An Under the Radar Attempt to Politicize Federal Funding Needs Your Input

The attempts by the Trump Administration to implement policies aligned with their ideology have come in many forms. The latest is an under the radar approach that would condition all federal funding on restrictions on diversity, equity, inclusion; ending protections for undocumented individuals; and limitations on activities that are viewed as being a threat to public safety or national security.

Less than a month into Trump’s presidency, the administration took the first steps in opening the floodgates of their efforts to end federal funding for programs and entities who they disagreed with ideologically. They issued an Executive Order that directed agencies to end funding for programs that include DEI; attempted to terminate federal grants because of words they didn’t like; and they sent all schools and higher education institutions a Dear Colleague letter (DCL) that sought to restrict diversity, equity, and inclusion efforts, and would have required school districts who wanted federal funds to sign a certification that they would follow the directives provided in the DCL.

These attacks on federal funding for entities the administration disagreed with expanded to the legal sector almost immediately. In April of last year, the Department of Justice issued a memo titled “Engagement with the American Bar Association,” where they cancelled participation by federal government employees in ABA events. The next day, the ABA’s federal grants that supported domestic violence-related were cancelled (they were later reinstated by the court). And, the ABA’s accreditation role has been under scrutiny by the U.S. Department of Education, which would impact federal financial aid for law students across the country.

Now, the Administration is taking a broad approach to tying federal funds to their political ideology.

At the end of January, the Trump administration, through the General Services Administration (GSA), filed a proposed information collection change to amend the certification requirements for all entities receiving grants, cooperative agreements, and financial assistance, such as loans, to align them with the administration’s ideology. The revised certifications would be added to the System for Award Management (SAM), the system that every applicant is required to register with before applying for and receiving federal grants and loans.

The proposed certifications require compliance with the Administration’s interpretations of federal law, not just legal requirements, including with executive orders. It states that federal antidiscrimination laws “apply to programs or initiatives labeled as diversity, equity, and inclusion (DEI) or diversity, equity, inclusion, and accessibility (DEIA).” It also calls out examples of practices that “may” violate such laws, including race-based scholarships and programs, preferential hiring or promotion practices, and race-based training sessions, regardless of if they have been found to be illegal.

Since the beginning of the Trump administration, we have seen the beating of the drum repeatedly on the unconstitutionality of race-based activities, but they have been using the wrong drumsticks.  They have pointed to the decision in Students for Fair Admissions vs. Harvard, which was limited to race-based admissions, as a reason that all DEI programs are not allowable. This attempted expansion of that Supreme Court decision is wrong – and, dare we forget, the judiciary branch is still the branch of government that has the power to declare activities unconstitutional, not the executive branch.

According to the notice, more than 220,000 entities who rely on federal assistance would be impacted by the proposed certifications. And, some of the certifications would go beyond the use of the federal funds in an attempt to control all the activities of organizations and schools.

Think about the law school clinic that does immigration work that becomes subject to certifications that the medical school signs for their research grants that states they will not “harbor” illegal aliens – a term that the courts have yet to definitively define and that the Trump Administration uses repeatedly in its actions and rhetoric, including against schools that forbid ICE on their campuses and public housing that serves mixed-status families. These schools would be at risk of losing their student loans.

Think about legal services organizations who are defending individuals and nonprofits against the attacks by this administration on diversity programs and transgender rights. In an Executive Order released in September, President Trump claimed that “domestic terrorism” is driven by “extremism on migration, race and gender.” These organizations would be at risk of losing their Legal Services Corporation funding.

If these certifications are finalized, they would attempt to regulate activities that occur based on content and viewpoint and cause uncertainty about what activities and practices are permitted. The fear of severe penalties, such as False Claims Act liability and loss of federal funds, will cause the chilling of speech and conduct. They would likely violate the First Amendment and be found to be unconstitutionally vague, as the use of potential examples and undefined terms will lead to arbitrary enforcement.

Furthermore, these certifications are being put forth under the Paperwork Reduction Act, which is required to take into consideration whether the proposed collection of information is necessary and has practical utility. These additional certifications are clearly not necessary as the current certifications already require all recipients of federal funds to comply with federal laws, including federal antidiscrimination laws, and the Constitution.

These proposed certifications are attempting to inject one specific ideology and politics into federal funding. Even if courts ultimately strike them down, they will have an immediate chilling effect on the everyday work that is critical to our democracy. That is why every federal grantee must submit comments by the March 30th deadline about why these proposed certifications exceed the administration’s authority and are a dangerous tool in the administration’s toolbox.

Amanda Fuchs Miller is president of Seventh Street Strategies and former Deputy Assistant Secretary for Higher Education Programs at the U.S. Department of Education during the Biden-Harris administration.

