Qualified immunity has been the subject of well-deserved scorn in recent years as a legal mechanism that shields government officials from constitutional accountability. But its shadow has hidden another mechanism that provides an unqualified immunity from constitutional accountability. That de facto absolute immunity extends to federal officials in all but a vanishingly few contexts where claims are still permitted under the 1971 Supreme Court decision Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics. But it was not always that way. In its 1978 decision Butz v. Economou, the Supreme Court permitted Bivens claims to proceed against a cabinet-level federal official and others, denying their demands for absolute immunity. Butz detailed the historical availability of damages against federal officials in the United States and warned that holding them to a lower constitutional standard than their state counterparts would turn the Founders’ constitutional design on its head. In the years that followed, the Court consistently demonstrated its continued commitment to federal-state constitutional parity. Most notably, the availability of Bivens claims against federal officials was so well-established and robust in 1982 that the Court created qualified immunity in Harlow v. Fitzgerald to ameliorate policy concerns with Bivens liability. Citing the need to treat federal and state officials consistently, the Court formally extended qualified immunity to state officials a few years later. Over the intervening decades, the Court reversed course and created a two-tier system of constitutional accountability. While it continued to strengthen qualified immunity, often relying on the existence of Bivens claims to do so, the Court simultaneously sapped Bivens of its power, in effect cabining it to its precise facts. As a result, there is no longer a reliable—let alone broad— source of constitutional accountability for federal officers. Betraying Butz and the long history of federal accountability in the United States, the modern Court has ushered in an era of increasingly absolute and unqualified immunity for federal officials.
Patrick Jaicomo & Anya Bidwell,
Unqualified Immunity and the Betrayal of Butz v. Economou: How the Supreme Court Quietly Granted Federal Officials Absolute Immunity for Constitutional Violations,
Dick. L. Rev.
Available at: https://ideas.dickinsonlaw.psu.edu/dlr/vol126/iss3/3