Excellent piece on the problems with federal immunity doctrines from @ij.org’s Anya Bidwell and @pjaicomo.bsky.social—folks who have been litigating these issues before SCOTUS and other courts for years news.bloomberglaw.com/us-law-week/...
Welcome to 2026, here’s 5 @ij.org cases to watch this year. First up, our case against 4th Amendment violating immigration enforcement in Alabama.
Congratulations to @pjaicomo.bsky.social & my other @ij.org colleagues for their win at SCOTUS in Martin v. US today! On a very minor point, I'll note that Justice Gorsuch introduced a honey-do list into the U.S. Reports. (Although this part went against an argument IJ made.)
2006, lawyers Christian Helmke and Leonard Levenson founded ETOH, a company that supplies ankle monitors to defendants in various proceedings before the Orleans Parish Criminal District Court (OPCDC). Ankle monitors are GPS devices for supervising defendants' compliance with curfew and geographical restrictions. Defendants pay for their own ankle monitors, which cost about $300 per month. ETOH was one of three providers of ankle monitors to OPCDC. In 2016, Paul Bonin was elected as a judge on the OPCDC. During his campaign, Bonin accepted donations totaling $3,550 and a loan of $1,000 from Helmke and Levenson through their law firms. Levenson is Judge Bonin's former law partner. Before serving on the district court, Judge Bonin had been a state appellate judge for eight years. Levenson and Helmke had donated $5,100 to his election campaigns for that position. When ordering ankle monitoring, Judge Bonin regularly directed defendants to make arrangements with ETOH. He did not disclose the availability of other providers. After defendants obtained monitors, ETOH sent monthly reports to Judge Bonin about their payment status. Judge Bonin
Sometimes the Louisiana criminal justice system throws up cases you can hardly believe (remember overdetention?)
Here: a judge says “use my donor’s ankle monitoring company or stay in jail.”
H/t @pjaicomo.bsky.social
www.ca5.uscourts.gov/opinions/unp...
Enrich it, even.
5. Bringing us full circle, SG Harris is simultaneously arguing:
In Goldey, Congress must provide a cause of action.
BUT
In @ij.org's Martin v. U.S., even when Congress has provided one, the judiciary should make exceptions to it.
The lesson: The gov't always wants immunity.
6/6
4. My @ij.org colleague Anya and I discuss the history and curious relationship between #FederalImmunity & #QualifiedImmunity.
QI was created in a Bivens case.
Ever since, QI has grown; Bivens has shrunk.
There's no way to defend this as anything but judicial policymaking.
5/6
3. Still, in Goldey, the gov't doesn't argue Bivens should be overruled. Rather, it should be cabined further.
Why? Because keeping Bivens on life support makes it hard to pressure Congress. Technically, there's a remedy. Practically, there isn't.
Gorsuch noted in Egbert:
4/6
2. In Bivens itself, the Nixon-administration didn't argue there should be *no* cause of action for federal constitutional violations.
Rather, the gov't argued STATE law should provide it. Bivens claims should be allowed only if this is insufficient. (It is; see Westfall.)
3/6
1. Acting SG Sarah Harris was counsel in Egbert v. Boule, where #SCOTUS eviscerated Bivens and enshrined #FederalImmunity as the rule.
According to SCOTUS (and Harris), if Congress doesn't provide a statutory cause of action, you can't enforce your constitutional rights.
2/6
The federal gov't has taken the unusual step of filing an uninvited cert-stage amicus in Goldey v. Fields, asking #SCOTUS to expand #FederalImmunity - here, to ensure there's no remedy for excessive force against prison inmates.
I have a lot of thoughts, but here are 5.
1/6
You can read the full brief below. But here's the intro:
www.supremecourt.gov/DocketPDF/24...
On 3/7, @ij.org filed our merits brief in Martin v. US.
We explain why the gov’t can’t claim #SovereignImmunity for intentional torts committed by FBI agents raiding the wrong house.
