Colorado's State Bivens Law

Colorado's General Assembly has enacted a state law authorizing suits for money damages against federal, state, and local officials violating federal constitutional rights in connection with civil immigration enforcement, because the U.S. Supreme Court has declined to extend Bivens (a U.S. Supreme Court case which created a federal common law remedy in the form of a private civil action for damages for certain violations of federal constitutional rights by federal officials) to do so. The bill has not yet been signed by the Governor, but he has not publicly threatened to veto the bill either.

Ideally, it wouldn't have been limited to civil immigration enforcement, which may be the provision of the law which makes it most vulnerable to being held unconstitutional, as immigration law is a purely federal function, but it isn't at all clear that narrowing this law beyond its maximum constitutional scope invalidates it, and there is quite a bit of law (outlined in Section 1 of the bill) which supports the conclusion that this mostly unused check on misconduct by federal official is constitutional.

The limitation of the law to civil immigration enforcement, however, does limit room to complain that the waiver of various immunities would do serious mischief to the ordinary actions of law enforcement in the state at the state and local level.

The bill's full and final text is below:

Senate Bill 26-05:

Be it enacted by the General Assembly of the State of Colorado: 

SECTION 1.  Legislative declaration. 

(1)  The general assembly finds and declares that: 

(a)  Since the earliest days of the nation, the United States supreme court has held, in cases such as Little v. Barreme, 6 U.S. 170 (1804), and Murray v. The Charming Betsey, 6 U.S. 64 (1804), that federal officials may be liable in damages for violations of federal laws; 

(b)  In later 19th century cases as well, the United States supreme court held that federal officials could be liable for damages even for reasons relating to but beyond the lawful scope of federal duties, Mitchell v. Harmony, 54 U.S. 115 (1851), and in particular that state courts possessed jurisdiction to consider such damages claims, Teal v. Felton, 53 U.S. 284 (1852); 

(c)  The United States supreme court has long held that federal employees are not inherently beyond the reach of state laws simply because they are federal employees. For example, in Johnson v. Maryland, 254 U.S. 51 (1920), the court noted, "[A]n employee of the United States does not secure a general immunity from state law while acting in the course of his employment", and in Colorado v. Symes, 286 U.S. 510 (1932), the court stated, "Federal officers and employees are not, merely because they are such, granted immunity from prosecution in state courts for crimes against state law". 

(d)  Decades later, the United States supreme court continued to recognize the role of state law in holding federal officials accountable for legal violations, noting in Wheeldin v. Wheeler, 373 U.S. 647 (1963), "[w]hen it comes to suits for damages for abuse of power, federal officials are usually governed by local law"; 

(e)  When the United States supreme court recognized a federal law cause of action for violation of certain constitutional rights in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), that cause of action was in addition to, rather than instead of, traditional state law remedies. Even one of the dissenting justices in Bivens noted the ongoing role of state courts, writing, "The task of evaluating the pros and cons of creating judicial remedies for particular wrongs is a matter for Congress and the legislatures of the States". 

(f)  More recently, congress has made federal statutory law the exclusive remedy for certain claims sounding in tort, but this exclusivity specifically "does not extend or apply to a civil action against an employee of the Government [. . .] which is brought for a violation of the Constitution of the United States", 28 U.S.C. sec. 2679. The prime sponsor of legislation amending the federal "Tort Claims Act" to provide for limited exclusivity took pains to clarify, "We make special provisions here to make clear that the more controversial issue of constitutional torts is not covered by this bill. If you are accused of having violated someone's constitutional rights, this bill does not affect it", 134 Cong. Rec. 15963 (1988). 

(g)  In 2022, in declining to extend the scope of the Bivens action in Egbert v. Boule, 596 U.S. 482 (2022), the United States supreme court observed that legislatures, not courts, are the better branches of government to fashion damages remedies; 

(h)  In its most recently completed term, the United States supreme court declined, in Martin v. United States, 145 S. Ct. 1689 (2025), to extend the doctrine of supremacy clause immunity beyond its traditional criminal law context; 

(i)  Violating the federal constitutional rights of residents of the United States has never been and can never be "necessary and proper" to the execution of the laws and powers of the United States within the meaning of article I, section 8, clause 18 of the United States constitution; and 

(j)  In enacting this act, the Colorado general assembly affirms its longstanding and rightful role as a sovereign state in providing forum in its courts for adjudication of claims of federal constitutional violations. 

SECTION 2.  In Colorado Revised Statutes add 13-20-1302 as follows: 

13-20-1302.  Civil action for violation of constitutional rights during immigration enforcement - relief - attorney fees - time limit to commence action - definition. 

(1)  A PERSON WHO HAS THEIR RIGHTS THAT ARE GUARANTEED BY THE UNITED STATES CONSTITUTION VIOLATED BY ANOTHER PERSON WHO, ACTING UNDER COLOR OF ANY FEDERAL, STATE, OR LOCAL LAW, IS PARTICIPATING IN CIVIL IMMIGRATION ENFORCEMENT, MAY BRING A CIVIL ACTION AGAINST ANOTHER PERSON WHOSE CONDUCT WAS THE PROXIMATE CAUSE OF THE VIOLATION. A PERSON FOUND TO HAVE VIOLATED THE UNITED STATES CONSTITUTION WHILE PARTICIPATING IN CIVIL  IMMIGRATION ENFORCEMENT IS LIABLE TO THE PERSON WHOSE RIGHTS ARE VIOLATED FOR LEGAL OR EQUITABLE RELIEF OR ANY OTHER APPROPRIATE RELIEF. 

(2) (a)  IN AN ACTION BROUGHT PURSUANT TO THIS SECTION, A COURT SHALL AWARD REASONABLE ATTORNEY FEES AND COSTS TO A PREVAILING PLAINTIFF. IN ACTIONS FOR INJUNCTIVE RELIEF, A COURT SHALL DEEM A PLAINTIFF TO HAVE PREVAILED IF THE PLAINTIFF'S SUIT WAS A SUBSTANTIAL FACTOR OR SIGNIFICANT CATALYST IN OBTAINING THE RESULTS SOUGHT BY THE LITIGATION. 

(b)  WHEN A JUDGMENT IS ENTERED IN FAVOR OF A DEFENDANT, THE COURT MAY AWARD REASONABLE COSTS AND ATTORNEY FEES TO THE DEFENDANT FOR DEFENDING ANY CLAIMS THE COURT FINDS FRIVOLOUS. 

(3)  TO THE MAXIMUM EXTENT PERMISSIBLE UNDER THE UNITED STATES CONSTITUTION AND 42 U.S.C. SEC. 1983, A GRANT OF IMMUNITY TO A DEFENDANT, INCLUDING, BUT NOT LIMITED TO, SOVEREIGN IMMUNITY; OFFICIAL IMMUNITY; INTERGOVERNMENTAL IMMUNITY; QUALIFIED IMMUNITY; SUPREMACY CLAUSE IMMUNITY; STATUTORY IMMUNITY, INCLUDING THE "COLORADO GOVERNMENTAL IMMUNITY ACT", ARTICLE 10 OF TITLE 24; OR COMMON LAW IMMUNITY, DOES NOT APPLY IN AN ACTION BROUGHT PURSUANT TO THIS SECTION. 

(4)  AS USED IN THIS SECTION, UNLESS THE CONTEXT OTHERWISE REQUIRES, "CIVIL IMMIGRATION ENFORCEMENT" MEANS AN ACTION TO INVESTIGATE, QUESTION, DETAIN, TRANSFER, OR ARREST A PERSON FOR THE PURPOSE OF ENFORCING FEDERAL CIVIL IMMIGRATION LAW. "CIVIL IMMIGRATION ENFORCEMENT" DOES NOT INCLUDE AN ACTION COMMITTED BY A PEACE OFFICER WHO IS ACTING WITHIN THE SCOPE OF THE PEACE OFFICER'S DUTIES CONSISTENT WITH STATE LAW. 

(5)  PURSUANT TO SECTION 13-80-102, A CIVIL ACTION DESCRIBED IN THIS SECTION MUST BE COMMENCED WITHIN TWO YEARS AFTER THE CAUSE OF ACTION ACCRUES. 

SECTION 3.  In Colorado Revised Statutes, 13-80-102, amend (1)(k); and add (1)(l) as follows: 13-80-102.  General limitation of actions - two years.  The following civil actions, regardless of the theory upon which suit is brought, or against whom suit is brought, must be commenced within two years after the cause of action accrues, and not thereafter: 

(k)  All actions brought under AND PURSUANT TO section 13-21-109(2) [ed. the bad check statute]; 

(l)  AN ACTION ALLEGING A VIOLATION OF CONSTITUTIONAL RIGHTS DURING CIVIL IMMIGRATION ENFORCEMENT BROUGHT PURSUANT TO SECTION 13-20-1302. 

SECTION 4.  Severability. If any provision of this act or the application of this act to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the act that can be given effect without the invalid provision or application, and to this end the provisions of this act are declared to be severable. 

SECTION 5.  Appropriation. (1)  For the 2026-27 state fiscal year, $125,604 is appropriated to the department of law. This appropriation is from the legal services cash fund created in section 24-31-108 (4), C.R.S., from revenue received from the department of personnel that is continuously appropriated to the department of personnel from the risk management fund created in section 24-30-1510 (1)(a), C.R.S. The appropriation to the department of law is based on an assumption that the department of law will require an additional 0.5 FTE. To implement this act, the department of law may use this appropriation to provide legal services for the department of personnel.

