Federal agents can’t be sued, but one law could change that 

The Universal Constitutional Remedies Act (UCRA) is a proposed state statute that creates a legal claim (a “cause of action”) in state court for any person injured by an official who violates the U.S. Constitution.

Historically, the Supreme Court found that there was an implied right to sue directly under the Constitution. For decades, people injured by federal officials have relied on a “Bivens action” — a limited, implied right to sue directly under the Constitution.¹Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971)

Unfortunately, the Supreme Court has sharply curtailed the availability of Bivens actions in recent years, e.g., Egbert v. Boule, 596 U.S. 482, 486 (2022), with some justices calling for its complete elimination.²id. at 502 (Gorsuch, J., concurring in the judgment); Hernandez v. Mesa, 589 U.S. 93, 114 (2020) (Thomas, J., concurring) In practice, Bivens actions are all but a dead letter.

Since the demise of Bivens actions, currently, there is an imbalance in how federal, state, and local officials are held accountable to the Constitution. While a federal law, 42 U.S.C. § 1983, allows people to sue state and local officials for constitutional violations, no equivalent federal law exists for suing federal officials. As Bivens has been narrowed, a dangerous gap has emerged: federal officers often have de facto immunity and cannot be sued for damages, even for willful violations of constitutional rights.

The Universal Constitutional Remedies Act closes this accountability gap. By creating a clear statutory right to sue any official — federal, state, or local — who violates the Constitution, it ensures that no one is above the law. As Judge Walker of the D.C. Circuit recently observed, such a statute would “accord[] with Founding-era principles of officer accountability and close[] the remedial gap left by” the Supreme Court’s gutting of Bivens actions, “ensuring relief for those unconstitutionally injured by federal officers.”³Buchanan v. Barr, 71 F.4th 1003, 1013 (D.C. Cir. 2023) (Walker, J., concurring).

The Act must apply to both federal and state officials to be constitutional. The “intergovernmental immunity doctrine” prevents states from passing laws that unfairly discriminate against the federal government. ⁴See United States v. Washington, 596 U.S. 832, 835 (2022) By applying the law universally to all officials, the Act avoids this issue.In practice, however, the Act primarily creates a new path to liability for federal officials, since state and local officials can already be sued for constitutional violations under existing federal law, 42 U.S.C. § 1983.

Yes. The concept was first proposed by Professor Akhil Amar—one of America’s foremost constitutional scholars. ⁵See Akhil Reed Amar, Of Sovereignty and Federalism, 96 Yale L.J. 1425, 1512-17 (1987); Akhil Reed Amar, Using State Law to Protect Federal Constitutional Rights: Some Questions and Answers About Converse-1983, 64 U. Colo. L. Rev. 159 (1993)Former U.S. Solicitor General Seth Waxman has also highlighted the “notable historical precedent supporting” the Act’s constitutionality. ⁶Seth P. Waxman & Trevor W. Morrison, What Kind of Immunity? Federal Officers, State Criminal Law, and the Supremacy Clause, 112 Yale L.J. 2195, 2247 (2003).

The Act’s constitutionality stems from a core principle: the U.S. Constitution is the “fundamental and paramount law of the nation.” ⁷Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) Therefore, “[a]ll the officers of the government, from the highest to the lowest, are . . . bound to obey it” as “the only supreme power in our system of government.”⁸United States v. Lee, 106 U.S. (16 Otto) 196, 220 (1882) Thus, federal authority, including the power to preempt state law under the Supremacy Clause, is only valid when exercised “in Pursuance” of the Constitution. ⁹See U.S. Const. Art. VI, cl. 2.

This means federal officials are not automatically immune from state law. As the Supreme Court has stated, “an employee of the United States does not secure a general immunity from state law while acting in the course of his employment.” ¹⁰Johnson v. Maryland, 254 U.S. 51, 56 (1920) Rather, “a federal official was protected [from] . . . state law only if” their “acts were authorized by controlling federal law.” ¹¹Butz v. Economou, 438 U.S. 478, 490 (1978) By definition, an unconstitutional act cannot be authorized by federal law. The Supreme Court applied that exact logic in United States v. Lee, where it upheld a state law claim designed to remedy an unconstitutional land seizure by federal agents. The Court reasoned that the claim was proper because the Constitution “prohibited . . . the executive . . . to deprive any one of life, liberty, or property without due process of law, or to take private property without just compensation,” 106 U.S. at 220, and therefore the “officer[s] had no more authority” to violate the Constitution “than the humblest private citizen.”¹²id. at 221 That same reasoning validates the Universal Constitutional Remedies Act.