The Next Revolution in Constitutional Law

The views expressed on the Expert Forum are those of the authors writing in their personal capacity. The views presented do not represent the American Constitution Society or its chapters. 

In a recent essay in the New York Times, Jeffrey Toobin argued that “the liberal constitutional agenda is failing.” In his view, “progressives have done a lot better pointing out the weaknesses of originalism than coming up with alternatives.” Progressives, he says, know what they “stand against,” but do not have a clear answer about what they “stand for.”

My recent book, People v. The Court: The Next Revolution in Constitutional Law, articulates a progressive theory of judicial review that answers Toobin’s call for an alternative to originalism. Current doctrine divides constitutional law into rights issues and structural issues. This dualistic framework obscures a central feature of the Constitution. Properly understood, the Constitution divides power between the government and We the People. It grants citizens an affirmative, collective right to maintain effective control over our government.

Viewed through the lens of the Court’s current constitutional doctrine, We the People are invisible. We do not appear in the Court’s structural constitutional doctrine because that body of law focuses exclusively on the division of power between and among government actors. We do not appear in the Court’s rights doctrines, because those doctrines focus exclusively on negative individual rights, not affirmative, collective rights. A future, progressive Supreme Court should exercise its power of judicial review to enforce the Constitution’s structural division of power between the government and We the People, and to enforce our affirmative, collective right to maintain effective control over our government.

People v. The Court unpacks this idea by building on John Hart Ely’s insight that aggressive judicial review “appropriately exists for those situations where representative government cannot be trusted, not those where we know it can.” This essay briefly explains how my theory and Ely’s insight apply in four different areas of constitutional doctrine: election law, individual rights, federalism, and separation of powers.

Election Law

Election law is an area where representative government cannot always be trusted, because elected politicians are often tempted to entrench their own power, rather than serving the public interest. Therefore, as Ely argued, the Supreme Court should engage in aggressive judicial review to correct malfunctions in the electoral process. Chief Justice Warren’s opinion in Reynolds v. Sims, which famously established the “one person, one vote” principle, provides an excellent example of this type of strong judicial review. Building on the Reynolds precedent, People v. The Court argues that a progressive Supreme Court should ban partisan gerrymandering and require those in charge of redistricting to draw boundaries in a way that maximizes the number of competitive seats for both state legislatures and the House of Representatives. These and similar rules are necessary to vindicate the affirmative, collective right of We the People to maintain effective control over our government.

Federalism

In contrast to election law, a progressive Supreme Court should practice deferential judicial review for all federalism cases in which litigants allege that Congress has violated state sovereignty or intruded into the reserved powers of the states. These are areas where we can trust our elected representatives in Congress to do the right thing. As Herbert Wechsler famously argued, the political safeguards of federalism are sufficient to protect the states from unwarranted congressional interference. The Constitution, properly understood, grants political actors the authority to make decisions about the proper distribution of legislative authority between Congress and state governments. When the Court engages in aggressive judicial review to invalidate federal legislation on the grounds that it allegedly violates federalism principles, the Court itself violates our affirmative, collective right to maintain control over our government by transferring decision-making authority from a government entity that is accountable to the people (Congress) to a government entity that is not accountable to anyone (the Supreme Court).

Respect for state autonomy is neither a liberal value nor a conservative value. For example, liberals favor state autonomy with respect to gun regulations, but in cases such as McDonald v. City of Chicago and New York State Rifle Ass’n v. Bruen, a conservative Court has intruded deeply into an area traditionally reserved to the states under the Tenth Amendment. More broadly, conservative Justices fail to recognize that the primary federal threat to state autonomy comes not from Congress, but from the Supreme Court. A progressive Supreme Court that is committed to federalism principles could enhance state autonomy by repudiating incorporation doctrine, a doctrine that has vastly expanded federal judicial power at the expense of the states. (I explain later in this essay how the Court can provide robust protection for individual rights without incorporation.) Granted, this is a radical proposal that is unlikely to be implemented in the near future. However, repudiation of incorporation doctrine would enhance state autonomy much more than any of the Court’s federalism decisions since United States v. Lopez (1995). Those decisions purport to protect state autonomy by limiting Congress’s legislative powers. In fact, the Court’s so-called “federalism” decisions have effectively transferred federal lawmaking power from our elected representatives in Congress to unelected, unaccountable Justices, but they have done very little to enhance state autonomy.

