From Bivens to Malesko and Beyond: Implied Constitutional Remedies and the Separation of Powers*
Newman, Ryan D., Texas Law Review
The great ordinances of the Constitution do not establish and divide fields of black and white.1
-Justice Oliver Wendell Holmes
It is a common refrain among politicians that judges should not "legislate from the bench."2 Given the Constitution's division of powers between the legislative and judicial branches, this political catchphrase undoubtedly expresses a constitutionally valid sentiment, but it is difficult to apply in practice largely because the separation of powers doctrine from which it arises is so murky.3 This is not to say that separation of powers principles can have no bearing on constitutional outcomes; rather, it is to say that the separation of powers cannot be reduced to the rather simplistic notion that judges cannot legislate and legislators cannot judge. Nowhere is this more apparent than in the context of implied constitutional remedies.
In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,4 the Supreme Court, without any explicit statutory authority, inferred directly from the Constitution a private right of action for damages against federal officials who violated constitutionally protected rights.5 Despite initially affirming this newfound doctrine of implied constitutional remedies,6 the Court has steadily sought to limit the doctrine's reach over the last quarter-century.7 To understand the current status of the Bivens doctrine, one needs to look no further than the dissenting opinions in both Bivens itself and the initial cases upholding it.8 The general thrust of those dissents was that implied remedies for constitutional violations amounted to outright judicial lawmaking in contravention of the separation of powers.9 Although the Court has declined to expressly overturn Bivens,10 its steadfast refusal over more than two decades to extend the doctrine into new contexts has reduced the cause of action to a mere shadow of its former self. This trend undoubtedly reflects the separation of powers concerns that motivated the original dissenters.11
Scholars, however, have generally defended Bivens and its doctrine of implied constitutional damage remedies12 on the rather straightforward notion that rights without remedies are meaningless.13 It is easy to think of Bivens as simply a case about rights and remedies, and in large measure, it is.14 After all, the Bivens Court vigorously endorsed the principle articulated by Chief Justice John Marshall in Marbury v. Madison that "[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury."15 But at its core, Bivens is about power. The idea that for every violation of a legal right there must be a remedy is more normative than descriptive primarily because many violations go unremedied.16 Even Chief Justice Marshall, after declaring this principle, denied Marbury the relief he sought for want of jurisdiction.17 There are undeniable limits to the scope of Chief Justice Marshall's principle because other competing values and interests-federalism, democratic accountability, and separation of powers-are also at stake. Thus, while the explicit issue presented by Bivens was remedial in character, namely whether the Constitution entitled the petitioner to damages for violations of his Fourth Amendment rights,18 the underlying issue was whether the Court, as opposed to the political branches, had the power to confer such a remedy in light of separation of powers principles.19 The response to this fundamental question of power distinguished the majority from the dissenters20 and continues to define the debate over the legitimacy and scope of implied constitutional remedies.21
The Court's long-standing reluctance to extend Bivens necessarily raises the question of whether the dissenters have ultimately succeeded in foreclosing implied private rights of action for constitutional torts.22 Although Bivens remains good law, in practice it seems a dead letter. …