SECTION 6. Safety clause. The general assembly finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, or safety or for appropriations for the support and maintenance of the departments of the state and state institutions.

Reflections On Six Months As A City Attorney

Six months and a week ago, I started a new job as a senior assistant city attorney at the City ad County of Denver in the civil litigation section. We handle lawsuits brought against the City and County of Denver, and against City employees where the lawsuit arises from the employee's official duties.

The job

Most people who work in my section have backgrounds either in criminal case litigation, or in private sector insurance defense of personal injury cases. I was one of the fairly uncommon applicants who had significant prior experience in civil litigation with government entities. One of my main responsibilities at my first job in Colorado, in Grand Junction, was defending county governments all over Western Colorado from lawsuits, which is more or less exactly what I do now defending the City and County of Denver. In my subsequent private private of law, I had a low volume, but steady trickle of cases where I represented private parties in lawsuits against the government, in addition to having broad civil litigation experience making up about half of my practice in a variety of other areas in both state courts and federal courts. This has allowed me to hit the ground running, compared to many of my peers.

Fortunately, our office operates with a very high level of professionalism, and my co-workers are good to work for.

My current case load (which varies from lawyer to lawyer in my section based upon the lawyer's experience and aptitudes) is about 60% civil rights litigation (mostly, but not entirely, involving actions of the police and jail guards), about 20% plain vanilla personal injury litigation like motor vehicle accidents that is similar to what private insurance defense lawyers do but with a governmental liability twist, and about 20% litigating subpoenas and public record requests where there are disputes that go beyond what can be resolved by records custodians out of court.

Different sections of the City attorney's office handle employee discipline and employment related litigation, enforcement of ordinance violations, child protective proceedings in cases where there are allegations of abuse and neglect, and transactional/corporate counsel type work for matters like negotiating and monitoring compliance with contracts between the City and its vendors, drafting ordinances, lobbying the state and federal governments, and managing conflicts that arise between different city agencies and officials.

There are also some governmental agencies which many people think are part of the City and County of Denver, but which are not: the Denver Public Schools, the Denver District Attorney, Denver Health (the county's public hospital), the Denver Housing Authority, the Regional Transportation District (RTD), the Downtown Development Authority, the Denver District Court, the Denver Probate Court, the Denver Juvenile Court, and probably a few others that I've failed to mention. 

The Denver County Court is a unique hybrid court that combined the roles of the limited jurisdiction state government's county court found in other Colorado counties, and the role of a municipal court for the City and County of Denver where municipal ordinance violations are prosecuted.

The biggest change for me has been transitioning from being self-employed for two decades to being a salaried W-2 employee. 

Mostly, this is for the better and was an important reason to take this job. Instead of having to invoice clients and pester them to pay their bills, or to wait until contingent fee cases are converted into money at the end of a case, money just magically appears in by bank account without me even asking for every two weeks. I get paid vacations and sick days! I get my health insurance through an employer plan, a switch I made shortly before big cuts to Affordable Care Act subsidies for self-employed people seeking health insurance took effect. If I continue to work for the City for five years, I get a defined benefit pension. I have a public sector defined contribution plan to which I can contribute about 20% of my income. I can pay for my parking expenses with pre-tax dollars. I don't have to pay anything out of pocket to get IT support. My tax returns will get a lot less complicated starting in 2027 (I had some residual self-employment work and income wrapping up my private practice in early 2026). I don't have to deal with fixing broken copying machines, building maintenance, hiring employees, tax withholding for employees, office security, arranging telephone and internet service, balancing an attorney's trust account, and so on. I don't have to spend large chunks of time marketing and deciding which clients to sign up. My work is mostly (not 100%) confined to 9-5 on business days.

I also get to work in a place with good systems in place, with adequate administrative support, with competent fellow attorneys who can cover for you while you are sick or on vacation, and top quality legal research and office related software packages.

We still have to pay close attention to potential conflicts of interest in new cases (and conflicts of interest that can emerge during cases), so we can send conflicted cases to outside counsel. But, unlike my fairly brief stint in a multi-state law firm with about a thousand lawyers, I don't have to spend half an hour to forty-five minutes every day (like every single other lawyer in that entire law firm) screening new cases brought into the firm for conflicts of interest.

Best of all, except for particular phases of the small share of cases where there is a prospect of receiving an attorneys' fee award, I don't have to track every tenth of an hour of every single working day, since all of the work we do is for the same client and is very unlikely to be the subject of attorneys' fee litigation.

Insights into law and policy and legal practice

Most people, most of the time, are outsiders to government, sometimes spinning conspiratorial narratives about what they think happens behind the scenes in the criminal justice system, and in government more generally. In my subpoena and records request practice, and in civil rights cases, I'm on the opposite side of the fence, with more or less complete access to the full "behind the scenes" story.

I almost always know more about what actually happened, sometimes legally relevant and sometimes not, than the other lawyers in the case and that the judge. It is a rare case where I don't know more or less exactly what happened in all legally relevant ways within a month or two of receiving it, and often within a couple of weeks.

I have nearly full access to all relevant records and a full ability to interview the government employees involved in a context where they are more quickly forthcoming about what I want to know, than in the formal discovery process.

The truth isn't nearly as nefarious as conspiracy theorists and a plurality of civil rights lawyers would have you believe.

This isn't to say that law enforcement officers or jail guards never make mistakes that hurt someone, sometimes in ways that give rise to legal liability, and sometimes in ways that don't.

A significant portion of my job is facilitating the payment of reasonable settlements to people who have been legitimately wronged by the government or government officials. Sometimes a city employee is clearly at fault in a motor vehicle accident. Sometimes a law enforcement officer does cross the line and is in the wrong. The City pays out millions of dollars a year in settlements and judgments as a result.

Most settlement payments err on the side of being generous, in order to avoid the risk that a jury won't correctly evaluate liability and damages in a case and will award an excessive amount. 

A significant minority of jury awards reach the wrong result on liability or damages (sometimes for the government and sometimes against it), often (as post-verdict juror interviews reveal) for reasons that shouldn't be legally relevant or reflect misunderstandings that neither side's lawyers even contemplated were possible. Most of the time, juries reach verdicts that are close to being right, but not all of the time by any means (even when the lawyers and judges are doing their jobs correctly).

My rule of thumb (based upon the available academic literature on the topic, and confirmed by my personal experience) is that in a best case scenario where the lawyers and judges in a case are doing their jobs right and the law dictates a clear answer, is that the likelihood that a jury will reach the wrong conclusion is about 10%. 

The odds that the jury will reach the wrong conclusion rockets up, of course, when one or the other side's lawyers engaged in misconduct, or the judge makes a significant mistake (not always appealable), or there is litigation misconduct by a party in the case such as destroying or fabricating evidence or lying under oath (often not known to the lawyers). The most common problems, however, are lawyer incompetence or a bad ruling from a trial judge or sincere but incorrect witness memories about what happened, and not outright litigation misconduct.

Some kinds of suspicions about what is happening behind the scenes are more often correct than others. For example, I know (from having access to what is in them in cases where I move to quash subpoenas) that the vast majority of internal affairs files sought by defense attorneys in criminal cases that are withheld from them, truly aren't material to the outcome of those cases, even at the margins on credibility issues. The kind of conduct that law enforcement agencies, and governments more generally, care about for purposes of internal employee discipline, are only vaguely similar to the kinds of conduct that give rise to legal liability, or would be relevant in a criminal case in which an officer was involved in some way and is a potential witness.

Timelines

Different kinds of cases have different timelines. Records request cases and subpoenas are typically litigated over a period a week to a few months. Ordinary personal injury cases in which a defendant just happens to be a governmental entity, tend to be fairly simple cases that are resolved in a year or two once a case if filed, and are often settled sooner than that. 

Civil rights cases, and personal injury cases which are really civil rights cases in disguise, take one of two typical courses. Many of them are resolved very early on in initial dispositive motion practice and are often dismissed within a few months to a year with complete dismissals on the merits (or for failure to prosecute by a pro se party, i.e. a Plaintiff bringing suit without a lawyer). The civil rights cases that aren't resolved that way can take much longer, in part because they are often prosecuted in federal court which is much slower than state court, in part because interlocutory appeals (i.e. appeals brought prior to a final trial and verdict) are common in civil rights cases, and in part because these cases are sometimes more complex and require lengthy pre-trial discovery and motion practice. I have one case that will probably go to trial soon about eight years after the underlying incident (that involved a handful of people over the course of less than two hours in one place)  took place.

If everyone knew what I know as a governmental defense attorney know within two or three months of a case being filed, these cases could be resolved in six months and would be resolved more accurately than they are in jury trials. But, of course, part of the reason that I can secure this information so quickly is because the people from whom I receive the information know that what they share with me won't be used against them in court. Still, this observation does suggest that there is plenty of room for improvement in the process.

Also, a lot of the delay in civil litigation is a function of simply not having enough judges to keep their case loads small enough to allow them to make prompt rulings, and an overall litigation system that has adapted to that reality.

The quality of plaintiff's litigation

Another thing that my job gives me is a broad overview of the quality of the legal work done by the people who sue the City.

About half the lawsuits brought against the City are brought by pro se parties, or by lawyers whose legal work falls below the standard of care that should be expected from a reasonable competent lawyer. 

