Summary
State Democracy Research Initiative (U. Wisconsin Law) explainer on “Converse 1983” — state-law damages remedies against federal officials for constitutional violations. With Bivens actions nearly defunct and Section 1983 not covering federal actors, state converse 1983 laws offer a potential remaining avenue for victims of federal constitutional violations to recover money damages. Several states (CA, MA, ME, NJ, IL) already have such laws; ~12 more considering them.
Key Points
- The problem: Section 1983 (damages against state/local officials) doesn’t cover federal actors; Bivens (damages against federal officials) has been judicially gutted; FTCA (damages against federal government) has significant exceptions
- Result: victims of unconstitutional federal action may have no damages remedy — potentially the most constrained landscape since the nation’s founding
- Converse 1983 solution: state-created cause of action authorizing damages against federal officials for federal constitutional violations — “the reverse” of Section 1983
- Professor Akhil Amar coined “Converse 1983” nearly 40 years ago; now gaining traction with policymakers
- States with existing laws: California (Bane Act), Massachusetts, Maine, New Jersey; Illinois recently enacted one
- ~12 states considering legislation: New York, Virginia, others
- Anticipated legal challenges: (1) Westfall Act preemption — but Westfall has a carveout for constitutional violations; (2) federal supremacy/Supremacy Clause — counterargument is that converse 1983 furthers the federal Constitution; (3) qualified immunity — may not transfer from Section 1983/Bivens context
- One Third Circuit ruling found Westfall Act preempted a NJ converse 1983 claim — adverse precedent for DE/NJ/PA litigants
Newsletter Angles
- This is the legal architecture of state-level resistance to federal overreach: if the federal courts won’t provide damages remedies against federal officials, states can create them. This is the “Sanctuary Infrastructure” concept applied to constitutional litigation
- The timing matters — this piece was published August 2025, during the ongoing federal overreach period. The legal theory is moving from academic to operational
Entities Mentioned
- Donald Trump — (context: the federal overreach creating demand for these remedies is Trump’s second term)
Concepts Mentioned
- Sanctuary Infrastructure — state-created legal infrastructure to protect against federal overreach
- Regulatory Weaponization — the overreach these remedies are designed to counter
Notes
State Democracy Research Initiative, U. Wisconsin Law. August 1, 2025. Academic legal analysis. Well-structured; identifies specific case law and state bills. Best single source on the converse 1983 legal theory.