The False Promise of the Converse-1983 Action

Abstract:     
The federal government is out of control. At least that’s what many states will tell you. Not only is the federal government passing patently unconstitutional legislation, but its street-level officers are ignoring citizens’ constitutional rights. How can states stop this federal juggernaut? Many are advocating a “repeal amendment,” whereby two thirds of the states could vote to repeal federal legislation. But the repeal amendment will only address unconstitutional legislation, not unconstitutional actions. States can’t repeal a stop-and-frisk that occurred last Thursday. States might, however, enact a so-called “converse-1983” action. The idea for converse-1983 laws has been around for some time but until now has escaped academic treatment.

A converse-1983 action would operate similarly to the popular § 1983 action in that it would provide a cause of action for damages where federal constitutional rights have been violated. Unlike § 1983, however, a converse-1983 would be enacted by a state (rather than Congress) and provide a cause of action against a federal officer (rather than a state officer). By enacting converse-1983 laws, states could thus punish the federal government when its officers disregard the Constitution.

The problem with converse-1983 laws, however, is that they just won’t work. In this Article, I explain that converse-1983 laws will always be subject to limitations imposed by Congress or the federal courts. It can hardly be said that converse-1983 laws are a valuable opportunity for states to rein in the federal government if those laws can only be enforced at the pleasure of the federal government. In making this argument, I take the reader on a tour of a variety of topics in the field of constitutional enforcement, including officer immunity, federal common law, the nature of Bivens actions, the constitutional right to a remedy, and Founding-era practices through which states imposed their views on the federal government. Together, these discussions make clear that the converse-1983 action, which has been often cited but rarely questioned, is a cause of action without any real value.

Number of Pages in PDF File: 47

Keywords: Bivens, 1983, civil rights action, federalism, cause of action, converse-1983

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