Indeed, the best pro se parties (maybe the top 5-10% of them) are doing a better job of litigating their cases than the worst lawyers that we see (although no pro se parties do an excellent job). There are a few lawyers in the Plaintiff's bar who are so incompetent that I am amazed that they passed the bar exam, although even they have basic literacy and some understanding of the process. But there are plenty of pro se parties whose literacy and understanding of the process is below that of an average high school student, who would benefit from representation by even an only marginally competent lawyer.

One of the better arguments for a "civil Gideon" system in which indigent people would routinely be provided access to lawyers by the state, the way that indigent criminal defends are, is that it would make the delays and confusions caused by incompetent pro se litigants largely go away making the whole legal system work much more efficiently.

Cases brought by incompetent litigants overwhelming get dismissed early on, or settled for amounts far less than a competent lawyer could secure.

Incompetent litigants tend to be particularly weak at investigating a case and gathering facts to support it, and in understanding at a more than superficial level the relevant substantive and procedural legal requirements for proving a case of governmental liability. Now and then, they do the right thing despite themselves, however.

Of course, part of the failure rate among these litigants is an inability to accurately judge if they have a legally meritorious case. I have definitely seen cases that were winnable or could have secured a larger settlement, that don't because they are brought by incompetent litigants. But probably 80%-90% of the cases brought by incompetent litigants wouldn't have been brought at all by competent lawyers, who could have identified the weakness in those cases at the outset and not filed suit. 

When I was in private practice, I probably turned away two or three potential clients a week, often potential clients who had heart wrenching stories of misfortune. But those potential clients either didn't have cases for which the legal system had a remedy, or had cases where the likely outcome of  their cases with competent legal representation would provide them with less economic benefit than the cost of competent legal representation, and would have greatly disrupted their personal lives and eaten up huge amounts of their personal time.

And, by the way, incompetence by lawyers isn't restricted to sole practitioners with little experience. I've seen multiple cases of grossly incompetent litigation from medium to large plaintiff's law firms (some of which are household names due to their advertising or due to prominent cases that they have litigated) by lawyers with significant experience.

This isn't to say that all litigants against the City are incompetent. About half of lawsuits against the City are brought by lawyers whose work is at least up to the standard of a reasonable competent lawyer, and a minority but good share of litigants against the city are represented by lawyers whose work represents the best practices in this work, are highly competent, and have screened potential clients in such a manner that they have chosen to represent plaintiffs with meritorious cases.

At least one case that I have handled so far involved a plaintiff who was represented by two successive incompetent lawyers, only to have the case pass to a third, highly competent lawyer that salvaged the case with some smart litigation decisions and was able to secure a settlement much higher than what the previous incompetent lawyers came close to reaching.

Sadly, there is very little that a person thinking about bringing a lawsuit can do to determine if their lawyer is litigating competently or not. That's why we have a bar exam in an attempt to impose at least some minimum standards, but this gatekeeping isn't perfect.

Admission to the bar allows you as a lawyer to handle almost any kind of case (patent law is an exception, and some states set a higher standard to determine if a lawyer is allowed to represent defendants in death penalty cases), subject only to their own self-determination about their competence.

But while being admitted to the bar usually means that a lawyer meets basic standards of literacy and can find their way to the courthouse, with a vague understanding of how the process works, the vast majority of lawyers (I'm an extreme outlier in this regard), have a far more specialized legal practice and predominantly handle a fairly narrow kind of legal work.

Probably a majority of lawyers don't litigate any civil or criminal cases on a regular basis, and instead do transactional work, legal compliance work, or provide counsel to senior corporate officials in their day to day activities.

It is rare for a lawyer to represent both plaintiffs and defendants in personal injury work. It is rare for divorce lawyers or real estate lawyers to handle personal injury or civil rights cases. It is rare for commercial litigators to litigate personal injury cases. It is rare for probate lawyers to do personal injury or civil rights litigation. It happens. I'm an example of that. But it is rare.

Unlike physicians, whose regulators have imposed both a general threshold professional qualification to become an M.D., and an additional professional qualification to practice in a particular medical specialty, the legal profession has almost no secondary level of professional qualification to practice in a particular legal specialty, like personal injury litigation, or civil rights litigation.

Most specialist legal practitioners do develop special expertise in the area where they practice, from working as a junior lawyer in a firm that has that kind of practice, from taking continuing legal education classes in that field, from researching the law and procedure in their own cases, and from the school of hard knocks. But it isn't systemic or uniform among specialist legal practitioners who often have significant gaps in their knowledge of the best practices for handling cases in their specialty.

This can be a particular problem in civil rights litigation where the law is more complicated than in many other areas of law, and where firm sizes tend to be small, so that many practitioners have never worked as junior lawyers under seasoned senior civil rights lawyers to learn the ropes. A fair number of lawyers with this kind of practice went to law school because of, and are driven by, a strong commitment to social justice, but couldn't find an employer in a field relevant to their objectives out of law school. So, they never received the kind of mentorship that they needed to become competent in their field as a result and are prone to making big picture conceptual mistakes and to bad legal judgment that hasn't been honed by more seasoned practitioners.

Against Municipal Courts In Colorado

The Denver Post has an article highlighting the problems of having municipal courts not of record incarcerate people who aren't represented by lawyers with no record of the proceedings, and notes that a bill this session seeks to change that. The bill is HB26-1134:

Fairness & Transparency in Municipal Court: Concerning measures to ensure that municipal court defendants are subject to conditions similar to state court defendants.

The bill clarifies that municipal court defendants have a right to counsel and that municipal defense counsel have the same notice, case information, and opportunity to meet with their clients as do state-level defense counsel. Current law prohibits paying indigent municipal defense counsel on a fixed or flat-fee payment structure if the municipality prosecutes domestic violence cases. The bill applies the prohibition to all municipalities.

All municipal court proceedings are required to be open to public observation. Virtual observation is required for all in-custody proceedings, and prompt resolution of municipal cases is required.

Last year, the Colorado Supreme Court ruled that municipalities with ordinances that parallel state crimes can't have higher penalties than the state crimes, in the wake of the state legislature reducing penalties for misdemeanors, and in the wake of Governor Polis vetoing a bill that would have mandated the same result.

A different bill last legislative session addressed the problem with municipal court judges abusing failure to appear warrants in a way that led to disproportionately harsh punishments.

None of these bills address yet another problem with the municipal court system, which is that municipal court judges are not nearly as independent of the municipal legislative bodies as state court judges are because they are appointed by the Governor in a merit based system that makes state court's independent of local governments (except for Denver County Court which is quasi-municipal).

Municipal courts also leave people arrested languishing in jail for longer than the U.S. Constitution allows because they hold court less frequently than state courts.

The simple and best solution would be to abolish municipal courts entirely and to give county court's jurisdiction over ordinance violations (which could still be prosecuted by City attorneys). 

Perhaps parking violations could be made administrative proceedings of municipalities limited to fines, boot, and tow orders instead of municipal violations.

Section 1983 In Historical Context

This article is primarily a review article. 

In the aftermath of the Civil War, Congress passed the Ku Klux Klan Act to protect recently freed slaves from the tyranny of white supremacist violence. The act was later codified as 42 U.S.C. § 1983, lying dormant as a vehicle for relief until it was resurrected in 1961 by the Supreme Court in Monroe v. Pape. 

Today, state officials across the nation act with impunity, harming groups of people less powerful, and less popular, than themselves under the cloak of state power. In the last few years, state legislatures have passed laws that target women and transgender people, to limit their bodily autonomy. Many of these laws violate the Constitution and allow plaintiffs to seek damages under § 1983. While the legislators who pass and introduce such laws enjoy absolute immunity, the state officials who enforce these laws do not. 

This article will discuss the current state of 42 U.S.C. § 1983 litigation and examine the ways that state actors violating the Constitution may be held liable for money damages. Part I will discuss the background of the Ku Klux Klan Act and how subsequent Supreme Court cases limited the aims of reconstruction. Part II will discuss how the Supreme Court’s decision in Monroe v. Pape paved the way for modern § 1983 litigation. Part III will examine the doctrine of qualified immunity and the doctrine’s limiting impact on § 1983 liability. Part IV will discuss damages and when damage awards are available. Part V will discuss the bundle of rights that fall under the umbrella of §1983 protection. Part VI will examine whom one can sue under § 1983, from Governors and State Attorneys General to lower-level officials. Part VII will be a case study of a Florida law and the corresponding § 1983 liability for the law’s enforcers. Part VIII will conclude by discussing the Florida law and the importance of using § 1983 as a vehicle for redressing constitutional injuries.

From Emily Kaufman, Acting with Impunity No More: Holding Rogue State Officials Liable for Money Damages Under 42 U.S.C. § 1983 on SSRN

Moving Space Force HQ From Colorado To Alabama Is Stupid

Trump is about to renew his efforts to move the headquarters of the Space Force, a fifth military service that he created, from Colorado (where the headquarters of the part of the Air Force bureaucracy that was transferred to the separate Space Force service was located before he created the Space Force), to Alabama. He tried to do so during his first term, but the moved got bogged down in Department of Defense red tape, and the Department of Defense reversed that decision during the Biden Administration. 

UPDATE:

President Trump said one of the main considerations for moving Space Command out of Colorado Springs is because Colorado voters largely vote by mail. 

“I will say I want to thank Colorado,” Trump said. “The problem I have with Colorado… they do mail-in voting, they went to all mail-in voting, so they have automatically crooked elections." 

Trump has long criticized voting by mail, and has cited the practice as a major reason he lost the 2020 election to Biden though he has not provided evidence of fraud emanating from mail-in ballots." . . . 

