One fix for the No Kings Act
The Act is good policy. Here's how California can strengthen its law for holding federal officers accountable.
California is well on its way to enacting the No Kings Act, a state law that would enable any person in the State to sue a federal officer who violates his or her rights under the U.S. Constitution. California is right to enact a new law for holding federal officers liable for violating constitutional rights, but the new law may have a higher probability of withstanding the federal government’s arguments if the Legislature tweaks it slightly before it goes to the governor’s desk.
The No Kings Act is constitutional and should survive judicial review.
Federal civil rights law has long permitted citizens and others to sue state officials for violating their constitutional rights. But a plaintiff’s options for suing federal officers for such violations are more limited. After President Trump began to deploy federal officers and federalized troops in American cities, the following legal question became urgent:
Can a State create a cause of action against federal officers for violating individual rights under the United States Constitution?
This question has been discussed intermittently for decades. My answer is yes. Here’s the quick reasoning.
In effect, the proposed bill would say, “If a person violates federal law, then that person also violates California law and is liable to the plaintiff as a matter of state law.” States cannot enact or override federal law, but the No Kings Act doesn’t do that. It creates a state-law action and state-law remedy. The rationale is simple, but the federal government will have arguments in its defense. Here they are.
Supremacy Clause preemption—acting under authority of federal law
If a federal officer is the defendant, then he will argue that he was acting under federal law, which preempts the new state-law cause of action. This is often called “Supremacy Clause preemption,” after the part of the U.S. Constitution that provides that the “Constitution, and the Laws of the United States which shall be made in Pursuance thereof … shall be the supreme Law of the Land ….” An officer who acts under the authority of federal law cannot be liable under state law; otherwise, States could nullify federal law by imposing liability on officers who carry out that law. But a person who violates the Constitution is not acting in “Pursuance thereof” and thus is not entitled to immunity under the Supremacy Clause. Law professor Akhil Amar developed this theory decades ago.
Federal Torts Claims Act preemption
The federal government also will argue that the Federal Torts Claims Act preempts an independent state-law action against individual officers. But the Act contains an exception to the preemption provision; it does not “apply to a civil action against an employee of the Government … which is brought for a violation of the Constitution of the United States.” 28 U.S.C. § 2679(b)(2)(A). One appellate court stated, with no analysis, that this exception did not apply to state statutes, but the plaintiff there apparently did not brief the issue and one judge on the panel disagreed with the majority’s unreasoned statement. In any event, the statute’s text and meaning is clear, as this article explains. Congress has not preempted actions brought against individual officers for constitutional violations.
Congressional preemption of remedies
Finally, the federal government will argue that Congress preempted any state-law remedies for constitutional violations by providing its own set of remedies (e.g., a grievance procedure or other supposed administrative remedy). Those remedies might be extremely limited and inadequate, but a federal court could hold that Congress determined that people should have only weak remedies, thereby displacing any contrary determination by the States.
The Supreme Court has repeatedly held that courts cannot create new causes of action where Congress has already acted. Creating new causes of action can be viewed as a lawmaking function, which explains why courts have been extremely reluctant to do so. But that reasoning does not apply to state legislatures, which, of course, have lawmaking authority. The U.S. Supreme Court has not addressed whether state legislatures can create new private rights of action to remedy violations of the U.S. Constitution. I believe that prediction here is difficult and will turn on case-specific questions about the nature of the plaintiff’s injury and the specific remedies that arguably are available under federal law.
California can strengthen the No Kings Act
California is right to enact the No Kings Act, even though there is considerable uncertainty about how the U.S. Supreme Court will respond. At a minimum, the legislation forces a conversation about who gets to decide what remedies are appropriate for constitutional violations. If the Supreme Court decides that the answer is Congress alone, to the exclusion of the States, then that decision would shine a spotlight on Congress’s stinginess in providing relief to ordinary people, even while creating a U.S.-senators-only cause of action worth millions for a handful of senators who suffered no injury at all. More optimistically, the Supreme Court may allow the No Kings Act to survive, which should in turn deter unconstitutional conduct by federal officers.
The bill should not define the scope of federal immunity
I do have one key suggestion aimed at strengthening the bill and making it more likely to withstand judicial review. I would delete the provision stating that federal defendants “may assert a defense of absolute or qualified immunity to the same extent as a person sued under Section 1983 of Title 42 of the United States Code under like circumstances” (proposed subdivision (d) of section 53.8). While this provision may seem like a concession in favor of federal defendants, it is unnecessary and may backfire.
The “absolute and qualified immunity” provision is unnecessary because these immunity defenses are the product of federal law, and as such, defendants can raise them whether or not the State gives permission. The provision may backfire because the State here is defining the scope of a substantive federal defense. The federal government will argue that federal officers are different from state officers sued under Section 1983, and so the “same extent” language improperly limits their federal defense and thus is preempted. While a court might reject the federal government’s anticipated argument, or a court might sever the provision, I see no upside in triggering this particular dispute.
The risks of including the retroactivity provision outweigh its benefits
The same is probably true of the retroactivity provision. Even though a defendant federal officer sued under the No Kings Act necessarily would have, allegedly, violated the U.S. Constitution, he also would have been acting under “color of law.” Whether a State can retroactively impose liability on officials acting under color of law is yet another novel question. Maybe this fight is worth having, insofar as it may draw attention to past misconduct, or perhaps it will doom early attempts to invoke the No Kings Act and result in what appears to be initial failures, creating unfortunate and adverse momentum. Given the novelty of the statute and the likelihood of early test cases, I would favor prospective application to maximize the chance of a clean, merits-based judicial ruling.
The legal uncertainty surrounding the fate of the No Kings Act should not be confused with moral uncertainty. Especially now, States can and should lead the way in resisting and checking federal lawlessness. Innovative legislation by States is the usual way to establish new legal norms or even new constitutional law. Kudos to policy advocates and the California legislature for pursuing the No Kings Act.