The Institute for Justice fights every day to ensure that all Americans enjoy the freedoms the Constitution guarantees. As part of this work, the Institute has long advocated for judicial engagement; that is, the idea that judges should analyze and evaluate the facts in every constitutional case that comes before them and not prejudge a case in favor of the government.

This is the fifth and final article in a series that examines what this idea means in practice. The first four explored what judicial engagement means in each of IJ’s four pillar areas: economic liberty, free speech, private property, and educational choice. This one will explore what it means in the context of cases that deal with immunity and accountability.

The Institute for Justice launched its new Project on Immunity and Accountability last January, and the project touches and flows through each of IJ’s four pillars. This is because the project concerns not just where the government violates the constitution, but how the courts remedy those wrongs. As IJ attorney Patrick Jaicomo has said, “a right without a remedy is no right at all.”

Often, the sought-after remedy is an injunction—a court order requiring the government to stop enforcing the unconstitutional/unlawful law, regulation, or policy. Such orders are often issued by courts and this forward-looking remedy is central to public interest litigation.

But sometimes a forward-looking remedy, like an injunction, would not actually cure the alleged harm. To put a finer point on it: sometimes an injunction would be meaningless. One example is when the government stops acting in an unconstitutional/unlawful way, but caused serious harms to individuals in the past. That’s what happened in Tanzin v. Tanvir, a case argued before the Supreme Court last week. And such situations are often present before courts across the country when they decide to grant qualified immunity to the offending officials.

“Appropriate Relief Against the Government”

In Tanzin v. Tanvir, a group of Muslim men challenged their placement on the no-fly list by FBI agents. They argued that certain FBI agents placed them on the no-fly list in retaliation for rebuffing requests to spy on their communities. They have been removed from the no-fly list, so an injunction would do little to help them. But the named plaintiff, Muhammad Tanvir, lost job opportunities, money for airline tickets, and the ability to visit his sick family for five years due to his placement on this list. He, and the other plaintiffs, believe that the harms they endured necessitate the consideration of damages to remedy their harms. Fortunately, Congress enacted a specific law for just this purpose: the Religious Freedom Restoration Act (RFRA).

RFRA empowers “[a] person whose religious exercise has been burdened” by the government to “obtain appropriate relief against the government.” Congress enacted RFRA in the wake of the Supreme Court’s decision in Employment Division v. Smith to restore the level of scrutiny used to protect the free exercise of religion prior to the decision. In other words, Congress intended RFRA to codify constitutional litigation under the First Amendment before the Smith decision. This means that the question of whether monetary damages are available is twofold: what does the statute say and what was the historical practice?

The sole question here is about the remedy: whether Tanvir and the others are entitled to monetary damages for the violation of their Free Exercise rights. RFRA states that the plaintiffs are entitled to “appropriate relief.” Here, as the plaintiffs have been removed from the no-fly list, the only relief that could remedy their harms is damages. An injunction would only order the government to not do what it is already not doing. That hardly seems “appropriate.”

Yet the government argues that the Supreme Court is powerless to require government officials to pay damages to Tanvir and the others. The argument is that courts have no general power to issue damages against government officials and that the statute’s use of the term “appropriate” is not sufficient to give courts the power to issue damages. This argument fails in two respects.

First, the statute. As noted previously, RFRA allows individuals who have had their Free Exercise rights violated by government officials to receive “appropriate relief.” Textually, it is clear that this empowers courts to provide whatever relief may be appropriate to remedy the harms done by the government to those suing under the statute. Congress could have listed the types of relief that were available or unavailable. Congress could have specified the types of relief that courts should award depending on the situations. But Congress decided to leave what was “appropriate” for the situation up to judges.

Yet, the government argues that the term “appropriate relief” bars damages because damages against the government are never appropriate. Such an argument leads to the question of why Congress didn’t simply say that courts could issue injunctions or other forward-looking relief. But that is not the language Congress used and the Supreme Court would be remiss to hold the word choice essentially meaningless.

Ignoring the word choice in favor of the government’s argument that damages are never appropriate would amount to a policy decision. Courts are not supposed to make policy decisions. They are supposed to apply the laws as written in in line with the original public meaning of the text. Holding that monetary damages are never appropriate would contravene the plain text and require the court to make a policy determination of whether government officials should be subject to money damages.

This sort of determination is one left to the political branches, not the courts. The court’s job is to remedy the harms asserted. Here, there is an affirmative statute that would allow the Supreme Court to do just that. It would be abdication to allow harms to go unremedied because subjecting government officials to monetary damages might not be “good policy.”