Presidential Power

A progressive Supreme Court should also practice deferential judicial review in most cases where litigants allege that Congress has violated the Constitution by infringing powers vested in the President. Let me be clear: the Constitution’s Vesting Clause, which vests the “executive power” in the President, does not impose any constitutional limit on Congress’s power to regulate the executive branch. To the contrary, the Necessary and Proper Clause expressly grants Congress the power to “make all laws which shall be necessary and proper for carrying into execution” the President’s executive power. Moreover, the Take Care Clause creates a constitutional duty for the President to “take care that the laws be faithfully executed.” To paraphrase Justice Scalia in Morrison v. Olson, that duty applies to all laws enacted by Congress, not just laws that the President likes. When the Court invalidates federal legislation on the grounds that it infringes powers reserved to the President under the Vesting Clause, the Court itself violates the affirmative, collective right of We the People to insist that all federal officers must comply with laws enacted by our elected representatives. If the Court allows the President to violate those laws, government “of the people, by the people, and for the people” becomes a government of one man, by one man, and for one man.

Trump v. Slaughter illustrates this point. Since its landmark 1935 decision in Humphrey’s Executor, the Court has repeatedly affirmed Congress’s power to impose statutory limits on the President’s unfettered discretion to fire federal officers. The Court will almost certainly decide Slaughter before the end of this term. Pundits expect that Slaughter will overrule Humphrey’s Executor and grant the President sweeping power to fire federal officers in violation of federal statutes. The Court’s decision will likely rely on the unitary executive theory—a theory embraced by self-proclaimed originalists that is based on a dangerous misunderstanding of the Constitution’s text, structure, and original public meaning.

By overruling Humphrey’s Executor, the Court will accelerate the rise of Presidential dictatorship, a form of government that is antithetical to the Constitution’s commitments to popular sovereignty and representative democracy. One of the first priorities for a future, progressive Supreme Court should be to repudiate the unitary executive theory and revive Humphrey’s Executor. It is not hyperbole to suggest that the continued survival of republican government in the United States depends on the Court’s willingness to reverse our ongoing descent into autocracy by enforcing federal statutes that constrain Presidential power.

Individual Rights

Finally, let me address the subject of individual rights, an area where my views differ markedly from what might be called “liberal orthodoxy.” People v. The Court advocates a system of weak judicial review to protect individual rights from government infringement. Weak judicial review differs from deferential review in that it does not involve judicial deference to Congress. Weak review differs from strong review because, in a system of weak review, judicial decisions protecting individual rights are subject to legislative override by Congress. The option of legislative override is essential to preserve our affirmative, collective right to maintain control over our government. With legislative override, elected legislators (and through them, American voters) get the final say over major public policy issues, such as gay marriage and abortion rights. Without the option of legislative override, unelected Justices get the final say, depriving American citizens of our affirmative, collective right to maintain effective control over our government.

Skeptics contend that a system of weak judicial review would erode protection for individual rights. However, Australia, Canada, New Zealand, and the United Kingdom all apply systems of weak review to protect individual rights. All four countries earn high scores on the V-Dem liberal democracy index and Freedom House’s Freedom in the World rankings, demonstrating that weak judicial review is fully compatible with strong protection for individual rights. Moreover, as I have demonstrated in prior scholarship, a system of weak review has strong roots in U.S. historical traditions. For much of the nineteenth century, federal courts applied a system of weak review to protect individual rights from infringement by government actors. In particular, they relied primarily on international law, not constitutional law, to protect individual rights from government infringement. Since Congress has the power under the later-in-time rule to override judicial decisions based on international law, judicial reliance on international law to protect individual rights preserved the option of legislative override.

Today, the United States is a party to both the International Covenant on Civil and Political Rights and the Convention Against Racial Discrimination, two major international human rights treaties. Taken together, those two treaties protect most of the rights that are currently protected under the Bill of Rights and the Fourteenth Amendment. Congress has the power to enact legislation authorizing judicial enforcement of those treaties. Such legislation could also encourage courts to apply the canon of constitutional avoidance to avoid constitutional decisions in cases where judicial enforcement of a human rights treaty could substitute for judicial enforcement of the Bill of Rights or the Fourteenth Amendment. If federal courts honored such legislation, the net result would be a system of weak judicial review in which courts provide robust protection for individual rights, but the American people maintain effective control over our government, because judicial decisions would be subject to legislative override by our elected representatives in Congress.

Under this approach, applying human rights treaties to the states via the Supremacy Clause would be functionally similar to applying the Bill of Rights to the states via incorporation doctrine. By repudiating incorporation doctrine and enforcing human rights treaties, the Court could ensure robust protection for fundamental human rights, while also respecting federalism principles by returning power to the states for that small set of incorporated rights that are not protected by human rights treaties. (Specifically, states would gain greater autonomy with respect to rights protected by the Establishment Clause, the Second Amendment, the exclusionary rule, the Sixth Amendment jury trial right, and the Eighth Amendment Excessive Fines Clause. As explained in People v. The Court, the Fifth Amendment Takings Clause would still apply to the states via incorporation doctrine.) All other incorporated rights would be protected by enforcing human rights treaties against the states via the Supremacy Clause.

Who Killed Dr. Linda Davis? The Law Says ICE is at Least Partially to Blame.

