Grant Bauserman v. Unemployment Insurance Agency ( 2022 )


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  •                                                                                     Michigan Supreme Court
    Lansing, Michigan
    Syllabus
    Chief Justice:               Justices:
    Bridget M. McCormack        Brian K. Zahra
    David F. Viviano
    Richard H. Bernstein
    Elizabeth T. Clement
    Megan K. Cavanagh
    Elizabeth M. Welch
    This syllabus constitutes no part of the opinion of the Court but has been                Reporter of Decisions:
    prepared by the Reporter of Decisions for the convenience of the reader.                  Kathryn L. Loomis
    BAUSERMAN v UNEMPLOYMENT INSURANCE AGENCY
    Docket No. 160813. Argued on application for leave to appeal on October 6, 2021.
    Decided July 26, 2022.
    Grant Bauserman, Karl Williams, and Teddy Broe, on behalf of themselves and all others
    similarly situated, brought a putative class action in the Court of Claims against the Unemployment
    Insurance Agency, alleging that defendant had violated their due-process rights in violation of
    Const 1963, art 1, § 17 and that defendant had also engaged in unlawful collection practices.
    Plaintiffs, who were all recipients of unemployment compensation benefits, specifically alleged
    that defendant had used an automated fraud-detection system—the Michigan Integrated Data
    Automated System (MiDAS)—to determine that plaintiffs had received unemployment benefits
    for which they were not eligible and then garnished plaintiffs’ wages and tax refunds to recover
    the amount of the alleged overpayments, interest, and penalties that defendant had assessed without
    providing meaningful notice or an opportunity to be heard. Defendant moved for summary
    disposition on multiple grounds, including that the claims were not timely filed and that plaintiffs
    could not pursue a constitutional-tort claim against defendant because plaintiffs had alternative
    remedies they could pursue under the Michigan Employment Security Act (MESA), MCL 421.1
    et seq. The Court of Claims, CYNTHIA D. STEPHENS, J., denied defendant’s motion, reasoning, in
    part, that plaintiff’s constitutional claims were viable because the administrative remedies were
    inadequate. Defendant appealed. In an unpublished per curiam opinion issued July 18, 2017
    (Docket No. 333181), the Court of Appeals, GADOLA, P.J., and METER and FORT HOOD, JJ.,
    reversed, concluding that plaintiffs’ claims were not timely filed. Plaintiffs sought leave to appeal
    in the Supreme Court, which ordered and heard oral argument on the application. 
    501 Mich 1047
    (2018). In lieu of granting leave to appeal, the Supreme Court held that the actionable harm in a
    predeprivation due-process claim occurs when a plaintiff has been deprived of property and that
    such a claim accrues when a plaintiff has first incurred the deprivation. As a result, Bauserman
    and Broe had timely filed their claims within six months following the deprivation of their
    property, but Williams had not. The Supreme Court thus affirmed in part and reversed in part the
    Court of Appeals judgment and remanded the case to the Court of Appeals for consideration of
    defendant’s argument that plaintiffs failed to raise cognizable constitutional-tort claims. 
    503 Mich 169
     (2019). On remand, in a published opinion issued December 5, 2019, the Court of Appeals,
    METER and FORT HOOD, JJ. (GADOLA, P.J., concurring), concluded that the alleged violations
    arose from actions taken by state actors pursuant to a governmental policy and that they could be
    characterized as an established practice of state government officials such that they amounted to a
    custom supported by the force of law. 
    330 Mich App 545
     (2019). In concluding that damages
    were available as a remedy for the due-process deprivation plaintiffs alleged, the Court of Appeals
    applied the multifactor balancing test set forth by Justice BOYLE in her opinion in Smith v Dep’t of
    Pub Health, 
    428 Mich 540
     (1987) (BOYLE, J., concurring in part and dissenting in part). Defendant
    sought leave to appeal. The Supreme Court ordered and heard oral argument on whether to grant
    defendant’s application for leave to appeal or take other action. 
    506 Mich 965
     (2020).
    In an opinion by Justice CAVANAGH, joined by Chief Justice MCCORMACK and Justices
    BERNSTEIN, and WELCH, the Supreme Court, in lieu of granting leave to appeal, held:
    A constitutional-tort action for monetary damages against the state exists except in two
    specific circumstances: (1) when the Constitution has delegated to another branch of government
    the obligation to enforce the constitutional right at issue or (2) when another branch of government
    has provided a remedy that the Supreme Court considers adequate. An alternative remedy is
    adequate when it is at least as protective of a particular constitutional right as a judicially
    recognized cause of action would be. Justice BOYLE’s differing multifactor approach for
    determining whether a constitutional-tort action could be brought against the state was rejected as
    was her assertion that the state could not be held vicariously liable. People who have been deprived
    of a constitutional right may seek redress through the courts, regardless of whether the harm was
    inflicted pursuant to state custom or policy; in other words, the state can be responsible under a
    theory of respondeat superior for the actions of its agents whether or not the agents were acting
    under a state custom or policy at the time of the alleged tort. In this case, neither of the exceptions
    to the existence of liability for a constitutional tort applied to plaintiffs’ claims that defendant
    violated their due-process rights. Plaintiffs alleged a cognizable constitutional-tort claim for which
    they could recover money damages. The Court of Claims correctly denied defendant’s motion for
    summary disposition.
    1. Although the Court of Appeals has frequently applied the multifactor test set forth in
    Justice BOYLE’s partial concurrence in Smith, the Michigan Supreme Court has not previously
    found consensus on whether violations of the state’s Constitution are compensable through actions
    seeking monetary damages. However, in Bivens v Six Unknown Named Agents of Fed Bureau of
    Narcotics, 
    403 US 388
     (1971), which recognized for the first time a cause of action against federal
    agents for a violation of federal constitutional rights, the United States Supreme Court made clear
    that constitutional violations have historically been redressed with monetary damages; other state
    courts have similarly concluded that they bear the duty of vindicating rights guaranteed in their
    constitutions. The continued vitality of Bivens and how federal constitutional torts differ from
    state constitutional torts was not relevant to the holding of the Court in this case; the holding did
    not rely on Bivens but on the authorities discussed in that case. Plaintiffs’ cause of action was
    grounded in state constitutional rights and the Michigan Supreme Court’s authority and duty to
    say what the law is.
