How are suits filed against federal officials under the First Amendment if there is no implied or express right of action? I construe a right of action to be the ability to sue somebody for injunctive and monetary relief. If there isn't a right of action for the First Amendment like how Bivens provided a right of action for the 4th Amendment, how is anybody able to sue a federal official for violating their first amendment rights?
In Egbert v. Boule, 596 U.S. ___ (2022), the Supreme Court held that &quot;there is no Bivens action for First Amendment retaliation.&quot; The Court was unanimous on this point. This means that right now, there is no way to sue for a damages remedy for First Amendment retaliation by federal officials. The majority said that &quot;Congress, not the courts, is better suited to authorize such a damages remedy.&quot;
The 5th amendment protects you from self-incrimination. If by possessing a firearm you are in violation of the law you cannot be compelled by law to reveal this information. If the police discover you have a gun in violation of the law you can be arrested and prosecuted for that offense. They cannot additionally prosecute you for not telling them about a gun. I thought there was a supreme court case about this specific situation, but the closest I can find for now is Haynes v. United States. The 7-1 majority held that people prohibited from possessing firearms cannot be compelled to register their firearms that they are possessing illegally. They are stopped by the police and asked this question. They answer truthfully. Then they can be arrested and prosecuted for the illegal possession of the gun. How does this square with the right not to self-incriminate? Or is asking the question considered to be a search? Police can generally ask whatever they want. If you choose to waive your 5th amendment rights, that's your mistake. Can the state prosecute this person for carrying the illegal weapon? The state can generally prosecute crimes it knows about. So yes, in this case they can. Suppose that next to the weapon a stash of illegal drugs is discovered, which was only found due to the action taken to secure the weapon. Can the state prosecute for that? The state can generally prosecute additional crimes it uncovers during investigations or other lawful actions. So yes, this can be prosecuted.
Yes, One Can In the United States, one may assert the Fifth Amendment privilege not to testify or otherwise give information that might tend to implicate the speaker in a crime. This is true in any court proceeding, civil or criminal, whether the person asserting the privilege is an accused, a witness, or a party to a civil case. It may be asserted in a Grand Jury or trial proceeding. One may also assert the privilege under police interrogation, or in an administrative proceeding. One may also assert it when testifying before Congress, a state legislature, or any local legislative body. One may also assert it when testifying before a government agency, such as the Interstate Commerce Commission. Asserting the privilege is often informally called &quot;pleading the Fifth&quot;, although strictly speaking &quot;pleading&quot; is something that only an accused does (as in &quot;I plead not guilty&quot;). The availability of the privilege in civil cases has been true at least since the Saline Bank case of 1828 (see below). The privilege is not available when no criminal prosecution is legally possible, such as when the statute of limitations has expired, or when the law invoked has been held unconstitutional or otherwise invalid, and no other valid law applies. Thus, if an authorized government official (usually a prosecutor) offers a grant of immunity, the privilege is no longer available on matters covered by the grant, and the person asserting it must then testify on such matters. The privilege may be asserted when the person doing so is actually guilty, or when the person is not guilty, but has a reasonable belief that the statements asked for might be used against the speaker in some current or future criminal proceeding. A person who has been tried for a crime nut had the case end in a mistrial, or a dismissal without prejudice, could still be re-tried for that accusation, and so may assert the privilege. Any assertion must be clear, but need not use a specific form of worfs. The standard form advised by many lawyers is I decline to answer on the grounds that the answer might tend to incriminate me. but less formal wording such as 'I take the Fifth&quot; will also serve to assert the privilege. When the privilege is asserted in a court case, the Judge may question the person asserting it in private, off the record, to determine whether the fear of incrimination is reasonable. Case Law Saline Bank (1828) In the case of United States v. Saline Bank of Virginia, 26 U.S. 100 (1828) Chief Justice Marshall wrote: It is apparent that, in every step of the suit, the facts required to be discovered in support of this suit would expose the parties to danger. The rule clearly is that a party is not bound to make any discovery which would expose him to penalties, and this case falls within it. [This case was cited in Murphy, below] Saline Bank was a civil suit by