West Law Report

Constitutional Remedies: Wilkie v. Robbins (2007)

A leading case summery of Harvard Law Review (Issue 121, Nov 2007) (10 pages)

Bivens Damages – Takings Clause Retaliation

In a 1971 decision, Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 1 the Supreme Court first recognized the availability of a damage remedy for violation of a constitutional right by a federal official in the absence of any congressional action obligating or permitting such a remedy.2 In the decades following this landmark decision, the Court retreated from the initially expansive reach of Bivens while purporting not to disturb its continued validity.

Last Term, in Wilkie v. Robbins, the Court continued this trend by withdrawing another set of claims from Bivens’s substantive reach. Previous cases in this line had carefully folded separation of powers concerns into the doctrine and reoriented Bivens around a new core purpose of ensuring baseline protection of constitutional rights, rather than remedying violations of the Constitution as a matter of individual right. The Wilkie Court, however, eschewed both of these virtues by conducting an untextured analysis that failed to reference any core legitimizing purpose, let alonethe one that the doctrine had sensibly come to embrace.