Turning to the background principles and the founding era. On top of the affirmative statutory language, history is also on the side of issuing money damages against government officials. IJ filed an amicus brief in this case laying out the historical practice of courts issuing damages against government officials when the situation called for it. In the brief, IJ attorneys explained:

As long as the United States has been a country, individuals have vindicated their rights through suits for damages against federal officials. In those suits, courts assumed their traditional role by simply deciding cases and ordering appropriate relief without making policy determinations. If good reasons existed to shield officials from accountability via immunity or indemnifications, courts left those considerations to Congress.

This brief cuts against the government’s argument that judges, following some background principle, never subjected government officials to damages. The brief points to several cases and instances of judges requiring officials to pay damages and leaving it to Congress to decide whether to indemnify the officials.

Both the history and the statutory language supports Tanvir in his quest for compensation for the years of harm he suffered over his unlawful placement on the no-fly list. This is exactly why IJ filed an amicus brief supporting his argument.

But it’s not just about this particular case. It is the broader theory about the role of judges. As Justice Story explained in 1824: “this Court can only look to the questions, whether the laws have been violated; and if they were, justice demands, that the injured party should receive a suitable redress.” If suitable redress consists of damages against government officials, it is the duty of the courts to issue such a remedy.

Likewise, the legislature has the authority to determine whether the government officials should have to pay the damages themselves. But that is a policy decision that should be left to Congress. Thus, with no negative command prohibiting courts from granting damages for constitutional violations, courts should be concerned only with whether the injury requires damages. What tool of remedy would redress the constitutional violation suffered by the plaintiff is the operative question—or at least, it should be.

Qualified Immunity: A Judicially Created Doctrine

Unfortunately, the Supreme Court created a doctrine which allows courts to skirt answering just that question. Qualified immunity allows courts to get out of answering whether a constitutional violation requires damages to remedy the harm. Qualified immunity is a blanket policy decision by the courts that government officials should not normally be subject to monetary damages if they violate an individual’s constitutional rights.

The Court created the current doctrine of qualified immunity in 1982. Under qualified immunity, a court will only subject an official to damages if the right they violated was “clearly established.” While that may not seem like a bad policy on its face, there are two major issues. First, it is not the role of the courts to institute general policy. Second, the only way that a court can find a “clearly established” right is through a case directly on point for the same circuit court of appeals. That happens, as it turns out, highly infrequently.

Take a recent Sixth Circuit decision which took a very narrow view of “clearly established.” There, the judges considered qualified immunity in the context of a man who alleged officers violated his constitutional rights when they deployed a dog against him while he was sitting on the ground surrendering. He pointed to a case when the court held deploying a dog against a person lying down surrendering was unconstitutional. But the Sixth Circuit here decided that the difference between a person lying down and a person sitting down was different enough to not make the sitting-down variety “clearly established.” As a result, the court held that there was no clearly established constitutional right and, as such, the officers were entitled to qualified immunity.

Further, in Pearson v. Callahan, a 2009 decision, the Supreme Court made qualified immunity even broader. In determining whether qualified immunity applies, courts use a two-step approach. First, the court must determine whether the officer violated a constitutional right; then, the court must determine whether the law was clearly established. At least, that is how it was before Pearson.

Pearson changed that two-step test. The two steps are still there. But now the first step, determining whether an official violated a constitutional right, is optional. Courts can now jump straight to determining whether the right was clearly established at the time of action. They are no longer required to determine whether the official actually violated a constitutional right. This has led to courts rarely ever determine whether a right was violated. As a result, many rights never become “clearly established,” which leads to more instances of courts granting qualified immunity.

This seems like an abdication of the judicial duty to “say what the law is.” It is the role of the judiciary to ensure the other branches adhere to the limits the Constitution has placed on government. Qualified immunity allows courts to skirt this responsibility. It is a policy decision about whether government officials in general should be subject to damages. But it is not the role of the courts to make sweeping policy determinations. It is their role to apply the law and Constitution in specific cases and then, if appropriate, issue a remedy that will sufficiently address the plaintiff’s harms.

Judicial Engagement & Accountability

At the Center for Judicial Engagement, we advocate for a judiciary that ensures that Americans receive the full measure of protections and liberties the Constitution guarantees. A key part of that is ensuring that when people have their constitutional rights violated, the violators are held accountable—held accountable to the individuals by redressing their specific harms, and held accountable to society by sending a message that such violations will have consequences.

Judicial engagement is the idea that judges must stick to the role the Constitution envisioned for them. This means looking at the facts and evidence in every constitutional case and requiring the government to present evidence that what it is doing is constitutional. It means ensuring that individuals can hold government officials accountable. And it means leaving general policy questions about general programs of immunity to the political branches.

Adam Shelton is a fellow with IJ’s Center for Judicial Engagement.