#ftca

I'm on a 20+ city book tour for my new novel PICKS AND SHOVELS. Catch me in PITTSBURGH on THURSDAY (May 15) at WHITE WHALE BOOKS, and in PDX on Jun 20 at BARNES AND NOBLE with BUNNIE HUANG. More tour dates (London, Manchester) here.

Trump's coalition includes a huge number of people who will suffer terribly from his policies, but who voted for him anyway. Trumpism requires that he find ways to keep those Christmas-voting turkeys happy, or at least distracted.

Trump's go-to move for keeping his base happy is inflicting pain on people they hate, like immigrants, racialized people, queers and women. That goes a long way, obviously: there's a kind of person who can be distracted from their own deteriorating material condition by the spectacle of cruel treatment for their enemies.

But Trumpism can't just run on sadism. There's a lot of people who enjoy the sadism, but not so much that it cancels out their own rage at their deteriorating personal conditions. Trump's main tactic is to blame the suffering of his base on the rest of us: "radical leftists," "wokeism" and other hobgoblins of the small-minded. That, too, has its limits – especially when Trump controls Congress, the courts, the senate and the White House. Obviously, Trump isn't above blaming his own people for being traitors (e.g., by sending a literal noose-bearing lynch mob after his own vice president), but there are limits to this, even for Trump. If all the power-brokers in Trump's coalitions are branded as disloyal, cowardly, or traitorous, Trump will have no one left to do the actual work of advancing his agenda.

Ultimately, keeping Trump's base happy requires providing some form of material benefit to that base. Every authoritarian has a version of this – like the cash handouts that Poland's former far-right government gave out:

https://pulitzercenter.org/stories/poland-model-promoting-family-values-cash-handouts

For Trump, this presents a problem: because he represents the interests of exploitation, extraction and looting, everything nice that he gives to everyday people in his base potentially gores the ox of someone who really matters to him. It's no surprise, for example, that he reversed Biden's price-cuts for Big Pharma's most expensive drugs – the cheaper drugs are for sick people, the less profitable they'll be for pharma companies:

https://www.levernews.com/trump-already-disarmed-the-war-on-drug-prices/

Jamaican-born Davino Watson became a naturalized U.S. citizen in 2002, at the age of 17. In 2007, he pleaded guilty to selling cocaine. When his sentence ended in 2008, ICE arrested him and began deportation proceedings.

Watson, then 23 years old, told the immigration officers that he was a U.S. citizen. He told jail officials that he was a U.S. citizen. He told a judge that he was a U.S. citizen. He even provided the name and phone number of his U.S. citizen father. But Watson had only a partial high school education, no legal training, and no lawyer because there is no right to an attorney in immigration court. So everyone ignored him, no one called his father, and ICE held this U.S. citizen in custody as a deportable alien for 1,273 days--nearly 3½ years.

To be clear: Yes, it is illegal for U.S. immigration authorities to hold American citizens in detention.

In November of 2011, ICE finally released Watson “into rural Alabama (where he knew nobody), without money, and without being told the reason for his release.” His deportation proceedings continued for more than another year before ICE finally conceded that Watson was a U.S. citizen.

Watson sued the government in federal court for false imprisonment. In 2016, the court awarded him $82,500, criticizing ICE’s conduct as a “legal disaster,” “mindless failure,” “carelessness,” and “easily avoidable error.”

“Plaintiff was badly treated by government employees. He deserves a letter of apology from the United States in addition to damages. But the court is not empowered to order this courtesy.”

The government appealed, and in 2017 the appellate court threw out Watson’s award in its entirety. The court did not question any of the underlying facts, but held that the two-year statute of limitations on Watson’s claim for false imprisonment had expired back in 2010, while he was still in ICE custody. Without a lawyer.

“It is harsh to place the burden on Watson to file a claim for damages while he is in immigration detention and fighting to prevent his deportation.”

Well In a sense, it's not even a matter of opinion.  The answer to your question is basically yes.

Prior to the passage of The Federal Tort Claims Act, the government basically abided by the old English Common Law doctrine of "The King Can Do No Wrong," i.e. sovereign immunity.  This was originally predicated in English Common Law on the idea that the King technically owned the country, and as such, his will was unimpeachable.  That includes if he decides to injure someone or take their shit.  In more modern regimes, it is predicated on the idea that when a plaintiff sues the government, the plaintiff is basically suing every taxpayer in aggregate, including themselves.  It therefore serves no one's interest to hold the government as an entity accountable, since they would pay damages out of the pockets of millions of taxpayers who have only a remote connection to the actions of the government (via the democratic process of selecting policy makers).

Brief history aside, The FTCA was authored in 1946 after an Air Force bomber crashed into the Empire State Building, and certain families of the deceased tried to sue the government.  Believe it or not, the FTCA was literally the first time that private citizens could sue the Federal Government.

But even this right to sue the federal government isn't unlimited.  The FTCA provides an exception for injuries that result from "discretionary decisions" in leadership.  This is kind of vague language, but an example would be the decision by a military commander to carpet-bomb NYC to save the U.S.A. from a deadly outbreak.  Another example would be the fact that you can't sue the government in Tort for raising your taxes, i.e. you can't hold them civilly liable.

State and Local governments operate under a similar legal framework known as "qualified immunity."  Qualified immunity applies to actions by State Government officials or Agents who are carrying out public duties.  This is an odd one, in that generally courts will not find Common Law liability on the part of the state unless they've established a "Special Relationship," i.e. the individual changed their position in reliance on a specific promise to act by government officials.  This could be different from State to State, however, based on statutory changes to the Common Law.

So if the Federal government can be sued for most things under the FTCA, then why can't States be sued the same way?  I draw your attention to a somewhat recent case from Maine, Alden v Maine (1999):

[While] the States’ immunity from suit [is sometimes referred to] as "Eleventh Amendment immunity[,]" [that] phrase is [a] convenient shorthand but something of a misnomer, [because] the sovereign immunity of the States neither derives from nor is limited by the terms of the Eleventh Amendment. Rather, as the Constitution's structure, and its history, and the authoritative interpretations by this Court make clear, the States’ immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today (either literally or by virtue of their admission into the Union upon an equal footing with the other States) except as altered by the plan of the Convention or certain constitutional Amendments.