Unconstitutional but Authorized: The Federal Tort Claims Act Should Not Immunize the United States When Federal Officers Violate the Constitution

To protect its legitimacy, a democratic system like the United States must ensure that the government is at least as accountable for its bad acts as any private actor. Thus, if the government wrongs a citizen via an unconstitutional or tortious act, that citizen should be able to sue the government for redress. It is deeply troubling, therefore, that most such lawsuits against the United States government are dead on arrival—no matter even if the lawsuit involves a government officer who violated a citizen’s constitutional rights.

The United States is protected from almost all liability by the sovereign immunity doctrine—the basic principle that the government is immune from all lawsuits unless it consents to be sued. The Federal Tort Claims Act is a limited waiver of that immunity. Under the Act, an individual who has been harmed by a federal officer may recover by suing the United States. However, liability created by the Act is severely limited by the discretionary function exception, which, under Supreme Court precedent, holds that any given torts suit is barred provided that the federal officer who committed the tort acted within a valid range of discretionary choices and did not violate a federal law, policy, or rule.

The obvious over-broadness of this exception is problematic for many reasons, but this Note is focused on a specific issue: under Supreme Court precedent, federal officers lack discretion to violate federal laws, rules, or policies—but do they also lack the discretion to violate the Constitution? This question has led to a circuit split. Most circuits answer no: They argue that it would be absurd if federal officers lacked the discretion to violate federal law but were free to violate the Constitution—that is, the source of that law. A growing minority of circuits, however, hold that even if a federal officer violates the constitutional rights of an individual, the government may still be protected from liability by the discretionary function exception.

This Note argues in favor of the majority position. The majority position is better aligned with Congress’s intent to provide a broad waiver of sovereign immunity in the Federal Tort Claims Act, while the minority approach is logically disconnected. To resolve this circuit split, this Note argues that Congress should intervene to amend the Act and ensure that the discretionary function exception cannot bar an individual’s tort lawsuit against the United States if the individual can show that the federal officer violated the individual’s constitutional rights. The United States is not above the law, and its officers should not remain free to violate the Constitution.