Last week was a tough week for federal common law at the Supreme Court.  I don’t like federal common law (at least, I don’t like preemptive federal common law) so that should make it a good week for the Court.  But it’s a little more complicated.

To take the uncomplicated case first, in Rodriguez v. Federal Deposit Insurance Corp. the Court (in a unanimous opinion by Justice Gorsuch) stamped out a noxious weed called the Bob Richards rule (named after a Ninth Circuit case, In re Bob Richards Chrysler-Plymouth Corp., 473 F. 2d 262 (1973) that started it all).  (SCOTUSBlog analysis by Daniel Hemel here.)  Preposterously, the Bob Richards rule, as currently applied, had held that when the IRS issues a tax refund to various private entities, the allocation of the refund is governed by federal common law (because allocating a tax refund among private entities is an area of unique federal interest, or something).  Justice Gorsuch had little patience:

This case grows from a fight over a tax refund. But the question we face isn’t who gets the money, only how to decide the dispute. Should federal courts rely on state law, together with any applicable federal rules, or should they devise their own federal common law test? To ask the question is nearly to answer it. The cases in which federal courts may engage in common lawmaking are few and far between. This is one of the cases that lie [ed.: pretty sure that should be “lies”] between.

Yes.  Of course I’d never heard of the Bob Richards rule before but I’m happy it’s gone.  It may seem like a small thing.  But Justice Scalia used to say, you should be happy when the Court gets small things right — because it won’t ever get the big things right if it can’t get the small things right.

The more difficult case is Hernandez v. Mesa, the cross-border shooting case (SCOTUSBlog analysis by Amy Howe here).  The Court, in a 5-4 opinion by Justice Alito, refused to extend the common law damages remedy of Bivens v. Six Unknown Federal Narcotics Agents to cross border shootings (because cross-border shootings are different from non-cross-border shootings, or something).

I’m fine with that as far as it goes, because Bivens — as federal common law — lacks originalist foundation.  (On this basis, Justice Thomas, joined by Justice Gorsuch, concurred in Hernandez to call for overruling Bivens).  The problem, though, is that the Constitution presupposed a damages remedy for federal officers who act unconstitutionally — not a federal common law remedy, but a state law remedy.  I wrote in an earlier post on Hernandez:

True, the Bivens case itself is poorly reasoned from an originalist perspective, and the Court’s description of the Bivens process as an implied right of action under the Constitution is unfortunate.  But the basic proposition that persons harmed by federal officers acting unconstitutionally can bring claims against them was central to the framers’ understanding of constitutional limits on federal power.  In the framers’ world — and indeed the world until Bivens was decided — these claims would typically be state common law claims.  And, so long as state common law claims remained viable, Bivens was indeed an anomaly.

But then (post-Bivens) Congress abolished state law claims against federal officers in the Westfall Act.  In my view, absent  a Bivens remedy the Westfall Act would be unconstitutional, as applied to state law claims based on unconstitutional behavior.  Congress lacks power to eliminate a remedy for unconstitutional behavior, as that action is not necessary or proper in support of any constitutional power.  The Westfall Act is constitutional only because Congress likely assumed Bivens remedies would remain in place.  Thus in the post-Westfall Act world, Bivens remedies take the place of the common law remedies assumed by the framers.  Sharply curtailing or eliminating Bivens, as Justice Scalia wished, would radically alter the checks on federal officers, as compared to the original constitutional design.

Will Baude makes a similar point about Hernandez at Summary, Judgment:

Justices Thomas and Gorsuch are right about the lack of a formal and historical basis, but I worry about the broader picture. As Justice Thomas’s concurrence notes, it’s not like there was no remedy for unconstitutional conduct before Bivens. Rather, as Thomas writes:

From the ratification of the Bill of Rights until 1971, the Court did not create implied private actions for damages against federal officers alleged to have violated a citizen’s constitutional rights. Suits to recover such damages were generally brought under state law.

What Justice Thomas does not note is that it has become very hard to bring those suits under state law either. There is some debate about whether that difficulty is attributable to Congress’s 1984 enactment of the Westfall Act, various judicial decisions arguably misconstruing that act, or what (see this article by Vladeck and Vasquez), but I think at this point we’re entitled to wonder, if the Court is going to abolish the 20th century remedies for unconstitutional conduct, can we at least have the 19th century remedies back?

Agreed.  Actually I would say, our eighteenth-century remedies: the idea of damages suits constraining illegal law enforcement conduct was a foundation of eighteenth-century English law as reflected in the celebrated case of Entick v. Carrington (1765) and in Blackstone.  Anyway, it doesn’t advance the originalist project to eliminate (or sharply curtail) Bivens without making some effort to restore the original design here.

On further reflection, I think the solution is to declare the Westfall Act immunity unconstitutional, as applied to constitutional violations by federal officers.  The whole mess should go back to the states.

Except in the cross-border situation it’s even more complicated, because the applicable law is probably Mexican law, and it’s not clear that a federal officer violates the U.S. Constitution by causing injuries in Mexico.  So maybe the Westfall Act isn’t unconstitutional as applied to the Hernandez injury — and maybe the Court got it right in Hernandez after all.

NOTEThis post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.

Michael D. Ramsey
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