A Legislative Blueprint for Restoring Our Democracy
In our constitutional system, Congress has a critical role to play in strengthening the institutions of our democracy and checking the power of the chief executive. To fulfill that role, Congress must draw on its implied and express powers under Article I: the power to investigate and the power to legislate, which go hand in hand. By gathering information about how the executive branch is executing the laws, Congress can pave the way for new legislative solutions.
The 116th Congress will have the imperative of reasserting its role as a guardian of our democracy. After democratic crises in our past, Congress used its oversight authority to examine the state of our institutions and enact wide-ranging reforms to improve the operation of our democracy. The post-Watergate era – which ushered in significant ethics, war powers, and intelligence reforms – can serve as a model for the next Congress. It is time for Congress again to use its oversight and legislative powers to protect and strengthen our democracy.
The Roadmap to Renewal
Restore Congressional capacity to legislate and appropriate money effectively
The Constitution assigns Congress the power and responsibility to make laws and decide how money is spent. It’s time for Congress to take back that role and restore its central place in our constitutional system.
- Building capacity to legislate effectively and oversee the federal government;
- Reforming the budget and appropriations process;
- Reclaiming power from the Executive Branch; and
- Returning deliberation to both chambers by allowing majorities to bypass leadership.
In recent years, Congress has failed to fulfill its constitutional role of legislating and controlling spending, creating a vacuum at the center of our democracy. In a 2017 survey of Congressional staff by the Congressional Management Foundation and the Resilient Democracy Coalition, only 11% of senior Congressional staffers were very satisfied in Congress’s ability to “perform its role in our democracy.” There are several reasons for this.
Shortage of expertise and capacity. The staff survey also found that 81% of staff believed that access to non-partisan, high-quality expertise was important to perform their jobs, but only 24% believed that they had that access. In recent decades, Congress has either cut or failed to keep constant funding for committee staff and other legislative agencies with non-partisan expertise. The last major effort to increase Congressional capacity was the 1974 Congressional Budget and Impoundment Control Act (CBA). The Congressional Budget Office (CBO) was created to structurally give Congress more analytic power, while the impoundment procedures were specifically a response to President Nixon’s abuses. This legislation, which shifted budget process power to Congress, was passed just weeks before President Nixon resigned. Congress relinquished some of this power in 1995 with new Congressional rules that reduced Congressional staff and ended the Office of Technology Assessment (OTA). Today, Congress simply does not have the tools to do its job.
Failed budget process. It is widely understood that the Congressional budget process has completely failed, relying more and more on Continuing Resolutions (and the sequester) to set levels of spending, but rarely with the specificity that the CBA imagined. In 2018, Congress created the Joint Select Committee on Appropriations and Budget Process Reform. It is not yet clear if this will have meaningful results in time for a new Congress to be seated in 2019.
Abdication of policy-making to the executive branch. Congress has failed to respond to an increasingly complicated economy, resulting in the Executive branch regulating on top of increasingly out of date legislation, such as the Telecommunications Act of 1996, etc. Congress needs to reclaim authority by simultaneously increasing its analytic capacity and legislating more responsively to a changing economy.
Breakdown in deliberation. Finally, deliberation has ended in Congress. Votes are increasingly party-line, and are intended to protect the parties, including the President, from embarrassment. While there were many flaws in previous periods of bipartisanship, they allowed coalitions to regularly legislate against the preferences of party leadership.
Build capacity to legislate effectively and oversee the federal government
Increase funding for committee staff and legislative agencies (like CBO, the Government Accountability Office (GAO), the Joint Committee on Taxation (JCT) and the Congressional Research Service (CRS)) to increase staff and compensation levels. Without more human capital and in-house policy expertise, Congress will always be handicapped vis-a-vis both the Executive and non-governmental pressures.
Restore the OTA either as a stand-alone entity or within an existing legislative agency such as GAO or CRS.
Reform the budget and appropriations process
Adopt proposals from Bipartisan Policy Center and others coming out of the Joint Select Committee on Appropriations Budget Process. Key elements include biennial budgeting in the first session of Congress which would set the stage for authorization and oversight work in the second sesion, and ending the debt ceiling to prevent hostage-taking in budget negotiations.
Reclaim power from the Executive Branch
Create a Congressional Regulation Office to increase Congressional understanding of agency actions and regulations and help strengthen Congress’s legislative and oversight capacity.