The Denver Metro Chamber of Commerce estimates that Space Command supports nearly 1,400 jobs and has a $1 billion impact on the Colorado Springs economy. Colorado has a significant Space Force presence, hosting half the bases with its major operations, including Peterson as well as Schriever Space Force Base in the Colorado Springs area and Buckley Space Force Base in Aurora. Nationally, the branch has more than 14,000 military and civilian members, who are called Guardians. 

Colorado Attorney General Phil Weiser on Tuesday said his office was prepared to challenge in court Trump’s decision to move the command, though he did not elaborate the legal rationale for a lawsuit. . . . 

Huntsville, nicknamed Rocket City, has long been home to Redstone and NASA’s Marshall Space Flight Center. The Army’s Space and Missile Defense Command is also located in Huntsville, which drew its nickname because of its role in building the first rockets for the U.S. space program.

This is almost certainly not a legitimate reason for executive branch action under the Administrative Procedure Act. It is also an outrageously false claim.

Colorado Pols has more details.

END UPDATE

This is very on brand for Trump. He is making a call that places partisan politics above what is best for national security and wastes federal dollars.

Alabama is less attractive than Colorado to the civilian employees and contractors (who have a choice unlike active duty service members), so it won't attract the same quality work force. And, if one was going to move it away from Colorado one could have justified an HQ in Florida or Texas, which are also GOP strongholds, but like Colorado and Washington State, actually have a space industry (but see the material in the update above about Huntsville). Charitably, the best that can be said for it is that it provides economic development assistance to an underdeveloped part of the U.S.A. that supports him politically. Less charitably, it can be seen as a political payoff to Senator Tommy Tuberville who was getting in the way of Trump's Defense Department agenda. Less charitably still, it is a way for Trump to try to take action solely attributable to him that will become part of a military service's legacy once the bad decisions that went into that choice are long forgotten.

Tearing down old infrastructure to move it somewhere else is also just wasteful, while providing no benefits to national security. It is will probably require a billion or so dollars of unnecessary defense spending.

Of course, creating the "Space Force" was a bone headed idea in the first place. It undermines interservice cooperation, and honestly, it would have been better to be truly conservative and roll the Air Force back into the Army, rather than further dividing the Air Force. There might be a time when a Space Force makes sense, but that time is far in future.

Space Force's military role remains ill-defined and it remains a work in progress that is currently creating more confusion rather than a stronger U.S. military. Do we really need a new Space Force academy? Do we really need Space Force reserves? How is it doing anything that the Air Force did better? How many people are even in the Space Force? According to Google AI it apparently has 9,400 active duty "guardians" and about 4,600 civilians, making it far smaller than even the Coast Guard.

Trump's other wasteful symbolic military acts

Trump's other symbolic military initiatives are similarly dubious. His military birthday parade in the District of Columbia on June 14, that the Army aptly converted to a boring historical display from the third-world dictatorship show of force that he wanted in an act of malicious compliance, it was a wasteful and expensive flop.

The idea he has floated to change the name of the Department of Defense to the Department of War (as it was called during and before World War II), were also wastes of money, but at least are basically harmless. Indeed, the calling it the Department of War is also more honest.

Trump's intent to reassign Confederate names to U.S. military bases is fundamentally endorsing treason and insurrection and is patently un-American.

Trump's inappropriate domestic uses of the military

Trump's deployment of military force, mostly but not entirely, national guard troops, on the other hand, in addition to being a waste of money, are grossly improper, manufactured crises that threaten democracy, undermine federalism, are inappropriate for immigration enforcement, and are illegal.

The Courts rejected his efforts to criminalize illegal immigration by calling a large swath of the border a military base, and have rejected his characterization of illegal immigration as an "invasion" of the United States for constitutional purposes. Courts have also held that deportation flights he had the military make in violation of court orders were illegal.

Courts have shut down his military deployments to Los Angeles. As the New York Times explains:

A federal judge in California said President Trump broke the law by deploying roughly 5,000 Marines and National Guard troops to Los Angeles in June in response to immigration protests. The judge said on Tuesday that Mr. Trump, Defense Secretary Pete Hegseth and the Defense Department had violated the Posse Comitatus Act, which generally prohibits using the military to enforce domestic law. The judge barred them from using the troops for any law-enforcement purpose, but put the order on hold for 10 days. The administration is expected to appeal. . . . 

The ruling was the latest in a series of judicial battles over claims of expansive unilateral powers by the administration. Mr. Trump and administration officials have deported people without due process, imposed widespread and unpopular tariffs and rolled back energy regulations, citing wartime and emergency powers that have been disputed in federal court. 

The president also declared crime in Washington, D.C., to be an emergency in order to send federal troops there in August, although crime rates in the nation’s capital have actually been falling and local officials said the deployment was not needed. Since then, Mr. Trump has publicly mused about sending the National Guard into other Democratic-led cities. Federal law gives the White House more latitude to conduct local law enforcement in the District of Columbia than in the states. . . .

The ruling places strict limits on the what the troops can do and applies only in California, although the judge noted that Mr. Trump and Mr. Hegseth “have stated their intention” to use Guard troops as a “national police force with the president as its chief.” Gov. Gavin Newsom of California praised the decision, saying Mr. Trump’s efforts were “illegal, authoritarian, and must be stopped in every courtroom across this country.”

Other bad defense department decisions.

These aren't the only bad defense department decisions he's made. He's banned books at the military academies (eventually rescinding all but a few of those bans). 

He wiped all mention of women and minorities who contributed to the U.S. military on government websites (another decision he has mostly backed down from in the face of court action and bad P.R.). 

He's systemically fired or removed from command women and minorities whom he has called "DEI hires" while putting in place less qualified individuals chosen for political loyalty. 

He's baselessly fired transgender troops contrary to their civil rights and denied them their legitimate benefits for being laid off and having served with distinction.

He's purged the ranks of generals and admirals and national intelligence officials to replace them with political loyalists. Trump's major appointments in the defense and national intelligence sectors have involved woefully unqualified people who have made major public blunders.

His openly revenge oriented revocations of security clearances and security details for various officials has been disgraceful.

The mixed bag of Trump's military deployments and threats abroad.

Trump's deployment of U.S. forces have been a mixed bag at best.

Trump wasn't wrong to continue Biden's policy of militarily engaging the Iranian backed Houthi rebels in Yemen who have been using advanced anti-ship missiles from Iran to interrupt maritime commerce in acts of piracy that they claim are in support of Gaza but really have nothing to do with it. But then, he just lost interest and ended U.S. involvement.

Trump wasn't wrong to provide some extra military support to Israel's raids on Iran to thwart its nuclear capabilities, although the B-2 bomber strikes he made were less effective than might have been hoped. And, of course, this is a problem of his own making created when he pulled the U.S. out of President Obama's deal with Iran to end its nuclear weapons program.

Trump, in his first term, set up Biden for failure, and the Afghan government installed by the U.S. and its allies for collapse, by negotiating with the Taliban for a U.S. withdrawal that left the Afghan government out of the loop and left Biden holding the bag when he took office, just a month or so before the scheduled pull out date. And, in his second term, Trump has broken faith with Afghan citizens who served U.S. forces in Afghanistan at great risk to their own lives by trying to revoke the immigration protections that the Biden Administration and his own administration in his first term provided to them.

Trump has been indecisive, has wrecked our alliances, has taken absurd and counterfactual positions, and has played into Russia's hand with respect to the Ukraine War, even though with immense bipartisan political pressure from Congress and from the Defense Department, he hasn't entirely abandoned it.

Trump's utter abandonment of Africa, ending U.S. Aid in a way that has killed hundreds of thousands of people and will kill millions, planning to close all U.S. embassies there, and imposing tariffs upon it, has basically ceded the entire continent to China.

Trump has been less firm than he might have been in the Philippines-China clashes in the South China Sea caused by Chinese Coast Guard harassment of Filipino military and civilian shipping in places that international law has declared to be international waters.

Trump's response to the situation in Israel with Gaza has ranged from rudderless to absurd with his call to vacate Gaza and turn it into a Trump owned beach resort. By floating the proposal without even consulting his advisors, he has undermined U.S. credibility on the issue.

Trump's deployment of naval forces towards Venezuela seems to be an attempt to manufacture a war. His early threats to invade Greenland and Panama and Mexico, contrary to the sovereignty of a NATO member, to treaty obligations, and to international law, and to annex Canada, have likewise been toddler level moves that have undermined U.S. credibility in foreign affairs and turned us into a global menace.

The mixed bag of Trump's procurement decisions

Trump's military procurement decisions have also been a mixed bag.

The cancelation of the M10 Booker light tank (that the Army refused to call a tank) was a good move. Cancelling the Joint Light Tactical Vehicle for the Army (one of the best procurement decisions that the Army and Marine Corps have made for ages), while keeping the Army's buy of the obviously bad Infantry Squad Vehicle that ignores all of the lessons the Army learned in Iraq and Afghanistan was a very bad move.

Cancelling the Army's successor to the M113 was mostly a good move, but leaves the Army without a next generation medical transport and field hospital vehicle, even though other parts of that buy were unwise. Progress on an Osprey-like tilt wing successor to the Blackhawk helicopter in the Army is positive. Upgrading Army small arms makes sense.

