Exploring the Limits of Qualified Immunity Under Harlow’s Discretionary Function Test

Introduction

Buried in Harlow v. Fitzgerald,¹ the Supreme Court’s leading decision on qualified immunity,² a largely overlooked phrase invokes a mostly forgotten distinction in the law of official liability and government accountability.  Harlow is well known for the Court’s oft-quoted test for qualified immunity: “We therefore hold that government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”³ Much subsequent doctrine and commentary has focused on the Harlow Court’s self-conscious decision to modify qualified immunity’s subjective “good faith”⁴ element, putting a “clearly established law”⁵ requirement in its place.⁶  Much less attention — indeed, almost no attention at all — has been paid to the Court’s decision to confine application of this new standard to claims brought against officers performing “discretionary functions,” leaving officers performing “‘ministerial’ tasks” unprotected by immunity.⁷  The Court itself has adverted to the distinction only a few times since Harlow, but has never outlined the difference between ministerial and discretionary functions as it relates to qualified immunity doctrine.⁸ Scholars have yet to consider the matter in any detail.⁹

With no guidance from the Court distinguishing ministerial from discretionary tasks, and no clearly stated rationale that later jurists might use to draw the operative line, most lower courts have reflexively extended the law of qualified immunity to encompass all official action.¹⁰ As a consequence, the “clearly established law” standard seemingly applies to all constitutional tort claims, whether they implicate the discretionary acts and thought processes of high-level government officials or the actions of line officers best understood as ministerial.

In this Essay, we aim both to excavate the longstanding distinction between ministerial and discretionary functions on which Harlow relied and to bring it to bear on qualified immunity doctrine. We do so in three Parts. Part I sketches how nineteenth-century government accountability law both shielded high-level official action and preserved rule of law values by authorizing suit to go forward against low-level officials. It did so by directing litigation at executive officials performing ministerial functions. Across a range of remedial forms — including those initiated by writs of trespass, mandamus, and habeas corpus — suits to test the legality of government policy were typically directed at line officers rather than policymaking officials. Such ministerial actors enjoyed no immunity from suit and could not plead superior orders as a defense to personal liability. Indemnity took the sting out of personal liability and shifted the cost of noncompliance to the government.

Having clarified the role of ministerial accountability in the nineteenth century, Part II explains how constitutional litigation changed in the twentieth. The discretionary function exemption operated at common law to create a zone of discretion within which the official could act free from any threat of liability.¹¹ But in a mostly overlooked element of Ex parte Young,¹² the Supreme Court rejected the claim that, as a high government official exercising discretion as to the enforcement of law, Minnesota Attorney General Edward T. Young’s prosecutorial decisions lay beyond judicial control.¹³ In reaching that conclusion, the Court viewed the Fourteenth Amendment as imposing a duty on Young to refrain from enforcing unconstitutional state laws and as overriding any official immunity that Young might enjoy under state law.¹⁴ Later decisions broadened the direct enforcement of constitutional rights,¹⁵ setting the stage for constitutional tort suits against high-level officials and posing a threat to policy formulation that the Court chose to manage with qualified immunity.

Part III explains on rule of law grounds why the Harlow Court’s protections for high-level discretionary actors do not inevitably extend to line officers who carry out the policies in question. In keeping with the nineteenth-century model, Harlow balanced the importance of protecting high-level officials with the need to preserve a test of legality through litigation directed at low-level or ministerial actors. Where government officials enforce the law through summary action, where no alternative modes of review exist, and where state of mind and policy formation play no confounding role in the assessment of legality, individuals should have a right to test constitutionality without having to surmount Harlow’s clear-law standard. Indeed, many states continue to distinguish between ministerial and discretionary functions for liability purposes, agreeing with Harlow’s animating intuition that immunity does not extend to all official conduct. Part III shows that any plausible version of the ministerial-discretionary distinction — whether rooted in nineteenth-century or more recent doctrine — would shrink qualified immunity’s footprint and lessen the impact of its many well-documented problems. A brief conclusion follows.

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