A government doesn’t just make rules. It must enforce them. This enforcement doesn’t pertain only to the government applying the law to private persons or groups. It includes providing ways a person can receive some vindication against the government itself when it does wrong. Otherwise, a government created to stop injustice might ignore the law and become tyrannical itself.
Who should establish these “causes of action” against the government, whereby persons can sue in court to receive redress from wrongs done by public officials? The Supreme Court took up that question in Egbert v. Boule, as handed down on Wednesday.
The court had to parse how to apply the Constitution’s structure of separation of powers. In this system, government power consists of three distinct functions: lawmaking, law enforcing, and law adjudicating. Robert Boule, who owns a bed and breakfast on the U.S.-Canadian border, argued this job belonged to the courts — the branch vested with judicial power. Boule argued the courts should fashion a cause of action against a border patrol agent (Erik Egbert), whereby Boule could then sue him personally. Though the U.S. Border Patrol had cleared Egbert of wrongdoing, Boule cited First and Fourth Amendment violations, claiming they occurred during and after an altercation between the two outside Boule’s bed and breakfast.
In three cases between 1971 and 1980, the court created causes of action. However, the court admitted that exercising this power looked more legislative than judicial. As Justice Neil Gorsuch explained in his concurring opinion, fashioning causes of action looks like a perfect example of lawmaking, writing, “To create a new cause of action is to assign new private rights and liabilities — a power that is in every meaningful sense an act of legislation.” If the court had acted in Boule’s favor, then it would make law, creating new rules for how government must act and what private persons may do. It, thereby, would violate the Constitution’s separation of powers.
Though not stated in this opinion, the court has consistently explained that following the Constitution’s power scheme protects the liberty of the people. A litigant may think a legislating court would vindicate his rights in a particular case better than Congress. Yet while that may prove true in some instances, the Constitution’s framers recognized that combining the powers to make, interpret, and apply law would lead to tyranny. A judiciary could refashion laws to benefit friends and harm enemies. Instead of the law’s wording constraining the government, they could turn the rule of law on its head.
This use of legislative power by the judiciary, Gorsuch also said, violated the principle of consent. We constructed our government based on popular rule wherein the people hold the ultimate human authority and with a government that appropriately delegates its exercise to national and state governments. Ultimately, the people do so through our Constitution’s prescriptions on who and how political action will occur. But thereby, they also act through elections held under the Constitution, choosing representatives in Congress who exercise the legislative power that the people ultimately hold. When unelected judges wrest power from the people’s representatives, the consent of the governed suffers a gross infringement.
Thus, the court rightly said Congress should make the call. If there is a shortcoming in Justice Clarence Thomas’s opinion, it is only that it fails to go far enough in following these principles. The court refused to overturn the old precedents that allowed judicially created causes of action in limited instances. However, they did create a standard for proving these limited instances to exist nearly impossible to prove. Litigants must first show that their case followed the precedents with an exactness possibly no set of facts could do. Moreover, the court argued that no new cause of action should occur if, for any reason, Congress might do a better job handling the issue. And by the court’s logic, it always would conclude Congress was better.
Gorsuch’s concurrence plotted the best path. Scrap the old exceptions entirely. Leave the work of legislating to Congress, not to judges.
Adam Carrington is an associate professor of politics at Hillsdale College.