The decision to boost purchases of the B-21 Raider and the F-47 Air Force fighter (to replace the F-35A) aren't horrible decisions, nor is the decision to continue the Collaborative Combat Aircraft (a.k.a. Loyal Wingman drone) program. Looking at ways to use cargo aircraft as bombers or missile launching platforms also makes sense. This administration's continued failure to recognize the need to have a close air support aircraft (shared with past administrations), however, even if the A-10 is just too old, wasn't wise. Trump's absurd attempt to play aerospace engineer and claim that the F-47 really needs twin engines, however, is more toddler level governance.

A focus on improving U.S. air defenses in a program known as the Golden Dome (playing on Israel's Iron Dome), on ramping up U.S. drone production, and on rushing to get drone defense resources fielded aren't wrong. Developing hypersonic missiles also makes sense. 

Developing new anti-ship tactical nuclear missiles, however, is a bad call and doesn't meet a real military need since existing anti-ship missiles are more than adequate to sink any ship in existence.

The decision to fund development of Elon Musk's SpaceX Rocket Cargo program which is technologically challenging, doesn't have a proven track record of quality control, and doesn't meet an urgent need, is less wise. This contract is just political payback.

It is honestly still hard to tell, more than seven months into the administration, what it's naval policy is. The Navy is appropriately looking at a major increase in unmanned ships and submarines, and at containerized anti-ship missiles for ships that wouldn't ordinarily have any missiles. Is the successor to the F-35C on or off? Is the Constellation class frigate on or off? Where is the Littoral Combat Ship program? Do we really need more old model Arleigh Burke destroyers? Does spending big bucks on maintaining a large scale amphibious attack capability really make sense?

Trump has talked big about using the U.S. military against cartels in Latin America, but the Department of Defense has apparently done nothing to prepare for this historically law enforcement and Coast Guard mission.

A Non-Constitutional Revolution

The Founders in their ignorance, made the U.S. Constitution extremely hard to amend. This post is a quick recap of some of the more transformative way our constitutional and political order could be remade without constitutional amendments.

Disposition Of U.S. Territory Outside U.S. States

* Admit the District of Columbia, which has a population of roughly 679,000, as a U.S. state (once this was done, repealing the 23rd amendment to the U.S. Constitution that gives the District of Columbia three electoral votes would be easily passed).

* Require Puerto Rico, which has a population of roughly 3.2 million, to choose between independence and becoming a U.S. state. Deprived of an option to continue its current Commonwealth status, it would choose statehood.

* Grant statehood to the U.S. Virgin Islands, which has a population of approximately 104,000.

* Return the Guantanamo Naval Base to Cuba.

* Admit Guam and the Northern Mariana Island as a single new U.S. state (they are basically contiguous) with a population of approximately 221,000.

* Transfer American Samoa with a population of 44,000 to the adjacent sovereign country of Samoa, if it will accept it. Anyone dissatisfied with this could migrate to the United States and retain their citizenship.

* Collectively, this would mean that there would be 108 seats in the U.S. Senate (excluding the U.S. Vice-President's role as a tie breaker) and that there are no permanently inhabited U.S. territories that are not within U.S. states.

Congress

* Expand the U.S. House from 435 seats plus six non-voting delegates to a fixed 991 seats with no non-voting delegates. This would mean that there would be roughly 340,000 people per average seat in the U.S. House of Representatives (compared to a current average of about 790,000 people per seat), so only the Virgin Islands would have more house seats than the number it would be entitled to without a minimum of one seat per state rule, and even then, only by about a factor of three less than the average. This would also increase the size of the Electoral College to 999 electors (with the four new U.S. states), would greatly reducing the risk of a tie vote in the Electoral College (since it is an odd number), and would roughly cut in half the benefit that small states have relative to large states in the Electoral College. The number of U.S. House seats would not be changed if a state were allowed to split into more than one state or was merged with another state.

* Enact a statute requiring U.S. states with more than one seat in the U.S. House of Representatives to elect those seats in a party list proportional representation system (with each party's list determined in primary elections held in advance of the election). States with 50 seats or more would be required divide themselves into two or more regions with a number of seats proportional to the region's population of at least 20 seats and not more than 50 seats each. Currently, those states would be California (98 seats) with 2 to 4 regions, Texas (90 seats) with 2 to 4 regions, Florida (67 seats) with 2 to 3 regions, and New York (57 seats) with 2 regions. Smaller population states would be "at large". This would end gerrymandering of all kinds and would make the federal government a multi-party democracy. Doing this for Congressional delegations on a state by state level rather than nationally, would eliminate the need for a constitutional amendment, would de facto create a minimum threshold that would be much higher than it would be in a national proportional representation election, and would keep the states in charge of election administration.

* Enact a statute requiring candidates for U.S. House in states with just one representative (probably only the Virgin Islands and Guam), and for U.S. Senate, to win a majority of the vote to be elected in a general election and to hold a runoff election of the two two candidates if no candidate receives a majority of the vote in the first round. This would largely end spoiler effects as the shift in the House to what would become a multi-party system would increase the likelihood non-majority first round results.

* End the filibuster and Senatorial holds in the U.S. Senate.

Presidential Elections and Disability

* Require states to allocate their electoral votes proportionately to each candidate's popular vote, rather than by a winner take all method for a whole state, or by Congressional district.

* Pass a law implementing Section 4 of the 25th Amendment to the United States Constitution (concerning Presidential disability), to create a Presidential disability commission in connection with the language giving "the Vice President and a majority of either the principal officers or the executive departments or of such other body as Congress may be law provide" the authority to determine that the President is "unable to discharge the powers and duties of his office" and to keep that determination in force pending a Congressional determination of the question if the President disputes it. This commission might be made up the active judges, collectively, of the U.S. Court of Appeals for the District of Columbia and would have subpoena power in connection with carrying out its duties in this capacity, and would act on the Petition of the Vice President delivered under seal to the clerk of that court.

Qualifications For Public Office

* Enact a law implementing the insurgency disqualification from office in the 14th Amendment (or on any other ground) allowing any court or tribunal with jurisdiction over election administration to determine this by a preponderance of the evidence in a civil action, and allowing states courts and U.S. District Courts from a state where the official was elected to determine this after an election or appointment. For the President and Vice President, the U.S. District Court for the District of Columbia would have exclusive jurisdiction after they were elected (and even before they were sworn in). For federal appointed officials, the U.S. District Court with jurisdiction over the place where the official's primary office address is located would have exclusive jurisdiction. For state and local appointed officials, the state courts of general jurisdiction and U.S. District Courts with jurisdiction over the place where the official's primary office address is located would have exclusive jurisdiction.

Election Administration 

* Restore the protections of the Voting Rights Act expanding the protections historically applied only in places with a history of discrimination to the entire country.

* Create a right to have a state ID issued free of charge at some government office within their county at least every five years, with replacement costs limited to the actual direct cost of preparing a new ID between times. Automatically register anyone who is a citizens with a state ID or driver's license to vote. 

* Allow citizenship for voting purpose to be proven by means including any record of a previous voter registration, a passport, an expired passport, a birth certificate, a naturalization document, a tribal membership, a Social Security number, a marriage certificate to a U.S. citizen, or an affidavit establishing facts necessary to prove U.S. citizenship.

* Establish a right to an absentee ballot without proof of need for any registered voter, if a mail-in ballot is not otherwise made available to them.

* Encourage states to reduce the voting age in federal elections to sixteen years old.

* Classify people who are incarcerated as residents of their domicile immediately prior to their incarceration for purposes of state and local redistricting and for census purposes.

* Allow U.S. citizens who have no previous domicile in any U.S. state as residents of the U.S. state of their choice for purposes of federal elections.

* Prohibit election administration by elected officials (partisan or not), and also by partisan political appointees for whom one party controls the highest governing body of the election administration agency.

Courts

* Pack the court. Add another seven justices to the U.S. Supreme Court to end the distortions arising from having a 6-3 ultraconservative and hyper-conservative majority there. This should be done before any of the rest of this agenda is enacted.

* Establish criminal penalties that include disqualification from office for ethics violations by U.S. Supreme Court judges and other judges, with special venue provisions.

* Repeal the general federal diversity jurisdiction statute. 28 U.S.C. § 1332. As a result, federal court diversity jurisdiction would be allowed only in very specialized cases like class actions and cases where the parties claim ownership of land under the laws of two different states.

* Repeal the general federal question statute. 28 U.S.C. § 1331. This would end federal court jurisdiction over most lawsuits arising under federal law between private parties outside some very specific circumstances such as civil rights, election laws, intellectual property, and bankruptcy cases. The biggest impact of this would be to limit employment discrimination lawsuits to state court.

* Abolish the federal Article I immigration courts and give the U.S. District Courts exclusive jurisdiction over all immigration cases.

* Create a specialized national U.S. District Court for Indian Country which would have jurisdictions from multiple venues in cases where the U.S. District Courts currently have jurisdiction (i.e. felonies committed in Indian territory) and over other civil matters of Indian law, from which appeals would be taken to the U.S. Court of Appeals for the Federal Circuit.

* Statutorily end qualified immunity to lawsuits filed under 42 U.S.C. § 1983.

* End a law parallel to 42 U.S.C. § 1983 for violations of civil rights under color of federal law, thus codifying and expanding the scope of Bivens actions.

* Establish vicarious liability for the employers of government officials or contractors held liable under 42 U.S.C. § 1983 or its new federal counterpart.

