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From Portland to Minneapolis, aggressive actions by Immigration and Customs Enforcement (ICE) agents against citizens and noncitizens alike have been well documented. Many of these encounters raise grave constitutional concerns. Yet it may surprise—and alarm—many to learn that there is often no viable path to sue federal officers if they violate your constitutional rights, even egregiously.

“A U.S. citizen and Army veteran who was detained by federal immigration authorities for three days last summer in Southern California filed a civil rights suit against the federal government on Wednesday."

Horizontal, interbranch competition is only one species of checks and balances. Especially in moments of politically consolidated federal power, the Constitution’s structure offers another, potentially more meaningful safeguard: the states.

"If you're skeptical of states going after ICE agents in particular, ... there's a really strong originalist case that states have this power."

"Congress has never created an analogous version for federal agents, largely because it sort of didn't have to. The result is that you have federal agents who are behaving as if they know it is extremely unlikely that they will face any penalty for violating constitutional rights."

"There is no structural or blanket barrier to states bringing a criminal prosecution against federal officials...If a state believes that a federal official has violated state criminal law, the state has broad Investigatory Powers to collect evidence, to explore that criminal action, basically in the same way they would against anybody else."

"In the wake of Minnesota, several Democratic-led states are looking for ways to limit immigration agents' activities. Some Republican-led states are ordering local governments to cooperate with them."

"States have broad power to regulate within their borders unless the U.S. Constitution bars it, but many of these laws raise novel issues that courts will have to sort out, said Harrison Stark, senior counsel with the State Democracy Research Initiative at the University of Wisconsin Law School."

As concerns mount about the conduct of federal agents, the possible solution of state-created damages remedies for federal constitutional violations is gaining steam in states. It’s what Professor Akhil Amar once dubbed “converse § 1983.” As the State Democracy Research Initiative details, the core idea is simple: States can enact (or amend existing) civil rights statutes that allow damages suits against any person — including a federal officer — who violates federal constitutional rights. While there are some unanswered questions and likely hurdles, the historical pedigree and legal footing for such remedies is perhaps stronger than some skeptics might assume.

Victims of unconstitutional federal actions often have difficulty recovering money damages for their injuries. This Report discusses a potential remedial pathway that is beginning to garner interest among policymakers and litigants: state-created causes of action authorizing people to sue federal officials for damages.