Written by Vikram Valame.
For a millennium, Anglo-American courts provided justice to citizens in the face of government abuse. Their most potent weapons were trials, reasoned decisions, and fair compensation to victims.
Today, Americans are losing confidence in a judiciary that has abandoned those first principles. Illegal government actions often escape judicial review completely. When a suit is brought, trials—especially jury trials—are rare. Instead of ordering compensation, judges often seize Executive or Legislative power for themselves through injunctions.1 These judicial decrees usually leave victims uncompensated, interfere with representative government, and stem from orders bereft of the deliberative reasoning that characterizes American law.
Two canonical decisions demonstrate how trials can protect natural liberty without licensing judicial tyranny. In Entick v. Carrington, the King’s Messenger broke into the home of John Entick to seize “seditious” writings. Entick sued and won before a jury; the Messenger’s search warrant was invalid. Carrington was ordered to pay Entick his damages. Although the only official party to Entick was the King’s Messenger, the force of the verdict was a monumental affirmation of the people’s right against arbitrary searches. The Entick decision directly inspired the Fourth Amendment, and our Supreme Court has called it the “ultimate expression of constitutional law.”2
Post-revolutionary America adopted the example set by Entick in Little v. Barreme. Congress had empowered the President to seize ships sailing to any French port. President Adams, plainly exceeding his authority, ordered Captain Little to seize a ship sailing from France. The shipowner sued. While Chief Justice Marshall expressed trepidation at holding a military officer liable for obeying illegal orders, he recognized that even Presidential commands could not legalize an act “which without those instructions would have been a plain trespass.”3 Little was found liable and ordered to pay damages for his temporary seizure, setting a precedent that Americans could seek redress against illegal orders. Remarkably, the precedent did not damage America’s ability to wage war. There was no injunction micromanaging the President’s embargo enforcement policy, and Congress subsequently recognized Captain Little’s “fidelity” by reimbursing his liability and revising the embargo acts to provide greater legal clarity.4
Today, any lawsuit resembling Little or Entick would be summarily dismissed. For forty years, the federal government has made it legally impossible for a citizen to hold federal agents to account at trial. The Supreme Court made a first leap in 1982, when it dramatically strengthened qualified immunity for federal officials. Still, some lawsuits succeeded: In 1988, the Court unanimously ruled that William Erwin could sue government agents for chemical burns.5 Congress, terrified of unlimited negligence liability, responded by enacting the Westfall Act. The Westfall Act went far beyond quashing negligence actions; it abolished jury trials against federal actions, immunized officials, and allowed an extremely narrow set of claims to proceed against the government for non-discretionary acts. The Act seemingly made a trespass lawsuit like Entick impossible to file. But Congress created an exception: actions brought for “violation of the Constitution of the United States.”6 Unfortunately, in a series of recent decisions culminating in Egbert v. Boule (2022), the Supreme Court has effectively nullified that exception by finding no cause of action to sue federal officials for violating the Constitution, no matter how egregious their conduct.7
The consequences of negligence by past Congresses and the Supreme Court have been ruinous. Federal agents enjoy near-impunity despite widespread and well-documented abuses of power. Indeed, because federal forces are so insulated from liability, many state governments have placed their law enforcement officers under federal command to share federal immunity. The same Bill of Rights that was intended to protect We The People against an overbearing federal government is now empowering that federal government to dominate local checks on its power.
Ironically, the Supreme Court’s attempt to preserve the separation of powers by abolishing damages actions has caused grievous damage to that very separation. Injunctions—where a Court compels specific action by a party to a lawsuit—are normally unavailable where a damages remedy exists. But without such a remedy, courts have crafted ever more numerous and elaborate injunctions that compel swaths of executive branch officials to obey the orders of an unelected judge over political actors. And unlike damages after a trial, with detailed witness testimony, a factual record, and an independent jury, injunctions can be issued by Courts alone with little or no explanation. Such orders often resemble legislation more than judicial process. Today’s “government by injunction” is anti-democratic, beyond the competence of inexpert federal judges, and corrosive to our system of government.8
Luckily, there are a variety of avenues for reformers to restore trials and create genuine accountability for federal officers. The current Congress must undo the mistakes of its predecessors and revise the Westfall Act to guarantee a forum for constitutional claims. Bills like the Civil Rights Private Enforcement and Remedies Act and First Amendment Accountability Act would do just that by eliminating absolute immunity for officials and guaranteeing juries in constitutional cases. State governments can also hold federal officials accountable by creating causes of action for citizens pursuant to the 10th Amendment and the Westfall Act’s constitutional tort exception. Last but not least, the Supreme Court must recognize “a general and indisputable rule, that where there is a legal right, there is also a legal remedy” and overrule decisions leaving citizens remedyless when their rights are violated.9
The rule of law is the “best birthright and noblest inheritance of mankind.”10 It has served the common good of America for 250 years by providing fair, open, and impartial justice. Congress must act now to preserve our birthright for the next 250 years of America’s story.
- Donald J. Trump (@realDonaldTrump), TRUTH SOCIAL (Mar 21, 2025, 7:43 AM), https://truthsocial.com/@realDonaldTrump/posts/114200244380161257. ↩︎
- Boyd v. United States, 116 U.S. 616 (1886). ↩︎
- Little v. Barreme, 6 U.S. 170 (1804). ↩︎
- H.R. REP. NO. 8-46 (2d Sess. 1805) (referring to H.R. REP. NO. 8-44). ↩︎
- Westfall v. Erwin, 484 U.S. 292 (1988). ↩︎
- 28 U.S. Code § 2679(b)(2)(A). ↩︎
- Egbert v. Boule, 596 U.S. 482 (2022); see also Goldey v. Fields, 606 U.S. 942 (2025). ↩︎
- Government by Injunction, HERITAGE FOUNDATION, April 14, 2025, https://www.heritage.org/the-constitution/commentary/government-injunction. ↩︎
- Marbury v. Madison, 5 U.S. 137, 163 (1803). ↩︎
- 4 Blackstone: Commentaries on the Laws of England. ↩︎
