Accounting for the Limitations of Congress’s Enforcement Power: A Response to Regulating Privatized Government through § 1983

Alexander Reinert Benjamin N. Cardozo School of Law

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Richard Frankel’s argument in Regulating Privatized Government through § 19831 is compelling. It is well grounded in history, doctrine, and policy, and the desire to expand liability for private violations of constitutional rights is sure to be appealing to those of us who have litigated civil rights claims on behalf of individuals. The expansion that Frankel suggests, however, is by no means inevitable, in part for reasons that are implicated, but untouched, by his thesis. In particular, I would like to raise some concerns rooted in both separation of powers and federalism that may prove to be a barrier to Frankel’s argument, despite its substantial appeal.

First, however, let us get at the stakes that are involved here. Frankel’s thesis is that, in those cases where private sector employees violate constitutional rights, liability should be extended to their employers—what I will call “private entities” to distinguish them from municipalities—so long as the employees were acting within the course and scope of their employment. The difference between this system of vicarious liability and the analogy to Monell v Department of Social Services2 that most courts have adopted—which would require that private entities have engaged in a custom, policy, or practice of violating the Constitution—is significant.

As Frankel points out, the current system, which favors one form of symmetry between municipalities and private entities, does so at the expense of creating a different asymmetry between constitutional torts brought against private entities and common law torts. There are asymmetries that go in a different direction, however. Private entities that contract with a state are subjected to greater liability than the state agencies with which they contract. Even if such private entities are held to rigorous Monell standards, state agencies cannot be sued at all because of the odd interpretation of § 1983 that the Supreme Court adopted in Will v Michigan Department of State Police.3

In any event, if one accepts that Frankel is right, for all of the reasons he suggests, that interpreting § 1983 to create a different kind of asymmetry between private entity liability and municipal liability is all to the good, there is a question lurking for me: whether providing for this kind of respondeat superior liability is within Congress’s enforcement power under § 5 of the Fourteenth Amendment. As I develop in my remarks below, this question itself suggests a more fundamental one—namely, does a municipality, or its private counterpart, violate the Constitution whenever it employs someone who causes injury of constitutional dimension to a private citizen? If the answer to this question is “no,” then I think Frankel’s proposal, sound as it is from a matter of policy and doctrine, becomes much more difficult to maintain.

Let me explain my thinking. Frankel’s thesis is that an action against a private entity lies under § 1983 whenever the entity is acting under color of law (more on that later) and its employee violates the Constitution. Section 1983 was enacted pursuant to Congress’s § 5 enforcement power under the Fourteenth Amendment, which authorizes Congress to “enforce [its provisions] by appropriate legislation.” In times past, this enforcement power was considered to be quite broad. In 1966, in Katzenbach v Morgan,4 the Supreme Court articulated a vision of § 5 enforcement in which Congress played some role in defining the substantive limits of the Due Process and Equal Protection Clauses of the Fourteenth Amendment.5 The Court still could define the constitutional “floor,” but Congress had leeway to exceed that floor if necessary to vindicate Congress’s perception of the rights at stake.

This all changed with City of Boerne v Flores,6 the 1997 Supreme Court decision that struck down the Religious Freedom Restoration Act and imposed a “congruence and proportionality” test for legislation passed pursuant to Congress’s § 5 enforcement power.7 The Boerne Court understood Congress’s power under § 5 to be primarily remedial, not substantive. With this understanding, Congress’s power under § 5 was limited to providing remedies for state actions that themselves violated the Constitution, rather than prophylactic remedies. Boerne has subsequently been extended in the context of sovereign immunity, but the basic lesson is clear: the Court defines the outer limits of the Constitution, and Congress provides remedies where appropriate. Sometimes those remedies may reach beyond the constitutional border, not because they are prophylactic, but because pinpoint precision cannot be expected of all legislation.

This takes me to the impact of this line of authority on Frankel’s thesis. If he is right that § 1983 may be interpreted to hold private entities liable on a respondeat superior theory, it must also be the case that Congress may validly exercise the power to impose such liability. And the source of such power would presumably rest on § 5 of the Fourteenth Amendment, and not the Commerce Clause or some other positive grant of lawmaking power.

