From Bivens to Malesko and Beyond: Implied Constitutional Remedies and the Separation of Powers

It is a common refrain among politicians that judges should not "legislate from the bench." Given the Constitution's division of powers between the legislative and judicial branches, this political catchphrase undoubtedly expresses a constitutionally valid sentiment, but it is difficult to apply in practice largely because the separation of powers doctrine from which it arises is so murky. In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, the Supreme Court, without any explicit statutory authority, inferred directly from the Constitution a private right of action for damages against federal officials who violated constitutionally protected rights. Evaluated through the collective lens of the deference and institutional competence principles, the reflexive adherence to formal separation evident in the original Bivens dissent and implicit in Malesko is not consistent with the pragmatic approach to separated powers reflected in the text, history, and structure of the Constitution.