Written By Raymond Escoto
Rule of law can be defined as a “durable system of laws, institutions, norms, and community commitment that delivers four universal principles: accountability, just law, open government, and accessible and impartial justice.”[1] This is an ideal supposedly at the core of the American system.[2] The story of our nation’s founding is defined by a struggle against civil rights abuses by an unjust government that was unaccountable to its people.[3] The lessons learned from the revolution were then used to craft the legal framework and civil rights protections still in use today.[4] Because of this centrality, one would think that trespasses against this framework and the rights it protects would be seen as the utmost taboo. Unfortunately, like many founding mythologies, the reality is far less inspiring.
The realm of constitutional remedies is a small one where victories for victims of state abuse are few and far between.[5] While there are many reasons for this, two stand apart: qualified and sovereign immunity. These doctrines allow the government to escape civil liability out of adjudicatory deference to their discretion in performing their own duties.[6]
Such reasoning is diametrically opposed to the ideals professed by American history and culture.[7] For if rule of law is the belief in that no one is above the law, the idea that the government can get away with violating the civil rights of its own citizens cannot co-exist with that maxim.[8] So the question then becomes: why do they exist at all?
That answer is a complicated one, because they are not rooted in the founding of the nation nor the revolution.[9] In the beginning of the American judicial system, constitutional remedies were far simpler and largely rooted in tort law.[10] Essentially, citizens could directly sue government actors under common torts for recoveries.[11] Things eventually changed when the immunity doctrines came into play. Sovereign immunity, and by extension, qualified immunity, are rooted in the monarchical ideal of “the king can do no wrong,” and they existed in the English system and tort law.[12] Because the American system inherited much from its former forebearers, these doctrines were later adapted and implemented into our system by the courts.[13] As the Supreme Court has said, “Congress legislates against the backdrop of the common law.”[14]
Immunity doctrines have additional justifications aside from being carried over from our English predecessors. The primary justification given by the Supreme Court appears to be one of balance and judgement.[15] Various Justices who have ruled on the issue over the years have acknowledged that the doctrine serves to bring these kinds of civil rights violation cases to equilibrium when they would otherwise flood court dockets across the country.[16] However, there are several problems with this premise. The first is that it completely upends the congressional intent behind our country’s foremost civil rights remedy statute: 42 U.S.C. § 1983.[17] This law, passed during Reconstruction, was explicitly meant to provide relief for citizens harmed by state officials in the tumultuous era following the Civil War.[18]
The statute’s text reads:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.[19]
Any notion of immunity is nowhere to be seen in the law. Thus, the court’s decision to implement immunity doctrines for those same state officials creates a distinct conflict between the judgement of the legislature and the judgment of the judiciary.[20]
However, even if there was no conflict, the bars these doctrines set are too high for what they wish to protect against.[21] Sovereign immunity is absolute, barring any lawsuit of a state or the federal government.[22] Meanwhile, qualified immunity bars recovery unless it can be proven that the actions of the disputed government officer violated clearly established law.[23] That test may sound simple, but in actuality, the opposite is true. This is a result of qualified immunity cases not actually being decided on the merits.[24] Simply put, if qualified immunity is successfully raised as a defense, the question of whether a civil right or the Constitution was actually violated by the government’s actions is not answered.[25] As a result, there is a shocking lack of precedent that plaintiffs can point to satisfy the clearly established test.[26] Qualified immunity suits then become a revolving door of courts asking for constitutional precedent but then refusing to adjudicate said issues, no matter how obvious they are to even the layman.[27] Because of this destructive feedback loop, it is almost impossible to recover even if the officer nearly kills the plaintiff.[28]
Even if plaintiffs overcome the test in either state or federal trial courts or the defendants fail to utilize the defense themselves, relief is still far from guaranteed.[29] The Supreme Court has reversed such judgments time and time again, sending a clear message that at least judicially, the doctrines are here to stay.[30]
No matter what their justifications are, this implementation of immunity doctrine by the courts has kneecapped efforts by Congress and states to open doors for citizen remedies to governmental harm.[31] Awareness of governmental harm is high, as of late. In the wake of tragedies earlier this year such as the killings of Renee Good and Alex Pressley by ICE agents in Minnesota, the doctrines have come under new scrutiny.[32] For example, this year, a bill was introduced into the Virginia legislature to create a new cause of action against state and federal law enforcement officers.[33] Meanwhile, Congress’s attempts to limit the doctrine have been ongoing since the murder of George Floyd in 2020.[34] Unfortunately, both are currently stalled.[35]
So with a Supreme Court protecting the doctrines and federal and state legislatures unable to overturn the doctrine themselves, the question becomes: what is to be done? That answer is unclear. What is, however, is how the doctrines of sovereign and qualified immunity are at odds with basic principles of American law. If these keystone ideals are to be upheld, these unwarranted doctrines must be done away with, even if doing so is an uphill climb.
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Photo Citation: Jeffrey Toobin, Ending Trump’s Assault on the Rule of Law, The New Yorker (Sept. 28, 2020), https://www.newyorker.com/magazine/2020/10/05/ending-trumps-assault-on-the-rule-of-law.
[1] World Justice Project, https://worldjusticeproject.org/about-us/overview/what-rule-law (last visited Mar. 1, 2026).
[2] Erwin Chemerinsky, Against Sovereign Immunity, 53 Stan. L. Rev. 1201, 1202 (2001).
[3] Id.
[4] Id.
[5] Aziz Huq, The Collapse of Constitutional Remedies 4 (2021).
[6] Katherine Mims Crocker, Qualified Immunity, Sovereign Immunity, and Systemic Reform, 71 Duke L. J. 1701, 1704 (2022).
[7] Chemerinsky, supra note 2.
[8] Id.
[9] Id.
[10] William Baude, Is Qualified Immunity Unlawful?, 106 Calif. L. Rev. 46, 51 (2018).
[11] Id.
[12] Chemerinsky, supra note 2.
[13] Kyle Hawkings, Clark Neily, Fred Smith Jr. & Jay Schweikert, Qualified Immunity: A Shield Too Big?, 104 Judicature 65, 66 (2020).
[14] Id. at 66-67.
[15] Baude, supra note 10 at 62-69.
[16] Id. at 62-63.
[17] Id. at 49.
[18] Id.
[19] 42 U.S.C. § 1983.
[20] Baude, supra note 10 at 63.
[21] Crocker, supra note 6 at 1704-1708.
[22] Id. at 1704.
[23] Huq, supra note 5 at 114.
[24] Id.
[25] Id. at 115.
[26] Id.
[27] Id.
[28] Id.
[29] Joanna C. Schwartz, How Qualified Immunity Fails, 127 Yale L. J. 2, 6 (2017).
[30] Id.
[31] Huq, supra note 5 at 158-160.
[32] Mike Fox, License to Kill? The Legal Black Hole of Federal Misconduct, Cato Institute (Jan. 26, 2026, 5:45 PM), https://www.cato.org/blog/license-kill-legal-black-hole-federal-misconduct
[33] Brianna Fallon, Proposed Virginia bill could make it easier to take civil action against law enforcement officers, 13 News Now (Jan. 20, 2026, 6:52 PM), https://www.13newsnow.com/article/news/local/virginia/proposed-virginia-bill-could-make-it-easier-to-take-civil-action-against-law-enforcement-officers/291-4c0b2c39-5bb3-40c5-892e-b4d759e304ed
[34] H.R. 4944, 119th Cong. (2025).
[35] Id.; H.B. 1314, 2026 Reg. Sess. (Va. 2026).