Patrick Jaicomo
@pjaicomo.bsky.social
Civil rights litigator at @IJ.org.
Lover of freedom.
Fighter of bullies.
(All my posts have typos and express my own views.)
Lover of freedom.
Fighter of bullies.
(All my posts have typos and express my own views.)
5. Bringing us full circle, SG Harris is simultaneously arguing:
In Goldey, Congress must provide a cause of action.
BUT
In @ij.org's Martin v. U.S., even when Congress has provided one, the judiciary should make exceptions to it.
The lesson: The gov't always wants immunity.
6/6
In Goldey, Congress must provide a cause of action.
BUT
In @ij.org's Martin v. U.S., even when Congress has provided one, the judiciary should make exceptions to it.
The lesson: The gov't always wants immunity.
6/6
March 12, 2025 at 1:09 PM
5. Bringing us full circle, SG Harris is simultaneously arguing:
In Goldey, Congress must provide a cause of action.
BUT
In @ij.org's Martin v. U.S., even when Congress has provided one, the judiciary should make exceptions to it.
The lesson: The gov't always wants immunity.
6/6
In Goldey, Congress must provide a cause of action.
BUT
In @ij.org's Martin v. U.S., even when Congress has provided one, the judiciary should make exceptions to it.
The lesson: The gov't always wants immunity.
6/6
4. My @ij.org colleague Anya and I discuss the history and curious relationship between #FederalImmunity & #QualifiedImmunity.
QI was created in a Bivens case.
Ever since, QI has grown; Bivens has shrunk.
There's no way to defend this as anything but judicial policymaking.
5/6
QI was created in a Bivens case.
Ever since, QI has grown; Bivens has shrunk.
There's no way to defend this as anything but judicial policymaking.
5/6
March 12, 2025 at 1:09 PM
4. My @ij.org colleague Anya and I discuss the history and curious relationship between #FederalImmunity & #QualifiedImmunity.
QI was created in a Bivens case.
Ever since, QI has grown; Bivens has shrunk.
There's no way to defend this as anything but judicial policymaking.
5/6
QI was created in a Bivens case.
Ever since, QI has grown; Bivens has shrunk.
There's no way to defend this as anything but judicial policymaking.
5/6
3. Still, in Goldey, the gov't doesn't argue Bivens should be overruled. Rather, it should be cabined further.
Why? Because keeping Bivens on life support makes it hard to pressure Congress. Technically, there's a remedy. Practically, there isn't.
Gorsuch noted in Egbert:
4/6
Why? Because keeping Bivens on life support makes it hard to pressure Congress. Technically, there's a remedy. Practically, there isn't.
Gorsuch noted in Egbert:
4/6
March 12, 2025 at 1:09 PM
3. Still, in Goldey, the gov't doesn't argue Bivens should be overruled. Rather, it should be cabined further.
Why? Because keeping Bivens on life support makes it hard to pressure Congress. Technically, there's a remedy. Practically, there isn't.
Gorsuch noted in Egbert:
4/6
Why? Because keeping Bivens on life support makes it hard to pressure Congress. Technically, there's a remedy. Practically, there isn't.
Gorsuch noted in Egbert:
4/6
2. In Bivens itself, the Nixon-administration didn't argue there should be *no* cause of action for federal constitutional violations.
Rather, the gov't argued STATE law should provide it. Bivens claims should be allowed only if this is insufficient. (It is; see Westfall.)
3/6
Rather, the gov't argued STATE law should provide it. Bivens claims should be allowed only if this is insufficient. (It is; see Westfall.)
3/6
March 12, 2025 at 1:09 PM
2. In Bivens itself, the Nixon-administration didn't argue there should be *no* cause of action for federal constitutional violations.
Rather, the gov't argued STATE law should provide it. Bivens claims should be allowed only if this is insufficient. (It is; see Westfall.)
