For decades, the federal common law defense of “qualified immunity” has been used to shield state officials from individual liability under 42 U.S.C. § 1983. I question the efficacy and legitimacy of that doctrine where § 1983 claims are concerned. I further posit that the federal judiciary’s use of “qualified immunity” to undermine § 1983 claims is unconstitutional and reflects not only an abuse of power, but an improper encroachment on powers the Constitution reserves for Congress.
The Supremacy Clause makes the “Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all treaties…the supreme Law of the Land.” See U.S. Const. Art. VI, cl. 2. “When the Supremacy Clause refers to ‘[t]he Laws of the United States…made in Pursuance [of the Constitution],’ it means federal statutes, not federal common law.” See Collins v. Virginia, 584 U.S. 586, 606-07 (2018) (Thomas, J., concurring) (citing Ramsey, The Supremacy Clause, Original Meaning, and the Modern Law, Ohio St. L. J. 559, 572-599 (2013) (Ramsey); Clark, Separation of Powers as a Safeguard of Federalism, 79 Texas L. Rev. 1321, 1334-1336, 1338-1367 (2001) (Clark); Gibbons v. Ogden, 22 U.S. 1, 9 Wheat. 1, 211, 6 L. Ed. 23 (1824) (Marshall, C. J.) (“The appropriate application of that part of the clause which confers…supremacy of laws…is to…the laws of Congress, made in pursuance of the constitution”); Hart, The Relations Between State and Federal Law, 54 Colum. L. Rev. 489, 500 (1954) (“[T]he supremacy clause is limited to those ‘Laws’ of the United States which are passed by Congress pursuant to the Constitution”)).
A § 1983 claim is an express cause of action created by Congress. Indeed, § 1983 was enacted pursuant to Congress’ power under Section 5 of the Fourteenth Amendment. Hafer v. Melo, 502 U.S. 21, 28 (1991). The Constitution vests all legislative powers in Congress, not the judiciary. See U.S. Const. Art. I, § 1; compare U.S. Const. Art. III, § 1. Moreover, “the rule is, that where the Legislature makes a plain provision, without making any exception, the courts of justice can make none, as it would be legislating to do so.” See Maxwell v. Moore, 63 U.S. 185, 191 (1859). Accordingly, like the Constitution, § 1983 is the supreme law of the land and the federal common law is inferior or subordinate to it. The federal judiciary can make no exception nor defense to § 1983 – like “qualified immunity” – because it would be legislating to do so.
“Congress, as creator of federal statutory claims, has power to prescribe what must be pleaded to state the claim, just as it has the power to determine what must be proved to prevail on the merits.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 327 (2007). Therefore, the substantive pleading requirements for stating a § 1983 claim are established by Congress, not the federal judiciary; and the courts must look to the plain language of that statute – 42 U.S.C. § 1983 – to determine what allegations must be pled to state such a claim.
In Gomez, the U.S. Supreme Court explained that:
“By the plain terms of § 1983, two – and only two – allegations are required in order to state a cause of action under that statute. First, the plaintiff must allege that some person has deprived [him or her] of a federal right. Second, [he or she] must allege that the person who has deprived [him or her] of that right acted under color of state or territorial law.”
See Gomez v. Toledo, 446 U.S. 635, 640 (1980). Clearly, there are no exceptions contained in § 1983. Moreover, the federal judiciary cannot create such an exception nor a defense – like “qualified immunity” – as that would be legislating from the bench. Yet, it has done so for years with impunity. It's time for Congress to address the matter since the federal judiciary, specifically the U.S. Supreme Court, has failed to reign in its overreach.
- Richard Keith Alan II, Esq.
"Give instruction to a wise man, and he will be yet wiser: Teach a just man, and he will increase in learning." Proverbs 9:9 (KJV)
"Speak not in the ears of a fool: For he will despise the wisdom of thy words." Proverbs 23:9 (KJV).