the US treasury in Federal curt against an apparently unincorporated bank, but a Virginia state law of the time made it a crime to operate or participate in a bank without a proper charter. Thus the Marshall Court held that a witness in a civil suit could assert the privilege against the future possibility of a state criminal proceeding. Kastigar (1972) In Kastigar v. United States, 406 U.S. 441 (1972) the US Supreme Court wrote (footnotes omitted): It [the privilege against self-incrimination] can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory, and it protects against any disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used. This Court has been zealous to safeguard the values that underlie the privilege [Citing the Miranda case in a footnote]. (Kastigar was a case in which people subpoenaed before a Grand Jury asserted the privilege, were granted immunity, and still refused to testify, alleging that the grant of immunity was not enough to revoke the privialge. They were held in contempt, appealed, and the Court held that the immunity was sufficient to allow the witnesses to be compelled to testify. In the court of its opinion, the Kastigar Court reviewed the history of the privilege and of immunity statutes in some detail.) Murphy (1964) In Murphy v. Waterfront Comm'n, 378 U.S. 52 (1964) the US Supreme Court wrote: We have held today that the Fifth Amendment privilege against self-incrimination must be deemed fully applicable to the States through the Fourteenth Amendment. Malloy v. Hogan, 378 U. S. 1. ... Petitioners were subpoenaed to testify at a hearing conducted by the Waterfront Commission of New York Harbor concerning a work stoppage at the Hoboken, New Jersey, piers. After refusing to respond to certain questions about the stoppage on the ground that the answers might tend to incriminated them, petitioners were granted immunity from prosecution under the laws of New Jersey and New York. [Footnote 2] Notwithstanding this grant of immunity, they still refused to respond to the questions on the ground that the answers might tend to incriminate them under federal law, to which the grant of immunity did not purport to extend. [This case was cited in Kastigar above.] McCarthy v. Arndstein (1924) In McCarthy v. Arndstein, 266 U.S. 34 (1924) (footnotes omitted, boldface added) The US Supreme Court wrote: The case is now before us on rehearing, granted in order to permit argument of the proposition, not presented by counsel before, that the privilege against self-incrimination does not extend to an examination of the bankrupt made for the purpose of obtaining possession of property belonging to his estate. ... The contention now is that the privilege against self-incrimination ought to have been disallowed because, under the Constitution, it does not extend to the examination of a bankrupt in a bankruptcy proceeding. The government insists broadly that the constitutional privilege against self-incrimination does not apply in any civil proceeding. The contrary must be accepted as settled. The privilege is not ordinarily dependent upon the nature of the proceeding in which the testimony is sought or is to be used. It applies alike to civil and criminal proceedings, wherever the answer might tend to subject to criminal responsibility him who gives it. The privilege protects a mere witness as fully as it does one who is also a party defendant. It protects likewise the owner of goods which may be forfeited in a penal proceeding. See Counselman v. Hitchcock, 142 U. S. 547, 142 U. S. 563-564. The government urges more strongly a narrower contention. It claims that the constitutional privilege does not relieve a bankrupt from the duty to give information which is sought for the purpose of discovering his estate. It asserts that, in England, such an exception to the common law privilege prevails, and that the exception had been established there prior to the Declaration of Independence. Whatever may be the rule in England, it is clear that, in America, the constitutional prohibition of compulsory self-incrimination has not been so limited.
In case there is no way of knowing, thus no way to sue, would this seem like a loophole that practically abolishes the 4th amendment ? The 4th amendment only means that the officer needs a probable cause/reasonable suspicion to detain you. It absolutely does not mean that he has to tell you what that is. In fact, not telling you what the probable cause is is often a part of the officer's job because, if you are indeed a perpetrator, letting you know what the suspicions are could make you do things that would allow you to escape justice. There is certainly always a way to sue i.e. file a lawsuit, for which you do not need to know what the probable cause was. Instead, you contend that there was not any. And from this point the officer has to tell the court what it was, if any. If he fails to provide one, you win and get redressed for harassment — this is how your 4th amendment rights work. If he does provide a good probable cause, you lose because in this case you either: actually did something suspicious and knew there was a probable cause; OR jumped to the conclusion that the officer harassed you when he was simply doing his job.