    2. Relevant here, Article 1 of Michigan’s Constitution, the Declaration of Rights, is the
    bedrock upon which everything else in the Constitution was built because it guarantees civil and
    political integrity and the freedom and independence of the state’s citizens. Any right given in the
    Constitution must have a remedy or it is not a right at all but, instead, a voluntary obligation. The
    Constitution does not have to explicitly provide for a remedy for a constitutional violation in order
    for the Court to enforce its guarantees, regardless of whether the appropriate remedy is in the form
    of an injunction or money damages; indeed, only a handful of the 27 sections of the Declaration
    of Rights mention remedies at all.
    3. While the Constitution vests the legislative power of the state in the Senate and House
    of Representatives, granting them the right to make laws and to alter or repeal them, it exclusively
    vests the judicial power of the state in the Court, which retains all judicial power not ceded to the
    federal government. The Separation of Powers Clause of Michigan’s Constitution requires courts
    to recognize and redress constitutional violations; in that regard, the Michigan Supreme Court has
    primary responsibility for interpreting and enforcing the Constitution absent an explicit
    constitutional provision limiting its authority to redress constitutional violations. Stated
    differently, vindication of constitutional rights is not dependent on legislative action unless the
    Constitution specifically delegates that power to the Legislature. The scope of the Legislature’s
    authority to regulate tort liability created by statute has no bearing on whether the Legislature has
    authority to restrict rights codified in the Constitution, let alone whether those rights remain
    undeveloped without legislative enactment. Further, Legislative silence on the issue of remedies
    for a due-process violation under Const 1963, art 1, § 17 does not signal the ratifiers’ intent to
    preclude any mechanism of enforcement. However, while the Legislature may not trump the
    Constitution, it may enact a remedial scheme to provide a way in which to vindicate a
    constitutional right equal to that which the Court could afford. Thus, if the Legislature already
    provides an adequate mechanism to remedy a constitutional tort—i.e., one that is at least as
    protective of a particular constitutional right as a judicially recognized cause of action would be—
    the Court is not required to duplicate the effort. Absent those considerations, the Court retains
    authority to vindicate the rights guaranteed by the state’s Constitution, including by recognizing
    actions seeking money damages. Accordingly, money damages are an available remedy for
    constitutional torts unless (1) enforcement of the constitutional right was delegated to another
    branch of government by the Constitution or (2) the Court considers adequate the remedy provided
    by another branch of government. By adopting this test, the Court rejected Justice BOYLE’s
    multifactor approach in Smith. The Court’s inherent judicial authority requires the Court to afford
    a remedy for all constitutional violations, not just those it deems wise or justified. Further, unlike
    Justice BOYLE’s test, the standard of liability in a constitutional-damages claim is not limited to a
    direct standard of liability; people who have been deprived of a constitutional right may seek
    redress through the courts, regardless of whether their harm was inflicted pursuant to state custom
    or policy.
    4. The Due Process Clause of Michigan’s Constitution, which is part of the Declaration of
    Rights, provides that no person shall be compelled in any criminal case to be a witness against
    himself, nor be deprived of life, liberty, or property, without due process of law. The right of all
    individuals, firms, corporations, and voluntary associations to fair and just treatment in the course
    of legislative and executive investigations and hearings shall not be infringed. The language of
    the Due Process Clause does not confer authority on another branch of government to provide a
    remedy for a violation of that right; thus, courts may infer a damages remedy under that provision
    if another branch of government has not provided an adequate remedy.
    5. In this case, plaintiffs asserted that defendant’s use of MiDAS deprived them of their
    property without adequate process and an opportunity to be heard. The Due Process Clause did
    not confer authority on another branch of government to provide a remedy for violation of that
    right. MESA did not provide a remedy for plaintiffs because they did not challenge the
    administration of the act or seek a super appeal from a benefits determination. Instead, plaintiffs
    brought a tort claim challenging defendant’s use of MiDAS to deprive plaintiffs of property
    without due process of law, and no other adequate remedy existed to vindicate the alleged violation
    of plaintiffs’ rights. Under the facts alleged, plaintiffs’ allegations, if proven, were sufficient to
    sustain a constitutional-tort claim under Michigan’s Due Process Clause for which they could
    recover monetary damages. The Court of Claims correctly denied defendant’s motion for
    summary disposition.
    Affirmed; case remanded to the Court of Claims for further proceedings.
    Justice WELCH, concurring, agreed with the majority that a party has the ability to sue the
    state for monetary damages on the basis of an alleged constitutional violation and that the remedy
    will be implied when the only way to adequately remedy the violation is to allow for monetary
    damages. She also agreed with the majority’s framework for recognizing a constitutional tort for
    monetary damages and with the holding that plaintiffs pleaded a valid constitutional tort for
    monetary damages in this case. She wrote separately because she would have gone further than
    the majority and expressly limited monetary damages for constitutional torts to claims arising from
    a violation of a right enumerated in Michigan’s Declaration of Rights, Const 1963, art 1. The
    liberties set forth in the Declaration are fundamental and inalienable while the balance of the
    Constitution focuses on alienable rights and liberties that the people have entrusted to the state to
    allow for a democratic government to operate. Typically, a violation of those alienable rights
    would be poorly suited to vindication through a monetary-damages award against the state. For
    those reasons, Justice WELCH limited her concurrence with Part III of the majority opinion to the
    extent it could be interpreted as applying beyond a claim under the Declaration of Rights and she
    did not join footnote 13 of that opinion to the extent it declined to adopt such a limitation. The
    majority’s “adequate-alternative-remedy requirement” substantially limits the state’s liability for
    constitutional-tort claims because those claims are rare given that adequate alternative remedies to
    an implied monetary-damages remedy exist in most cases. An adequate remedy need not make a
    plaintiff whole in every circumstance; and the Legislature may manage potential exposure by
    providing rights and remedies in legislation that are substantial enough to adequately secure and
    give meaning to the constitutional right. Unless monetary damages are necessary to secure and
    vindicate a violation of a constitutional right, a policy decision of the Legislature or the Executive
    Branch regarding how to remedy a violation of legal rights under a statutory scheme should not be
    second-guessed. The threshold question for judges is whether a remedy is adequate, not whether
    it is ideal or equally comprehensive. To that end, the question is not just whether monetary
    damages or other remedies are available by some other means, such as through a state or federal
    statute or through a cause of action under the common law; the question is also whether the existing
    remedy—injunctive relief, declaratory relief, more process, a refund, or whatever it is—will be
    adequate such that the constitutional right is preserved and not rendered ineffectual.
