The Cato Institute highlights conservatives against qualified immunity (QI). On August 25, Cato published a QI-themed blog post. Clark Neily penned the post. The article appears on the Cato at Liberty blog. Neily is a legal scholar and Cato’s senior vice president. Furthermore, he’s a noted QI critic.
Clark Neily’s piece provides a conservative case against QI. Although progressives are especially vocal about wanting to end QI, the cause is nonpartisan. In fact, various right-of-center groups support QI reform. Among them: the Libertarian Cato Institute. (Cato is one of the Campaign to End Qualified Immunity’s coalition partners.)
In his post, Clark Neily notes that Republicans’ embrace of QI “is a particularly odd stance.” That’s because ending qualified immunity will uphold three key conservative tenets.
First, personal responsibility.
As Neily notes, QI “represents a get-out-of-responsibility-free card” for bad cops. This, he writes, “is both discreditable and immoral.” Personal responsibility is a “bedrock principle” for conservatives. After all, “people should be responsible for their own actions.”
Thus, if someone breaks the rules, they must face the consequences. However, qualified immunity shields bad actors from personal accountability. This goes against conservative values.
Second, limited government.
Government officials “are clothed with extraordinary powers and breathtakingly broad discretion,” Clark Neily says. Meaning, they have too much authority. Unfortunately, some public servants take advantage of this authority. These include bad cops.
Due to QI, bad cops “can decide whether to turn a blind eye” toward a citizen’s individual rights. Because of the doctrine, law enforcement can exercise “arbitrary power.” This goes against conservative principles. Conservatives believe in less interference from government actors.
Third, stopping judicial activism.
“Judicial activism,” Neily states, “is when judges write their own policy preferences into law.” Conservatives take issue with judicial activism. That’s because a judge’s preference might be “in direct conflict” with the Constitution.
Qualified immunity is a court-created rule. Specifically, the Supreme Court. In addition, the Court invented QI “out of whole cloth.” Clark Neily calls this creation “a blatantly anti-democratic act of judicial policymaking.” As he explains, QI “has empowered government actors at the expense of individual liberty.” This goes against the Constitution—and conservatism.
Read the entire Cato at Liberty blog post on conservatives against QI here.