The views expressed on the Expert Forum are those of the authors writing in their personal capacity. The views presented do not represent the American Constitution Society or its chapters. 

On February 16, Dr. Linda Davis was tragically killed when her car was struck by another vehicle fleeing an ICE arrest. Dr. Davis’s death is obviously heartbreaking for her family, her students, and her community. Her death has also impacted people who did not have the privilege of knowing her by raising important legal and policy questions about who bears the responsibility when ICE engages in reckless vehicle pursuits to enforce civil immigration orders.

Unfortunately, the chase that killed Dr. Davis was not an isolated event. Federal immigration agents have a lengthy documented history of engaging in dangerous and sometimes deadly vehicle pursuits to carry out immigration arrests. During last year’s immigration enforcement surges in Los Angeles and Chicago, ICE agents regularly used aggressive vehicular pursuit tactics. For instance, ICE agents sparked a large protest last October in Chicago when they used a PIT maneuver in the middle of a residential neighborhood to execute an immigration warrant.  The same month, ICE agents in Oxnard, California intentionally rammed the vehicle of a US citizen that it was attempting to detain. ICE has also caused a series of crashes across the country this month, including those reported in Providence, Rhode Island, Austin, Texas, and Detroit, Michigan. Given the volume and frequency of ICE-involved vehicular accidents, it is unsurprising that pursuit tactics are effectively authorized by DHS leadership. Last year, DHS rescinded Biden-era guidance that created a reasonableness standard for agents and urged consideration of risks to the public before engaging in a vehicle pursuit. In its place, the Trump administration implemented a policy that removes the reasonableness standard and fails to acknowledge the risks associated with chases. ICE’s traffic pursuit practices starkly diverge from accepted national policing standards.

National best policing practices limit vehicular pursuits to exceptional circumstances where failure to immediately apprehend a suspect presents an imminent risk of danger to the public. The Policing Executive Research Forum (“PERF”), a leading policing policy think tank has recommended that law enforcement officers not pursue a fleeing vehicle unless they have a reasonable suspicion that the driver was involved in a violent crime. PERF also advises against pursuits if the identity of the driver is known and can be detained at a later date. This guidance is informed by the extremely high risk of harm associated with pursuits as well as the legal liability that law enforcement agencies face if the chase results in a crash.  Neither of PERF’s concerns are conjectural.

Vehicular pursuits are dangerous and deadly especially when they are conducted in densely populated areas. According to the Bureau of Justice Statistics, between 1996 and 2015, “an average of 355 persons (about 1 per day) were killed annually in pursuit-related crashes.” Of the people killed in pursuit-related crashes from 1996 to 2015, approximately 33% were bystanders, 65% were occupants of the vehicles being pursued, and “slightly more than 1%” were law enforcement officers. Nationwide, these dangers are borne disproportionately by people of color.

Because pursuits cause death, injury, and property damage, they often result in lawsuits for the pursuing officer and law enforcement agency that employs them. Courts have found police pursuits are actionable under the U.S. Constitution and state common law. First, a pursuit can violate the substantive due process clause of the Fourteenth Amendment. In 1998, the Supreme Court decided Sacramento v. Lewis, which recognized that a passenger injured by a police high-speed chase can sue under 42 U.S.C. § 1983 for a violation of the substantive due process clause. While the Court declined to find that a Fourteenth Amendment violation occurred under the facts in Lewis, it held that police chases where the officer is intending to harm the suspect or worsen their legal rights would support a claim. Additionally, the Court in Lewis was careful to caution that the “intent to harm” test was specific to the particular facts of the case stating “deliberate indifference that shocks in one environment may not be so patently egregious in another, and our concern with preserving the constitutional proportions of substantive due process demands an exact analysis of circumstances.” Accordingly, a number of lower courts have distinguished Lewis. In particular, the Third, Fourth, Seventh, and Tenth Circuits have found substantive due process violations where chases lasted several minutes or were not in response to an emergency or imminent risk like they were in Lewis.

Another source of liability is state tort law. Police officers have been held liable for conducting reckless vehicular pursuits that proximately cause another driver's injury or death. In Georgia, where Dr. Davis was killed, police officers are liable for police chases when they fail to “properly balance the risk [of the pursuit] to the safety of other drivers” and exercise “due regard for the safety of other drivers." The Georgia state standard is what will ultimately control any case Dr. Davis’s family would bring against ICE.

The Supreme Court’s recent Bivens jurisprudence likely forecloses Dr. Davis’s family from pursuing a Fourteenth Amendment claim against the individual agent. However, victims of ICE misconduct can sue the federal government under the Federal Tort Claims Act (“FTCA”). Under the FTCA, state torts are actionable against the federal government to the extent a plaintiff would be able to sue a private person for similar conduct in state court. Accordingly, if Dr. Davis’s family could sue an officer for proximately causing her death under Georgia tort law, she would be able to sue the federal government for the same conduct under the FTCA.

