State Efforts to Allow Lawsuits Against Federal Officials Gain Speed

Federal immunity does not just live in Stephen Miller’s head. It is a real thing that emerged overtime through a series of decisions made by the U.S. Supreme Court and Congress over the last 40 years. It also has real consequences. Federal immunity created a system — one foreign to the Founders’ vision — in which aggressive federal enforcement actions can violate rights without any realistic civil recourse.

States are now exploring whether they can reopen a pathway reminiscent of the one that existed under common law: state‑law causes of action against federal officials for constitutional violations. That approach is legally sound, textually grounded, and, given the current Supreme Court’s interpretive commitments to textualism, more viable than many assume.

Federal Immunity and the Accountability Problem

ICE raids often involve warrantless home entries, excessive force, and prolonged unjustified detentions, not to mention retaliation against people for recording ICE in action. Yet federal immunity makes civil suits extraordinarily difficult. Federal officers are shielded from civil liability because they are excluded from a civil rights statute, called Section 1983, that provides people with a right to sue for violations of constitutional rights. In suits brought under the Federal Tort Claims Act, meanwhile, the federal government frequently and successfully asserts discretionary function immunity to avoid liability, arguing that virtually every act by a government official that conceivably involves some sort of judgment or choice should be shielded from accountability.

Without a statutory remedy from Congress, and with federal courts applying the discretionary function immunity extremely broadly, victims of unconstitutional conduct by ICE and other federal agencies are left with no meaningful avenue for redress.

But, when the downhill slide in the rights enforcement against the federal government first began about 40 years ago, some states passed laws allowing residents to bring civil rights claims against federal officials under state law for violations of the U.S. Constitution. California, Maine, Massachusetts, and New Jersey and all enacted legislation referred to as converse 1983 statutes because, unlike the federal 1983 statute — which provides a federal right to sue state and local officials — these laws provide a state right to sue federal officials. It is a quintessentially conservative idea, empowering states to push back against abuses by the federal government.

With the Trump administration driving a bulldozer through the federal immunity crack in the accountability framework, we’re seeing more states considering converse 1983 statutes. Since the second Trump term began, 15 states have launched efforts to pass such laws.

It’s a welcome development.

Current State Action

State courts have long offered a forum for people seeking redress for rights violations by federal officials. At the founding, if a federal official, say a customs agent, violated your right by boarding your ship without your consent, you could sue him for doing it, even if he did it pursuant to a government authorization. As U.S. Supreme Court Justice Joseph Story explained in his Appollon decision, it was the judiciary’s job to determine whether the right was violated. If the agent acted in good faith, then Congress could indemnify him.

Creating state‑law civil remedies restores a traditional balance: Federal officers remain unimpeded in their enforcement of federal law, with an additional check to ensure they follow the Constitution.

Some states, like Maryland and New York, are following a moderate approach, using Section 1983’s language and importing its interpretive law, including qualified immunity. Section 1983 allows individuals to sue anyone acting “under color of” state law; converse 1983 statutes in these states simply add accountability for those acting under “federal law.” These states are essentially doing one-fiftieth of what Congress should have done years ago by adding federal officials to the coverage of federal Section 1983.

Other states, like Minnesota and Vermont, are taking extra steps beyond incorporating Section 1983 language and including federal officials: They are either omitting qualified immunity or clearly stating it doesn’t apply. Instead of merely opening federal officials to liability to the same extent as state and local officials, these statutes make claims against federal officials easier to win.

Colorado and Illinois, meanwhile, are targeting immigration enforcement specifically, omitting liability for officials performing governmental functions outside of that context.

Because Illinois became the first state to enact a converse 1983 statute in the second Trump term, that third approach has already been challenged by the Department of Justice (DOJ).

Why a Textualist Court May Uphold Such State Laws

At first glance, one might argue Congress banned states from passing statutes like these in the Westfall Act, which says that “the remedy against the United States” provided by the Federal Tort Claims Act “is exclusive of any other civil action or proceeding for money damages” that arises out of the unlawful conduct by the government employee.

But that same law goes on to say that this exclusivity provision “does not extend to apply to a civil action against an employee of the Government which is brought for a violation of the Constitution of the United States.”

For years this provision has been interpreted to refer to only claims against federal officials in federal court directly under the U.S. Constitution — so-called Bivens claims, named after a 1971 Supreme Court case Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics holding that there was an implied cause of action in the U.S. Constitution for certain violations. Such claims are disfavored by the current textualist Supreme Court because Section 1983 excludes them.

But the text of that provision says nothing about Bivens. It speaks broadly of all claims brought for “a violation of the Constitution of the United States.” There is no reason why that wouldn’t include constitutional claims authorized by state law.

As Judge Justin Walker, a Trump appointee on the U.S. Court of Appeals for the D.C. Circuit, wrote in a 2023 concurrence, “nothing would stop a state from creating a new cause of action allowing plaintiffs to directly allege federal constitutional violations.”

Notably, the DOJ challenge to the Illinois law does not grapple with the Westfall Act’s authorization of these types of claims. Instead, the government zeroed in on the exclusion of state and local officials from its coverage, which, the government argues, violates the principle of the intergovernmental immunity, which prohibits states from discriminating against federal officials. Other states should pay attention as this question moves through the courts. They can make their lives easier by following examples of those states that simply incorporate the Section 1983 cause of action to enforce the Constitution and add federal officials to its coverage.

Some state and local law enforcement groups might object, fearing an additional cause of action may be created against them. But they can already face lawsuits for constitutional violations under Section 1983; the proposed converse 1983s do not create any liability for them beyond what is encompassed in that federal statute. And no court would allow two bites at an identical apple under state and federal law.

Congress Can Fix This, but States Cannot Wait

Congress could fix the problem of federal immunity by amending Section 1983 and including federal officials within its coverage. In fact, just such a bill was introduced, for a third time, this November. But so far Congress has shown little stomach for standing up to the executive branch. Meanwhile, federal overreach continues, and the absence of remedies persists.

States should not wait for Congress to restore what was once a traditional, widely accepted method of holding federal officers accountable. By enacting state‑law civil rights statutes that extend the coverage of Section 1983 to federal officials, states can fill the accountability gap while respecting constitutional boundaries.

Anya Bidwell is a senior attorney at the Institute for Justice, where she leads the Project on Immunity and Accountability.

Suggested Citation: Anya Bidwell, State Efforts to Allow Lawsuits Against Federal Officials Gain Speed, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Apr. 6, 2026), https://statecourtreport.org/our-work/analysis-opinion/state-efforts-allow-lawsuits-against-federal-officials-gain-speed