Across different areas of legislation, Congress should legislate with more detail and specificity, using the additional expert capacity described above, thereby limiting the breadth of Executive branch discretion in regulation and execution.
Return deliberation to both chambers by allowing majorities to bypass leadership
In the House, implement the No Labels proposal that would anonymize signatures on a discharge petition, weakening leadership’s power to pressure members not to sign.
In the Senate, adopt James Wallner’s third-degree amendment proposal, allowing Senators to bypass leadership filling the tree, which would permit floor consideration of more substantive proposals.
Our Constitution divides warmaking powers between Congress and the President. The Founders created this shared authority and responsibility so that no one person could commit the nation to war, and so that the United States would not enter into war without support of the people. The Constitution thus names the President Commander in Chief with authority to carry out military action, but grants Congress—and only Congress—the power to declare war. Congress also can curtail the use of force by refusing to fund it.
Yet over the last several decades, Congress’s exercise of its constitutional authority has waned to the point of near nonexistence. Over that period, occupants of the White House have increasingly viewed their power to use military force as unilateral. In order to prevent lawless wars and reckless exercise of the vast military power entrusted to the President, Congress must restore constitutional balance to the process by which the United States decides to use force abroad.
To do this, Congress must:
- Clarify which wars are authorized;
- Reduce the risk of unilateral nuclear war; and
- Shift the balance of warmaking power back to Congress.
Going to war is one of the most consequential actions taken by a nation: it is a life-or-death decision; it requires significant expenditure of resources; and it impacts a country’s short- and long-term international standing. No action of our government carries greater weight than directing our military against a new adversary. Yet from the Korean and Vietnam Wars a generation ago, to airstrikes in the former Yugoslavia in the 90s, to military action against the Gaddafi regime in Libya under President Obama, presidential decision-making about the use of force has become increasingly unconstrained by Congress.
In 2017, the Trump Administration launched missile strikes against Syria without authorization from Congress, without UN support, and without explaining why unilateral force was legal. Despite pressure from Protect Democracy through a FOIA lawsuit and requests from Congress, the Administration withheld documents outlining the legal basis for that military action. (Learn more about Protect Democracy’s litigation and advocacy work on legal authority for use of force here). Following pressure from the litigation and some individual Senators, when the Administration again struck Syria in 2018, it made its legal analysis public—in a memorandum that expressed a breathtakingly broad view of when the President can decide, on his own, to commit U.S. troops and resources in new theatres and against new adversaries.
The Executive Branch’s asserted authority to engage the military in acts of war without consent from or explanation to Congress, our allies, or the American people, reduces to three core problems:
The American people don’t know the scope of military actions that Congress has authorized, leaving the Executive branch with enormous flexibility to engage our armed forces without political accountability. We see this ambiguity in our military engagement in the Middle East, including activity in Syria, mentioned above; operations in Niger that left four American service members dead in October 2017; ongoing and ill-defined support of Saudi-led forces in the Yemeni civil war, including deployment of green berets; and the fight against ISIL, a militant proto-state based in Iraq and Syria, which both Presidents Obama and Trump justified by reference to 2001 and 2002 AUMFs targeting Al Qaeda, despite Al Qaeda’s having disavowed any association with ISIL. Neither Congress nor the public has a clear understanding of what limits the Executive Branch sees on its scope of authority to use force.
An autocratic or unstable president could launch a nuclear attack—or an attack that could prompt a nuclear response—leading to mass devastation with little to no political deliberation. President Trump has, on more than one occasion, threatened both North Korea and Iran with nuclear weapons, the use of which could lead to catastrophic consequences on a global scale. In the context of the Executive Branch’s broad views of the President’s authority to use force, and outdated protocols covering the use of nuclear weapons, which date from the 1970s, the threat of one person leading us into a horrific nuclear war is far too great.
We’ve upended a delicately balanced constitutional protection against wanton spilling of American blood. Congress is supposed to declare war, the President is supposed to carry it out, and Congress should use its purse strings and oversight powers if the President exceeds the warmaking authority Congress has granted. Yet Congress has become all too passive, while Presidents have increasingly assumed the power to direct the use of force without the full support, or sometimes even the knowledge, of the American people. In a democracy, its critical for the public to be engaged in these decisions, as the weight of war ultimately falls on the members of the public who serve and their families and communities. Our Constitution sets up a system where no one person can take us to war—it’s time to restore the balance so that the public, through their representatives in Congress, gets a say in these decisions.
