Suppose that the President of the United States issues an executive order that violates the constitution. Can officials carrying out the executive order be considered guilty of violating the constitution, or are they shielded until a court order declares the unconstitutionality? What if it's clearly unconstitutional (e.g., assassinate my opponent)?

(Question inspired by EO 13769, against which legal challenges are ongoing, but I'm interested in general answers.)

  • 2
    Note that "assassinate my opponent" isn't really a constitutional issue, it's just a criminal offence. Whether you've failed to uphold the constitution in violation of the duties of your public office is kind of secondary if you're also on trial for murder one. Commented Feb 3, 2017 at 14:53
  • @SteveJessop I meant to give an example of something where it doesn't take a court to decide that an action is unlawful. It's frankly not extremely far from the targeted killing of "enemy combatants".
    – gerrit
    Commented Feb 3, 2017 at 15:00
  • You're making a political argument, not a legal one. Presumably nobody is going to undertake an action that they admit is illegal. If the question of legality is raised, then it can be addressed by the legal system.
    – feetwet
    Commented Feb 3, 2017 at 17:09
  • @feetwet But are officials supposed to carry it out when it is still under consideration by the legal system?
    – gerrit
    Commented Feb 3, 2017 at 17:15
  • 1
    There's a principle in military law that one is not obligated to obey an illegal order from a superior; indeed, one is obligated to refuse it. I don't know if there is a similar principle for civilian government officials. However, civilian officials have an additional option which military service members do not: they can quit their job if they don't want to carry out orders. Commented Feb 3, 2017 at 22:30

1 Answer 1


Is a government official personally liable when, within the sphere of his or her official responsibility, they violate a person's constitutional rights?

Some officials “whose special functions or constitutional status requires complete protection from suits for damages [...] including certain officials of the Executive Branch, such as prosecutors and similar officials, and the President, are entitled to the defense of absolute immunity”. Harlow v. Fitzgerald, 457 U.S. 800 (1982) (internal citations omitted). “For executive officials in general, however, [the Court] makes plain that qualified immunity represents the norm.” Id., at 807.

Officers entitled to qualified immunity “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.” Id., at 818. (emphasis added).

In order to survive a motion to dismiss, the court must decide that the asserted right “was clearly established at the time of the alleged violation.” Conn v. Gabbert, 526 U.S. 286 (1999).

A defendant cannot be said to have violated a clearly established right unless the right's contours were sufficiently definite that any reasonable official in the defendant's shoes would have understood that he was violating it. In other words, existing precedent must have placed the statutory or constitutional question confronted by the official beyond debate. Plumhoff v. Rickard, 572 U.S. ____ (2014) (internal citations omitted, citing Ashcroft v. al-Kidd, 563 U.S. ____ (2011)).

Related cases:

  • Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971)
  • Harlow v. Fitzgerald, 457 U.S. 800 (1982)
  • Hope v. Pelzer, 536 U.S. 730 (2002)
  • Ashcroft v. Iqbal, 556 U.S. 662 (2009)
  • Is there any case whatsoever where a government actor was legally found to "violate the Constitution"?
    – user6726
    Commented Feb 3, 2017 at 18:12
  • @user6726 Yes, but they're hard to find and tally, because these are at the district court level. They often arise relating to conditions of detention. An amicus brief by the US in Kimberlin v. Quinlan: "In the three years from 1992 through 1994, there was a monetary settlement in approximately 16 of the 1,513 cases against BOP officials that included Bivens claims, and two of the dozen such cases that went to trial during that period resulted in a judgment in favor of the plaintiff."
    – K-C
    Commented Feb 3, 2017 at 18:31
  • @user6726 Hope v. Pelzer, 536 U.S. 730 (2002). "The Eighth Amendment violation here is obvious on the facts alleged." "The obvious cruelty inherent in this practice should have provided respondents with some notice that their alleged conduct violated Hope's constitutional protection against cruel and unusual punishment."
    – K-C
    Commented Feb 3, 2017 at 18:51

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