    Justice VIVIANO, joined by Justice ZAHRA, dissenting, disagreed with the majority’s
    conclusion that a party has the ability to sue the state for monetary damages on the basis of an
    alleged constitutional violation. Any reliance on Bivens to support the Court’s holding was
    misplaced because the United States Supreme Court has only recognized a Bivens-style damages
    claim on two other occasions and those decisions pose separation-of-powers concerns because the
    Constitution grants to the Legislature the power to create causes of action, not the judiciary. Under
    Justice BOYLE’s test in Smith, courts considered multiple factors when determining whether to
    infer a damages remedy for violations of the Constitution caused by a custom or policy. The
    separation-of-powers criticisms of Bivens apply equally to Smith. Courts violate the separation of
    powers when they create causes of action for money damages for constitutional violations; only
    the Legislature has authority to fashion remedies for constitutional wrongs, not the judiciary. The
    majority’s recognition of monetary damages for a constitutional violation by the states obliterates
    the protections afforded by the separation of powers. To the extent the majority grounded its
    decision on the Court’s common-law powers, the decision massively expanded constitutional-tort
    liability. The majority’s test provides no guidance in that the Legislature’s remedy for a
    constitutional violation will only be adequate if it is that which the Supreme Court would have
    come up with itself. In addition, the scope of the holding was uncertain because, while the opinion
    focuses on a provision in the Declaration of Rights, three justices left open the possibility that
    implied causes of action for damages could be found outside the Declaration. Nothing in the text
    or history of Michigan’s Constitution supports finding a general cause of action for damages based
    on constitutional violations; relevant here, the text of the Due Process Clause does not support a
    damages remedy. By allowing such claims, Smith was wrongly decided and the majority here
    compounded the error by broadening Smith. There is a distinction between a court invalidating
    unconstitutional governmental action by enjoining those violations and a court adopting judicially
    created doctrines that, in effect, usurp legislative authority by creating de facto statutory
    enactments to implement a constitutional provision. Thus, recognizing that a person may invoke
    a court’s equitable powers to enjoin constitutional violations is not inconsistent with rejecting the
    inferring of causes of action for damages from the constitutional text. The majority’s textual
    analysis amounts to the proposition that the very nature of a right implies a remedy, but the United
    States Supreme Court and this Court have recognized that not all areas of law provide for damages
    remedies for the violation of rights. The majority’s suggestion that there is a historical practice of
    inferring damages remedies is also not on point because the cases relied on were ordinary tort
    actions in which the constitutional arguments were incidental to the cause of action and entitlement
    to damages. Justice VIVIANO would have held that the majority’s expansion of Smith was wrong
    and that Smith should be overruled, putting an end to the Court’s usurpation of the Legislature’s
    authority to create causes of action for damages for constitutional violations. Nonetheless, he
    noted that had the majority simply applied Justice BOYLE’s test, which three justices in the current
    majority recently noted was “persuasive,” a damages remedy could not properly have been inferred
    given the facts in this case.
    Justice CLEMENT, dissenting, disagreed with the majority’s reconsideration and
    replacement of the test set forth in Justice BOYLE’s partial concurrence in Smith because that action
    was not requested by plaintiffs. For the reasons stated in Part IV of Justice VIVIANO’s dissent,
    Justice CLEMENT would have applied the Smith test to conclude that a damages remedy should not
    be inferred in this case.
    Michigan Supreme Court
    Lansing, Michigan
    OPINION
    Chief Justice:                 Justices:
    Bridget M. McCormack          Brian K. Zahra
    David F. Viviano
    Richard H. Bernstein
    Elizabeth T. Clement
    Megan K. Cavanagh
    Elizabeth M. Welch
    FILED July 26, 2022
    STATE OF MICHIGAN
    SUPREME COURT
    GRANT BAUSERMAN, KARL
    WILLIAMS, and TEDDY BROE, on Behalf
    of Themselves and All Others Similarly
    Situated,
    Plaintiffs-Appellees,
    v                                                                No. 160813
    UNEMPLOYMENT INSURANCE
    AGENCY,
    Defendant-Appellant.
    BEFORE THE ENTIRE BENCH
    CAVANAGH, J.
    In this case, we are presented with the question of whether plaintiffs have alleged a
    cognizable state constitutional-tort claim allowing them to recover a judicially inferred
    damages remedy. Plaintiffs allege that defendant, Michigan’s Unemployment Insurance
    Agency (the Agency), adjudicated allegations of fraud, seized plaintiffs’ tax returns, and
    imposed penalties on plaintiffs without providing meaningful notice or an opportunity to
    be heard in violation of Michigan’s constitutional right to due process, Const 1963, art 1,
    § 17. Among other remedies for this constitutional violation, plaintiffs seek monetary
    damages. Although we have never specifically held that monetary damages are available
    to remedy constitutional torts, we now hold that they are. Inherent in the judiciary’s power
    is the ability to recognize remedies, including monetary damages, to compensate those
    aggrieved by the state, whether pursuant to an official policy or not, for violating the
    Michigan Constitution unless the Constitution has specifically delegated enforcement of
    the constitutional right at issue to the Legislature or the Legislature has enacted an adequate
    remedy for the constitutional violation. Because enforcement of Const 1963, art 1, § 17
    has not been delegated to the Legislature and because no other adequate remedy exists to
    redress the alleged violations of plaintiffs’ rights, we agree that plaintiffs have alleged a
    cognizable constitutional-tort claim for which they may recover money damages and we
    agree with the lower courts that defendant was properly denied summary disposition.