Congress must reassert its constitutional role in warmaking and provide a check on lawless or unauthorized wars by:
Clarifying which wars are authorized
- Congress should repeal AUMFs in place since 2001 and 2002 and conduct oversight regarding the Executive’s view of what military activity was pursued pursuant to those authorizations.
- Congress should replace the AUMFs with a new resolution outlining clearly what military activity Congress has and has not authorized, including safeguards against endless wars.
- Congress should pass legislation requiring Executive branch disclosure of all legal opinions on the use of force in particular theatres and against specific adversaries and, at least to select Members or Committees, all military action undertaken pursuant to those powers.
Reducing the risk of unilateral nuclear war
- Congress should modernize the nation’s nuclear protocols, including requirements that any nuclear strike order be verified as coming from the President and certified as legal and appropriate by other Executive branch officials, such as the Attorney General and Secretary of Defense. Congress should assess whether these certifications should include consideration of non-nuclear military action, or its infeasibility.
- Congress should ensure that nuclear protocols address not just first-strike use of nuclear weapons, but also uses of force against nuclear-armed adversaries that are likely to provoke a defensive nuclear strike, and should consider whether and how Congress must be consulted before the Executive branch declares an offensive or defensive nuclear strike “imminent.”
Shifting proper balance of warmaking authority back to Congress
- Congress should establish a commission that will assess how this constitutional imbalance developed and propose ways to restore it, including revisions to the War Powers Act effecting a clearer bar on warmaking launched unilaterally by the President without the consent of Congress.
- Congress should issue a resolution reasserting its constitutional role and declaring that the Executive branch cannot make unilateral decisions about initiating military force but must consult Congress as a coequal branch and as the branch most responsive to the will of the American people.
The Constitution provides that the Senate shall provide advice and consent on nominations of certain senior executive branch officials. The Federal Vacancies Reform Act (FVRA) of 1998 was enacted to provide a process for filling vacancies, but does not involve Congress, reducing a core check it has on executive agencies. For Congress to serve its role as a co-equal branch, it must reassert its authority over this process. To do this, Congress must:
- Limit the powers of Acting officials over personnel;
- Limit the amount of time that a position can be filled under the FVRA;
- Clarify that the FVRA is not available when the President fires a confirmed official;
- Require a public statement by the President to fill a position under the FVRA; and
- Reconcile agency-specific succession statutes to address current ambiguities.
Congress enacted the FVRA under the assumption that the President and Congress would be substantially aligned in wanting to fill vacant executive branch positions that require Senate confirmation, but that the natural process would take time. The FVRA provides a way for the President to temporarily fill a position with a political appointee rather than have the acting official be a civil servant, defined as the “first assistant” in the statute. Therefore, the FVRA was designed to bridge reasonable gaps in the appointment process.
This assumption no longer holds in today’s polarized political environment.
Bypassing the Senate with acting positions. During the Obama administration, the Senate and President were unable to agree on nominees to fill a variety of vacancies from the FEC, NLRB, DOJ, and Treasury. The Senate wanted to leave some positions vacant. In a number of cases, the President tried to bypass Congress to fill open slots, including at NLRB, DOJ, Treasury, in addition to Inspector General roles across the government. Prof. Anne O’Connell has noted that the Obama administration shifted to using acting positions in its second term, even after Congress passed the 2012 Presidential Appointment Streamlining Act, which explicitly relinquished Congressional authority over certain positions.
President Trump has bypassed Congress to fill vacancies across a much larger portion of the federal government (albeit for sometimes different reasons). President Trump has used the FVRA to fill positions ranging from U.S. Attorneys to independent commissions and agencies like the SEC and CFPB and the Census Bureau to more senior roles such as the Associate Attorney General. In some cases, acting officials served out the time allowed under the FVRA, only to have another acting official take their place. As of October 2018, 139 Senate-confirmed positions have no nominee.
Lack of enforcement for FVRA. Finally, the Congressional Research Service has identified more technical concerns, where clarifications could be useful. There is currently no enforcement mechanism for the law. Congress often isn’t notified when positions are filled. Some authorizing statutes have succession plans that conflict with the FVRA, creating uncertainty about what discretionary appointment authority the President has in these situations.
Limit the amount of time that a position can be filled under the FVRA
- Amend the FVRA to clarify that a position must be filled within 210 days, and once that period comes to an end, the position should only be occupied by a career official in the agency.
