Federal immunity doesn’t just exist in Stephen Miller’s head. This is a reality that has become clear over time through a series of decisions handed down by the U.S. Supreme Court and Congress over the past 40 years. It also has practical consequences. Federal immunity creates a system alien to the founders’ vision, where aggressive federal enforcement actions can violate rights without viable civil litigation.
States are now exploring whether they can resume the path that existed under common law, a path reminiscent of state law causes of action against federal officials for constitutional violations. This approach is legally sound, textual, and more viable than many assume given the Supreme Court’s current interpretive commitment to textualism.
Federal immunity and liability issues
ICE raids often involve warrantless home entry, excessive use of force, and unreasonable long-term detention, not to mention retaliation against those who videotape ICE operations. However, federal immunity makes civil litigation extremely difficult. Federal employees are shielded from civil liability because they are exempt from a civil rights law called Section 1983, which gives citizens the right to sue for violations of their constitutional rights. On the other hand, in lawsuits brought under the Federal Tort Claims Act, the federal government frequently and successfully asserts discretionary immunity to avoid liability, arguing that virtually all actions by government employees that can be considered to involve some sort of judgment or choice should be protected from liability.
Without a legal remedy from Congress, and because federal courts have applied discretionary immunity so broadly, victims of unconstitutional conduct by ICE and other federal agencies are left with no meaningful recourse for redress.
But when the downward slide in enforcement against the federal government first began about 40 years ago, some states passed laws that allowed residents to bring civil rights claims against federal officials under state law for violations of the U.S. Constitution. California, Maine, Massachusetts, New Jersey, and all enacted laws are known as the Converse Act of 1983. This is because, unlike the 1983 federal law, which provides for a federal right to sue state and local officials, these laws provide for a state’s right to sue federal officials. This is a classic conservative idea, giving states the power to fight back against human rights abuses by the federal government.
As the Trump administration seeks to bulldoze through the cracks in federal privilege in the liability framework, more states are considering the 1983 statute in reverse. Since the beginning of President Trump’s second term, 15 states have launched efforts to pass such laws.
That is a welcome development.
Current state action
State courts have long provided a forum for people seeking redress for violations of their rights by federal agents. In its early days, if a federal official, such as a customs agent, violated your rights by boarding your ship without your consent, you could sue him for his actions, even if he did so pursuant to government authorization. As U.S. Supreme Court Justice Joseph Storey explained in the Apollo decision, it is the job of the judiciary to determine whether rights have been violated. If the agent acted in good faith, Congress could indemnify him.
The creation of state law civil remedies restores traditional balance. Federal employees will be unencumbered in enforcing federal laws and will have additional checks to ensure they are compliant with the Constitution.
Some states, such as Maryland and New York, have taken a moderate approach, using the language of Section 1983 and importing its interpretation, including qualified immunity. Section 1983 allows individuals to sue those who act “on the basis of color” under state law. To the contrary, these states’ 1983 laws simply add to the liability of those acting under “federal law.” In effect, these states have done only 1/50th of what Congress should have done a few years ago, adding federal employees to the scope of the 1983 Articles of Confederation.
Other states, such as Minnesota and Vermont, have taken additional steps beyond incorporating the language of Section 1983, omitting qualified exemptions or making it clear that they do not apply, including to federal employees. These statutes not only hold federal employees as accountable as state and local officials, but also make it easier to succeed in claims against federal employees.
Colorado and Illinois, on the other hand, specifically target immigration enforcement and exempt officials who perform government functions outside of that context from liability.
That third approach has already been challenged by the Department of Justice (DOJ), as Illinois became the first state to enact a reverse 1983 law during Trump’s second term.
Why do textual courts uphold such state laws?
At first glance, one might argue that the Westfall Act provides that the “relief against the United States” provided by the Federal Tort Claims Act “excludes any other civil action or action for monetary damages” arising from wrongful conduct by public officials, and that Congress prohibited states from passing such laws.
But the law goes on to say that this exclusive provision “does not apply to civil actions brought against government officials in violation of the United States Constitution.”
For many years, this provision has been interpreted to refer only to claims against federal employees in federal courts based directly on the U.S. Constitution. This is a so-called Bivens claim, named after a 1971 Supreme Court case. Bivens v. Six Unidentified Agents of the Federal Bureau of Narcotics It argued that there is an implied cause of action in the U.S. Constitution for certain violations. Such claims are held against the current textualist Supreme Court because Section 1983 excludes them.
However, the text of the regulation says nothing about bivens. It broadly speaks of all allegations raised as “violations of the United States Constitution.” There is no reason why it cannot include constitutional claims recognized by state law.
“There is nothing to prevent a state from creating a new cause of action that allows plaintiffs to directly allege violations of the federal Constitution,” Judge Justin Walker of the D.C. Circuit Court of Appeals, a Trump appointee, wrote in a 2023 concurrence.
Notably, the Justice Department’s challenge to the Illinois law does not address the Westfall Act’s recognition of this type of claim. Instead, the government focused on exempting state and local government employees, which the government argues violates the principle of intergovernmental immunity, which prohibits states from discriminating against federal employees. Other states should pay attention to how this issue moves through the courts. They can make their lives easier by simply adopting Section 1983’s litigation cause to enforce the Constitution and following the example of states that add federal employees to its scope.
Some state and local law enforcement agencies may object, concerned that additional causes of action will be created against them. But they could already face lawsuits for constitutional violations under Section 1983. To the contrary, the proposed 1983 proposal would not create any liability for them beyond that encompassed by federal law. And under state and federal law, no court will allow you to take two bites of the same apple.
Congress can fix this problem, but states can’t wait.
Congress could resolve the federal immunity issue by amending Section 1983 to include federal employees in its scope. In fact, such a bill was introduced for the third time this year in November. But so far, Congress has shown little reluctance to stand up to the executive branch. Meanwhile, federal government overreach continues, and remedies remain non-existent.
States should not wait for Congress to restore once-traditional and widely accepted methods of holding federal employees accountable. By enacting state civil rights laws that extend Section 1983 to federal employees, states can close the liability gap while still respecting constitutional boundaries.
Anya Bidwell is a senior attorney at the Institute for Justice, where she leads the Immunity and Liability Project.
Recommended Citation: Anya Bidwell, State efforts to allow lawsuits against federal officials accelerateSᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (April 6, 2026), https://statecourtreport.org/our-work/analysis-opinion/state-efforts-allow-lawsuits-against-federal-officials-gain-speed
