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.

Access to Justice, Damages