- Amend the FVRA to provide that if a nomination fails, the Acting position should be occupied by a career official.
Clarify that the FVRA is not available when the President fires an official
- Amend the FVRA to make explicit that in the event a Senate-confirmed official is fired, a career official should fill the vacancy until a new confirmation.
Require a public statement by the President to fill a position under the FVRA
- Currently, the Comptroller General is required to report to Congress on when positions are filled under the FVRA, and the reports are not up to date. This should be changed to require the President to make a prompt public announcement.
Reconcile agency-specific succession statutes to address current ambiguities
- Congress should add a provision to the FVRA clarifying that, in the event of any conflict, the agency-specific statute would control rather than the FVRA. The FVRA should only be available to the President once agency-specific statute has been exhausted.
The Constitution provides Congress the power to conduct oversight and investigations of the President’s execution of the law, including abuses of executive power and the weakening of important norms and laws. That is because, in the words of the Supreme Court, the “power of inquiry–with process to enforce it–is an essential and appropriate auxiliary to the legislative function.” To craft effective legislative solutions, Congress first must understand the problems in our democracy. In recent years, however, Congress has too often abdicated its legitimate oversight role in order to engage in partisan street-fighting.
In order to build capacity to engage in effective oversight of the executive branch, Congress should:
- Create a Congressional Oversight Office with dedicated funding and staff to support oversight efforts;
- Align authorizing and oversight committee jurisdiction with the structure of the federal government;
- Leverage a broader range of expertise into the oversight process; and
- Increase the capacity of members of the House Intelligence Committee to engage in oversight.
Congressional oversight is decreasing. According to research by Brooking’s Elaine Kamarck, Congressional oversight hearings peaked in 1978 and have fallen continuously since then, with a brief uptick after Democrats won the House in 2006. While a House from the same party as the Executive is unlikely to generate significant oversight activity, the Republican-led committees of the 115th Congress have investigated very few pressing issues related to the Trump Administration. As of July, Republicans had denied 52 subpoena requests by the Democrats.
Congressional oversight has not expanded to accommodate changes and growth in the federal government. Part of the challenge is that since Congress last reorganized itself in 1970 with the Legislative Reorganization Act, there has been substantial change in the federal government. The last substantial reorganization was in 1946 in tandem with the post-World War II reforms that restructured the national security apparatus, creating the Department of Defense and the Central Intelligence Agency. As Norm Ornstein and Thomas Mann have noted, after the largest reorganization of the federal government in modern history—the creation of the Department of Homeland Security—there was no effort to restructure Congress to more adequately oversee the new department.
As Congress and the federal government have changed, so too has the world around it. Technology has created an availability of massive amounts of information and expertise that Congress could leverage as part of its oversight role, but it has not reformed or updated the Congressional hearing process to allow it to effectively source insights from experts around the country.
Review of the Intelligence Community (IC) provides a unique challenge to Congress and the IC itself. The IC oversight system has broken down in recent years due to the IC withholding some information from Congress and politicization by Congress. The Snowden revelations made clear that significant intelligence information was being withheld from Congress without their knowledge. House Intelligence Chairman Devin Nunes cooperated with the White House to release and politicize intelligence against the wishes of the IC.
Create a Congressional Oversight Office with dedicated funding and staff to support oversight efforts
- Elaine Kamarck at the Brookings Institution has recommended a Congressional Oversight Office that would increase oversight capacity and institutionalize resources and expertise for oversight outside of partisan Congressional staff.
Align authorizing and oversight committee jurisdiction with the structure of the federal government
- Kevin Kosar from the R Street Institute and Lee Drutman from the New America Foundation have recommended a new Legislative Reorganization Act, modeled on the ones of 1946 and 1970. This would align Congressional committees with federal government structures to ensure expertise.
Leverage a broader range of expertise into the oversight process
- Georgetown’s Beeck Center for Social Impact + Innovation and University of New Hampshire’s Carsey Public Policy School have developed a digital field hearing toolkit to source ideas from experts in Congressional districts, especially land grant universities and local elected officials.
Increase the capacity of members of the House Intelligence Committee to engage in oversight
- An ideologically diverse set of organizations has recommended several changes to intelligence oversight that would: modernize the House Permanent Select Committee on Intelligence (HPSCI); empower members of Congress to conduct intelligence oversight with additional training, staff, and clarification regarding what is and isn’t public information; and establish a broad-based review of congressional oversight structures.