While further details may emerge, the federal government should be liable under the FTCA based on the facts that we know. The driver that collided with Dr. Davis was being pursued by ICE to enforce a 2024 deportation order. Civil immigration matters are not the type of imminent threat or emergency situation that policing experts and courts have recognized justify the significant dangers of a chase. This is particularly true, since the pursuit occurred in a densely populated area during Savannah’s morning commute rush hour.

While the driver that struck Dr. Davis is currently incarcerated on criminal charges, he does not bear sole legal responsibility for her death. Both legal and policy guidance advise that an officer should only undertake a pursuit in emergency situations where no other options are available. Overstaying a deportation order is not the type of emergency situation that courts or law enforcement experts have found justify a vehicular pursuit. ICE agents may not be the ones facing a criminal trial for killing Dr. Davis but their employer, the federal government, can and should be sued for causing her avoidable death.

DHS Reforms Must Make Federal Officers Liable for Constitutional Rights Violations

The views expressed on the Expert Forum are those of the authors writing in their personal capacity. The views presented do not represent the American Constitution Society or its chapters. 

Congress has little time to agree on measures to both fund and reform the Department of Homeland Security before the Department’s budget ends tomorrow, Friday, at midnight. Congressional leaders, at the demand of the public, are discussing systemic changes to the Department to prevent its officers from continued wide-spread constitutional rights violations like those seen recently in Minneapolis, Chicago, and other U.S. cities. This is a pivotal moment. We should not squander it on half measures like telling officers what to wear (body cameras and face masks), but instead we must redefine the relationship between federal officers and members of the public.

Mostly, congressional leaders are discussing whether to require Department officers to wear bodycams, refrain from hiding their identities, and seek judicial warrants before entering homes. But those measures would treat the symptoms and fail to address the underlying illness in our system: federal law enforcement officers face limited personal liability for their constitutional rights violations.

This lack of accountability distinguishes federal law enforcement officers from state law enforcement officers, as noted by a string of constitutional law scholars. Although state officials may be held personally liable for violating constitutional rights, see 42 U.S.C. § 1983, no federal statute provides an analogous claim against federal officials. The argument of these scholars is straightforward: Why shouldn’t federal law enforcement officers face the same liability for constitutional violations that state officers face?

Over fifty years ago, the Supreme Court of the United States took a step toward equal accountability for federal and state officers, believing Congress would have intended it. The Court recognized an implied right, similar to the Section 1983 remedy, that permits individuals to sue individual federal law enforcement officers for damages in limited circumstances. The Court recognized this implied remedy in 1971 in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics.

But since then, the Supreme Court has spent the last several decades practically teeing up this moment by confining Bivens and refusing to extend its implied constitutional remedy even in egregious circumstances. The Court’s most recent case declining to extend a Bivens remedy looks a lot like what we’ve seen recently. In Egbert v. Boule, 596 US _ (2022), a border patrol officer was accused of excessive force after he allegedly threw an inn owner to the ground because the owner would not cooperate with an immigration investigation of a person suspected of unlawfully crossing the border. But the Court ruled the border patrol officer could not be sued for violation of the Fourth Amendment, which generally is understood to protect against such force. Instead, the Court said that the remedy for the constitutional rights violation “is a legislative determination that must be left to Congress, not the federal courts.”

So the Court has backed away from its initial attempt to give Congress the benefit of the doubt that it would have wanted equal accountability for all law enforcement officers regardless of who employs them. Instead, the Court has handed back to Congress the task of fixing constitutional accountability for federal officers. With that, the Court has virtually granted immigration officers and other federal officials a practical license to violate the constitution with impunity. It’s no wonder that today we’re seeing unprecedent constitutional rights violations by agents of U.S. Border Patrol and Immigration and Customs Enforcement (ICE).

And Congress has not ignored the disparity in constitutional accountability between state and federal officials. That topic has been the subject of recent Congressional interest and inquiry, and now is the ideal time for Congress to correct the problem. In fact, the Congressional Research Service in the past few years has suggested that, in light of the Court’s continued refusal to extend the Bivens remedy, a feasible path to reducing constitutional violations by federal officers would be for Congress to create a private right of action against these officials:

Congress, therefore, could choose to create a Section-1983-type action for claims against federal officials. In creating a new statutory cause of action, Congress could establish its parameters, including which federal officials would be liable, what federal rights would be protected, and whether officials are entitled to qualified immunity. For example, Congress could make all federal officials liable for violations of all constitutional rights—much as Section 1983 does for state and local officials—or could limit the remedy to cases involving federal law enforcement officials who commit certain Fourth Amendment violations, such as excessive use of force.