3/6
Rather, the gov't argued STATE law should provide it. Bivens claims should be allowed only if this is insufficient. (It is; see Westfall.)
3/6
1. Acting SG Sarah Harris was counsel in Egbert v. Boule, where #SCOTUS eviscerated Bivens and enshrined #FederalImmunity as the rule.
According to SCOTUS (and Harris), if Congress doesn't provide a statutory cause of action, you can't enforce your constitutional rights.
2/6
According to SCOTUS (and Harris), if Congress doesn't provide a statutory cause of action, you can't enforce your constitutional rights.
2/6
March 12, 2025 at 1:09 PM
1. Acting SG Sarah Harris was counsel in Egbert v. Boule, where #SCOTUS eviscerated Bivens and enshrined #FederalImmunity as the rule.
According to SCOTUS (and Harris), if Congress doesn't provide a statutory cause of action, you can't enforce your constitutional rights.
2/6
According to SCOTUS (and Harris), if Congress doesn't provide a statutory cause of action, you can't enforce your constitutional rights.
2/6
The federal gov't has taken the unusual step of filing an uninvited cert-stage amicus in Goldey v. Fields, asking #SCOTUS to expand #FederalImmunity - here, to ensure there's no remedy for excessive force against prison inmates.
I have a lot of thoughts, but here are 5.
1/6
I have a lot of thoughts, but here are 5.
1/6
March 12, 2025 at 1:09 PM
The federal gov't has taken the unusual step of filing an uninvited cert-stage amicus in Goldey v. Fields, asking #SCOTUS to expand #FederalImmunity - here, to ensure there's no remedy for excessive force against prison inmates.
I have a lot of thoughts, but here are 5.
1/6
I have a lot of thoughts, but here are 5.
1/6
You can read the full brief below. But here's the intro:
www.supremecourt.gov/DocketPDF/24...
www.supremecourt.gov/DocketPDF/24...
March 12, 2025 at 1:03 PM
You can read the full brief below. But here's the intro:
www.supremecourt.gov/DocketPDF/24...
www.supremecourt.gov/DocketPDF/24...
On 3/7, @ij.org filed our merits brief in Martin v. US.
We explain why the gov’t can’t claim #SovereignImmunity for intentional torts committed by FBI agents raiding the wrong house.
This case is about one of the last threads of federal accountability.
The gov’t’s trying to cut it.
We explain why the gov’t can’t claim #SovereignImmunity for intentional torts committed by FBI agents raiding the wrong house.
This case is about one of the last threads of federal accountability.
The gov’t’s trying to cut it.
March 12, 2025 at 1:03 PM
On 3/7, @ij.org filed our merits brief in Martin v. US.
We explain why the gov’t can’t claim #SovereignImmunity for intentional torts committed by FBI agents raiding the wrong house.
This case is about one of the last threads of federal accountability.
The gov’t’s trying to cut it.
We explain why the gov’t can’t claim #SovereignImmunity for intentional torts committed by FBI agents raiding the wrong house.
This case is about one of the last threads of federal accountability.
The gov’t’s trying to cut it.
Today, #SCOTUS denied cert. in @ij.org wrong-house raid #QualifiedImmunity case, Jimerson v. Lewis.
Justices Sotomayor and Jackson would grant.
Remember, Jimerson involved an *admitted* #FourthAmendment violation.
The application of QI means the raid was reasonably unreasonable.
Justices Sotomayor and Jackson would grant.
Remember, Jimerson involved an *admitted* #FourthAmendment violation.
The application of QI means the raid was reasonably unreasonable.
February 25, 2025 at 2:25 AM
Today, #SCOTUS denied cert. in @ij.org wrong-house raid #QualifiedImmunity case, Jimerson v. Lewis.
Justices Sotomayor and Jackson would grant.
Remember, Jimerson involved an *admitted* #FourthAmendment violation.
The application of QI means the raid was reasonably unreasonable.
Justices Sotomayor and Jackson would grant.