- End leadership appointment to HPSCI and term limits of HPSCI members, as recommended by the 9/11 Commission.
In a constitutional democracy, those in office should not wield the powers of the state to benefit their political allies and punish their opponents. In keeping with this principle, for 40 years Administrations of both parties have safeguarded that independence by maintaining policies limiting contacts between the White House and the Justice Department on law-enforcement matters involving specific parties. But that safeguard is failing. To address these concerns, Congress should:
- Prohibit improper White House interference in specific-party matters;
- Require agencies to report improper White House contacts to Congress;
- Ensure parties in enforcement proceedings are notified of information about contacts between the White House and the relevant enforcement agency; and
- Prohibit White House officials from publicly commenting on most pending specific-party legal matters.
Since coming into office, President Trump and others in his administration have repeatedly violated longstanding practices restricting White House interference in specific-party matters. Most notably, the President and his aides have sought to interfere with the investigation of Russian meddling in the 2016 election, for instance by asking then-FBI Director James Comey to “let this go” with respect to the investigation of Michael Flynn. The president has also called for criminal investigations of his political opponents, including Hillary Clinton and Huma Abedin, while rebuking Attorney General Jeff Sessions for allowing the Department of Justice to indict two Republican congressmen ahead of the midterms. He threatened Harley Davidson with tax hikes after the company complained about his trade policies, and demanded action against Amazon and Time Warner, whose owners control media outlets that he perceives as unfavorable.
These interventions are alarming. A disinterested, non-partisan law enforcement apparatus plays a central role in ensuring that the public maintains faith in the fundamental fairness of the criminal justice system. To that end, the Trump White House, like its predecessors, has implemented a formal policy limiting its communications with the Department of Justice. But this policy is limited and has failed to constrain the president from intervening (sometimes publicly) in specific law enforcement matters.
Of course, the President can set general law enforcement priorities consistent with his responsibility to “take Care that the Laws are faithfully executed.” For example, it would be entirely appropriate for the President to direct DOJ to prioritize white-collar crime or healthcare fraud prosecutions. But the President cannot act in individual cases to choose winners and losers based on his own political or personal preferences.
Congress can and should encode this important norm into law as part of its authority to regulate the executive agencies. There is historical precedent for such a move: During President Nixon’s time in office, he routinely directed the Internal Revenue Service to audit his political enemies. After he resigned, Congress responded by prohibiting specified executive-branch officials, including the President, from requesting that the IRS conduct or terminate an audit or other investigation. So too, Congress could permissibly regulate the situations in which the White House may interfere with DOJ’s handling of specific-party enforcement matters.
When law enforcement loses its reputation for non-partisanship and independence, then democracy and rule of law is itself under threat. Americans will start modifying their behavior to ensure that they don’t displease the party in power. Ensuring that law enforcement is seen as independent and non-partisan should be a top priority for Congress in strengthening our democracy.
Congress, the federal courts, and the executive branch all have a role to play in ensuring that law enforcement is insulated from political interference. But there are several measures Congress should enact, all of which are within its constitutional authority:
Prohibit improper White House interference in specific-party matters
- Codify clear prohibitions on improper White House interference in specific-party matters. For example, Congress could specify which personnel at the White House can communicate with DOJ officials about particular law enforcement matters, and in what circumstances.
Require agencies to report improper White House contacts to Congress
- At a minimum, as Brennan Center’s Rule of Law task force recently recommended, Congress should require the White House to promulgate a policy on proper contacts, as Republican and Democratic administrations have done since the Ford Administration.
- Congress should also require the Administration to report White House contacts with law enforcement agencies on specific matters to Congress and the relevant agency Inspector General.
Ensure parties in enforcement proceedings are notified of information about contacts between the White House and the relevant enforcement agency
- Congress should require that a privilege log reflecting communications between the White House and the Department of Justice, Department of Homeland Security, or other law enforcement agencies relating to enforcement matters be provided to defendants so that their attorneys are alerted to the potential of unlawful political interference.
- This will enable parties to raise various constitutional defenses such as First Amendment, selective enforcement, or due process violations for proper judicial consideration.