    I. FACTS AND PROCEDURAL HISTORY
    Plaintiffs Grant Bauserman and Teddy Broe are former recipients of unemployment
    compensation benefits who allege that the Agency unlawfully seized their property through
    use of the Michigan Data Automated System (MiDAS) without affording them due process
    of law. Their complaint alleges that MiDAS initiates an automated process that can result
    in recipients being disqualified from benefits and subjected to penalties and criminal
    prosecution, all without notice or an opportunity to be heard.
    2
    Grant Bauserman separated from employment with Eaton Aeroquip and then
    collected unemployment benefits from September 2013 to March 2014. On December 3,
    2014, the Agency issued two notices of redetermination—one claiming that Mr.
    Bauserman had received unemployment benefits for which he was ineligible and another
    claiming that he had intentionally misled the Agency or concealed information from it.
    The Agency assessed penalties and interest and informed Mr. Bauserman that he owed
    $19,910.   He timely protested the redetermination through an online appeal on the
    Agency’s website, and that protest was forwarded to the Michigan Administrative Hearing
    System (MAHS) for a hearing. However, MAHS sent the matter back to the Agency, and
    on June 16, 2015, the Agency intercepted Mr. Bauserman’s tax refund. Eventually, the
    Agency reviewed the information Mr. Bauserman submitted and concluded that its
    adjudication of fraud was incorrect—Mr. Bauserman was eligible for the unemployment
    benefits he had received, and he neither misled the Agency nor concealed information from
    it. On September 30, 2015, the Agency issued another redetermination, this one finding
    that the December 3, 2014 redeterminations were “null and void.”              The Agency
    subsequently returned all monies that it had improperly seized from Mr. Bauserman.
    Teddy Broe collected benefits in 2013, and the Agency issued a redetermination on
    July 15, 2014, finding Mr. Broe ineligible for benefits and assessing penalties. Mr. Broe
    did not initially protest, and the Agency assessed penalties and interest totaling more than
    $8,000. In April 2015, Mr. Broe wrote to the Agency, appealing the redetermination and
    explaining that he had not received the Agency’s earlier communications because they
    were sent to his online account with the Agency and he was no longer accessing that
    account because he was no longer receiving benefits. The Agency intercepted his tax
    3
    refunds in May 2015. The Agency initially denied the appeal as untimely but later
    reconsidered Mr. Broe’s case.      On November 4, 2015, the Agency issued a new
    redetermination in Mr. Broe’s favor and subsequently returned all monies that had been
    improperly seized from Mr. Broe.
    Mr. Bauserman filed a putative class action against the Agency on September 9,
    2015, and he later amended the complaint to add Mr. Broe as a named plaintiff.1 The
    complaint alleged that “Michigan’s Unemployment fraud detection, collection, and seizure
    practices fail to comply with minimum due process requirements.” (Emphasis omitted.)
    Mr. Bauserman cited 26 USC 6402(f)(3) (authorizing a state to collect unemployment
    compensation debts resulting from fraud from federal tax overpayments) and its several
    requirements, including notice, 60 days to present evidence, and consideration of presented
    evidence. In addition, Mr. Bauserman cited adjudication standards found in MCL 421.32a,
    including notice, a reasonable time to supply information to the Agency, 30 days to claim
    a hearing before an Administrative Law Judge, and a notice of appeal rights.
    As stated by the Court of Appeals, plaintiffs alleged that “the Agency systemically,
    and by way of concerted and coordinated actions, unlawfully intercepted their state and
    federal tax refunds, garnished their wages, and forced them to repay unemployment
    benefits that they had lawfully received.” Bauserman v Unemployment Ins Agency (On
    Remand), 
    330 Mich App 545
    , 565; 950 NW2d 446 (2019). Additionally, they alleged,
    1
    The amended complaint also added Karl Williams as a named plaintiff, but because Mr.
    Williams failed to comply with MCL 600.6431(3) (notice of claim), his claim was
    dismissed by this Court in a subsequent appeal discussed later in this opinion. Bauserman
    v Unemployment Ins Agency, 
    503 Mich 169
    , 193; 931 NW2d 539 (2019).
    4
    among other things, that MiDAS does not allow 60 days to present evidence and does not
    allow the Agency to consider presented evidence.          Plaintiffs also alleged that the
    questionnaires sent by the Agency do not provide the basis for the Agency’s suspicions or
    grounds for disqualification. Further, as a practical matter, many claimants never receive
    the questionnaires because they are sent only to the claimant’s electronic account with the
    Agency, without any additional notice via United States mail or e-mail. Among the alleged
    harms asserted by plaintiffs were that the Agency “failed to repay to Class Members or to
    repay on a timely basis funds which were seized by the UIA or paid over to UIA by the
    Class Member to satisfy overpayments and penalty determinations which were reversed at
    a later time.” Finally, plaintiffs alleged they were deprived of their property without due
    process of law in violation of Const 1963, art 1, § 17. The Agency moved for summary
    disposition on a number of grounds. Among them were that plaintiffs failed to state a
    constitutional-tort claim because other remedies existed. The Court of Claims denied the
    Agency’s motion on that ground. Prior appellate litigation centered on whether plaintiffs’
    claims accrued when the initial redeterminations were issued or when the Agency seized
    plaintiffs’ tax refunds. We held that “the ‘actionable harm’ in a predeprivation due-process
    claim occurs when a plaintiff has been deprived of property, and therefore such a claim
    ‘accrues’ when a plaintiff has first incurred the deprivation of property.” Bauserman v
    Unemployment Ins Agency, 
    503 Mich 169
    , 186; 931 NW2d 539 (2019). We then remanded
    the case to the Court of Appeals to “consider the Agency’s argument that it is entitled to
    summary disposition on the ground that plaintiffs failed to raise cognizable constitutional
    tort claims.” 
