The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I received a long and thoughtful response to my post last month about the codified text of 42 U.S.C. 1983, from two lawyers at the Institute for Justice, Patrick Jaicomo and Daniel Nelson. I will reproduce it in full here (it continues after the break).
In a post last month, Professor William Baude joined a growing body of lawyers, judges, and commentators who have come upon a long-overlooked yet "game-changing" clause in the original text of 42 U.S.C. Section 1983, the federal statute which authorizes civil rights lawsuits against state officials. This clause, it turns out, shatters the foundation for one of today's rightfully most criticized legal doctrines: qualified immunity.
The original text of Section 1983 proclaimed, in unequivocal terms, that state officials who had violated someone's rights would be liable under federal law, "any such law, statute, ordinance, regulation, custom, or usage of the State to the contrary notwithstanding." In other words, this Notwithstanding Clause took all state-law defenses, including qualified immunity, completely off the table. But just three years after Section 1983 was passed, the Notwithstanding Clause was clipped for space, as compilers organized federal law into the Revised Statutes of 1874.
Because the language was dropped from Section 1983 when the statute was reworded, Baude wonders if the Notwithstanding Clause is relevant today. It absolutely is.
Qualified immunity under Section 1983 relies on the assumption that Congress meant to preserve state-law defenses because it didn't explicitly disclaim them. But as we now know, Congress explicitly disclaimed state-law defenses with the Notwithstanding Clause. Though Congress soon after omitted the clause when it reworded Section 1983, evidence shows Congress believed the rewording left the state-law disclaimer intact. That belief makes perfect sense because Congress enacted Section 1983 for the very purpose of superseding state law.
In 1871, Congress passed what is now Section 1983 with the stated goal of enforcing the Fourteenth Amendment, which guaranteed newly freed slaves their federal constitutional rights. The problem was, even after the Fourteenth Amendment, freed slaves and their allies continued to suffer rampant, state-sanctioned constitutional violations in the South. Section 1983 offered a solution: It gave "any person" (later changed to "every person") the right to sue, in federal court, "any" state official who had violated their federally protected rights.
Nearly a hundred years later, however, the Supreme Court in Pierson v. Ray decided that Section 1983 held state officials accountable only sometimes. Why? Because, according to the Court, Congress did not mean to abolish common-law immunities when it enacted Section 1983—and qualified immunity for offending state officials, the Court said, existed at state common law.
But Pierson got it all wrong. Congress did mean to abolish common-law immunities in Section 1983. It said as much in the Notwithstanding Clause because, as Professor Alex Reinert points out in his compelling paper Qualified Immunity's Flawed Foundation, the clause's exclusion of any "custom or usage" encompassed state common-law immunities, qualified immunity included.
What's tricky, however, is that the Notwithstanding Clause was dropped when Section 1983 was reworded and codified in the Revised Statutes of 1874, the first-ever codification of all federal laws. Congress never explained why it dropped the clause a mere three years after enacting it. Reinert posits the drafters hired for the 1874 Revised Statutes impermissibly omitted the Notwithstanding Clause and that Congress failed to catch it. Baude suspects the same and ultimately questions whether the Notwithstanding Clause is even relevant anymore, given that its omission officially became law when Congress codified the reworded Section 1983 in the 1874 Revised Statutes.
But here is why the Notwithstanding Clause is relevant today. Changes made in the 1874 Revised Statutes are presumed to be non-substantive unless Congress "clearly expressed" its intent to change the law. We don't have that here. On the contrary, history shows the drafters most likely omitted the clause simply for concision—and that Congress was aware of the omission yet likewise believed it left Section 1983 unchanged. And unlike the typical situation involving excised language (where courts would read something out of a statute), the issue here is whether the omission warrants reading qualified immunity into Section 1983. Here again, the history of the 1874 revision says it does not.
