Abuses of power can happen at any level of government, and at most levels, unconstitutional abuses of power can be challenged in court. A federal law known as Section 1983 allows people to sue local and state officials if they violate the Constitution. There is no equivalent federal statutory law that allows people to sue federal officials. Our constitutional rights become largely symbolic if government agents can violate them without consequences.

The Universal Constitutional Remedies Act seeks to fix that problem.

What is the Universal Constitutional Remedies Act?

The Universal Constitutional Remedies Act (also known as a “converse 1983”) is a state law that allows individuals to sue any official — federal, state, or local — who violates the Constitution in court, ensuring that no one is above the law and every American can seek justice whenever government agents violate the Constitution. 

Under this kind of law, individuals could seek remedies for:

• Fifth Amendment/Equal Protection Violations: Unlawfully targeting individuals for enforcement actions or tax audits on the basis of race, national origin, or political identity.
• First Amendment Violations: Retaliating against a person for their protected speech, 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 arrest.

Why is this kind of law necessary? 

A quirk of our legal system has left a gaping hole in accountability structures at the federal level. Currently, you can’t sue federal officials like ICE or FBI agents for past harms that violated your constitutional rights. 

To sue the government for harms it has caused, you need legal permission to do so. Lawyers call this a “cause of action.” Most are set out in various statutes. For constitutional violations by state and local officials, one can sue under a federal law known as Section 1983. The Universal Constitutional Remedies Act is sometimes called a “converse 1983” because it fills the gap left behind by that law.

But there is generally no similar legal authority that applies to federal officers. (Courts used to use what’s known as a “Bivens” action, but the Supreme Court has recently all but eliminated that pathway.) That means the only legal recourse for unconstitutional abuses by federal officials is often to try to get a court injunction — essentially, a forward-looking order to stop. Getting an injunction requires demonstrating a probability that you will suffer the constitutional injury again in the future. Needless to say, not all victims of unconstitutional conduct can show that they will be subject to a future violation of their rights.

As a result, federal officials operate with much less accountability than officials at other levels of government. The Universal Constitutional Remedies Act solves this problem by simply giving people the same right to sue federal officials that they already have for officials at other levels of government. 

These kinds of laws have largely fallen out of fashion, but they are catching on again across the country. Both California and New York are seeking to pass versions of this bill. 

Where does this idea come from? 

The idea that state legislatures can pass legislation to create a remedy for constitutional violations by federal agents was originated by Professor Akhil Amar — one of America’s foremost constitutional scholars. The constitutionality of the proposal follows directly from the text of the Constitution itself: under the Constitution, federal law only supersedes state law when federal authority is exercised “in Pursuance” of the Constitution, and the unconstitutional acts prohibited by both the New York and California laws are the definition of acts not taken “in Pursuance” of the Constitution.

As Professor Amar has pointed out, when the Founders wrote the Constitution, they introduced to the world the idea that sovereignty should reside in the people, not any one ruler. That is why the Constitution — and not the whims of a King — represents the supreme law of the United States. So these bills (if passed) would help transform the Constitution’s paper promises into an enforceable reality by giving Americans the right to sue and seek a remedy from an impartial tribunal whenever their fundamental constitutional rights are violated. In short, a Universal Constitutional Remedies Act would make sure no American is above — or below — the law.