    Id.
     at 193 n 20.
    5
    On remand, the Court of Appeals started its analysis by reasoning that claims of this
    sort “originated” in Bivens v Six Unknown Named Agents of Fed Bureau of Narcotics, 
    403 US 388
    ; 
    91 S Ct 1999
    ; 
    29 L Ed 2d 619
     (1971). Bauserman (On Remand), 330 Mich App
    at 560. The Court of Appeals noted that in Smith v Dep’t of Pub Health, 
    428 Mich 540
    ,
    544; 
    410 NW 2d 749
     (1987), our Court held that “ ‘[a] claim for damages against the state
    arising from violation by the state of the Michigan Constitution may be recognized in
    appropriate cases,’ ” but that we did not provide any further guidance on when that claim
    for damages is available. Bauserman (On Remand), 330 Mich App at 560.
    The Court of Appeals followed its general practice with state constitutional torts by
    first asking whether “ ‘an official policy or custom caused a person to be deprived of [state]
    constitutional rights,’ ” id. at 561 (alteration in original), quoting Carlton v Dep’t of
    Corrections, 
    215 Mich App 490
    , 505; 546 NW2d 671 (1996), and it then looked to Justice
    BOYLE’s partial concurrence in Smith to determine whether damages were available,
    Bauserman (On Remand), 330 Mich App at 561-562, citing Smith, 
    428 Mich at 648-652
    (BOYLE, J., concurring in part and dissenting in part). The Court of Appeals concluded
    that the alleged violations arose from actions taken by state actors pursuant to a government
    policy and that they could be “aptly characterized as an established practice of state
    government officials such that [they] amount[] to a custom supported by the force of law.”
    Bauserman (On Remand), 330 Mich App at 566. Weighing the factors offered by Justice
    BOYLE’s partial concurrence, the Court of Appeals concluded that damages were available
    as a remedy for the due-process deprivations plaintiffs alleged. Id. at 576.
    Defendant sought leave to appeal in this Court, and we scheduled oral argument on
    the application, instructing the parties to address “whether the appellees have alleged
    6
    cognizable constitutional tort claims allowing them to recover a judicially inferred damages
    remedy.” Bauserman v Unemployment Ins Agency, 
    506 Mich 965
     (2020).
    II. STANDARDS OF REVIEW
    The decision before us for review is whether plaintiffs have failed to state a claim
    under MCR 2.116(C)(8). “A motion under MCR 2.116(C)(8) tests the legal sufficiency of
    a claim based on the factual allegations in the complaint.”          El-Khalil v Oakwood
    Healthcare, Inc, 
    504 Mich 152
    , 159; 934 NW2d 665 (2019). For purposes of this review,
    we accept all factual allegations in the complaint as true. Id. at 160. We review de novo a
    trial court’s decisions on motions for summary disposition. Id. at 159. We also review de
    novo questions of constitutional law. Winkler v Marist Fathers of Detroit, Inc, 
    500 Mich 327
    , 333; 901 NW2d 566 (2017).
    III. ANALYSIS
    The recognition and redress of constitutional violations are quintessentially judicial
    functions, required of us by the Separation of Powers Clause. See Const 1963, art 3, § 2.
    Our Court maintains primacy in interpreting the Constitution.          However, when the
    Constitution vests the Legislature with this authority and responsibility, our authority is
    proportionately lessened. Further, while the Legislature cannot trump the Constitution
    itself, the Legislature may implement a remedial scheme that provides a means of
    vindicating the constitutional right at a level equal to a remedy this Court could afford. In
    those circumstances, we would be unlikely to duplicate the Legislature’s efforts. But
    absent either of those conditions, this Court retains the authority—indeed the duty—to
    vindicate the rights guaranteed by our Constitution. That includes recognizing causes of
    7
    action seeking money damages. Therefore, money damages are an available remedy for
    constitutional torts unless (1) the Constitution has delegated to another branch of
    government the obligation to enforce the constitutional right at issue, see Lewis v State,
    
    464 Mich 781
    , 787; 629 NW2d 868 (2001) (stating that a cause of action for damages
    cannot be implied by the Constitution when the text of the Constitution instead vests
    authority in the Legislature to determine the remedies available), or (2) another branch of
    government has provided a remedy that we consider adequate, see Mays v Governor, 
    506 Mich 157
    , 197-198; 954 NW2d 139 (2020) (plurality opinion by BERNSTEIN, J.)
    (concluding that there was no sufficient alternative remedy—except by bringing a
    constitutional-tort claim—to recover money damages for the plaintiffs’ claim of injury to
    bodily integrity).
    A. SMITH AND MAYS
    Though the question of whether violations of our Constitution are compensable
    through actions seeking monetary damages has been posed to us before, we have not
    previously found consensus. In Smith we produced several opinions, but our holdings were
    limited. Ultimately, four Justices agreed that governmental immunity was not a defense to
    allegations of constitutional torts and that damages may be recognized in appropriate cases.
    Smith, 
    428 Mich at 544
    .
    In a concurring opinion, Justice BRICKLEY, joined by Justice RILEY, cataloged the
    ebb and flow of the United States Supreme Court’s decisions regarding federal
    constitutional torts, starting with Bivens. 
    Id. at 612-626
     (BRICKLEY, J., concurring). He
    then opined that he would have declined to recognize a remedy for the plaintiffs in the
    8
    Smith cases. 
