When the Supreme Court abets lawlessness

Cases and Controversies is a recurring series by Carolyn Shapiro, primarily focusing on the effects of the Supreme Court’s rulings, opinions, and procedures on the law, on other institutions, and on our constitutional democracy more generally.

In the first weeks of 2026, we’ve seen two U.S. citizens shot and killed by federal Department of Homeland Security agents in Minneapolis. Anyone who follows the news has seen numerous videos and pictures of DHS agents knocking people to the ground, pulling them out of cars, spraying them directly in the face with pepper spray or other chemicals, arresting them with no warrants, demanding proof of citizenship from people of color (and sometimes then rejecting it), and so on. I detailed some of this conduct in late December. It has not abated.

As a constitutional law professor, I am frequently asked versions of the following questions: “Is that really legal/constitutional?” “How can they get away with that?” and “Why don’t the courts stop them?” When the answer to the first question is no – as it often is or strongly appears to be – the other questions become even more urgent to ordinary people.

And when we look at those questions, a big part of the answer is that the Supreme Court has, over decades, made it increasingly difficult – sometimes impossible – to enforce or vindicate constitutional rights and to redress, much less stop, widespread and systemic governmental lawlessness of the sort we are now seeing. That’s true to some degree even for state and local government officials, but it’s even worse when it comes to federal actors. Indeed, as Alex Reinert puts it, ironically, federal actors have even more leeway than state and local officials to violate the federal Constitution with impunity.

The two primary ways courts can theoretically address constitutional violations are through suits for money damages after the fact and suits for injunctive relief to prevent ongoing or imminent harms. Both types of lawsuits have increasing obstacles.

Suits for money damages

Limited Causes of Action. One of the primary tools for redressing constitutional violations committed by state and local officials is through a statute known as 42 U.S.C. § 1983. Section 1983 is a Reconstruction-era law creating a cause of action for violations of federal rights by officials acting “under color of” state law. Section 1983 itself has numerous problems, including an overly expansive qualified immunity doctrine (about which, more below.) But it does allow some people whose rights have been violated to recover money damages from the perpetrators. By its terms, however, it does not reach federal actors.

In 1971, in Bivens v. Six Unknown Federal Narcotics Agents, the Supreme Court nevertheless recognized such a cause of action. Specifically, the court held in Bivens that the plaintiff could sue federal officers for a search and arrest that allegedly violated the Fourth Amendment. In the decades since, however, the Supreme Court has held that Bivens does not apply “in a new context” or to “a new category of defendants,” including in some cases involving excessive force by Border Patrol agents. As Justice Clarence Thomas wrote for the court in Egbert v. Boule, relative to Congress, “the Judiciary is comparatively ill suited to decide whether a damages remedy against any Border Patrol agent is appropriate.” Of note is that both Egbert and Hernandez v. Mesa, another case precluding a Bivens suit against Border Patrol agents, involved activity at the U.S. borders with Canada and Mexico, respectively. We don’t know yet if this solicitude for immigration enforcement will extend to invading people’s homes in the middle of the night hundreds of miles from the border and arresting or detaining them without warrants – which is essentially what happened in Bivens itself.

Qualified Immunity. Even where plaintiffs might be able to bring Bivens actions, they must also overcome qualified immunity. Qualified immunity, which also applies to Section 1983 lawsuits, protects officials from liability unless they have violated “clearly established law.” Under this judge-made doctrine, clearly established law has come to require “a case with nearly identical facts” holding that those facts give rise to a constitutional violation. Here’s an example reminiscent of recent DHS activity, described by Joanna Schwartz, a leading scholar and critic of qualified immunity. In that case, an officer who

slammed a nonviolent, nonthreatening woman to the ground — breaking her collarbone and knocking her unconscious — was entitled to qualified immunity. Prior cases had held that “where a nonviolent misdemeanant poses no threat to officers and is not actively resisting arrest or attempting to flee, an officer may not employ force just because the suspect is interfering with police or behaving disrespectfully.” But, the court held, the officer was entitled to qualified immunity because this precedent did not clearly establish that “a deputy was forbidden to use a takedown maneuver to arrest a suspect who ignored the deputy’s instruction to ‘get back here’ and continued to walk away from the officer.”

Qualified immunity has come under scathing and broadly cross-ideological criticism, but if anything, it has become increasingly rigid, and the Supreme Court regularly reverses appellate courts that deny such immunity.

Suits for injunctive relief to stop unconstitutional law enforcement practices

Suits for money damages, even when available, are inherently backward-looking. But suits for forward-looking injunctive relief to stop unconstitutional law enforcement practices face their own obstacles.