Which takes me to my first critical question: is an action against an employer—whether municipal or private is irrelevant, I think—for the violation of the Constitution by an employee an action to enforce the Constitution? This is a difficult question to answer. After all, after Monell was handed down, there was little need to ask this question, and as Frankel has demonstrated, most courts have simply extended Monell’s rejection of respondeat superior liability for municipalities to the question of liability for private entities.

But there are at least two sources of law that suggest an answer. First, in the space between Bivens v Six Unknown Named Agents of Federal Bureau of Narcotics8 and Monell, some courts permitted litigants to bring causes of action against municipalities directly under the Fourteenth Amendment. Presumably, looking to these cases may help us to understand whether the Constitution is violated (and therefore a remedy is appropriate) whenever a municipal employee violates an individual’s rights. And looking to these cases theoretically allows us to consider the question without the difficult statutory interpretation issues presented by § 1983.

For the most part, cases that considered the question of the proper standard of liability for municipalities sued directly under the Fourteenth Amendment rejected vicarious or respondeat superior liability. The cases are not uniform and analysis is sparse. A few district court cases assumed that liability for constitutional violations should be borne by municipalities under a respondeat superior theory, essentially treating constitutional torts the same as state law torts.9 But every appellate case that I know of to consider a Bivens-type remedy against a municipality rejected vicarious liability in favor of something akin to what we now call Monell liability.10 Thus, apart from any consideration of statutory interpretation, and without discussing the federalism concerns that Frankel suggests are more pressing in municipal liability, these courts concluded that the Constitution itself does not provide a cause of action against municipalities based solely on their employees’ misconduct.

The Second Circuit’s decision in Turpin v Mailet,11 offers perhaps the most detailed analysis. And there the Second Circuit rejected vicarious liability for a number of reasons, some of which undermine Frankel’s thesis and some of which are indifferent to it. On one hand, the Second Circuit suggested that vicarious liability was inappropriate because it would provide two causes of action for the same constitutional violation: “To the extent that one allows recovery under a theory of respondeat superior, an additional remedy is being created for a single constitutional infraction. It is not a case of redress for two distinct constitutional violations.”12 As the Second Circuit saw it, municipality liability under the Constitution should be applied to remedy the distinct constitutional harm caused by the municipality’s conduct, be it through policy, custom, or the like.

On the other hand, the Supreme Court’s decision in Monroe v Pape,13 which rejected municipal liability under § 1983, also clearly influenced those appellate courts that rejected vicarious liability under a Bivens theory. In part this was because of the resistance to judicially implied causes of action, even during the relatively permissive times of Cort v Ash.14 Thus, the Second Circuit said that it could not ignore the Court’s holding in Monroe that Congress had chosen not to impose any kind of municipal liability under § 1983.15 In addition, after Monroe there was some question of Congress’s power to impose vicarious liability upon municipalities.

The Bivens/Fourteenth Amendment jurisprudence could perhaps be written off as being inadequately explored for multiple reasons. It developed at a time when Bivens remedies were new, and the Supreme Court’s decision in Monroe clearly caused hesitation among lower courts. And the need to decide what direct cause of action might exist under the Fourteenth Amendment has essentially been obviated by Monell—or at least there has been no serious attempt to use the Fourteenth Amendment directly as a supplement to Monell § 1983 actions.

But even if we were to discount the precedent post-Bivens and pre-Monell, there is still a second area of jurisprudence for which Frankel’s thesis may have to account—this is the general requirement of personal involvement that has been implied in every § 1983 (and Bivens) context. This is not a serious barrier when a plaintiff is suing the employee who directly caused the constitutional violation at issue. But in the area of supervisory liability, personal involvement is actively litigated. And the vast majority of courts (if not every one, then close to it) apply a Monell-type analysis to supervisory liability. This will only be more so after the Supreme Court’s decision in Ashcroft v Iqbal,16 which rejected supervisory liability unless the supervisor is personally involved in some substantial way in the underlying constitutional violation. But even before Iqbal, a supervisor could never be liable under § 1983 or Bivens simply because the supervisor’s subordinate violated the Constitution. Instead, the supervisor had to have caused that violation in some way, by failing to supervise or train, failing to respond to indications that the subordinate was at risk of violating rights, and so on.