Your question: "How blatant the circumvention of the Constitution has to be for SCOTUS to act?" indicates some confusion about the big picture of how contesting the constitutionality of a law works. SCOTUS doesn't proactively do anything. The Supreme Court cannot simply review a law that has been enacted and say it is unconstitutional of its own accord, or at the request of someone involved in the political process (some countries allow this, the U.S. does not). The U.S. Supreme Court is not equivalent to the institution of a "Constitutional Court" found in many countries. It is just the last court of appeal for all U.S. Courts. It often ends up resolving constitutional questions, but only after other courts have already done so in cases where there are real tangible immediate consequences to the decision. A lawsuit must be brought by someone who is actually injured for the courts to act In your example, nothing would happen unless a home owner could show that soldiers had actually commandeered his home without consent or compensation, or places him in imminent fear of having this done. If someone can't show that, then no lawsuit to determine the constitutionality of the law is allowed even if it is blatantly unconstitutional and the question of the law's validity will remain unresolved by the courts. This limitation is called "standing" and requires that there be an actual case and controversy with a suit brought by someone who has suffered a legal injury before anyone can bring any lawsuit. In point of fact, there are all sorts of laws in the United States that are clearly unconstitutional, but which are never brought before the courts to declare unconstitutional, because the government agrees that those laws are unconstitutional and makes a point of not enforcing those laws. All cases (with exceptions not applicable here) start in trial courts Suppose soldiers do commandeer Bob's house at the express direction of the President without Bob's consent or following any procedure that amounts to due process. What does Bob do? Bob brings a lawsuit against the soldiers and their commanders up through the President and the United States in the U.S. District Court for the state where the house is located or where the defendants live. Suits against the U.S. and its employees must be brought in federal courts rather than state courts. SCOTUS can hear cases as a trial court, but only in cases involving a state or foreign country or a diplomat as a party (and in practice, even those cases are referred to a temporary judge called a special master for evaluation and SCOTUS only considers the case after receiving a recommendation from the special master). None of those circumstances apply in this case. A federal trial judge hears the case and decides if the law is constitutional or not, and if it is held to be unconstitutional may decide that Bob is entitled to a remedy. There will also be other separate issues to decide in the case. For example: Was the lawsuit brought within the statute of limitations? Are the soldiers immune to suit for damages against them personally, which depends upon how clear it was to the soldier that he was acting unconstitutionally? Were the soldiers violating orders or following orders? Did Bob meet other procedural requirements during the course of a lawsuit (like making the proper disclosures of information and showing up to hearing he is required to attend, and presenting evidence in accordance with the rules of evidence)? If the trial judge finds that the law is unconstitutional, the trial judge can issue an order saying so and that is the law of land that binds the parties (including the U.S. in any other case presenting the same issue under a principle called collateral estoppel) unless someone appeals the case. Every state and federal judge in the United States from small claims court judge to a U.S. Supreme Court justice has the power to declare laws unconstitutional if it comes up in a case properly heard in that judge's court, not just SCOTUS. SCOTUS (with exceptions that don't apply) doesn't hear direct appeals A handful of cases are directly appealed from a trial court to SCOTUS (mostly election law cases). But the vast majority of cases, including this one, would go to an intermediate court of appeals first. If someone does appeal the case, it goes to the U.S. Court of Appeals for whatever circuit the state of the District Court is located in. It reviews the judge's ruling in light of the evidence presented and can either reverse the trial judge's decision or affirm it. Only after the U.S. Court of Appeals has ruled (sometimes with one more layer of decision making within the U.S. Court of Appeals), any party can appeal the case by a writ of certiorari to the U.S. Supreme Court. SCOTUS often declines to reconsider Court of Appeals Rulings The U.S. Supreme Court doesn't have to take the case and 98% of the time that cases are appealed to it, it doesn't take the case. If it doesn't take the case, then the U.S. Court of Appeals ruling is the law and that ruling is binding on any other federal court in its jurisdiction in future case. The U.S. Supreme Court will usually only take the case if it feels the decision was wrong, or there are conflicting precedents that have to be resolved from different courts. Whichever judge decides constitutionality (a power not reserved to SCOTUS) that judge will try to follow the law to make the right decision whether the violation of the constitution is blatant or subtle. If the U.S. Supreme Court does decide to take the case, it can affirm that U.S. Court of Appeals ruling (which is then binding on all U.S. Courts as precedent), or it can reverse the U.S. Court of Appeals. In each case, at the trial court level, at the U.S. Court of Appeals level, and at the U.S. Supreme Court level, the only question is whether the law conflicts with the constitution as interpreted by the case law already decided over time. Only a handful of cases in the history of the United States have ever squarely addressed whether a law violates the 3rd Amendment so there isn't a lot of directly applicable precedent, but the judges would also consider how similar provisions of the constitution, like the 5th Amendment, have been treated and would consider law review articles and historical records about the intent of the Third Amendment as well. Judges have quite a bit of freedom in interpreting the law, but will try to rule in the way that most fairly represents what the total body of