* Enact a federal law entitling someone to relief in the form of compensatory money damages, injunctive relief, and declaratory relief from governmental entities that deprive someone of a constitutional or federal statutory right, even in the absence of fault or an intent to do so, including any deprivation of liberty arising from pre-conviction or post-conviction incarceration from someone who was wrongfully convicted, either due to procedural violations giving rise to the conviction or due to their innocence of the charges giving rise to their conviction.

* Enact a law creating a private right of action to seek injunctive relief enforcing the Posse Comitatus Act (which prohibits the use of the federal military to enforce laws domestically) in the appropriate U.S. District Court, to any person impacted by it or to any governmental entity within whose territory military personnel are used for this purpose, with expedited proceedings.

* Prohibit the activation and deployment of national guard troops in a state without the permission of its Governor, absent a notice to the Governor that troops will be deployed at least twenty-four hours in advance and a showing that law and order have collapsed to a point where civilian efforts are insufficient, or that an insurgency is in progress, or that the state is defying federal court orders. If a Governor contests this within twenty-four hours in the relevant U.S. District Court, this activation and deployment shall be stayed until an expedited hearing on the merits can be held to determine if the President has the authority to do so.

* Give U.S. District Court judges broad statutory authority to impose national injunctions against the U.S. federal government.

* Establish a judicial process required to claim the state secrets doctrine in an adversarial proceeding with a specially qualified bar of people having national security clearance at the time of their admission.

* Require an adversarial proceeding affording a personal with national security clearance with due process to revoke a national security clearance for more than five weeks (if this is not done, the temporary revocation would automatically expire).

* A U.S. District Court should be granted the authority to place any federal government agency whose senior officer has defied a court order to place that agency under court receivership, and to remove that government official from office, until a replacement who acknowledges the authority of the court and personally commits to obey that court order can be appointed. 

* Prohibit "bounty" laws that allow someone who would otherwise have no standing to bring a civil action to sue someone for a fine that enforces a state law (which are designed to circumvent judicial review of such laws).

Immigration Laws

* Immediately and automatically grant U.S. citizenship to all legal permanent residents of the U.S. (i.e. green card holders) and to all U.S. nationals who are not U.S. citizens. Allow anyone qualified to get a green card now to immediately get U.S. citizenship.

* Immediately and automatically grant U.S. citizenship to the spouse of any U.S. citizen.

* Grant automatic U.S. citizenship to any member of any recognized Native American tribe, regardless of place of birth, in accordance with the membership rules of the tribe.

* Grant citizenship at birth to a child anyone who is a U.S. citizen, or is serving in the U.S. military at the time of conception or birth. Proof of paternity may be established from the DNA records of the U.S. military kept for people serving in the U.S. military for post-humous identification purposes without the consent of the service member alleged to be a parent (or from a comparison to the DNA of all U.S. service members if the identity of the service member is not known).

* Establish a ten year statute of limitations from first entry into the U.S. (even if interrupted by period abroad of less than one year at a time) on deportations, and allow anyone for whom the statute of limitations has passed to apply for U.S. citizenship on that basis without any civics and English language test.

* Make a passport available free of charge a first time and every time it expires to every U.S. citizen.

* Eliminate authority to denaturalize someone for fraud in the immigration process for any reason, and replace that with criminal penalties for doing so that do not deprive someone of their U.S. citizenship.

* Allow a visa to be revoked after clearing an immigration checkpoint upon entry to the U.S. only with a civil action filed by the United States government in a U.S. District Court at which a valid legal basis to do so, that is not unduly vague and does not violate constitutional rights such as the right to free speech, is established by a preponderance of the evidence.

* Allow someone with a valid visa who is denied entry to the U.S. at an immigration checkpoint to obtain an award of money damages and injunctive relief if the denial of entry is without probable cause to do so, and to obtain injunctive relief reinstating the visa with no right of immigration officials to deny entry if entry is denied with probable cause but the articulated probable cause concern is later overcome. A person with a valid visa who is denied entry could elect to litigate the matter either from a temporary detention center near the place of entry, or from a U.S. embassy in another country such as the country from which they arrived.

* Prohibit deportation of someone, even when valid grounds exist to deport them, to a country where the person is not a national without their consent.

* Establish by statute (regardless of any constitutionally permissible alternatives) that probable cause that someone is deportable is requires to detain someone for immigration violations and that no one may be deported for any reason without notice and a hearing in an Article III court.

* State and local elected officials with immigration detention facilities located in their government's territory, and members of Congress from any state, shall have the right to enter and inspect an immigration detention facility and record by any meaning the people there, what the detainees have to say, and the conditions of the facility, and to demand responses from any person employed there to their questions about the facility, the authority for operating the facility, and the status of the people in the facility.

* The location and status of everyone detained for immigration purposes shall be available to the public.

* Immigration officials and any other private or public person working with them or on their behalf on on their authority shall have a duty to immediately release anyone detained for immigration purposes who presents to them proof that they are U.S. citizens or have a valid visa that has not been revoked by a court. 

Health Care

* Expand Medicare to everyone (without requiring any proof of eligibility), financing it with an increased Medicare payroll tax rate and an Obamacare tax on investment income at the same rate as for self-employed persons. Failure to make a required copayment would not be a basis for denying care but would give rise to an unsecured debt that could be discharged in bankruptcy. Convert VA Hospitals to non-profit independent hospitals financed with Medicare. Repeal Medicaid. End private for profit insurance Medicare providers. Reduce all employee health benefits to Medicare supplemental plans. Require Medicare supplemental plan providers to use standardized claim forms with providers and insureds to simplify provider paperwork.

* End lawsuits seeking to recover the costs of medical care paid for by Medicare brought by any party but the Medicare subrogation division in each state, which could bring subrogation lawsuits in state court to recover medical costs caused by tortious conduct when it determined that it was cost effective to do so.

* Expand Medicare to include long term nursing home care with a deductible not to exceed the median rent in the metropolitan area (or outside of metropolitan areas, in the rural area of that state), which can be paid with a federally guaranteed loan at the one year U.S. Treasury bond interest rate with no payments due until death, secured by a junior mortgage on the patient's personal residence, if any, if the patient is unable to pay.

Labor Laws

* Increase the federal minimum wage to $16 per hour ($32,000 per year for a full-time employee which is roughly the federal poverty line outside Alaska and Hawaii), index it to the consumer price index, and extend it to independent contractors who are providing personal services.

* The Family and Medical Leave Act of 1993 (FMLA) entitles eligible employees to twelve workweeks of leave in a 12-month period for the birth of a child and to care for the newborn child within one year of birth, the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement,  to care for the employee’s spouse, child, or parent who has a serious health condition (a serious health condition that makes the employee unable to perform the essential functions of his or her job), any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty;” or twenty-six work weeks of leave during a single 12-month period to care for a covered service member with a serious injury or illness if the eligible employee is the service member’s spouse, son, daughter, parent, or next of kin (military caregiver leave). Extend FMLA coverage to include being seven months pregnant or more. Expend the duration to up to eight months in a two year period. Create a federal grant equivalent to full-time minimum wage to anyone taking time off under the FMLA.

* Mandate a prorated 80 hours per year of paid time off for employees working 2,000 hours per year (i.e. 1 hour per 25 hours worked).

Controlled Substances

* End the status of marijuana as a federally controlled substance.

Reproductive Rights

* Statutorily clarify that states may not prohibit someone from prescribing and mailing abortion or contraception drugs across state lines or from crossing state lines to obtain an abortion drug or contraception drug obtained from out of state.

* Clarify that federal government health care facilities (e.g. prison medical centers, military hospitals, historically veteran's hospitals) can provide abortions and other reproductive health care notwithstanding state or local law.

* Clarify that the Emergency Medical Treatment Act requires states to allow abortions as part of a medical emergency, pre-empting state law. 

Paradise Lost

You have to go back at least 60-70 years to reach a time when the ideal of "Liberty and Justice for All" was less true in the United States.

Bivens Narrowed Again

The U.S. Supreme Court's conservative majority isn't troubled at all by denying remedies to violations of the U.S. Constitution.

Bivens is a U.S. Supreme Court case that allowed suits for money damages against federal officials who violated selected constitutional rights, something Congress has failed to do by statute.

The order list [from today] include a unanimous per curiam opinion in Goldey v. Fields, No. 24–809 (S. Ct. June 30, 2024) (also available here), which involves an effort by a federal prisoner to sue federal prison officials for an Eighth Amendment violation alleging use of excessive force. The Court rules a Bivens suit is not available in a three-page opinion that concludes this way:

This case arises in a new context, and “special factors” counsel against recognizing an implied Bivens cause of action for Eighth Amendment excessive-force violations. To begin with, Congress has actively legislated in the area of prisoner litigation but has not enacted a statutory cause of action for money damages. See Ziglar, 582 U. S., at 148– 149. In addition, extending Bivens to allow an Eighth Amendment claim for excessive force could have negative systemic consequences for prison officials and the “inordinately difficult undertaking” of running a prison. Turner v. Safley, 482 U.S. 78, 84–85 (1987). Moreover, “an alternative remedial structure” already exists for aggrieved federal prisoners. Ziglar, 582 U.S., at 137; see Correctional Services Corp. v. Malesko, 534 U. S. 61, 74 (2001). The existence of such alternative remedial procedures counsels against allowing Bivens suits even if such “procedures are ‘not as effective as an individual damages remedy.’” Egbert, 596 U.S., at 498.

For the past 45 years, this Court has consistently declined to extend Bivens to new contexts. See Egbert, 596 U.S., at 490–491. We do the same here.

