Enrich it, even.

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

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

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

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

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

You can read the full brief below. But here's the intro:
www.supremecourt.gov/DocketPDF/24...

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

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

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

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

Definitely good. Restricting the ability of the government to seek interlocutory review takes a costly tool out of their toolbox. The government uses these appeals to wear down the resources of plaintiffs and drag cases out for YEARS.

You can read the full working draft on SSRN.

If you're a law review editor, we are still looking for a place to publish. Please reach out.

If you're a judge, please give this due consideration. Qualified immunity thwarts the will of Congress. /END

papers.ssrn.com/sol3/papers....

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/