Standing. In the 1983 case of Lyons v. City of Los Angeles, the plaintiff was subjected to a chokehold by the Los Angeles police during a traffic stop, and his larynx was injured. He alleged that the LAPD’s policies and training with respect to chokeholds were unconstitutional, and he sought an injunction to require the department to stop using them.

The Supreme Court held that he had no standing – that is, a legal right to sue – to seek such an injunction. Although he had clearly been injured and so presumably could seek money damages, the court concluded that he could not show that he was likely to experience the chokehold again, in part, the majority intimated, because he could avoid this by not violating the law. Like the court’s rulings restricting Bivens claims and expanding qualified immunity, Lyons has long been strongly criticized.

There are important differences between Lyons and current litigation seeking to enjoin DHS’s unconstitutional conduct, including that plaintiffs in many cases have “every reason to believe that they [will] encounter ICE agents repeatedly.” But Justice Brett Kavanaugh nonetheless relied (in part) on Lyons in his solo concurrence in Noem v. Vasquez Perdomo, in which the court paused an injunction of DHS’s racial profiling tactics in California. (The rest of the justices in the majority offered no explanation.)

The U.S. Court of Appeals for the 7th Circuit also relied on Lyons in November of last year when blocking a district court injunction limiting federal agents’ use of tear gas, pepper spray, and other crowd control techniques on protesters and journalists. According to the 7th Circuit, “public reporting suggest[ed] that the enhanced immigration enforcement initiative may have lessened or ceased,” presumably reducing the likelihood of plaintiffs encountering the same tactics again.

Trump v. CASA. In 2025, the Supreme Court further limited the possibility of injunctive relief by restricting the availability of what are sometimes called nationwide or universal injunctions. Specifically, as Mila Sohoni explained, it “held that federal courts may not give universal injunctions, which are orders that block the application of a law or an executive branch action to anyone who might be harmed by it, not just its application to the plaintiffs.” On its face, that’s a pretty dramatic restriction, which might allow significant and obvious unconstitutional conduct to proceed unchecked. At the same time, however, the CASA court “described several mechanisms that might lead to comparably broad injunctive relief, including class actions.”

As a result, in various parts of the country plaintiffs have filed class action lawsuits seeking to enjoin unconstitutional tactics and conduct. In Minnesota, for example, plaintiffs obtained an injunction on behalf of a proposed class of peaceful observers and protesters. But the success of such class actions is hardly assured: In the Minnesota case, the U.S Court of Appeals for the 8th Circuit stayed the district court’s injunction pending appeal, in part because it concluded that the plaintiffs were essentially doing an end-run around CASA’s restriction on universal injunctions. As that decision makes clear, we don’t know yet how meaningful the mechanisms for broad relief that CASA identified will turn out to be.

The Shadow Docket. The court has repeatedly stayed injunctions against the current administration on the shadow docket, often without providing any reasons and often without regard for the well-established factors that would counsel against granting such stays. Vasquez Perdomo itself, as noted above, allowed DHS’s racial profiling tactics to continue.

Two possible paths

Nonetheless, at least two important avenues to accountability remain open and are consistent with the Supreme Court’s long emphasis on state sovereignty. First, in the face of the shocking lawlessness of immigration agents, some state and local officials are making clear their intention to investigate and, where appropriate, prosecute federal agents who violate state criminal laws. And they have every right to do that. As the Supreme Court explained in Drury v. Lewis over a century ago, state courts have jurisdiction even “over persons in the military service of the United States, who are accused of a capital crime or of any offence against the person of a citizen, committed within the state.”

In response, federal agents may claim what is called “Supremacy Clause immunity” – the idea that legitimate federal policies preempt criminal law. But that immunity applies only when federal officials’ actions are both authorized by federal law and are “necessary and proper” to fulfill those duties. Each case will turn on its facts, but courts may well conclude that this immunity cannot apply when federal agents shoot someone in the back repeatedly, when they blast pepper spray directly in the face of someone already restrained on the ground, or when they not only fail to provide assistance to someone they have shot but prevent others from doing so.

A second possible avenue towards accountability is through state laws that authorize lawsuits for money damages when government officials (federal, state, or local) violate people’s federal constitutional rights. A few states have such laws, sometimes called converse 1983 statutes, and more are considering them. Here, too, federal agents might try to claim Supremacy Clause immunity, but plaintiffs can argue that, by definition, if their actions are unconstitutional, they are not “necessary and proper.”

The states, then, may be able to give a better answer to the “can they really do that?” question than the Supreme Court has allowed in federal courts. That would be the liberty-protecting promise of federalism in action, consistent with the court’s repeated admonition that “federalism secures to citizens the liberties that derive from the diffusion of sovereign power.”