State legislators’ most important responsibility is to protect rights under the laws and constitutions of the United States and its states. 

This responsibility includes providing a remedy of damages against government officials who violate those rights. No such remedy exists today in state or federal courts when the violation is committed by federal employees or state employees who are deputized as federal agents. This is because the Federal Employees Liability Reform and Tort Compensation Act of 1988, known as the Westfall Act, accords absolute immunity from tort claims arising from acts by federal officials in the course of their duties. 

In fact, the Westfall Act empowers the Attorney General of the United States to certify that any federal employee sued for wrongful or negligent conduct was acting within the scope of their duties at the time of the incident out of which the claim arose. Federal law and the AG’s powers create an impenetrable immunity from civil litigation, making the rights of state residents worthless for lack of a remedy. 

What Can State Legislators Do? 

The Institute for Justice offers the State Court Remedies for Constitutional Violations by Federal Employees Act. 

This bill is the ticket for state residents to bring their claims in state court. Principles of federalism and state sovereignty dictate that the federal government cannot control the availability of remedies in state courts. Since the founding, state residents have had a right to address grievances against federal officials. 

But part of the Westfall Act must be overturned. Under this model, state legislators can create a test case that presents an important constitutional question for judicial review: Has Congress violated the Constitution by denying a remedy in state courts for violations committed by federal employees?