87 Indiana Law Journal 1697 (2012)
The federal government is out of control. At least that’s what many states will tell you. Not only is the federal government passing patently unconstitutional legislation, but its street-level officers are ignoring citizens’ constitutional rights. How can states stop this federal juggernaut? Many are advocating a “repeal amendment,” whereby two-thirds of the states could vote to repeal federal legislation. But the repeal amendment will only address unconstitutional legislation, not unconstitutional actions. States can’t repeal a stop-and-frisk that occurred last Thursday. States might, however, enact a so-called “converse-1983” action. The idea for converse-1983 laws has been around for some time but until now has escaped academic treatment.
A converse-1983 action would operate similarly to the popular § 1983 action in that it would provide a cause of action for damages where federal constitutional rights have been violated. Unlike § 1983, however, a converse-1983 would be enacted by a state (rather than Congress) and provide a cause of action against a federal officer (rather than a state officer). By enacting converse-1983 laws, states could thus punish the federal government when its officers disregard the Constitution.
The problem with converse-1983 laws, however, is that they just won’t work. In this Article, I explain that converse-1983 laws will always be subject to limitations imposed by Congress or the federal courts. It can hardly be said that converse-1983 laws are a valuable opportunity for states to rein in the federal government if those laws can only be enforced at the pleasure of the federal government. In making this argument, I take the reader on a tour of a variety of topics in the field of constitutional enforcement, including officer immunity, federal common law, the nature of Bivens actions, the constitutional right to a remedy, and Founding-era practices through which states imposed their views on the federal government. Together, these discussions make clear that the converse-1983 action, which has been often cited but rarely questioned, is a cause of action without any legal value.
Preis, John F.
"The False Promise of the Converse-1983 Action,"
Indiana Law Journal:
4, Article 7.
Available at: http://www.repository.law.indiana.edu/ilj/vol87/iss4/7