    Id. at 626-636
    . One plaintiff, Jack Smith, who had been confined in a state
    psychiatric hospital for nearly 50 years, sought relief under 1908 Const, art 2, §§ 1 and 16
    for the confinement. Id. at 551-552. The other plaintiff, Ray Will, was an employee of the
    state of Michigan who was denied promotion. Id. at 546-550. He sought relief under Const
    1963, art 11, § 5 and art 1, §§ 2 and 17. Id. Justice BRICKLEY would have denied relief to
    plaintiff Smith, in part, because the Constitution he relied on was no longer in effect, and
    so plaintiff Smith was asking for a novel remedy only available to him. Id. at 626-632.
    Justice BRICKLEY also saw plaintiff Smith’s argument as grounded in Bivens itself, and he
    found several ways to distinguish plaintiff Smith’s facts from those in Bivens. Id. Plaintiff
    Will did not rely on Bivens but on the existence of a “ ‘cumulative judicial remedy.’ ” Id.
    at 633-636 (citations omitted). Justice BRICKLEY did not address this argument because
    he considered it to be unpreserved. Id.
    Also concurring, Justice BOYLE, joined by Justice M. CAVANAGH, agreed that
    plaintiff Will’s argument was unpreserved. Id. at 637 (BOYLE, J., concurring in part and
    dissenting in part). But she would have remanded plaintiff Smith’s case, writing separately
    to emphasize that allegations of state constitutional torts avoid governmental immunity.
    Id. at 637-638. She opined, “It is so basic as to require no citation that the constitution is
    the fundamental law to which all other laws must conform.” Id. at 640. With regard to
    statutory governmental immunity, she noted that all statutes should be construed to avoid
    constitutional invalidity. Id. at 641. Given that understanding, she concluded, “The idea
    that our Legislature would indirectly seek to ‘approve’ acts by the state which violate the
    state constitution by cloaking such behavior with statutory immunity is too far-fetched to
    infer” from the statute. Id. Considering common-law sovereign immunity, she noted the
    9
    concept had been abrogated in Pittman v City of Taylor, 
    398 Mich 41
    ; 247 NW2d 512
    (1976), but even absent the abrogation, “[t]he primacy of the state constitution would
    perforce eclipse the vitality of a claim of common-law sovereign immunity in a state court
    action for damages.” Smith, 
    428 Mich at 641-642
     (BOYLE, J., concurring in part and
    dissenting in part). Relying on “public policy concerns,” she would have limited liability
    to instances in which the action of the state’s agent was implementing a policy or custom.
    
    Id. at 642-644
    . She also thought the remedy of damages was generally available. 
    Id. at 644-648
    . However, she thought whether to afford a remedy in any particular case might
    turn on several factors: “(1) the existence and clarity of the constitutional violation itself;
    (2) the degree of specificity of the constitutional protection; (3) support for the propriety
    of a judicially inferred damages remedy in any text, history, and previous interpretations
    of the specific provision; (4) the availability of another remedy; and (5) various other
    factors militating for or against a judicially inferred damages remedy.” Mays, 506 Mich at
    196 (plurality opinion by BERNSTEIN, J.), citing Smith, 
    428 Mich at 648-652
     (BOYLE, J.
    concurring in part and dissenting in part).
    Justice ARCHER, joined by Justice LEVIN, started his analysis by reasoning that any
    intentional tort, whether constitutional in nature or not, is not barred by governmental
    immunity. Smith, 
    428 Mich at 657
     (ARCHER, J., dissenting). He would not have limited
    the scope of cognizable constitutional torts to those occurring by virtue of governmental
    custom or policy. 
    Id. at 658
    .
    After Smith, the Court of Appeals repeatedly cited that fractured opinion for the
    proposition that immunity is not available to the state for violating rights guaranteed by the
    Michigan Constitution. See Mays, 506 Mich at 190-191 (plurality opinion by BERNSTEIN,
    10
    J.) (collecting cases). We did not return to the question of what remedies are available for
    constitutional torts until Mays, when we evenly split over whether to recognize a damages
    remedy for the alleged constitutional violations there. See Mays, 
    506 Mich 157
    . Though
    the Court of Appeals has frequently cited Justice BOYLE’s partial concurrence in Smith, we
    could not reach a consensus on what analysis should be controlling. See Mays, 506 Mich
    at 217 (MCCORMACK, C.J., concurring) (“If and when the appropriate time (and case)
    comes along, we can debate whether Smith was correctly decided and what rationale we
    would use to justify the conclusion that monetary damages are available (or not) in
    constitutional-tort actions.”); Mays, 506 Mich at 263 (VIVIANO, J., concurring in part and
    dissenting in part) (“I question whether Smith was correctly decided on this point, and I
    would be willing to reconsider Smith in an appropriate future case.). Now, we face the
    question once again.
    B. CITIZENS RELY ON COURTS TO PROTECT AND VINDICATE
    CONSTITUTIONAL RIGHTS
    Article 1 of our Constitution is titled “Declaration of Rights.”          Because it
    “guarantees the civil and political integrity [and] the freedom and independence of our
    citizens,” the Declaration of Rights “is the bedrock upon which all else in the constitution
    may be built.” 1 Official Record, Constitutional Convention 1961, p 106 (remarks of
    Governor John B. Swainson). In crafting our current Constitution, the Declaration of
    Rights was moved into the first article because it is so fundamental to representative
    government that it “sets up the basic legal guideposts for [its] implementation and
    enforcement . . . .” 1 Official Record, Constitutional Convention 1961, p 466.
    11
    One way to think of a right is in terms of the correlative duty it imposes on another
    to act or refrain from acting for the benefit of the right-holder. See Hohfeld, Fundamental
    Legal Conceptions (New Haven: Yale University Press, 1919), pp 35-38. Thought of in
    this way, a right must have a remedy. If not, it is not a right at all but only “a voluntary
    obligation that a person can fulfill or not at his whim,” or merely “a hope or a wish.”
