to believe a government official has 
violated their constitutional rights.   
 
The Problem 
 
Today, a constellation of judge-made doctrines prevents many individuals from vindicating 
their most important constitutional rights. As a result, the courts are not fulfilling their 
constitutional role as an effective check on executive wrongdoing. 
 
First, Congress has not enacted a statute providing for damages suits against federal 
officials who act unlawfully to violate individuals’ constitutional rights.​ The courts have 
partially filled that void by recognizing an implied cause of action in the 
Constitution—referred to as a ​Bivens ​remedy. But the Supreme Court has made clear, as 
recently as last year, that ​Bivens ​remedies generally apply to violations of only a narrow set 
of constitutional rights: unlawful searches and seizures, cruel and unusual punishment, 
and gender discrimination. The narrowness of ​Bivens d
​ octrine means that ​many 
constitutional rights lack an accompanying remedy​, and that officials violate those rights 
with impunity.1 
 
Second, and relatedly, the judge-made doctrine of qualified immunity further restricts the 
ability of individuals to recover damages for infringements of their civil rights.​ Beginning in 
the 1960s, the Supreme Court issued a series of decisions holding that officials would not be 
Stephen I. Vladeck, ​Our Increasingly Unenforceable Constitution ​(March 27, 2018), The New York 
Times. Available at 
https://www.nytimes.com/2018/03/27/opinion/increasingly-unenforceable-constitution.html​.  
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liable for Constitutional violations so long as their actions did not violate “clearly 
established law.” In practice, this prevents plaintiffs from recovering damages even when 
they are the victims of egregious government misconduct at the federal, state, or local level. 
In 2017, for example, the Eleventh Circuit extended qualified immunity to a police officer 
who ​“had no warrant, knocked on the wrong door, and gunned down an innocent man in his 
own home.”2 This overbroad immunity doctrine means that the threat of civil lawsuits is not 
an effective deterrent to official misconduct, and leaves many victims of official wrongdoing 
without recompense for their injuries. 
 
Finally, the interplay of pleading requirements and recent developments in standing 
doctrine—which specifies what makes an injury the proper basis for a lawsuit—creates an 
additional barrier to holding the government accountable in the courts.​ The Supreme Court 
has held that, to establish standing, plaintiffs must demonstrate a causal relationship 
between their injuries and the defendant’s actions. On its own, this rule is sensible enough. 
But when coupled with heightened requirements for specificity in pleading, it can be very 
difficult for plaintiffs to establish standing in cases against the government. In such cases, 
the government controls most of the information needed to prosecute a case. As a result, it 
may be difficult for plaintiffs with meritorious claims to plead a claim with sufficient 
specificity to overcome standing requirements. 
 
 
Proposed Solutions 
 
Congress has a role to play in ensuring that the courts play their proper constitutional role 
vis-a-vis the executive branch. Congress can authorize suits against federal officials for 
violations of constitutional rights, and can also clarify if and when immunity is appropriate. 
Congress can also adjust the procedural rules that currently bar some meritorious 
constitutional claims. Doing so will revitalize the judiciary’s important role in ensuring 
accountability for government misconduct. 
 
Congress should take the following actions to strengthen the executive branch’s 
accountability for Constitutional violations: 
 
Enact a statutory ​Bivens r
​ emedy to clarify that individuals whose constitutional 
rights are violated by federal officials are entitled to recover for their injuries 
● This remedy would apply to constitutional violations by federal officers.  
● Congress could consider making the federal government itself the proper defendant 
in such actions, indemnifying individual officers, or limiting damages awards to 
moot concerns about liability for individual officers. 
 
Enact a law to eliminate qualified immunity for both federal constitutional 
claims and 42 U.S.C. § 1983, which allows individuals to hold ​state ​government 
officials accountable for violations of constitutional rights  
David French, ​End Qualified Immunity​ (September 13, 2018)​, ​National Review. Available at 
https://www.nationalreview.com/2018/09/end-qualified-immunity-supreme-court/​.  
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A diverse coalition of advocacy groups from across the political spectrum — 
including both the Alliance Defending Freedom and the American Civil Liberties 
Union — have ​spoken out​ in favor of reforms to the qualified immunity doctrine.3   
Congress need not wait for the courts to revise doctrine; it can enact such a provision 
now. 

 
Enact a law clarifying that plaintiffs should have standing to challenge 
government actions when they have a reasonable basis to believe a government 
official has violated their constitutional rights   
● At a minimum, such a measure should address situations in which plaintiffs are 
unable to obtain the information they would need from the government in order to 
establish standing. 

3

​Brief of Amici Curiae in Support of Petitioner,​ Almighty Supreme Born Allah v. Milling,​ No. 17-8654, 2018 WL 
3388317 (U.S. July 11, 2018). Available at 
https://www.supremecourt.gov/DocketPDF/17/17-8654/52935/20180711143053649_7.11.2018_Panideological%20
Amicus%20Brief%20FINAL.pdf​. 

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