the law and interpretative information about the law says in the context of the facts before it. In this case the government would probably lose but you can never be sure In a case as clear as your example, the Government would very likely lose although no case is entirely certain, because it allows action at any time even though it is not a time of war, does not consider the home owner's consent, and does not create any meaningful procedure for exercising the right. But, it really doesn't matter if the violation is blatant or if it is subtle. The court even routinely rules that laws are unconstitutional not because they actually violate a provision of the constitution directly, but because they merely "burden" the exercise of a constitutional right. A law that effectively nullifies a constitutional provision would usually be invalidated. Sometimes lawyers informally and in private call an argument that is technically valid (for example, by creating a procedure albeit a meaningless one) "too cute." Arguments like that usually lose. The U.S. Supreme Court routinely invalidates laws that violate the constitution only in very subtle ways (e.g., requirements that have been interpreted to pose minor barriers to voting could be held unconstitutional), and the U.S. Supreme Court now and then refuses to invalidate laws that seemingly blatantly violate the constitution (e.g., "In God We Trust" on U.S. coins). Often a non-constitutional or settled constitutional law question is resolved purposely in a way that avoids the need to rule on an unresolved constitutional question Often, constitutional cases are resolved on the question of standing, or whether the right person has been sued, or by interpreting a law in a manner that is unnatural, in order to avoid having to address the question of the constitutionality of the law itself. For example, in your case, a judge might say that "at any time" in the statute, really means "at any time during a war", and that "regardless of the objections of the owner" really means "over the unreasonable objections of the owner", and that there is a duty to pay fair market value for the use of the house under the statute because the law is silent on that point, even if none of those things, in a cold plain reading of the statute would seem to be reasonable interpretations of its plain language. And then the judge might say that interpreted in this way, the law is constitutional, but the government violated the law and the court might then award a remedy to Bob, because the government violated the law so interpreted rather than because the government enforced an unconstitutional law. But, if it decides to take up a constitutional question because it isn't satisfied with how the U.S. Court of Appeals resolved the issue, it won't hesitate to do so.
Before the election, can a lawsuit prevent the amendment question from being put on the ballot? No. Generally speaking, the constitutionality of an otherwise procedurally proper ballot initiative is not ruled upon until after it has passed (eliminating the need to rule unnecessarily on the constitutionality of failed initiatives). Of course, if someone tried to put it in the ballot when the existing law conditions for putting it on the ballot were not met (e.g. because a deadline for doing so wasn't met) that could be challenged in court by a party with standing to do so. If passed into the constitution, would a court still have the ability to rule the restrictions unconstitutional? Probably not. The constitution as newly adopted doesn't sound like it would forbid doing that. This seems to be the whole point of the constitutional amendment in the first place and it the amendment to the constition is approved, that requirement is gone.
A president can be personally sued, and does not enjoy universal immunity while in office, see Clinton v. Jones, 520 US 681 – in that case, Clinton was represented by private counsel. There are differences between that case and the instant hypothetical, the most prominent being whether such statements might be shielded because of executive privilege. The primary procedural question would be whether a potentially defamatory statement was made in connection with official duties. The limits of executive privilege are not at all clear. That kind of constitutional issue could involve the solicitor general. Let us assume that SCOTUS finds (somehow) that a particular statement is completely outside the ambit of executive privilege (separation of powers). Then it is not an interest of the US government to defend the personal interests of a defendant even if he in in office (whereas it is an interest of the US goverment to defend the official interests of POTUS), and private counsel would represent the defendant. Any settlement or award would be out of the defendant's pocket (as was the case in Clinton v. Jones).
Yes, one has a right to privacy in such a case This right is clearly established, and so an officer or other government official or employee who listened in or authorized another to listen in could be personally sued under 42 US Code § 1983 often kn own simply as &quot;section 1983). That law provides: 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. The current version of section 1983 dates to 1979, but its hiostory goes much further back. This law derives from the Enforcement Act of 1871 also known as the Ku Klux Klan Act, Third Enforcement Act, Third Ku Klux Klan Act, Civil Rights Act of 1871, or the Force Act of 1871. According to the Wikipedia article about it: The act was the last of three Enforcement Acts passed by the United States Congress from 1870 to 1871 during the Reconstruction Era to combat attacks upon the suffrage rights of African Americans. The statute has been subject to only minor changes since then, but has been the subject of voluminous interpretation by courts. According to the same article, Section 1983: is the most widely used civil rights enforcement statute, allowing people to sue in civil court over civil rights. According to the same article: A §1983 claim requires according to the United States Supreme Court in Adickes v. S. H. Kress &amp; Co. (1970) two elements for recovery: (1) the plaintiff must prove that the defendant has deprived him of a right secured by the, &quot;constitution and laws,&quot; of the US, and (2) the plaintiff must show that the defendant deprived him of this constitutional right 'under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory' (under color of law)