    Zeigler, Rights Require Remedies: A New Approach to the Enforcement of Rights in the
    Federal Courts, 38 Hastings L J 665, 678 (1987). This understanding of rights is as old as
    our republic:
    It is essential to the idea of a law, that it be attended with a sanction; or, in
    other words, a penalty or punishment for disobedience. If there be no penalty
    annexed to disobedience, the resolutions or commands which pretend to be
    laws will in fact amount to nothing more than advice or recommendation.
    [The Federalist No. 15 (Hamilton) (Cooke ed, 1961), p 95.][2]
    Said another way, “[l]egal obligations that exist but cannot be enforced are ghosts that are
    seen in the law but that are elusive to the grasp.” The Western Maid, 
    257 US 419
    , 433; 42
    2
    Or, even older:
    Under the common law of England, where individual rights . . . were
    preserved by a fundamental document (e.g., the Magna Carta), a violation of
    those rights generally could be remedied by a traditional action for damages.
    The violation of the constitutional right was viewed as a trespass, giving rise
    to a trespass action. [Widgeon v Eastern Shore Hosp Ctr, 300 Md 520, 525-
    527; 479 A2d 921 (1984), discussing Wilkes v Wood, 98 Eng Rep 489;
    Lofft’s 1 (1763), Huckle v Money, 95 Eng Rep 768; 2 Wils 205 (1763), and
    Entick v Carrington, 19 How St Tr 1029 (1765).]
    See also Moresi v Louisiana, 567 So 2d 1081, 1092 (La, 1990); Wurman, Qualified
    Immunity and Statutory Construction, 37 Seattle U Law Rev 939, 987 (2014) (“[T]he
    common law expected officers to be mulcted in damages for their errors in judgment. Some
    courts explicitly stated that the law expected that officers would be grievously punished
    for such errors.”).
    
    12 S Ct 159
    ; 
    66 L Ed 299
     (1922). If our Constitution is to function, then the fundamental
    rights it guarantees must be enforceable. Our basic rights cannot be mere ethereal hopes if
    they are to serve as the bedrock of our government.
    This Court has not only the authority, but also the primary responsibility of
    interpreting and enforcing our Constitution. “ ‘To adjudicate upon and protect the rights
    and interests of individual citizens, and to that end to construe and apply the laws, is the
    peculiar province of the judicial department.’ ” Johnson v Kramer Bros Freight Lines, Inc,
    
    357 Mich 254
    , 258; 98 NW2d 586 (1959), quoting Cooley, Constitutional Limitations
    (7th ed), p 132. The judiciary “has the legitimate authority, in the exercise of the well-
    established duty of judicial review, to evaluate governmental action to determine if it is
    consistent with” the Constitution. Sharp v Lansing, 
    464 Mich 792
    , 802; 629 NW2d 873
    (2001). This is a first principle, inherent in our tripartite separation of powers. A “major
    function[]” of the judiciary is to “guarantee[]” the rights promised in our Constitution. 2
    Official Record, Constitutional Convention 1961, p 2196. If the rights guaranteed in our
    Constitution are to be more than words on paper, then they must be enforceable. 3 And if
    3
    Justice VIVIANO quotes at length from People ex rel Sutherland v Governor, 
    29 Mich 320
    (1874), for the proposition that “ ‘there are a great many’ ” cases involving rights without
    a remedy. There, we noted that, at times, a jury might reach a wrong verdict, or a judge
    might make an error, or the Legislature could seat someone who was not duly elected, or
    the Governor might refuse to pardon someone who had conclusively demonstrated that
    they were wrongfully convicted. Id. at 330. The fact that there may be nonjusticiable
    questions courts cannot decide and that the judicial process will, at times, reach incorrect
    results does not imply that courts are without authority to enforce the Constitution, and
    Sutherland said nothing of the kind.
    13
    the rights guaranteed in our Constitution are to be enforceable, then enforcement must fall
    to us, absent an explicit constitutional provision limiting our authority in this regard.
    We agree with the Smith majority in this regard: “A claim for damages against the
    state arising from violation by the state of the Michigan Constitution may be recognized in
    appropriate cases.” Smith, at 
    428 Mich at 544
    . And in doing so, both then in Smith and
    here today, we are not an outlier. State courts recognizing private causes of action for state
    constitutional violations is nothing new. See Bull v Armstrong, 254 Ala 390; 48 So 2d 467
    (1950) (recognizing a private cause of action for an illegal warrantless search in violation
    of Alabama’s constitution); Mayes v Till, 266 So 2d 578 (Miss, 1972) (recognizing a
    private cause of action for an illegal warrantless search in violation of Mississippi’s
    constitution). By the time the United States Supreme Court announced its decision in
    Bivens, the foundation for state courts to recognize private causes of action for
    constitutional violations was already ingrained in the American conception of government.
    See Widgeon, 300 Md at 535 (“[T]here is no need to imply a new right of action because,
    under the common law, there already exists an action for damages to remedy violations of
    constitutional rights.”).
    Bivens was somewhat novel in that it recognized—for the first time—a cause of
    action against federal agents for violation of federal constitutional rights. But the Court
    was clear that the path it traveled had always been open, explicitly stating that courts had
    always had the authority to remedy violations of constitutional harms: “[I]t has been the
    rule from the beginning that courts will be alert to adjust their remedies so as to grant the
    necessary relief.” Bivens, 
    403 US at 392
     (quotation marks and citation omitted). The
    Bivens Court did not think it was doing anything revolutionary but, rather, said the notion
    14
    that constitutional violations could be redressed with monetary compensation “should
    hardly seem a surprising proposition.” 
    Id. at 395
    .
