Now that they are in overtime on the state budget and the policy matters are being haggled out, there is a way that New York legislators and Gov. Hochul can smartly respond to the problem of overly aggressive ICE agents who have detained people willy-nilly, ostensibly for immigration enforcement but in a way that seems designed to be racially discriminatory and break political will in Democratic jurisdictions.
The answer is creating an ability for New Yorkers to sue federal officials who have violated our constitutional rights, bringing them in line with the ability we already have to file civil suits against state and local officials, in a proposal known as the New York Civil Rights Act.
If your response is “wait, you’re telling me a person can sue a state official for violating the U.S. Constitution but not a federal official for doing the same thing?” then we hate to be the bearer of bad news as we welcome you to the often nonsensical world of federal civil rights jurisprudence. Despite the fact that federal officers have just as much power and often more ability to violate your constitutional rights as their state counterparts, federal law only explicitly allows you to file a lawsuit against the latter, which has let the former skate.
The U.S. Supreme Court once realized the absurdity of this and gave people around the country the ability to hold individual agents civilly accountable in the 1971 decision in Bivens vs. Six Unknown Named Agents, but has spent the last half century whittling this down to the point that it’s almost impossible for you to do anything if a federal agent flagrantly ignores the Constitution. This novel solution would allow you to file suit in state court, bypassing the difficulty in getting a lawsuit off the ground in the first place.
This all comes down to the idea that rights aren’t really rights without remedies. If you have a right to free speech, or a right to religion, or a right to bear arms, or a right to an attorney, but you have no way to make things right if and when those rights are violated or dissuade that conduct going forward, then do you really have them? You have as much of a right to those things as you do to flap your arms and fly — good luck vindicating it.
The federal government has pretty weak arguments for why the state shouldn’t protect its population by constraining cooperation with rogue law enforcement entities like ICE, but its position is especially weak when it comes to something like the NYCRA. It would only be relevant in cases where someone already had a basis to argue that their rights were violated, and there remain plenty of tools for federal officials to parry lawsuits, ranging from the Supremacy Clause to qualified immunity.
Other states have enacted similar measures, allowing people access to the courts for violation of their protections under the Bill of Rights and other provisions of the Constitution. Like those other states, the only thing this Albany legislation would do is allow an individual a shot at arguing their case in court, to defend the most sacred freedoms we have.