Congress should extend 42 U.S.C. § 1983 to provide the same relief to violations of rights under the U.S. Constitution or federal law to violations committed under color of federal law. 

The claim that this would make it inordinately difficult to run federal prisons is at odds with the fact that an identical legal rule applies to all state and local prisons and jails, which house the lion's share of federal inmates (and a much larger share of violent criminals).

The Case For Bills Of Attainder

Every issue has two sides. I find that argument in favor of allowing Bills of Attainder particularly weak. But here it is:

For half a millennium, bills of attainder were an accepted sovereign power, used by British and American governments to defend their people in times of emergency. Throughout the war for independence and its aftermath, the new American states repeatedly attainted loyalists and confiscated their lands, remaking much of the socioeconomic structure of the country. Then, in little over a year and with barely any reasoning, the ratifiers of the 1788 constitution stripped the state and federal governments alike of their power to attaint. Today, attainder bans are remembered as a just and inevitable part of Enlightenment reform. 

But in truth, these bans were anti-republican. Worse, they were a mistake. 

Eighteenth-century bills of attainders were not the arbitrary acts of tyranny that scholars today imagine. They were a narrow emergency power, passed only after debate and examination of evidence, with procedures guaranteeing due process and appeal written into the text of the laws. 

Moreover, although legislators occasionally passed abusive attainders, early Americans proposed reforms that would have prevented abuses without prohibiting attainder outright. In the right circumstances, bills of attainder are a valuable tool of republican government. The history and ideals of the Founding Era provide compelling reasons to embrace bills of attainder in exceptional times.

Nathan Ristuccia (Institute for Free Speech), In Praise of Attainder, SSRN (2025).

Facts About Donald Trump And His Administration

Some of the major themes of Trump 2.0's agenda are quite simply contrary to the law and Trump is just such as bad President and bad person.

* Opposition to the Israeli government's treatment of Palestinians is not antisemitic.

* The U.S. Supreme Court has specifically held for decades that antisemitic speech is protected the First Amendment. National Socialist Party of America v. Village of Skokie, 432 U.S. 43 (1977).

* Equity and inclusion have been legally required in employment, at least since the Civil Rights Act of 1964, and in public education since Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).

* Diversity achieved by breaking down barriers to employment and education for women, people of diverse sexual orientation, minorities, and people with disabilities is legal, and arguably mandated by U.S. Civil Rights laws.

* Diversity achieved by favorable treatment of women, people of diverse sexual orientation, minorities, and people with disabilities, relative to a meritocratic standard is legal to overcome past discrimination.

* No U.S. law is a valid basis for removing books and websites that laud the achievements of historical women, people of diverse sexual orientation, minorities, and people with disabilities, or depict these individuals in fiction. Indeed, multiple court cases applying existing U.S. law have held that this kind of censorship in public libraries is illegal, such as a recent case involving the Elizabeth school district in Colorado.

* None of the Trump 2.0's political appointments have been remotely meritocratic, contrary to his claim that he wants to end affirmative action.

* There is no legal basis for the U.S. federal government to prohibit educational institutions, public or private, at any legal, from teaching critical race theory.

* Discrimination against white, straight men in employment and education is modest at best, and mostly, non-existent.

* Discrimination against Christians in the U.S. is basically non-existent, and, instead, for the most part, the U.S. sees significant discrimination against non-Christians.

* Christian religious freedom is not a valid basis for discrimination against homosexuals and transgender people by organizations that are not religious organizations.

* All levels of government in the United States are strictly forbidden from supporting any particular religion, or religion at all, by the establishment clause of the First Amendment to the U.S. Constitution.

* It has been illegal since the Impoundment Control Act of 1974 for the President to refuse to spend Congressionally appropriated funds.

* Generally applicable rules and regulations of the Executive Branch of government in the United States can only be adopted after notice and hearing according to the procedures of the Administrative Procedure Act.

* Speech, legislative lobbying, and legal action against President Trump are protected by the First Amendment and it is illegal for President Trump to retaliate against law firms and individual for doing so.

* Federal employees who are not political employees or lawyers cannot legally be fired by the President without good cause.

* The President has no constitutional authority over employees of Congress or the judicial branch or employees of non-profit corporations formed by the U.S. government, and has only the authority granted to him by federal statutes to do so.

* The President has absolutely no legal authority to defy a court order, even if the legal basis for issuing that order was incorrect and it is later overturned on appeal. Despite this, President Trump has intentionally defied court orders more than once in his first four months in office.

* The U.S. Constitution requires the directors of federal agencies to be nominated by the President and approved by the U.S. Senate, or, when a Congressionally approved law provides otherwise, by a federal judge or a U.S. Senate approved officer of the United States.

* It is illegal for the President to use his office to promote a private business in his official capacity.

* The U.S. Constitution expressly prohibits federal employees, including the President, from receiving gifts or other private benefits from holding a public office without Congressional approval on a case by case basis.

* The international war crime of "aggression" prohibits the U.S. from invading Canada, Greenland, or Panama at this time.

* White South Africans are not facing genocide in South Africa and do not meet the legal criteria to be classified as refugees. The claims that White South Africans are been systemically murdered on account of their identity in South Africa are not true, and the most compelling pieces of evidence the President Trump presented in support of that claim in a White House meeting with the President of South Africa were actually evidence of mass killings of black women in the Democratic Republic of Congo and evidence of symbolic political protests in South Africa in which no one was physically harmed.

* Kilmar Abrego Garcia, a Maryland resident who was wrongfully deported to El Salvador, is not a gang members and evidence relied upon by President Trump to support that claim was photoshopped onto a picture of Mr. Garcia.

* The Alien Enemies Act relied upon President Trump for man deportations is not a valid legal basis to deport anyone because the U.S. is not experiencing an invasion within the meaning of the act as President Trump claims, as multiple judges, some appointed by President Trump himself have held, and as an investigation by U.S. government intelligence agencies that he commissioned established.

* The Alien Enemies Act does not legally authorize deportation without due process.

* Only Congress may authorize the suspension of the right to seek a writ of habeas corpus, and only in places where the federal courts are unable to operate. See Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866).

* A core principle of federal law is that every person, whether or not that person is a U.S. citizen, and whether or not that person is a criminal or terrorist, is entitled to due process before being detained or deported.

* It is a core principle of U.S. constitutional law that every person born in a U.S. state, who does not have diplomatic immunity at the time, is a U.S. citizen. This includes the children of illegal immigrants. No U.S. court has ever ruled to the contrary since the 14th Amendment to the U.S. Constitution, which gave rise to this right, was adopted.

* It is illegal for the President to fire members of an independent agency board without cause. Humphrey's Executor v. United States, 295 U.S. 602 (1935), was a decision of the Supreme Court of the United States that ruled that the U.S. Constitution allows the U.S. Congress to enact laws limiting the ability of the President of the United States to fire the executive officials of an independent agency that is quasi-legislative or quasi-judicial in nature.

* The President's authority to unilaterally impose tariffs without an act of Congress doing so is very doubtful, and mere trade deficits with a country are not a valid legal basis for doing so.

* The President has a legal duty to faithfully execute the U.S. Constitution and the laws of the United States.

* Every public official in the United States has a sworn duty to uphold the U.S. Constitution.

* The fact that the President has been held to have immunity from criminal and civil liability for his official acts does not mean that the President is legally entitled to violate the law, it just limited the legal remedies that are available when he does.

* The fact that the President has been held to have immunity from criminal and civil liability for his official acts does not mean that the President's subordinates charged with carrying out the President's orders also have immunity from criminal and civil liability for their official acts, if they are not judges or prosecutors and the claims are related to their participation in the legal process.

* Trump admitted on TV shortly after he announced tariffs to helping his billionaire friends engaged in insider trading on his tariff news. Many members of his administration and many Republicans in Congress have engaged in insider trading.

* Trump has sold access to the White House to mostly foreign investors in a meme coin he introduced after taking office for a second time. The coin has funneled hundreds of millions of dollars to Trump, enriched rich foreign investors, and produces big losses for almost all ordinary investors in the meme coin.

* Trump had basically a commercial for Tesla cars on the White House lawn after Elon Musk's political involvement (an advisor of the President so close that he has been called the co-President) with Trump and Nazi and far right, and Trump has quashed about a dozen federal investigations of Musk's companies, awarded Musk's companies many billions of dollars of government contracts without the usual government bidding process, and has insisted that countries do business with Musk's companies in trade negotiations.

* Members of Congress have an express legal right to inspect immigration detention facilities without notice even if the President orders the officials there not to allow them to do so.

* The President does not have the legal authority to revoke a non-profit organization's tax exemption without good cause, and may not do so for legally authorized good cause specific to eligibility to receive non-profit status for reasons not specific to eligibility for non-profit status under the Internal Revenue Code.

* The President does not have the legal authority to deny a higher educational institution the right to admit and teach international students entitled to student visas under the Immigration And Nationality Act without good cause specifically set forth in the Immigration and Nationality Act that is specific to eligibility to do so under the INA.

* The President does not have the legal authority to revoke a student visa, or any other person's immigration status, based upon the lawful free speech.

* It is a crime for IRS officials to share confidential tax information with the government to enforce non-criminal laws.

* It is a crime to use military personnel to enforce the laws within the United States. The law that says so is called the Posse Comitatus Act.

* The President does not have the legal right to blacklist a news reporting agency because he doesn't agree with the views expressed by that agency.

* Donald Trump is a convicted felon.

