This week, the Supreme Court, in a 5–4 decision, ruled that the U.S. Postal Service may not be sued for intentionally withholding mail. This decision once again calls into question the viability of the Federal Tort Claims Act as a remedy for abuses committed by federal employees. Similarly, the Justices declined to review the Second Circuit’s grant of qualified immunity in NRA v. Vullo, where the Court unanimously held that the NRA stated a plausible First Amendment claim.

A new blog post from Mike Fox, a legal fellow in the Cato Institute’s Project on Criminal Justice, details how the current legal landscape doesn’t just protect officials from frivolous lawsuits but insulates them from punishment for their own intentional misconduct, writing in part:

“This creates a Catch-22 for accountability: a plaintiff cannot win a case unless there is a prior case, but a prior case can never be established because the Court confers immunity upon officials who devise novel ways to violate the Constitution.

The narrative emerging from these two cases is one of a double lock on the doors of justice. If you sue the government agency, you are blocked by sovereign immunity; if you sue the specific official who harmed you, you are blocked by qualified immunity. When immunity doctrines are applied as broadly as they are here, they transform the Constitution from a set of enforceable guarantees into a list of polite suggestions.”

To speak with Fox about USPS v. Konan and the Federal Tort Claims Act, contact Christopher Tarvardian.