Rethinking Bivens: Legitimacy and Constitutional Adjudication

Abstract:     
The Supreme Court's decision in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics provides an uncertain framework for the enforcement of constitutional rights against the federal government. Rather than recognizing a federal common law right of action for use in every case, the Court views itself as devising actions on a case-by-case basis in light of a range of factors. Critics on all sides question the Court's approach, doubting either its power to fashion federal common law or the tendency of its case-by-case analysis to create gaps in constitutional enforcement. Particularly when compared with actions under section 1983 - the statutory predicate for constitutional tort claims against state actors-the Bivens action has a hit or miss quality that may reflect lingering doubts about the legitimacy of the Court's role.

This Essay argues that the Court should abandon its case-by-case approach in favor of routine recognition of Bivens claims. In 1974 and more clearly in the Westfall Act of 1988, Congress adopted amendments to the Federal Tort Claims Act that assume the availability of suits against federal officers for "violations of the Constitution." Congress's decision to ratify and preserve the Bivens action provides a legislative foundation for such claims that answers longstanding questions of legitimacy.

After tracing the history of the Westfall Act, the Essay explores the doctrinal implications of the proposed switch to a routinely available Bivens action. Rather than advocating a dramatic break with the past, the Essay proposes to harmonize cases in the Bivens line with certain doctrines that shape the availability of remedies under section 1983. The resulting body of law will provide a more coherent Bivens framework and will ensure that constitutional rights apply with equal force to the interactions between individuals and officials at all levels of our federal government.

Keywords: Bivens, right of action, constitutional adjudication

JEL Classifications: K19

Accepted Paper Series