As explained above, the Act is consistent with the Supremacy Clause. Therefore, the only potential source of preemption would be a federal statute.

Here, it is crucial to distinguish between the two types of preemption challenges: facial and as-applied. A facial challenge argues that a state law is always preempted, no matter the situation. To succeed, a challenger must “demonstrate that there is no possible set of conditions under which the challenged state regime could be constitutional.” ¹³Rest. L. Ctr. v. City of New York, 90 F.4th 101, 117 (2d Cir. 2024) (cleaned up) An as-applied challenge is much narrower, arguing only that the law is preempted in one specific instance. Id. Thus, even if a law is constitutional on its face, “nothing would prohibit a successor from raising [a] preemption issue in a future as-applied challenge.”¹⁴Id.

The main federal laws that might be raised in a facial preemption challenge are the Westfall Act and the Federal Tort Claims Act (FTCA). These laws provide the “exclusive” remedy formost civil wrongs committed by federal employees in their official capacity.¹⁵See 28 U.S.C. § 2679(a) However, they contain a critical exception for claims brought either “for a violation of the Constitution of the United States” or under “a statute of the United States under which such action against an individual is otherwise authorized.”¹⁶Id. § 2679(b)(2)

The Westfall Act’s explicit carve-out for constitutional claims is why the Universal Constitutional Remedies Act should survive a facial preemption challenge. Any lawsuit brought under the Act is, by its nature, a claim for “a violation of the Constitution.” ¹⁷Carlos M. Vázquez & Stephen I. Vladeck, State Law, the Westfall Act, and the Nature of the Bivens Question, 161 U. Pa. L. Rev. 509, 514 (2013) The text of the Westfall Act is therefore “capacious enough to preserve” the Universal Constitutional Remedies Act’s remedy “against federal officials who violate the Constitution.”¹⁸Id Could a specific application of the Act be preempted? Possibly. For instance, a claim by a federal employee alleging an unconstitutional firing might be preempted by the detailed federal employment dispute system Congress created. But this would be a narrow, as-applied issue. The possibility of preemption in a few specific cases would not invalidate the entire statute, as there are countless other instances where the Act would apply constitutionally (e.g., an illegal search of a private citizen’s home).¹⁹Cf. United States v. Salerno, 481 U.S. 739, 745 (1987) (“A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.”).  And that’s how it is for most state statutes: for example, even state murder statutes can be preempted in certain applications. ²⁰E.g., In re Neagle, 135 U.S. 1, 75 (1890))

Cases will likely be filed first in state court. However, when a federal officer is sued, federal law allows them to remove the case to federal court.²¹See 28 U.S.C. § 1442 Once in federal court, a well-established legal doctrine applies: the federal court will use the state’s substantive law (the Universal Constitutional Remedies Act itself) to decide the case, but will follow federal procedural rules (how the lawsuit is managed).²²See Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1928); 28 U.S.C. § 1652

The Act would apply to nearly any situation in which a federal, state, or local official violates a right guaranteed by the U.S. Constitution. By creating a universal cause of action, the Act ensures that victims of unconstitutional conduct have a path to justice. Specific examples of situations the Act would cover include:

• First Amendment Violations: Retaliating against a person for their protected speech (e.g., targeting a political opponent for an investigation); interfering with the free exercise of religion; or using excessive force to break up a peaceful protest.
• Fourth Amendment Violations: Conducting an unlawful search of a person’s home or an unreasonable seizure at a checkpoint without a warrant or probable cause; or using excessive force during an arrest.
• Fifth Amendment/Equal Protection Violations: Unlawfully targeting individuals for enforcement actions or tax audits on the basis of their race, national origin, or political ideology.