If a federal employee violates your constitutional rights, what can you do about it? Often the answer is “not much.” While declaratory and injunctive relief is available for ongoing damages, well-known federal tools for relief past Remedies for constitutional violations are limited. A landmark federal law, 42 USC § 1983, provides a cause of action for damages only against state and local entities. Decades ago, you could have sued federal officials under laws such as: Bivens v. Six Unidentified Agents of the Federal Bureau of NarcoticsIt allowed individuals to sue for damages directly contrary to the Constitution when federal employees commit constitutional violations, but today the Supreme Court ruled that this court-created remedy is, in the words of one scholar, “essentially non-existent.” Additionally, while the Federal Tort Claims Act provides some relief, it often comes with significant hurdles and limitations that can make recovery difficult or impossible. As a result, many victims of unconstitutional federal actions, including excessive use of force, retaliatory searches, and illegal property destruction, are left without a meaningful path to reparation.
As concerns grow over the conduct of federal employees, possible solutions include state-The creation of a compensation system for violations of the federal constitution is gaining momentum in each state. It is what Professor Akil Amal once called “converse § 1983”. The core idea, as detailed by the State Democracy Research Initiative, is simple. States can enact (or amend existing civil rights laws) to allow them to sue for damages against anyone (including federal employees) who violates their federal constitutional rights. Although there are some unanswered questions and perhaps hurdles, the historical and legal basis for such a remedy is perhaps stronger than some skeptics assume.
What is Converse 1983?
The reverse 1983 remedy is a state cause of action, or permission to sue, that awards damages (and other relief) when someone, including a federal employee, violates the federal constitutional rights of another. Some states already have such regulations in place. California’s Bain Act and the civil rights laws of Massachusetts, Maine, and New Jersey all go to federal officials who commit acts that violate the U.S. Constitution. Other states, including New York, have introduced similar bills. Or it could tweak existing civil rights laws to cover federal employees and violations of the federal constitution. It is also possible that state courts, which have common law authority that federal courts do not have, could judicially authorize such actions.
The Converse 1983 mechanism does not create any new substantive rights. Instead, existing federal rights, namely Sec. bivens Aim for an excuse. Importantly, however, it does not need to accurately reflect existing federal relief. Because the litigation itself is based on state-created authority, there may be opportunities for states to tailor remedies and immunity in ways that depart from the existing federal approach. For example, states can decide whether to award attorney’s fees, consider the possibility of treble or punitive damages, or limit defenses such as qualified immunity. States may even seek to abandon official immunity altogether. It is not clear how federal courts will treat such immunity clauses, but states will likely make a strong case that current doctrine never requires the application of existing public immunity standards to the 1983 argument and, in fact, is in some tension with recent jurisprudential trends.
1983 Converse and the Supremacy Clause
There are few real-world examples of individuals using the 1983 Reverse Act to sue federal officials for violating federal constitutional rights, so it is unclear how the case will play out. However, if sued, the defendants would likely file a federal constitutional challenge to challenge the 1983 measures, arguing that these remedies violate the principle of federal supremacy. After all, can condition Really Police the actions of federal officials?
The simple answer is yes. States’ common law lawsuits against federal entities have a long history. As scholars have proven, these state employee suits were the norm for most of American history. Indeed, as my colleague Brina Godard examines, the Supremacy Clause of the U.S. Constitution recognizes states’ rights. criminal Prosecution of federal employees in some circumstances. There are no obvious constitutional barriers to states establishing a cause of action against federal officials for violating the Constitution.
Conceptually, Converse 1983 does not subordinate federal law to state law. This is what the supremacy clause prohibits. It’s the opposite: force Federal Constitution. Therefore, the so-called “supremacy clause disclaimer” should not apply. As the U.S. Supreme Court recently detailed, that doctrine has historically served as a partial shield in the United States. criminal Lawsuits – Protects police officers from state prosecution while performing their lawful federal duties in a necessary and appropriate manner. There is no need or propriety for it to violate the Federal Constitution even if it were applied in a civil proceeding. By definition, such actions do not further any lawful purpose of the federal government.
Converse 1983 also complies with the related doctrine of intergovernmental immunity, which prohibits states from discriminating against or directly regulating the federal government. But a neutral, nondiscriminatory state remedy that applies to “any person” who violates the federal Constitution does not discriminate against or target legitimate federal actions.
Are state damages for federal employees legally preempted? Not necessarily.
Another objection is probably statutory. In short, the Federal Tort Claims Act and the Westfall Act are federal statutes that generally provide the only means to sue federal employees for torts, and preclude states from suing for damages against federal employees. Indeed, the Westfall Act prevents litigants from bringing many common law state tort claims against federal officials. But supporters of Converse 1983 have a strong argument that even if Congress preempted most policies, common law States can still provide for tort claims against federal employees constitutional Tort Remedies. That’s because the Westfall Act includes a carve-out for “civil lawsuits brought against government officials in violation of the United States Constitution.”
The evidence is mixed on this score. The Supreme Court has defined this statutory provision as “bivens” Exception means carve-out allows. bivens Just the suit and nothing else. And a federal circuit court recently concluded (with limited analysis and without direct input from plaintiffs) that the Westfall Act precludes a contrary 1983 claim brought under New Jersey law for that very reason.
But there is reason to doubt this Bivens-Westfall method reading only. Some Supreme Court precedents casually change the wording to “ Bivens As an exception, some people describe carve-outs in broader terms. Some commentators have argued that, especially when combined with the Westfall Act’s legislative history, the law does indeed authorize state action to seek redress for federal constitutional violations. As Judge Justin Walker of the U.S. Court of Appeals for the D.C. Circuit spelled out in a 2023 comprehensive agreement, “its interpretation is supported by the text of the statute” and “consistent with Founding-era principles of executive liability.” Therefore, there is a convincing argument that the Westfall Act leaves the door open to debate the 1983 claims.
The forgotten but well-known role of the state
Over the past several decades, changes in law and doctrine at the federal level have increasingly left individuals without meaningful redress when federal officials violate their constitutional rights. However, the duty to enforce the federal constitution does not belong solely to the federal government. From the nation’s founding to recent times, states played an important role in certifying constitutional rights. Converse 1983 seeks to revive that tradition and ensure meaningful redress for those harmed by unconstitutional abuses of federal power. On the contrary, while the admissibility of the 1983 cases will no doubt be hotly contested, there are strong legal arguments in their favor.
Harrison Stark is senior advisor and director of special projects for the National Democracy Research Initiative at the University of Wisconsin School of Law.
Recommended quote: Harrison Stark Reinstatement of state damages for federal employeesSᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (October 11, 2025), https://statecourtreport.org/our-work/analysis-opinion/resuscitating-state-damages-remedies-against-federal-officials