Courts have adopted this interpretation of supervisory liability despite the absence of federalism concerns that Frankel suggests are present in questions relating to municipal liability. This approach thus best approximates an interpretation of § 1983 free of those concerns. And it too suggests that the Constitution is not violated by municipalities, or private entities, every time an individual employee violates the Constitution. There may be reasons to think that supervisory liability is different from vicarious liability for municipalities or private entities acting under color of law. As some pre-Monell courts that applied respondeat superior liability to municipalities pointed out, the analogy may fail because supervisors and their subordinates “are fellow servants of the same master-employer (e. g., the City) and thus the master-servant relationship, a prerequisite for vicarious liability, is lacking between these individuals.”17

Thus, it may be that applying the Monell standard for municipal liability to private entities is appropriate not simply because of the concerns identified in Frankel’s paper, but also because of the Constitution itself. If I am wrong—if indeed a municipality or private entity violates the Constitution whenever one of its employees violates the Constitution—then presumably there is at least constitutional power to do what Frankel suggests § 1983 already does. Congress’s power under § 5 would certainly extend to providing such a cause of action against both municipalities and private entities acting under color of law, and Congress is not obligated to pursue both lines of attack to remedy constitutional violations.

But if respondeat superior liability is not necessary to remedy a constitutional violation, there are problems with Frankel’s thesis. As Boerne teaches us, Congress’s § 5 authority must be deployed in a congruent and proportional manner. Frankel’s reading of § 1983 poses problems along both axes: congruence because Congress might be suggesting that the Constitution means something different from what the judiciary has suggested; proportionality because under Frankel’s reading the vast majority of instances in which private entities would be held liable would not involve violations of the Constitution by the entity.

I have other concerns with Frankel’s thesis. I fear it underestimates the federalism concerns that are inherent in the state action doctrine, taking insufficient account of the extent to which the doctrine is rooted in concerns about extending constitutional obligations to private actors. One is left to wonder why, if federalism concerns about treading on state power inform Monell’s understanding of § 1983 for municipal liability, federalism concerns about treading on individual rights should not inform the understanding of § 1983’s application to private-entity liability. I am open to being convinced that these concerns, and the question of § 5 authority, can be overcome. But I am not there yet.


Alexander Reinert is an Associate Professor of Law at the Benjamin N. Cardozo School of Law, Yeshiva University.

Copyright © 2010 University of Chicago Law Review.

  1. 76 U Chi L Rev 1449 (2009).
  2. 436 US 658 (1978).
  3. 491 US 58 (1989) (holding that neither states nor state officials acting in their official capacities are “persons” for purposes of § 1983).
  4. 384 US 641 (1966).
  5. Id at 651 (holding that § 5 of the Fourteenth Amendment is “a positive grant of legislative power authorizing Congress to exercise its discretion in determining whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment”).
  6. 521 US 507 (1997).
  7. Id at 519–20.
  8. 403 US 388 (1971).
  9. See, for example, Culp v Devlin, 437 F Supp 20, 23–24 (ED Pa 1977); Santiago v City of Philadelphia, 435 F Supp 136, 147–49 (ED Pa 1977); Shifrin v Wilson, 412 F Supp 1282, 1306–08 (DDC 1976); Collum v Yurkovich, 409 F Supp 557, 558–59 (ND Ill 1975); Williams v Brown, 398 F Supp 155, 156–57 (ND Ill 1975).
  10. See, for example, Turpin v Mailet, 579 F2d 152, 168 (2d Cir 1978); Kostka v Hogg, 560 F2d 37, 44 (1st Cir 1977); Jennings v Davis, 476 F2d 1271, 1274–75 (8th Cir 1973); Adams v Pate, 445 F2d 105, 107 n 2 (7th Cir 1971).
  11. 579 F2d 152 (2d Cir 1978).
  12. Id at 166.
  13. 365 US 167 (1961).
  14. 422 US 66 (1975).
  15. Turpin, 579 F2d at 161–62.
  16. 129 S Ct 1937 (2009).
  17. Santiago, 435 F Supp at 148.

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