Citing Professor Amar’s article, Judge Walker concluded that “nothing would stop a #state from creating a new cause of action allowing plaintiffs to directly allege federal constitutional violations.”
The #Illinois #law did that, but in imperfect fashion, acc/to a critique from Vikram David Amar, a law professor at UC Davis (& Akhil Amar’s brother), & Jason Mazzone, a law professor at the University of Illinois Urbana-Champaign.
The article has, in truth, been quite influential. It has been cited, for instance, in 7 #SCOTUS opinions. But it was also 96 pages long & touched on many issues.
“I was actually trying to do a bunch of different things — & get tenure,” Professor Amar, now a leading constitutional scholar at Yale Law School, said of the article, “Of #Sovereignty & #Federalism.”
#Trump #StateSponsoredTerrorism #law #UseOfForce #Constitution #StatesRights #CivilRights #authoritarianism #autocracy #ICE #CBP
His central point for present purposes was that #state #legislatures can authorize lawsuits against #federal officials for violating the #Constitution. If that is right, such #StateLaws would close an odd gap in #FederalLaw that—broadly speaking—allows such suits against state & local officials, like police officers, but not against #federal ones, like #ICE agents.
#Trump #StateSponsoredTerrorism #law #UseOfForce #Constitution #StatesRights #CivilRights #authoritarianism #autocracy #ICE #CBP
#Congress authorized the first kind of lawsuit in an 1871 #law that most people call §1983. But Congress has not enacted #legislation allowing suits against #federal ofcls for violating the #Constitution.
“It’s an enormous problem that federal officials are in some ways the hardest people to hold accountable for violating people’s constitutional rights, even harder than state & local officials,” said Carolyn Shapiro, a prof at Chicago-Kent College of Law & a fmr solicitor general of Illinois.
#SCOTUS tried to address the gap in 1971 in Bivens v. Six Unknown Named Agents, allowing the victim of an #unconstitutional search by #federal agents to sue them. But the court has essentially abandoned that approach, saying instead that #Congress must act if suits against federal ofcls are to be allowed.
[I personally don’t see this SCOTUS dealing with the issue given their stance on expansive #ExecutivePower]
#Trump #law #UseOfForce #Constitution #StatesRights #CivilRights #autocracy #ICE #CBP
That is where #state lawmakers come in, Professor Amar said.
“Sometimes the #federal government will misbehave,” he said, “& you can’t count on #Congress always to rein the federal government in.”
His article drew on 2 principles often associated with #conservatives: #federalism & #originalism.
“This is exactly what the framers imagined: state law protecting us against federal abuses,” Professor Amar said.
#Trump #law #UseOfForce #Constitution #StatesRights #CivilRights #autocracy #ICE #CBP
Some #states — including #California, #Maine, #Massachusetts & #NewJersey — have enacted laws along the lines that Prof Amar proposed, though they are largely untested, & #Illinois recently adopted one tailored to address the conduct of #ICE agents.
https://ilga.gov/documents/legislation/104/HB/PDF/10400HB1312enr.pdf
The IL #law says that lawsuits may be filed “against any person who, while conducting #civil #immigration enforcement, knowingly engages in conduct that violates the Illinois Constitution or the #UnitedStates #Constitution.”
