You should watch current events around the various Trump Administration's actions and the challenges to those actions with this class and what we have learned in mind. The lawyers pursuing these cases are putting into practice what we do here (and in Fed Courts). And one thing it shows is how remedial limitations affect constitutional litigation and courts' ability to address constitutional problems.
Plaintiffs seek declaratory and injunctive relief. We will get deeper into remedies in the last chapter, but § 7.01[4] offers a brief overview of the process for seeking equitable relief in the trial court and we mentioned that any decision on the injunction is immediately appealable under § 1292(a)(1). But consider what happens while litigation is ongoing. Some enforcement takes place, even if it might prove invalid. The Administration's actions have a chilling effect on others, who do not engage in some conduct (e.g., coming to or remaining in the United States), not knowing how that litigation will turn out. And there is harm in waiting--consider federal employees seeking to avoid termination or to get their jobs back. And the Administration gains political points from being seen to take aggressive action, even if that action is ultimately declared unlawful--he can tell the public that it tried but squishy liberals such as John Roberts stopped him. In other words, the government has an incentive to continue arguably unlawful activity; the risk of litigation defeat and injunction may not stop it from engaging in in the moment and while it can get away with it, daring the court to stop it.
In theory, damages fill this gap, by imposing liability and a remedy for past misconduct. Government cannot act unlawfully until told to stop, because a person can recover damages for that past unlawful conduct. Thus consider why the (more-or-less) death of Bivens and other mechanisms for seeking damages from the federal government and federal officials. It is not damages-or-nothing for a Venezuelan non-gang-member, a person born in the US to parents on student Visas, or to federal employees. But injunctive relief leaves them more vulnerable than if they could pursue a more complete array of remedies. And we can say the same about expansive qualified immunity--even with Bivens, those damages might not be available.