Remember, Jimerson involved an *admitted* #FourthAmendment violation.
The application of QI means the raid was reasonably unreasonable.
Happy Washington’s Birthday to all who celebrate the real holiday.
Happy “Presidents’ Day” to all the participation-trophy people.
Happy “Presidents’ Day” to all the participation-trophy people.
February 17, 2025 at 3:38 PM
Happy Washington’s Birthday to all who celebrate the real holiday.
Happy “Presidents’ Day” to all the participation-trophy people.
Happy “Presidents’ Day” to all the participation-trophy people.
Either way, Article II doesn’t provide the President the authority to modify the Constitution’s operation by (re)defining its terms.
And I disagree that SCOTUS will find the case for the EO to be strong at all.
6/6
And I disagree that SCOTUS will find the case for the EO to be strong at all.
6/6
February 17, 2025 at 2:25 PM
Either way, Article II doesn’t provide the President the authority to modify the Constitution’s operation by (re)defining its terms.
And I disagree that SCOTUS will find the case for the EO to be strong at all.
6/6
And I disagree that SCOTUS will find the case for the EO to be strong at all.
6/6
In light of this historical context, “all persons born in the U.S. and subject to the jurisdiction thereof,” must be AT LEAST as broad as (if not broader than) the English conception, which extended citizenship for even “temporary allegiance.” 5/6
February 17, 2025 at 2:25 PM
In light of this historical context, “all persons born in the U.S. and subject to the jurisdiction thereof,” must be AT LEAST as broad as (if not broader than) the English conception, which extended citizenship for even “temporary allegiance.” 5/6
And to be clear, I know both Wong Kim Ark and English common law speak in terms of “allegiance,” etc.
I’m criticizing the understanding of “allegiance” that would lead to the conclusion below, while uncontroversially sweeping in hundreds of thousands of confederate babies:
4/6
I’m criticizing the understanding of “allegiance” that would lead to the conclusion below, while uncontroversially sweeping in hundreds of thousands of confederate babies:
4/6
February 17, 2025 at 2:25 PM
And to be clear, I know both Wong Kim Ark and English common law speak in terms of “allegiance,” etc.
I’m criticizing the understanding of “allegiance” that would lead to the conclusion below, while uncontroversially sweeping in hundreds of thousands of confederate babies:
4/6
I’m criticizing the understanding of “allegiance” that would lead to the conclusion below, while uncontroversially sweeping in hundreds of thousands of confederate babies:
4/6
If the question for citizenship is allegiance, the child of Honduran immigrant who permanently (albeit illegally) moved to the U.S. for a better life surely has more allegiance to U.S. law than Winnie Davis, who was born while her dad was the president of the CSA and waging war against the U.S.
3/6
3/6
February 17, 2025 at 2:25 PM
If the question for citizenship is allegiance, the child of Honduran immigrant who permanently (albeit illegally) moved to the U.S. for a better life surely has more allegiance to U.S. law than Winnie Davis, who was born while her dad was the president of the CSA and waging war against the U.S.
3/6
3/6
Because the 14th Amendment was, of course, passed as a result of the Civil War.
If citizenship turned on allegiance, that would have opened a Pandora’s box of questions pertaining to the citizenship status of, at least, confederate leaders, and, at most, all southerners.
2/6
If citizenship turned on allegiance, that would have opened a Pandora’s box of questions pertaining to the citizenship status of, at least, confederate leaders, and, at most, all southerners.
2/6
February 17, 2025 at 2:25 PM
Because the 14th Amendment was, of course, passed as a result of the Civil War.
If citizenship turned on allegiance, that would have opened a Pandora’s box of questions pertaining to the citizenship status of, at least, confederate leaders, and, at most, all southerners.
2/6
If citizenship turned on allegiance, that would have opened a Pandora’s box of questions pertaining to the citizenship status of, at least, confederate leaders, and, at most, all southerners.