* Donald Trump is a legally adjudicated rapist.

* Donald Trump has been found repeatedly by the courts to have engaged in fraud, defamatory conduct, and illegal racial discrimination.

* Donald Trump is wealthy in large part because he inherited a large sum of money from his father.

* Six companies, including casinos, that Trump has owned have filed for bankruptcy.

* Trump's University had to settle a civil case against it for fraud for a large sum of money for fraud that Trump personally participated in.

* Trump's main business organization and one of its main executives were criminally convicted of tax fraud in New York during the most recent Presidential campaign.

* Trump and organizations he is affiliated with are notorious for not paying their bills when due. He is also notorious for not paying his lawyer's bills.

* Donald Trump has multiple multi-million dollar money judgments from courts that are currently enforceable outstanding against him.

* Donald Trump and his current wife have both acted in pornographic films. His current wife's primary employment prior to meeting Donald Trump was as an actress in pornographic films and her visa was obtained in the "genius" category despite the fact that she had no other meaningful professional or educational expertise, and she was not even a particularly success porn star.

* While they are not legally separated, Trump is de facto mostly separated from his wife and is notorious for subtly disrespecting her in public settings.

* Donald Trump paid $100,000 in hush money in an attempt to silence a prostitute he hired and then misreported it on financial statements.

* Donald Trump has repeatedly engaged in adultery during each of his many marriages.

* Donald Trump has publicly stated that he doesn't know if he has a legal duty to obey the U.S. Constitution despite twice swearing oaths to uphold it as President of the United States.

* Donald Trump is legally prohibited from operating any business or charity in the State of New York as a result of separate business and charitable fraud cases.

* Donald Trump was legally found by a Colorado trial court, in a decision whose factual determinations were affirmed by the Colorado Supreme Court, and which were not found to be incorrect on the merits by the U.S. Supreme Court, to have engaged in an insurrection against the United States that would bar him from holding federal office. The U.S. Supreme Court overruled the decision of the Colorado Supreme Court only on the ground that the provision of the 14th Amendment which bars people who have engaged in insurrections against the United States from holding federal office is not self-executing and must occur in Congressionally authorized legal proceeding (contrary to strong arguments from the language of the U.S. Constitution, the legislative history of the 14th Amendment, and past precedents applying that constitutional provision).

* There is no legal or constitutional way that President Trump can hold the office of President for a third-term.

* There was no credible evidence that President Trump won the Presidential election in 2020, many attorneys who brought claims challenging that election where sanctioned or disbarred for bringing groundless and frivolous claims, and at least one elections official in Colorado was convicted of multiple state election law crimes in an effort to create that impression. Fox News paid more than $800 million to settle defamation claims to that effect in a lawsuit filed by a voting machine maker on the brink of trial in connection with those claims and another very strong defamation claim against it from another voting machine maker is currently pending.

* In President Trump's first four months in office, approximately four dozen court rulings have held that one or more of his Executive Orders is illegal. No President in U.S. history has issued Executive Orders at such a high rate, or had such a large percentage of his Executive Orders held to be illegal.

* Trump has, in a conspiracy with his physicians, repeated made grossly false statements about his height and weight.

* Trump dodged the draft multiple times during the Vietnam War by procuring a false medical excuse claiming that he had "bone spurs" from a doctor that conspired with him to do so.

* Trump was a transfer student to Wharton Business school whose admission was obtained with donations to the college from his father. It is know for certain that he was not a top student as he has sometimes claimed as he was never on the honor roll. He has jealously kept his academic records from Wharton secret but one of his past professors there characterized him as one of the least academically competent students that he ever had.

* Trump's father was a Ku Klux Klan member and a Nazi supporter.

* Despite Trump's America First trade stance, almost all of the merchandise he sells in his various businesses and for his political campaigns is made outside the United States, mostly in China.

* Many members of Trump's family and some of Trump's businesses have been greatly enriched personally in one-sides transactions meant to curry political favor with him.

* Trump was a close associate of Jeffrey Epstein, a famous procurer of child prostitutes for the rich and famous including British Prince Andrew, who died in prison after being convicted of related crimes, and Trump was a repeat visitor to Epstein's "sex island" and is shown in pictures surrounded by child prostitutes.

* Trump bragged in a recorded interview of sexually assaulting women.

* Trump has made sexually suggestive comments about his own daughters and was known to have abused his authority as a sponsor of beauty contests for minor girls to watch them undressed in the changing rooms associated with those contests.

* Trump on the campaign trail has mocked a disabled man for being disabled, denigrated veterans and prisoners of war (including Republican Senator John McCain) for being losers, and has encouraged people at his campaign rallies to use violence against hecklers at his rallies.

* Trump went out of his way, prior to being formally involved in politics, to denigrate five teenager who were wrongfully convicted of assault and rape of a jogger in a case occurring in Central Park in New York City in 1989, who were later exonerated by DNA evidence after serving prison terms (New York City later settled the civil case arising from the wrongful convictions for $41 million), and Trump stood by his actions (which may have contributed to their wrongful convictions) after the men were unequivocally exonerated.

* Despite being particularly popular with the Christian right to the point of being viewed as a messiah or saint by some, promoting bible sales to raise funds, and appointing an Evangelical Christian advisor, Trump is not at all religious and knows almost nothing about the Bible or Christian doctrine.

* Both Trump's FBI director and his attorney general in his current term were on the payroll of the Qatari government receiving large amounts of compensation from the Arab oil monarchy shortly before taking their current offices. The Qatari government recently gave Trump a $400 million jet liner for his personal use which his attorney general claimed did not violate constitutional or federal law limitations on receiving personal gifts from foreign governments. Trump's company has been pursuing a multi-billion dollar resort development project in Qatar at the time of this gift.

* No politician in U.S. history has ever publicly made false statements of fact at a rate as high as that of President Trump. Indeed, no one else even comes close.

* Vaccines do not cause autism.

* The measles vaccine is safe, effective, and the most effective way to prevent death or serious long term negative effects from measles.

* Trump's actions since he took office have significantly reduced the number of federal employees available to carry out air traffic control.

* Trump's actions since he took office have significantly reduced the number of federal employees and resources to predict the weather and response to weather related emergencies.

* No President in U.S. history has declined to provide emergency relief authorized by U.S. law to natural disaster victims at the rate that President Trump has in his second term.

* Trump has essentially dismantled federal enforcement of federal laws protecting the civil rights of women, racial minorities, homosexuals, and transgender individuals.

* No President in the history of the United States has made as many absurdly wrong statements of historical fact as Donald Trump (e.g., that there were air based during the American Revolution, or that the U.S. was an ally of the Roman Emperor, or that Mattel is a country).

* In his 2024 Presidential campaign, Donald Trump repeatedly made knowingly false claims that Haitian refugees in Ohio were stealing and eating cats and dogs, that that public schools were providing free sex change surgeries to transgender children at those schools.

* Many of the pardons issued by Trump have been to people who contributed to his political campaigns.

* Many of the people whom Trump pardoned for January 6, 2021 capitol riot charges have subsequently committed crimes in the four months since he pardoned them.

* President Trump has nominated a convicted felon, who is the father-in-law of one of his children, to be the U.S. ambassador to France.

* No President has had more subordinates and affiliates convicted of crimes than Donald Trump.

* No one other than Donald Trump has been impeached two separate times by the U.S. House of Representatives although neither of those impeachments were upheld by the required two-thirds majority of the U.S. Senate (in both cases the vote was largely on party lines, although a number of Republican Senators joined Democrats to convict in the second impeachment trial). In the second impeachment of Donald Trump, 57% of Senators voted to convict, the highest percentage other than the impeachment trial of Andrew Johnson in 1868 which failed to convict in the face of 35-19 votes to do so in the U.S. Senate when 36 voters were required to convict.

* Trump, in both his first and second terms, was the least popular President in the history of modern polling.

* Trump's anti-vaccination rhetoric, and pseudo-scientific medical claims about COVID-19, and his downplaying of the severity of the COVID-19 led to hundreds of thousands of preventable COVID-19 deaths in the U.S., primarily among elderly Republicans.

* Trump was indicted in four criminal cases which were still being tried during his 2024 Presidential campaign: a federal case arising from his involvement in the January 6, 2021 capitol riot, a federal case arising from his refusal to return top secret nuclear weapons information to the government that he was storing in a bathroom in his Florida resort, a Georgia case involving his illegal attempts to cause election officials there to engage in election fraud to elect him, and a New York State fraud case in which he was convicted of 34 felonies (but given no substantive criminal sentence in a sentencing hearing conducted after he was elected). The confidential records case was presided over by a federal judge he personally appointed in Florida, and dismissed on the legally dubious grounds that the special prosecutor statute was unconstitutional, with the case dismissed because Justice Department policy prohibits pressing criminal charges against a sitting President. The January 6 case was appealed on the grounds that he had absolute immunity from criminal charges for his official acts, which lower courts unanimously denied but the U.S. Supreme Court with had three justices he personally appointed who did not recuse themselves made the unprecedented decision over a strongly worded dissent that the President has absolute immunity from criminal prosecutions for his official acts. The charges in that cases were revised on remand to limit the case to Trump's unofficial acts (with considerable damning evidence revealed in a final report from the case) and then this federal case was dismissed because Trump was elected President and Justice Department policy is to not prosecute a sitting President.

* Trump routinely dresses inappropriately for state funerals and fell asleep in public during the funeral for Pope Francis.