I’ve been asked many times lately what can be done about the excesses of ICE and CBP violating the constitutional rights of American citizens, whether by killing them or lesser methods. Given the current status of Bivens actions, the answer is “not a damn thing” beyond a state criminal prosecution. As Adam Liptak relates, there was a proposal back in 1987 that could have done the trick.

The key to holding Immigration and Customs Enforcement agents accountable for constitutional violations may lie in a 1987 law review article by a young law professor named Akhil Reed Amar.

“I think it was a good idea then,” he said last week, “and it’s only taken more than half a lifetime for people to actually read the thing.”

Yale prawf Akhil Reed Amar is not just a very smart guy, but an academic who has kept his head on straight through the swings of the political pendulum. He’s the kind of academic who has earned people’s attention.

His central point for present purposes was that state legislatures can authorize lawsuits against federal officials for violating the Constitution. If that is right, such state laws would close an odd gap in federal law that — broadly speaking — allows such suits against state and local officials, like police officers, but not against federal ones, like ICE agents.

Back in 1871, Congress enacted 42 U.S.C. § 1983, which authorized suit against a state actor for violation of constitutional rights. Of course, the courts subsequently burdened it with the judge-created Qualified Immunity, but that’s another matter. What Congress neglected to do at the time was the make the law applicable for federal actors for the same conduct. In other words, if a state cop violated your constitutional rights, you had a cause of action available. If the actor was a fed, or even a state cop on a joint fed task force, you had no recourse.

The Supreme Court tried to address the gap in 1971 in Bivens v. Six Unknown Named Agents, allowing the victim of an unconstitutional search by federal agents to sue them. But the court has essentially abandoned that approach, saying instead that Congress must act if suits against federal officials are to be allowed.

As of now, there’s essentially nothing to be done. As for Congress expanding the scope of § 1983, it hasn’t and don’t hold your breath waiting for it. But Amar’s law review article anticipated the dilemma and came up with a proposed solution.

His article drew on two principles often associated with conservatives: federalism and originalism.

“This is exactly what the framers imagined: state law protecting us against federal abuses,” Professor Amar said.

And some states have, in fact, done what Amar proposed.

Over the years, some states — including California, Maine, Massachusetts and New Jersey — have enacted laws along the lines that Professor Amar proposed, though they are largely untested, and Illinois recently adopted one tailored to address the conduct of ICE agents.

The Illinois law says that lawsuits may be filed “against any person who, while conducting civil immigration enforcement, knowingly engages in conduct that violates the Illinois Constitution or the United States Constitution.”

You’ll never believe what happened next. Oh wait, you will.

The Trump administration promptly sued, saying the law violated the Constitution’s supremacy clause, which generally prohibits states from enacting measures at odds with federal law. Whether to allow lawsuits against federal agents for violating the federal Constitution, the administration’s complaint said, “is a policy choice for Congress.”

Amar’s proposal is grounded in the concepts of federalism and originalism. But what about federal supremacy and sovereign immunity? What about 28 USC § 2679?

But Judge Justin Walker, who was appointed to of the U.S. Court of Appeals for the D.C. Circuit by President Trump, did consider the matter in a 2023 concurring opinion in a case arising from a protest outside the White House in 2020.

Citing Professor Amar’s article, Judge Walker concluded that “nothing would stop a state from creating a new cause of action allowing plaintiffs to directly allege federal constitutional violations.”

As of now, the question remains open whether a state can create a cause of action against a federal agent for violation of constitutional rights. While Judge Walker’s opinion might be persuasive, a concurring opinion isn’t precedential, and the court of appeals isn’t the Supreme Court.

But given the lack of alternatives to addressing the situation created by wilding feds, this might be an envelope worth pushing. States are likely to be far more protective of their citizens against the excesses of masked thugs, since Congress surely isn’t inclined to do anything to rein them in.

Still, Vikram Amar said, such state laws can serve a larger purpose.

“In the spirit of federalism,” he said, “not only can states experiment in this way, but doing so would likely lead Congress to address the problem, because it’s unlikely that Congress would want to leave a patchwork of different state regulations and different remedies.”

And perhaps states taking action will prompt Congress to return to session and do something that doesn’t include the words “big beautiful” to refer to violating the Constitution. It might not ultimately work, but in the absence of any alternative, it’s worth a try.