2/6
So, is the D.C. U.S. Attorney not permitted to practice in the District Court of D.C.?
(This is from U.S. v. Padilla, 1:21-cr-00214 - the case in which the D.C. U.S Attorney dismissed the case while he was still the defendant’s counsel of record.)
(This is from U.S. v. Padilla, 1:21-cr-00214 - the case in which the D.C. U.S Attorney dismissed the case while he was still the defendant’s counsel of record.)
February 8, 2025 at 3:12 AM
So, is the D.C. U.S. Attorney not permitted to practice in the District Court of D.C.?
(This is from U.S. v. Padilla, 1:21-cr-00214 - the case in which the D.C. U.S Attorney dismissed the case while he was still the defendant’s counsel of record.)
(This is from U.S. v. Padilla, 1:21-cr-00214 - the case in which the D.C. U.S Attorney dismissed the case while he was still the defendant’s counsel of record.)
Our new paper proves that § 1983 and its Notwithstanding Clause displace #QualifiedImmunity.
Textualists should be troubled greatly that the congressionally enacted text of § 1983 precludes extra-textual defenses. Yes #SCOTUS upholds QI.
As @ij.org has said for years, QI must go.
Textualists should be troubled greatly that the congressionally enacted text of § 1983 precludes extra-textual defenses. Yes #SCOTUS upholds QI.
As @ij.org has said for years, QI must go.
February 5, 2025 at 3:11 PM
Our new paper proves that § 1983 and its Notwithstanding Clause displace #QualifiedImmunity.
Textualists should be troubled greatly that the congressionally enacted text of § 1983 precludes extra-textual defenses. Yes #SCOTUS upholds QI.
As @ij.org has said for years, QI must go.
Textualists should be troubled greatly that the congressionally enacted text of § 1983 precludes extra-textual defenses. Yes #SCOTUS upholds QI.
As @ij.org has said for years, QI must go.
The upshot is that our paper now proves that:
1. Congress intended 1983 to displace extra-textual immunities and defenses;
2. The intentional removal of the Notwithstanding Clause did not alter this text-based intent; and
3. Qualified Immunity is, therefore, lawless. 5/
1. Congress intended 1983 to displace extra-textual immunities and defenses;
2. The intentional removal of the Notwithstanding Clause did not alter this text-based intent; and
3. Qualified Immunity is, therefore, lawless. 5/
February 4, 2025 at 3:42 PM
The upshot is that our paper now proves that:
1. Congress intended 1983 to displace extra-textual immunities and defenses;
2. The intentional removal of the Notwithstanding Clause did not alter this text-based intent; and
3. Qualified Immunity is, therefore, lawless. 5/
1. Congress intended 1983 to displace extra-textual immunities and defenses;
2. The intentional removal of the Notwithstanding Clause did not alter this text-based intent; and
3. Qualified Immunity is, therefore, lawless. 5/
Because the #NotwithstandingClause just reinforced the liability provided in Section 1983 and need for such clauses had waned almost to nothing by the time of codification, the revisers clipped it. But the change was immaterial, as SCOTUS observed addressing a similar clause. 4/
February 4, 2025 at 3:42 PM
Because the #NotwithstandingClause just reinforced the liability provided in Section 1983 and need for such clauses had waned almost to nothing by the time of codification, the revisers clipped it. But the change was immaterial, as SCOTUS observed addressing a similar clause. 4/
Just 3 years later, however, Section 1983 lost its Notwithstanding Clause during the process of codification. Codification required assembling all federal laws into a single code. It required concision. Still, the goal was to cut words without altering substance. 3/
February 4, 2025 at 3:42 PM
Just 3 years later, however, Section 1983 lost its Notwithstanding Clause during the process of codification. Codification required assembling all federal laws into a single code. It required concision. Still, the goal was to cut words without altering substance. 3/
Section 1983 provides that "every person shall be liable" for constitutional violations under color of state law. SCOTUS has carved enormous exceptions into 1983, most notably #QualifiedImmunity.
