WASHINGTON, DC – Following oral argument at the Supreme Court this morning in Martin v. United States, a case in which the Court is considering whether the Supremacy Clause overrides the Federal Tort Claims Act (FTCA)’s express waiver of sovereign immunity when a federal employee’s actions “have some nexus with furthering federal policy” and “can reasonably be characterized as complying with the full range of federal law,” Constitutional Accountability Center Senior Appellate Counsel Miriam Becker-Cohen issued the following reaction:

This case at its core is about whether the federal government can be held liable for sending a federal team of SWAT officers to conduct a no-knock raid at the wrong house of an innocent family. The answer is plainly yes.

Lower courts have applied two barriers to relief in these sorts of cases. One is the novel idea invented by the Eleventh Circuit that the Constitution’s Supremacy Clause somehow bars claims under the FTCA because that federal statute incorporates state tort law. The Court today had almost no questions about that issue. When the Supremacy-Clause exception did come up, not a single Justice so much as suggested that it barred an FTCA claim here.

The second barrier is the FTCA’s exception for certain discretionary functions, and the Court today focused on the interaction between that exception and the law-enforcement proviso that Congress passed in response to a series of abusive and illegal wrong-house raids conducted by federal law enforcement officers. Although the Justices expressed some skepticism of the breadth of Petitioners’ position on that issue, they were equally skeptical of the federal government’s assertion that conducting a raid at the wrong house involves some measure of discretionary policymaking deserving of protection. Justice Gorsuch asked rhetorically, “How about making sure you’re on the right street? Checking the street sign. Is that asking too much?”

And the Justices’ skepticism is warranted. Congress explicitly waived the federal government’s sovereign immunity in the FTCA, and it enacted the law-enforcement proviso decades later to ensure that the government’s waiver of sovereign immunity would extend to precisely this scenario and create a remedy for the horrors inflicted by wrong-house raids.

CAC Douglas T. Kendall Fellow Nargis Aslami added this reaction:

As we argued in our amicus brief, the FTCA, as a constitutionally enacted federal law, simply cannot violate the Supremacy Clause. The Founders wrote the Supremacy Clause to ensure that federal laws take precedence over conflicting state laws and assigned to the judiciary the critical role of applying the Clause as a principled rule of decision in resolving such conflicts. The fact that the FTCA incorporates state law as the source of liability does not dispossess the FTCA of its status as “the supreme Law of the Land,” nor does it allow courts to rewrite the scope of the FTCA’s unambiguous and carefully crafted waiver of sovereign immunity.

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