No compelling reason exists for constitutional liability to depend on the federal-versus-state identity of officials who violate a person’s constitutional rights. The greatest concerns over correcting this accountability disparity are increased costs to the federal government of defending constitutional rights claims and expanded caseloads in federal courts. Yet these administrative concerns are categorically less important than protecting people in the United States from abuses of their constitutional rights. Indeed, concerns like these existed when Section 1983 was enacted over 150 years ago. But they did not stop Congress in 1871 when it created liability for state officials who had been rampantly violating the constitution throughout the South in the wake of the Civil War.

Again faced with flagrant constitutional violations, now by federal officials, Congress should seize the moment and close this liability loophole before states try to solve it on their own. Indeed, progressive states are poised to create a patchwork of remedies by enacting their own legislation granting individuals a state law right to sue federal officials for federal constitutional violations within those states. But for equity reasons, the ability to vindicate federal rights should not depend on the state where a constitutional violation occurs.

Moreover, enforcement of this state law right to enforce the constitution against federal officers will face, in every case, a defense by federal officers under the constitution’s Supremacy Clause. Already, federal officials claim that this clause grants immigration officers broad immunity from liability under state law for actions taken within the scope of their federal duties. These arguments will frustrate efforts to use state law to vindicate constitutional rights violations, regardless of whether the arguments have merit, see Drury v. Lewis, 200 U.S. 1 (1906) (denying supremacy clause immunity to federal officer on state law murder charge because alleged excessive force in fatal shooting would be beyond his official duties).

Congress could fix this lack of accountability for federal officers with simple, balanced legislation. It could do so by simply enacting a federal statute that word-for-word mimics Section 1983, but with “the United States” in place of “any State or Territory or the District of Columbia.” Likewise, when courts must eventually decide the bounds of the newly created liability for federal officials under the new statute, Congress could let judges be guided by the long history of cases interpreting state official liability under Section 1983.

This balanced approach was advocated most recently by renowned constitutional law scholar Erwin Chemerinsky in a recent guest essay in the New York Times. There he suggests that the doctrine of qualified immunity, as controversial as it is, could be left intact for federal officers. In effect, he promotes a compromise position: give citizens a cause of action against federal officials who violate their constitutional rights, but also permit those federal officials to raise qualified immunity as a defense in edge cases where reasonable officers had room to doubt whether their conduct would violate the constitution.

Now is a rare moment of bipartisan support; voters of both parties want to prevent federal officials from freely violating constitutional rights. For this reason, Congress should do more than treat the symptoms of this illness and, instead, should cure the disease. Body cameras, warrant requirements, and face covering limitations may permit public agencies to discipline federal officers who have violated an individual’s constitutional rights, but these tools will do little to help the victim who lacks a private remedy for the constitutional violation they have suffered. And in turn, these half measures will do far less to deter constitutional rights violations than personal liability would. The people of the United States, a nation committed to the rule of law, deserve the full cure. And now is when their congressional leaders should give them the antidote to constitutional abuses of federal officers by enacting a federal analogue to Section 1983.

The good news is that legislation aimed at holding federal law enforcement officers accountable has already been proposed in the U.S. Senate, most recently in December 2025, in a bill titled the Accountability for Federal Law Enforcement Act. It is currently sitting in the Senate Judiciary Committee, and the public seems largely unaware of it. Letting this bill languish in committee while Department reforms are discussed is a missed opportunity to correct the true problem the people of the United States want fixed, constitutional accountability for federal officers. To catch the wind of this moment, and to correct a longstanding disparity in accountability between federal and state officials, senators should swiftly send this bill to the House, and members of Congress should insist on tying this bill to Department funding, whether this week or after a partial governmental shutdown. That approach, not half measures floated now, would be the most assured way to stop federal law enforcement officers from flagrantly violating constitutional rights.

Observing ICE Is Legal. Killing Observers is Not.

The violence of the Trump Administration’s extreme immigration enforcement tactics is costing precious lives and corroding core constitutional rights. These rights have long existed only in theory for communities of color. As but one example, in 2010, a Customs and Border Protection (CBP) agent shot and killed a 15-year-old Mexican child, Sergio Adrián Hernández Güereca, while the boy was in Mexico. The Supreme Court refused to provide Hernández’s parents with the barest of legal remedies.

The Trump Administration’s killings in Minnesota underscore what minoritized communities have long experienced—that without widespread societal vigilance rights can become ephemeral overnight. The brutal practices employed by Immigration and Customs Enforcement (ICE) and CBP have trampled fundamental freedoms that are the backbone of our fragile democracy and threaten its future. The number of people killed, families terrorized, and rights broken is heartbreaking. The constitutional violations include our First Amendment rights to free expression, our Fourth Amendment rights to be free from unreasonable use of force, our rights to be free from discrimination under the Equal Protection Clause, and our Second Amendment right to possess arms. In isolation, each violation is troubling enough. Together, they speak to a complete disregard of individual liberties and constitutional norms.

