Hear us out: If conservatives want to restrain the federal government and ensure that government officials follow the Constitution, they should follow the example of California lawmakers. While the country’s biggest Blue State is well-known for its progressive politics, a recently passed law is actually a throwback to old-school federalism.
First, a fact that affects every American in every state: It is almost impossible to hold federal officials accountable for violating the U.S. Constitution in court. A potent example comes from Arkansas.
At 6 a.m. on March 19, 2024, ten ATF agents arrived at the Little Rock, Arkansas, home of Bryan Malinowski, the city’s airport director. They knocked and, less than a minute later, broke in. Malinowski, thinking it was a home invasion, fired; an agent shot him in the head. He died two days later. His widow sued.
Judge Lee Rudofsky (a President Donald Trump appointee) sympathized with the widow, writing: “The Court is well aware of how frustrating the modern Supreme Court precedent must be for plaintiffs that have experienced a significant violation of their constitutional rights by federal officials.” But the Supreme Court’s doctrine, he concluded, left him no choice but to dismiss the agents from the lawsuit.
California just enacted SB 747, which lets residents sue federal officers under state law for violating the Constitution. If Arkansas had a law like California’s, Malinowski might be able to use it to continue trying to hold the individual agents responsible for the death of her husband.
Though pitched as a response to the Trump administration, the new law draws on an old and conservative tradition. As Justices Clarence Thomas and Neil Gorsuch have explained, for most of American history, the only way to hold a federal officer accountable was to sue him under state law. Customs collectors, postal agents, and marshals alike were routinely sued for trespass and false imprisonment.
The U.S. Supreme Court blessed this practice as early as 1804, holding that a Navy captain could be liable for seizing property, even on the president’s orders, when those orders exceeded what Congress had authorized. In 1988, Congress converted most of these lawsuits into claims against the United States but preserved one category — actions “brought for a violation of the Constitution.”
In 2023, Judge Justin Walker of the D.C. Circuit (another Trump appointee) explained that the carve-out should not be assumed to exclude state law constitutional claims. Reading it to allow them, he wrote, “accords with Founding-era principles of officer accountability.”
Why does this matter? In 1871, Congress passed a statute, Section 1983, letting Americans sue state and local officials who violate the Constitution. But the law left out federal officials. Today, a federal agent who commits the same constitutional violation as a local cop, for the most part, cannot be held accountable. Congress could fix this problem by modifying federal law with just a few words, but has not.
But the states have never needed anyone’s permission to hold federal officers accountable. At the heart of the new law is one of the oldest conservative principles in American jurisprudence: a state’s own laws must protect its citizens from abuse by any government, including the federal one.
THE DSA ISN’T HIDING IT ANYMORE: IT WANTS TO BURN THE CONSTITUTION
Republicans, who have long championed federalism and local control, should join California and a dozen other states that have passed similar laws. In the Federalist Papers, James Madison promised a “double security” for our rights, consisting of two governments that “will control each other.” But a state with no remedy of its own has walked away from that promise, leaving its citizens’ rights at the mercy of the government that harmed them.
Republicans may be reluctant to expose this administration’s agents to liability, but the Constitution is supreme no matter who is in office. Malinowski was killed by federal agents under a Democratic president. California is reacting to unconstitutional acts by a Republican president. Sound accountability laws can give Americans access to justice no matter which party controls the White House.
Bidwell and Miller are attorneys with the Institute for Justice, which seeks to hold government officials accountable for constitutional violations, state and federal.