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American government officials enjoy an extraordinary amount of immunity when it comes to liability for wrongdoing. If, for example, a Bureau of Land Management employee trespasses onto private property and harasses the property owner, the officer probably can’t be sued in federal court. Likewise, if a prison official denies a prisoner adequate medical care, he too stands little chance of being held accountable in federal court.

Federal officials’ special status results not from federal statutes but from common law; it is the nation’s judges who have, over time, made it harder for victims of government wrongdoing to hold the government accountable, rather than easier. Judges have fashioned sweeping doctrines of immunity that insulate federal and state officials from facing any liability. Under these doctrines, victims of government wrongdoing cannot recover damages from government officials unless they can point to some prior case that has found the government conduct unlawful.

Courts have also made it harder to sue federal officials at all. In a series of cases over the past several decades, the Supreme Court has questioned whether federal courts may allow private citizens to sue rogue federal law-enforcement officers if Congress has not allowed them to. Most recently, the Supreme Court held that a group of Southeast Asian men who were detained in the course of the government’s response to September 11th could not sue the federal officials who kept them incommunicado for an extended period of time, allegedly on the basis of their race and religion, and subjected them to violence and abuse.

But it has not always been this way: When the Constitution was drafted and ratified, there was a rich tradition of judicial remedies against government officers who violated the law. That was a part of “the judicial power” that the Constitution gave to the federal courts. At the time of the founding, judges relied on the system of judge-made common law to provide relief to those who were harmed by unlawful government action. Chief Justice John Marshall, the author of Marbury v. Madison and the architect of much of America’s constitutional law, once held that a U.S. Navy officer was liable for damages under judge-made common law when the officer acted pursuant to an unlawful executive order: “The law must take its course,” he wrote, and the officer “must pay such damages as are legally awarded against him.”

Consider just some of the cases in which federal courts awarded relief against federal officers by relying on judge-made common law. In one case, a U.S. Navy officer wrongfully seized a ship; in another, a federal officer had illegally entered someone’s home in order to collect an unlawful fine. The issues in the cases varied; so did whether the victims relied on state or federal law to sue the officers. But there was little doubt that federal courts had the authority to rely on judge-made law to fashion remedies for victims of government wrongdoing.

Under this common-law system of government accountability, government officials, including federal officials, were routinely subject to damages liability in federal court when they violated federal law. Judges’ role in this system was to fashion remedies to enforce the Constitution and other federal laws. The Constitution ensured that the United States was a government of laws, not of men, through this tradition of “suits for damages for abuse of power.” Damages liability kept the government within the bounds of the law. And judges made sure that damages liability remained available.  

The common-law tradition of government accountability is part of the Constitution’s system of separated powers. “The judicial power” included was the authority to fashion remedies, under judge-made law, for government misconduct. As Justice Joseph Story would say in The Apollon, many years after Chief Justice Marshall, the federal courts “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.” The judicial power included the power to remedy government wrongdoing that hurt individuals.

Other justices over the centuries have agreed. In 1971, Justice John Marshall Harlan explained why the federal courts, in particular, were uniquely suited to remedy constitutional wrongs by executive officers: “It would be at least anomalous to conclude that the federal judiciary is powerless to accord a damages remedy to vindicate social policies which, by virtue in their inclusion in the Constitution, are aimed predominantly at restraining the Government as an instrument of the popular will.”

Harlan understood that the Constitution’s system of separated powers gave the federal courts an important role to play in righting government wrongs, including relative to other branches of the federal government. The Constitution sought to restrain the impulses of the majority—impulses that are often reflected in the branches that are most subject to majority will, and particularly the presidency. The Constitution therefore gave to the federal courts, the branch of government that is less subject to majority will, the power to restrain the excesses of the majority when those excesses hurt people.

But in the past few decades, the Court’s understanding of the judicial power has changed. Instead of recognizing that federal courts have the power to remedy constitutional wrongs committed by rogue executive officers, the Court has come to believe that it is up to Congress or the executive branch to decide whether rogue executive officers will ever be accountable to people they harm. The Court has reasoned that in the absence of a statute authorizing victims to sue the officers who wronged them, the courts lack the power to afford the victims any relief.  

These more recent decisions fail to appreciate the special role of the courts within the system of separated powers that Harlan, Marshall, and Story recognized are part of the Constitution. The Constitution is an instrument that restrains the popular will and majoritarian impulses. But as an institution, Congress is supposed to represent the popular will, at least relative to the federal courts. It is not up to Congress, and it should not be up to Congress, whether constitutional guarantees are enforceable. That falls to the federal courts.

The expansion of officials’ immunity is significant not just because of what it says about America’s constitutional structure, but because of its effect on underlying constitutional rights such as the Fourth and Fifth Amendments, and, consequently, the people whose lives are shaped by these rights. The Fourth Amendment prevents unreasonable searches and seizures, and the Fifth Amendment prevents government officials from depriving persons of life or liberty without due process of law—or, at least, they are supposed to prevent those things. But if there are no remedies for violations of constitutional rights, then it’s not clear that there are constitutional rights either.

This term, the Supreme Court is set to decide another case about federal courts’ authority to right government wrongs. Hernandez v. Mesa involves a Customs and Border Patrol officer who shot and killed a 15-year old Mexican national, Sergio Hernandez. (I am one of the lawyers representing the Hernandez family.) At the time of the shooting, the officer was policing the border at the culvert that separates El Paso, Texas, from Juarez, Mexico, while the 15-year-old boy and his friends were playing a game in which one of them would run up to and touch the United States side of the border fence. After the officer grabbed one of the boys, Hernandez fled and tried to hide under the bridge that spans the border. The CBP officer pointed his weapon, fired, and killed Hernandez.

The question the Supreme Court will answer is whether the Hernandez family can sue the officer who shot and killed their son, depriving him of life without due process (in violation of the Fifth Amendment) and using excessive deadly force (in violation of the Fourth Amendment). The answer to that question turns on which conception of the separation of powers—and, thus, judicial power—the Court adopts. (The fact that the child was a Mexican national is one reason the court of appeals held that the Hernandez family could not sue, as if the federal courts’ authority to hold government officers accountable depends on the citizenship of the officer’s victim.) Will the Court recognize that the Constitution’s system of separated powers rests on a system of common-law accountability that allows the federal courts to fashion relief against federal officers who violate the Constitution? Or will the Court instead shrink the judicial power to include only the ability to follow Congress’s commands as to whether the Constitution is enforceable?

This story is part of the project “The Battle for the Constitution,” in partnership with the National Constitution Center.

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