EXECUTIVE IMMUNITY

In tracing the development of executive immunity in the United States, one should separate immunity for constitutional violations from immunity for nonconstitutional violations and immunity of federal officials from immunity of state officials. State officials' immunity for nonconstitutional violations is a matter left to each state's laws. At least since enactment in 1871 of section 1983, title 42, united states code, state officials have been liable for some federal constitutional violations. Until well into the twentieth century, however, their immunity in constitutional cases had not been fully explored because there were relatively few federal constitutional restrictions on state officials' behavior. By the middle of the twentieth century, federal officials, who are not covered by section 1983, seemed immune from actions for both constitutional and nonconstitutional misbehavior. Within a few decades, however, with the exception of the President, no executive official, state or federal, was fully immune from damage actions for constitutional violations.

In the Massachusetts case of Miller v. Horton (1891) Justice oliver wendell holmes, writing for the majority, narrowly restricted state officials' state-law immunity from suit. Even reasonable, good-faith behavior might trigger liability if found to violate the Constitution or some other legal limit. But in Spaulding v. Vilas (1896) and other cases, the Supreme Court was more protective of federal executives. And in subsequent years, many states provided their executives with more generous protection from suits in state courts, particularly when their acts were viewed as discretionary rather than ministerial.

Gregoire v. Biddle (1949) highlighted the movement away from Miller v. Horton. In an influential opinion by Judge learned hand for the United States Court of Appeals, Gregoire suggested that a federal executive officer's malice would not render him liable for an otherwise lawful act. Gregoire was read as conferring broad immunity upon federal officials. Barr v. Matteo (1959) accentuated this trend when, in a case generating no majority opinion, the Supreme Court seemed to hold federal officials absolutely immune from defamation suits.

After Barr, the Supreme Court paused in its treatment of federal executive immunity to explore the liability, under section 1983, of state officers charged with constitutional violations. In a series of cases, including pierson v. ray (1967), scheuer v. rhodes (1974), and wood v. strickland (1975), the Court held that unconstitutional acts by state executive officials would not trigger liability under section 1983 if the officials acted under a reasonable, good-faith belief that their behavior was constitutional. But they enjoyed no absolute immunity. Scheuer v. Rhodes, in which a governor was found not to have absolute immunity, dispelled illusions some had entertained about special status for high officials.

This experience with state officials undoubtedly influenced the Court's subsequent treatment of federal officials. In butz v. economou (1978), over four dissents, the Supreme Court held that the good-faith defense, and not the rule of Barr, applied to damage actions against federal officials for constitutional violations. Prior statements about absolute immunity, and the importance of the ministerialdiscretionary dichotomy, in effect were limited to cases involving common law torts. Harlow v. Fitzgerald (1982) reaffirmed and modified the limited immunity of high federal executive officials and nixon v. fitzgerald (1982) found the federal chief executive, the President, to enjoy the absolute immunity that Scheuer had denied to state chief executives.

Theodore Eisenberg
(1986)

Bibliography

Jaffe, Louis L. 1963 Suits against Governments and Officers: Damage Actions. Harvard Law Review 77:209–239.

Schuck, Peter H. 1981 Suing Our Servants: The Court, Congress, and the Liability of Public Officials for Damages. Supreme Court Review 1980:281–368.