Qualified Immunity and Constitutional Structure

Katherine Mims Crocker*

A range of scholars has subjected qualified immunity to a wave of criticism— and for good reasons. But the Supreme Court continues to apply the doctrine in ever more aggressive ways. By advancing two claims, this Article seeks to make some sense of this conflict and to suggest some thoughts toward a resolution.

First, while the Court has offered and scholars have rejected several rationales for the doctrine, layering in an account grounded in structural constitutional concerns provides a historically richer and analytically thicker understanding of the current qualified-immunity regime. For suits against federal officials, qualified immunity acts as a “compensating adjustment” to the separation-of-powers error ostensibly underlying the Court’s decision to allow such suits without congressional approval. For suits against state officials, qualified immunity addresses federalism concerns by leveling the field for constitutional enforcement so that state defendants do not face harsher penalties than their federal counterparts do.

Second, while this structural account situates the doctrine within powerful constitutional currents, it does not justify the current qualified-immunity regime. For suits against federal officials, the structural account articulates a poor compensating adjustment because qualified immunity supplies an awkward solution to any separation-of-powers problem. For suits against state officials, the structural account appears to rest on a notion of “freestanding federalism” that is too far removed from the actual constitutional design.

Alongside prior scholarship, and for different reasons for suits against federal and state officials, this analysis leaves the present model of qualified immunity ripe for rejection or replacement with a more rights-protective alternative.

*Olin-Smith Fellow and Postdoctoral Associate, Duke University School of Law; counsel, McGuireWoods LLP. The views expressed here are my own and do not necessarily reflect any views of my employers. For thoughtful comments and guidance, thank you to Will Baude, Stuart Benjamin, Sam Bray, Guy Charles, Michael Collins, Larry Crocker, John Duffy, Dick Fallon, Tara Grove, Ben Grunwald, Kristin Hickman, John Jeffries, Cagle Juhan, Lyle Kossis, Randy Kozel, Maggie Lemos, Marin Levy, Julia Mahoney, Darrell Miller, Bill Mims, Jeremy Mullem, Tom Nachbar, Caleb Nelson, Jim Pfander, Jeff Pojanowski, Jack Preis, Bob Pushaw, Richard Re, George Rutherglen, Steve Sachs, Fred Smith, James Stern, Aaron Tang, Kevin Walsh, Ernie Young, and participants in various workshops.

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