As federal courts have routinely recognized, individuals possess a First Amendment right to observe and record law enforcement officers in public space performing their public functions. Such recording serves multiple First Amendment interests. First, recording is protected information gathering on government operations, enabling viewers to make more informed decisions about policies under our democratic system. Second, it can facilitate future speech by the recorder including subsequent dissemination and broadcast of the recording to others. Third, it enriches the marketplace of ideas, providing diverse perspectives (often in contrast to the distinct physical perspectives provided by law enforcement surveillance recordings and misleading public statements made by government agencies about their actions). Fourth, it acts as a direct, in the moment statement of resistance against the recorded activity, helping to ensure government accountability. Fifth, recording can help reclaim the public square for the people—public space that has historically been the cornerstone of First Amendment dialogue and that has been made perilous by law enforcement actions, particularly for marginalized communities.

In response to the First Amendment right to record, law enforcement agencies, including ICE, sometimes contend that they can stop the person recording if they are interfering with law enforcement activity. While it is true that if the person recording begins to physically interfere with an arrest, then arguably law enforcement could stop the recording and briefly detain the individual, it would be a very rare situation where the act of recording itself would sufficiently interfere to justify stopping the recording or arresting the person for interference or purported “obstruction.” Put differently, accountability alone is not interference or obstruction.

And even if the recording does begin to impede law enforcement operations, under no circumstances would such interference justify the degree of force being brutally imposed by federal agencies like ICE and CBP. Consistent with the rich tradition of peaceful civil disobedience by minoritized groups, whether they be racial justice advocates, HIV activists, feminist activists, or others, breaking the law in the name of signaling the law’s injustice does not give officers open license for brutality.

The Fourth Amendment prohibits unreasonable use of force by law enforcement agencies. Under well-established Supreme Court precedent, determining whether the use of force is reasonable or not involves balancing the scope of the government intrusion versus the governmental interests alleged to justify the force. That is, the force must be proportional. This is not a mechanical test and facts must, according to the Court, be “slosh[ed]” through. Factors include the extent of law enforcement force, whether the individual posed a threat to the public or officers (both the magnitude and likelihood of that threat), the severity of any underlying crime, whether the individual is actively resisting or fleeing, and whether law enforcement gives a warning first. And the Court has made clear that “notwithstanding probable cause to seize a suspect, an officer may not always do so by killing him. The intrusiveness of a seizure by means of deadly force is unmatched. The suspect's fundamental interest in his own life need not be elaborated upon.” Continuing, the Supreme Court has explained that allowing officers to use deadly force anytime they had reason to arrest a person, would in essence turn an officer into judge, jury, and executioner: “The use of deadly force also frustrates the interest of the individual, and of society, in judicial determination of guilt and punishment. . . . The use of deadly force is a self-defeating way of apprehending a suspect and so setting the criminal justice mechanism in motion.”

As applied in practice, this Fourth Amendment standard (supplemented by qualified immunity doctrine), is a relatively law enforcement-friendly standard. Nonetheless, even under this impoverished Fourth Amendment doctrine, as protected First Amendment recordings of federal immigration enforcement activities have laid bare, ICE and CBP have engaged in unconstitutional use of force, executing protestors Alex Pretti and Renée Good who posed minimal to modest risk to law enforcement. If for some reason these killings were permissible under the Fourth Amendment, that says more about the caliber of the law than it does the humaneness of the actions.

In both cases, the force used by federal agents was the maximum—multiple gunshots that tragically killed each protestor. And the purported government interests justifying the shootings are minimal. Each victim was engaged in activity protected by the First Amendment, neither was a fleeing suspect of a violent crime, and even if their activities interfered with ICE or CBP operations, that interference did not justify deadly force. As to Pretti, some have suggested that his concealed possession of a firearm itself justified the force—but if the Second Amendment and Minnesota law permit the possession of such a weapon, how can its mere presence justify Pretti’s execution? It cannot. And as to Good, to the extent her vehicle posed danger to an officer, the officer’s actions contributing to any danger ought not to be disregarded, and the totality of the circumstances beyond the purported “moment of threat” must be evaluated. If she committed a crime, ICE’s ability to identify and potentially detain Good subsequently also suggests that the force was unreasonable.

Finally, ICE and CBP have surveilled, profiled, and occupied many immigrant communities, using children as pawns. While in practice racial profiling by law enforcement and the imposition of racial guilt is prolific, the Supreme Court held over fifty-years ago that an individual’s apparent race and/or ancestry are alone insufficient bases to doubt someone’s lawful presence in the United States. To conclude otherwise would undermine both the Fourth Amendment’s requirement for individual suspicion and the Equal Protection’s protections against discrimination. Under our constitutional framework, immigrants in this country—including undocumented ones—have constitutional rights to be free from race discrimination and are entitled to due process. All persons ought to be treated as such—their lives cherished, not demonized and destroyed.