Prohibit White House officials from publicly commenting on most pending specific-party legal matters
- Preclude White House officials from publicly commenting on pending criminal cases and law enforcement actions, with limited exceptions for national and homeland security or public health emergencies, subject to the penalties imposed for improper political activities pursuant to the Hatch Act.
Democracy works only if public officials act—and appear to act—for the people they serve, not for their own interests. We’ve seen all too clearly now how corrupt officials can evade existing ethics rules or violate them without fear of enforcement.
- Enacting specific reforms to address White House conflicts and apparent or actual corruption; and
- Improving the administration and enforcement of federal ethics laws.
Ethics laws are unclear and ripe for exploitation by the President. The Trump Administration has exploited gaps in existing Executive Branch ethics mechanisms and laws and has not followed the ethical norms that presidents have observed for at least the last 40 years. President Trump has not released his tax returns or information about his personal finances. He has not divested himself from his personal business or removed himself from its operations, as previous presidents have done. He has hired family members for government positions, which had been made illegal under the Anti-Nepotism Act of 1967. Far from ensuring that he does not personally profit from the presidency, he has visited his own properties with government resources, conducted government business for apparent personal gain, and marketed his businesses on government time. Previously, presidents paid a political price for flouting existing ethics norms. This is no longer true.
The President has explicitly said that he is not required by law to follow the ethics rules that apply to government employees. The President claims to be exempt from existing conflict-of-interest and anti-nepotism laws. Many of these actions have trickled down and been replicated by other key members of his administration. Now that President Trump has breached these ethical standards, there will be far less incentive for his successors to resume observing them.
The public doesn’t know if governmental actions are based on the President’s personal interests or the public good. Without disclosure of the President’s taxes and business finances, it is impossible to discern whether the President is acting in the public’s interest or his own business interests. To complicate matters, the President’s businesses have foreign interests. This implicates the Emoluments Clause of the constitution and has national security ramifications. Additionally, lower-level government officials have been permitted to work in agencies that impact their own financial interests, incentivizing regulated industries to curry favor with the administration through backroom dealing. In this environment, citizens have little reason to believe that their individual votes can affect public policy.
Lack of effective enforcement mechanisms for existing ethics laws. On top of these issues, enforcement mechanisms are too weak to police corruption, protect norms, and disincentive noncompliance. The Office of Government Ethics and other existing investigative bodies do not have the authority to curtail corruption.
Enact specific reforms to address White House conflicts and apparent or actual corruption
- Close loopholes that exempt the President from conflict-of-interest laws;
- Require the disclosure of Presidential and Vice Presidential candidates’ tax returns;
- Mandate detailed disclosure of and divestment from ongoing business interests for the President and Vice President. See Public Citizen/CREW’s proposal for more;
- Require a national security financial risk assessment to recommend additional divestments by the President, Vice President, and senior national security staff, as proposed by the Brennan Center;
- Prohibit the acceptance of foreign and domestic emoluments; and
- Clarify that anti-nepotism law applies to the President and Vice President.
Improve the administration and enforcement of federal ethics laws
- Create a new public integrity agency to police and enforce corruption, along the lines proposed by the the Roosevelt Institute, or vest more investigative and enforcement power in the Office of Government Ethics; and
- Implement a series of reforms to strengthen the OGE proposed by former OGE Director Walter Shaub, including:
- Enforce the independence of OGE by insulating the Director against retaliation;
- Strengthen OGE’s oversight abilities by clarifying scope, establishing an Inspector General with jurisdiction to conduct ethics investigations; and
- Increase transparency with online postings of specified ethics actions and government aircraft usage, public disclosure of interests in discretionary trusts, and collection of candidate transition and ethics plans.
The Constitution provides important rights to individuals, among them the right to be free from unlawful searches and seizures, the right to due process, and the right to equal protection of the laws. When those rights are violated, individuals should be able to seek redress from the government for their injuries.
- Enact a statutory Bivens remedy to clarify that individuals whose constitutional rights are violated by federal officials are entitled to recover for their injuries;
- Enact a law to eliminate qualified immunity for both the statutory Bivens remedy and state government officials; and
- Enact a law clarifying that plaintiffs should have standing to challenge government actions when they have a reasonable basis to believe a government official has violated their constitutional rights.
Today, a constellation of judge-made doctrines prevents many individuals from vindicating their most important constitutional rights. As a result, the courts are not fulfilling their constitutional role as an effective check on executive wrongdoing.