But as originally enacted, Congress made clear that 1983 displaced defenses: 2/
But as originally enacted, Congress made clear that 1983 displaced defenses: 2/
February 4, 2025 at 3:42 PM
Section 1983 provides that "every person shall be liable" for constitutional violations under color of state law. SCOTUS has carved enormous exceptions into 1983, most notably #QualifiedImmunity.
But as originally enacted, Congress made clear that 1983 displaced defenses: 2/
But as originally enacted, Congress made clear that 1983 displaced defenses: 2/
ATTN: LAW REVIEWS
My @ij.org colleague Daniel Nelson & I have submitted our article "Section 1983 (Still) Displaces Qualified Immunity."
Building on the work of Will Baude and Alex Reinert, we trace the history of #QualifiedImmunity and import of its lost "Notwithstanding Clause." 1/
My @ij.org colleague Daniel Nelson & I have submitted our article "Section 1983 (Still) Displaces Qualified Immunity."
Building on the work of Will Baude and Alex Reinert, we trace the history of #QualifiedImmunity and import of its lost "Notwithstanding Clause." 1/
February 4, 2025 at 3:42 PM
ATTN: LAW REVIEWS
My @ij.org colleague Daniel Nelson & I have submitted our article "Section 1983 (Still) Displaces Qualified Immunity."
Building on the work of Will Baude and Alex Reinert, we trace the history of #QualifiedImmunity and import of its lost "Notwithstanding Clause." 1/
My @ij.org colleague Daniel Nelson & I have submitted our article "Section 1983 (Still) Displaces Qualified Immunity."
Building on the work of Will Baude and Alex Reinert, we trace the history of #QualifiedImmunity and import of its lost "Notwithstanding Clause." 1/
BEHOLD, THE CONSTITUTIONAL SEPARATION OF POWERS:
- Legislative Branch:
“The President can just do whatever.”
- Executive Branch:
“The courts will stop me if this is wrong.”
- Judicial Branch:
“We defer to Congress and the President.”
- Legislative Branch:
“The President can just do whatever.”
- Executive Branch:
“The courts will stop me if this is wrong.”
- Judicial Branch:
“We defer to Congress and the President.”
February 1, 2025 at 11:42 PM
BEHOLD, THE CONSTITUTIONAL SEPARATION OF POWERS:
- Legislative Branch:
“The President can just do whatever.”
- Executive Branch:
“The courts will stop me if this is wrong.”
- Judicial Branch:
“We defer to Congress and the President.”
- Legislative Branch:
“The President can just do whatever.”
- Executive Branch:
“The courts will stop me if this is wrong.”
- Judicial Branch:
“We defer to Congress and the President.”
Robert E. Lee was a traitor to the United States.
February 1, 2025 at 11:41 PM
Robert E. Lee was a traitor to the United States.
I’ve been suing the federal gov’t for abuses since Obama.
Trump came in; people said gov’t would accept accountability.
It didn’t.
Biden came in; people said gov’t would accept accountability.
It didn’t.
Trump’s back. People say gov’t will accept accountability.
It won’t …
Trump came in; people said gov’t would accept accountability.
It didn’t.
Biden came in; people said gov’t would accept accountability.
It didn’t.
Trump’s back. People say gov’t will accept accountability.
It won’t …
February 1, 2025 at 3:55 PM
I’ve been suing the federal gov’t for abuses since Obama.
Trump came in; people said gov’t would accept accountability.
It didn’t.
Biden came in; people said gov’t would accept accountability.
It didn’t.
Trump’s back. People say gov’t will accept accountability.
It won’t …
Trump came in; people said gov’t would accept accountability.
It didn’t.
Biden came in; people said gov’t would accept accountability.
It didn’t.
Trump’s back. People say gov’t will accept accountability.
It won’t …