This case is about one of the last threads of federal accountability.
The gov’t’s trying to cut it.
Today, #SCOTUS denied cert. in @ij.org wrong-house raid #QualifiedImmunity case, Jimerson v. Lewis.
Justices Sotomayor and Jackson would grant.
Remember, Jimerson involved an *admitted* #FourthAmendment violation.
The application of QI means the raid was reasonably unreasonable.
Happy Washington’s Birthday to all who celebrate the real holiday.
Happy “Presidents’ Day” to all the participation-trophy people.
Either way, Article II doesn’t provide the President the authority to modify the Constitution’s operation by (re)defining its terms.
And I disagree that SCOTUS will find the case for the EO to be strong at all.
6/6
In light of this historical context, “all persons born in the U.S. and subject to the jurisdiction thereof,” must be AT LEAST as broad as (if not broader than) the English conception, which extended citizenship for even “temporary allegiance.” 5/6
And to be clear, I know both Wong Kim Ark and English common law speak in terms of “allegiance,” etc.
I’m criticizing the understanding of “allegiance” that would lead to the conclusion below, while uncontroversially sweeping in hundreds of thousands of confederate babies:
4/6
If the question for citizenship is allegiance, the child of Honduran immigrant who permanently (albeit illegally) moved to the U.S. for a better life surely has more allegiance to U.S. law than Winnie Davis, who was born while her dad was the president of the CSA and waging war against the U.S.
3/6
Because the 14th Amendment was, of course, passed as a result of the Civil War.
If citizenship turned on allegiance, that would have opened a Pandora’s box of questions pertaining to the citizenship status of, at least, confederate leaders, and, at most, all southerners.
2/6
My biggest criticism of Ilan and Randy’s anti-birthright-citizenship theory is that it discards the post-war context.
If jurisdiction is really about allegiance, it seems incredible that the 14th Amendment’s drafters wouldn’t have spelled that out.
Why? 1/6
www.nytimes.com/2025/02/15/o...
So, is the D.C. U.S. Attorney not permitted to practice in the District Court of D.C.?
(This is from U.S. v. Padilla, 1:21-cr-00214 - the case in which the D.C. U.S Attorney dismissed the case while he was still the defendant’s counsel of record.)
Definitely good. Restricting the ability of the government to seek interlocutory review takes a costly tool out of their toolbox. The government uses these appeals to wear down the resources of plaintiffs and drag cases out for YEARS.
Our new paper proves that § 1983 and its Notwithstanding Clause displace #QualifiedImmunity.
Textualists should be troubled greatly that the congressionally enacted text of § 1983 precludes extra-textual defenses. Yes #SCOTUS upholds QI.
As @ij.org has said for years, QI must go.
Whole lotta big cases coming the federal judiciary's way.
You can read the full working draft on SSRN.
If you're a law review editor, we are still looking for a place to publish. Please reach out.
If you're a judge, please give this due consideration. Qualified immunity thwarts the will of Congress. /END
papers.ssrn.com/sol3/papers....
The upshot is that our paper now proves that:
1. Congress intended 1983 to displace extra-textual immunities and defenses;
2. The intentional removal of the Notwithstanding Clause did not alter this text-based intent; and
3. Qualified Immunity is, therefore, lawless. 5/
Because the #NotwithstandingClause just reinforced the liability provided in Section 1983 and need for such clauses had waned almost to nothing by the time of codification, the revisers clipped it. But the change was immaterial, as SCOTUS observed addressing a similar clause. 4/
Just 3 years later, however, Section 1983 lost its Notwithstanding Clause during the process of codification. Codification required assembling all federal laws into a single code. It required concision. Still, the goal was to cut words without altering substance. 3/
Section 1983 provides that "every person shall be liable" for constitutional violations under color of state law. SCOTUS has carved enormous exceptions into 1983, most notably #QualifiedImmunity.
But as originally enacted, Congress made clear that 1983 displaced defenses: 2/