First, Congress has not enacted a statute providing for damages suits against federal officials who act unlawfully to violate individuals’ constitutional rights. The courts have partially filled that void by recognizing an implied cause of action in the Constitution—referred to as a Bivens remedy. But the Supreme Court has made clear, as recently as last year, that Bivens remedies generally apply to violations of only a narrow set of constitutional rights: unlawful searches and seizures, cruel and unusual punishment, and gender discrimination. The narrowness of Bivens doctrine means that many constitutional rights lack an accompanying remedy, and that officials violate those rights with impunity.
Second, and relatedly, the judge-made doctrine of qualified immunity further restricts the ability of individuals to recover damages for infringements of their civil rights. Beginning in the 1960s, the Supreme Court issued a series of decisions holding that officials would not be liable for Constitutional violations so long as their actions did not violate “clearly established law.” In practice, this prevents plaintiffs from recovering damages even when they are the victims of egregious government misconduct at the federal, state, or local level. In 2017, for example, the Eleventh Circuit extended qualified immunity to a police officer who “had no warrant, knocked on the wrong door, and gunned down an innocent man in his own home.” This overbroad immunity doctrine means that the threat of civil lawsuits is not an effective deterrent to official misconduct, and leaves many victims of official wrongdoing without recompense for their injuries.
Finally, the interplay of pleading requirements and recent developments in standing doctrine—which specifies what makes an injury the proper basis for a lawsuit—creates an additional barrier to holding the government accountable in the courts. The Supreme Court has held that, to establish standing, plaintiffs must demonstrate a causal relationship between their injuries and the defendant’s actions. On its own, this rule is sensible enough. But when coupled with heightened requirements for specificity in pleading, it can be very difficult for plaintiffs to establish standing in cases against the government. In such cases, the government controls most of the information needed to prosecute a case. As a result, it may be difficult for plaintiffs with meritorious claims to plead a claim with sufficient specificity to overcome standing requirements.
Congress has a role to play in ensuring that the courts play their proper constitutional role vis-a-vis the executive branch. Congress can authorize suits against federal officials for violations of constitutional rights, and can also clarify if and when immunity is appropriate. Congress can also adjust the procedural rules that currently bar some meritorious constitutional claims. Doing so will revitalize the judiciary’s important role in ensuring accountability for government misconduct.
Congress should take the following actions to strengthen the executive branch’s accountability for Constitutional violations:
Enact a statutory Bivens remedy to clarify that individuals whose constitutional rights are violated by federal officials are entitled to recover for their injuries
- This remedy would apply to constitutional violations by federal officers.
- Congress could consider making the federal government itself the proper defendant in such actions, indemnifying individual officers, or limiting damages awards to moot concerns about liability for individual officers.
Enact a law to eliminate qualified immunity for both federal constitutional claims and 42 U.S.C. § 1983, which allows individuals to hold state government officials accountable for violations of constitutional rights
- A diverse coalition of advocacy groups from across the political spectrum — including both the Alliance Defending Freedom and the American Civil Liberties Union — have spoken out in favor of reforms to the qualified immunity doctrine.
- Congress need not wait for the courts to revise doctrine; it can enact such a provision now.
Enact a law clarifying that plaintiffs should have standing to challenge government actions when they have a reasonable basis to believe a government official has violated their constitutional rights
- At a minimum, such a measure should address situations in which plaintiffs are unable to obtain the information they would need from the government in order to establish standing.
A Legislative Blueprint for Restoring Our Democracy
Protect Democracy has also developed a comprehensive legislative package that should be advanced by a bipartisan majority in the new Congress to restore and renew the fundamental structures, institutions, and norms of our constitutional democracy. The Roadmap to Renewal, which we released on July 4 of this year, includes twenty-one reforms broken into five categories. The first three categories focus on the branches of government:(i) strengthening Congress’s capacity to fulfill its constitutional role; (ii) constraining abuses of executive power; and (iii) protecting the courts as a check on the other branches in order to uphold the constitution. The other two categories focus on deeper structural issues that have allowed for the decline of our democracy: (iv) protecting inclusive and fact-based democratic dissent, debate, and participation; and (v) modernizing our campaigns and election system to protect and enhance participation and accurately reflect the views of voters.
The oversight and legislative packages do not fall along traditional partisan lines and should be embraced by both Republicans and Democrats in Congress. With bipartisan support, Congress can quickly begin tackling these issues and building momentum toward needed renewal.
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