ICE’s and CBP’s tactics run afoul of all these protections and basic human dignity. First and foremost, their actions endanger the many immigrants who contribute so much to our country. But they also imperil the constitutional safeguards that are designed to protect American democracy and the lives of everyone.

A Modest Proposal for Ending International Law Courses

While I am only a law school student, I am not the only one asking: is international law dead?

Several opinion pieces have been published on the question. An example from my research is a panel event from October 2025 titled "The Death of International Law?" hosted by Georgetown University in Qatar. Ironically, the YouTube recording of University College London Professor Ralph Wilde’s lecture from the event begins with a title slide which appears to have interpreted the question as a statement: “THE DEATH OF INTERNATIONAL LAW”.

Disagreement over international legal standards is nothing new. But under the current administration, international law has been subordinated to national interest. There are numerous examples, from threats to annex Greenland to a proclamation that America “will run” Venezuela. It is no coincidence that the degradation of international law corresponds with a similar escalation of violence and unlawful actions nationally, such as the shootings of Renee Good and Akex Pretti and the repeated refusal of Department of Justice officials to recognize the illegal appointment of Lindsey Halligan as an acting United States Attorney.

Why? Because the philosophical pillars of domestic law also function as the same pillars of international law. Law schools must treat international law as essential and inseparable, instead of optional and peripheral, to its graduates’ education. Only then might we restore the credibility of international and national law, not just in theory, but in practice.

International law has been taught since the founding of the country. By 1907, however, only ten schools surveyed offered it as a course, and only as an elective. The 20th century saw an expansion in private law due to numerous factors, including the Industrial Revolution. But by the end of the century, industrialization and globalization necessitated experts in legal regimes between countries.

Consider the typical American legal education since then:

In Contracts, we learn economies thrive only because of enforceable promises. Parties to an agreement cannot rely on each other's good faith but on courts to uphold their bargains in a predictable framework.

In Torts, we learn how wrongs are remedied under normative expectations. Social order is manifested by imposing duties of care in which people are obligated to not cause harm to another.

In Criminal Law, we analyze the mens rea behind actions in order to decide if certain conduct is blameworthy and therefore deserving of punishment.

In Constitutional Law, we learn that state action depends on accountability and constraints. Laws must apply equally, regardless of status, or else people do not have a reason to uphold the social contract.

Now consider how international law was, and is, taught: a separate silo in the upper years of law school, often only for students who already have a niche interest. It is outside of the bounds of the country, and therefore, outside of the bounds of curriculum. For most students, I suspect, doctrinal classes may as well assume America is afloat in the void of space.

No cases to study for intercontinental trade disputes. No duty of care for those overseas. No crimes across borders. No separation of powers in supranational unions. The exceptions are usually only incidental.

This educational gap is not merely academic. Looking at American Association of Law Schools and American Bar Association survey data, about one-in-four schools offered an international law course between 1912 and 1938. The failure of international peacekeeping efforts in the ensuing Second World War would create a generation of lawyers committed to a rules-based international order — a world grounded in law, not power. This is evidenced by the number of schools offering an international law course rising to one-in-two by 1953 and virtually every law school by 1996.

While the number of schools offering international law classes increased, the number of students learning international law has stagnated. Writing in 1997, John A. Barrett Jr. noted “since the 1960s, the percentage of students taking these courses has remained relatively constant.” It’s no surprise because international law is often siloed and elective. One survey found only 4% of US law schools required an international law course in 2015 compared to almost a quarter in Canada and 89% in Mexico.

This contrast cannot be chalked up to different legal histories. The post-war international consensus galvanized around ideas of legitimacy and social contract, in line with the philosophy of Jean-Jacques Rousseau. His ideas, as well as other Enlightenment thinkers, influenced America’s Declaration of Independence and Constitution which created the domestic rule of law we have today.

To continue segregating international law into separate courses and departments falsely lures future generations of lawyers into believing it is also isolated in practice. It creates practitioners who believe our international economy can sustain growth while sabotaging agreements for unilateral gain. It incentivizes environmental devastation which harms those downstream. It allows for the proliferation and normalization of interstate violence. It reduces our own ability to defend ourselves by alienating allies.

And that is where we find ourselves currently.

President Trump, in an interview with The New York Times, said “I don’t need international law”. In a sense, he is right: we don’t need separate legal principles to justify an international rule of law. The same legal principles which provide us with justice at home can provide us with justice abroad. Likewise, the abdication of those principles between nations inevitably will sabotage faith in those principles domestically. We can only hope today’s lawyers and judges will act with this understanding, but we can, and should, act to ensure tomorrow’s lawyers and judges are wiser.