Before the 1874 Revised Statutes, people had to sort through a mess of scattered congressional acts to try to figure out what the current law was. So Congress enacted the 1874 Revised Statutes, which repealed all those old laws and codified their new versions in one place. For that to happen, seventeen-volumes' worth of the old laws had to be painstakingly reorganized, condensed, and simplified. At every step of the process—from drafting to codification—Congress made clear over and over that it did not want to change the law. And even after the drafters made some substantive alterations in the initial drafts, Congress hired a lawyer, Thomas Durant, to undo them. Notably though, Congress told Durant to leave in mere changes in phraseology not affecting the meaning of the law.
Durant eventually submitted his draft to a congressional committee that later presented its final draft to the House. Obviously, the House could not review every law for unwanted alterations. Still, the House spent a lot of time reviewing what they could, and a multitude of amendments were passed to undo any potential alterations in the law. (The Senate spent little time debating before passing the 1874 Revised Statutes.)
No one on the House floor ever raised concerns about the revisions to Section 1983; but they were specifically referenced during the debates. In fact, one Representative Lawrence, after underscoring that the goal of the 1874 Revised Statutes was to compile the law as is, cited the revisions to Section 1983 as a "fair specimen" of the final draft and invited his colleagues to "judge  the accuracy of the translation." No House member objected, suggesting a shared belief that the revisions, in the Supreme Court's words, "were not intended to alter the scope" of Section 1983.
So why did the drafters omit the Notwithstanding Clause? We should rule out the idea that the drafters acted unintentionally, because they had also omitted two, identical notwithstanding clauses contained in the original versions of now-Sections 1981 and 1982. Doubtful the drafters repeated the same mistake thrice over.
There's no reason to think the drafters meant to alter Section 1983 either. By statute, the drafters were directed to, and did, provide marginal comments to any substantive edits they made—yet they left no marginal comments with their edits to Section 1983 (or Sections 1981 and 1982). Besides, there is no way the drafters meant to add unwritten state-law defenses to Section 1983 merely by omitting the Notwithstanding Clause. Especially because the drafters omitted what was, grammatically speaking, "surplusage" (to quote the Supreme Court on Section 1982's similarly omitted notwithstanding clause). That is, "any state official is liable" was no less unconditional than "any state official is liable notwithstanding state law."
Really, the only explanation that makes any sense is that the drafters cut the Notwithstanding Clause for concision. Congress did, after all, hire the drafters to reorganize and condense the federal laws. That is what the drafters did to Section 1983. They reorganized Section 1983 by sectioning its substantive provision from its jurisdictional provisions; then, they condensed the substantive part where they could, like by omitting the Notwithstanding Clause.
The drafters' decision to omit the clause might still seem odd to us today. But think about it from their point of view. They were rewording Section 1983 just a couple years after its enactment. It would've seemed obvious that retaining Section 1983's unconditional language—while cutting grammatically superfluous language—would continue to supersede state law, because the whole point of Section 1983 was to supersede the discriminatory state law still rampant in the postbellum South. The Supreme Court overlooked all that in Pierson and has been building on its flawed foundation ever since.
In the end, it's hard to square qualified immunity with Section 1983, even with the Notwithstanding Clause now gone. The history behind the clause's omission shows the 1874 Congress did not intend to reintroduce the common-law immunities it had abrogated in 1871. And this is not, as Baude argues, "the same case as Maine v. Thiboutot," where the Supreme Court said a material phrase added by the 1874 Revised Statutes altered the meaning of Section 1983. Thiboutot would be on-point if, say, the 1874 Revised Statutes added language about qualified immunity in place of the Notwithstanding Clause. But qualified immunity is nowhere in the text and, the Notwithstanding clause aside, it never was. Pierson just read qualified immunity into Section 1983, under the assumption that Congress intended to preserve common-law immunities. The Notwithstanding Clause proves that assumption was wrong.
Patrick Jaicomo is a senior attorney at the Institute for Justice. Daniel Nelson is a Law & Liberty Fellow at the Institute for Justice.
The only thing I'll add to this very thoughtful response is this. I already think the argument that Congress incorporated, or the general law provided, a doctrine of qualified immunity is very weak, for the reasons I've given in Is Qualified Immunity Unlawful? and Is Quasi-Judicial Immunity Qualified Immunity? As to how much is added to that argument by the repealed Notwithstanding Clause, I will leave the readers to judge.