    Since Bivens, sister courts in other states have likewise concluded that they bear the
    duty of vindicating the rights guaranteed in their constitutions. “It is the state judiciary that
    has the responsibility to protect the state constitutional rights of the citizens; this obligation
    to protect the fundamental rights of individuals is as old as the State.” Corum v Univ of
    North Carolina, 330 NC 761, 783; 413 SE2d 276(1992). “It is the state judiciary that has
    the responsibility to protect the state constitutional rights of the citizens.” Godfrey v Iowa,
    898 NW2d 844, 865 (Iowa, 2017). “The power of the Court to enforce rights recognized
    by the New Jersey Constitution, even in the complete absence of implementing legislation,
    is clear.” King v S Jersey Nat’l Bank, 66 NJ 161, 177; 330 A2d 1 (1974), citing Marbury
    v Madison, 5 US (1 Cranch) 137, 163; 
    2 L Ed 60
     (1803). See also Gay Law Students Ass’n
    v Pacific Tel & Tel Co, 24 Cal 3d 458, 475; 595 P2d 592; 156 Cal Rptr 14 (1979)
    (recognizing a cause of action for monetary damages for a violation of the state’s Equal
    Protection Clause); Newell v Elgin, 34 Ill App 3d 719, 722-725; 
    340 NE2d 344
     (1976)
    (recognizing a cause of action for monetary damages for a violation of the state’s illegal-
    seizure protection); Moresi v Louisiana, 567 So 2d 1081; 1091-1093 (La, 1990)
    (recognizing a cause of action for monetary damages for a violation of the state’s privacy
    protection); Widgeon, 300 Md at 525-534 (recognizing a cause of action for monetary
    damages for a violation of the state’s search-and-seizure protection). But see Godfrey, 898
    NW2d at 856-857 (collecting cases and describing courts as “nearly equally divided”).
    15
    These courts frequently refer to principles relied on by the Bivens Court and to 4
    Restatement Torts, 2d, § 874A, comment a, p 301. 4
    The Bivens Court explained how constitutional torts hold the potential for greater
    harm than private torts: “An agent acting—albeit unconstitutionally—in the name of the
    United States possesses a far greater capacity for harm than an individual trespasser
    exercising no authority other than his own.” Bivens, 
    403 US at 392
    . Other courts have
    continued to make similar observations: “[T]here is a great distinction between wrongs
    committed by one private individual against another and wrongs committed under authority
    of the state.” Dorwart v Caraway, 
    312 Mont 1
    , 16; 
    2002 MT 240
    ; 58 P3d 128 (2002). The
    purpose of codifications of rights in the federal Constitution, our Constitution, and the
    constitutions of other states is to protect against these unique and dangerous
    encroachments. Corum, 330 NC at 782-783; see also Godfrey, 898 NW2d at 876-877;
    Binette, 244 Conn at 43. That danger is exemplified here. Plaintiffs allege that when they
    were rightfully eligible for unemployment benefits—meant to be a hand up during a
    financially difficult and fragile juncture—they were accused of fraud and assessed
    staggering penalties without notice or any meaningful opportunity to be heard. 5
    4
    4 Restatement, p 301 states: “When a legislative provision protects a class of persons by
    proscribing or requiring certain conduct but does not provide a civil remedy for the
    violation, the court may, if it determines that the remedy is appropriate in furtherance of
    the purpose of the legislation and needed to assure the effectiveness of the provision, accord
    to an injured member of the class a right of action, using a suitable existing tort action or a
    new cause of action analogous to an existing tort action.” Comment a specifies that this
    notion includes constitutional provisions.
    5
    It has been estimated that, between 2013 and 2015, approximately 40,000 people in
    Michigan were wrongfully accused of unemployment fraud as a result of the lack of due
    16
    To remedy these types of harms, the Bivens Court saw nothing extraordinary about
    the availability of monetary damages: “Historically, damages have been regarded as the
    ordinary remedy for an invasion of personal interests in liberty.” Bivens, 
    403 US at 395
    ,
    citing Nixon v Condon, 
    286 US 73
    ; 
    52 S Ct 484
    ; 
    76 L Ed 984
     (1932); Nixon v Herndon,
    
    273 US 536
    , 540; 
    47 S Ct 446
    ; 
    71 L Ed 759
     (1927); Swafford v Templeton, 
    185 US 487
    ;
    
    22 S Ct 783
    ; 
    46 L Ed 1005
     (1902); Wiley v Sinkler, 
    179 US 58
    ; 
    21 S Ct 17
    ; 
    45 L Ed 84
    (1900); Landynski, Search and Seizure and the Supreme Court, pp 28 et seq. (1966);
    Lasson, History and Development of the Fourth Amendment to the United States
    Constitution, pp 43 et seq. (1937); Katz, The Jurisprudence of Remedies: Constitutional
    Legality and the Law of Torts in Bell v Hood, 117 U Pa L Rev 1, 8-33 (1968); cf. West v
    Cabell, 
    153 US 78
    ; 
    14 S Ct 752
    ; 
    38 L Ed 643
     (1894); Lammon v Feusier, 
    111 US 17
    ; 
    4 S Ct 286
    ; 
    28 L Ed 337
     (1884). Rejecting alternate framings, the Bivens Court saw the
    question before it as a simple one—whether the petitioner was “entitled to redress his injury
    through a particular remedial mechanism normally available in the federal courts.” Bivens,
    
    403 US at 397
    . The answer was axiomatic: “ ‘The very essence of civil liberty certainly
    consists in the right of every individual to claim the protection of the laws, whenever he
    process alleged by plaintiffs. De La Garza, States’ Automated Systems are Trapping
    Citizens in Bureaucratic Nightmares With Their Lives On the Line, Time Magazine
    (May 28, 2020)  (accessed
    March 4, 2022) [https://perma.cc/9THC-9HL3]. In addition, a study conducted by the
    Agency concluded that, during this same period, approximately 93% of the automated
    system’s fraud determinations were incorrect. Felton, Michigan Unemployment Agency
    Made 20,000 False Fraud Allegations – Report, The Guardian (December 18, 2016)
     (accessed March 4, 2022) [https://perma.cc/4LEH-8KAZ].
    17
    receives an injury.’ ” 
    Id.,
     quoting Marbury, 5 US (1 Cranch) at 163. Other courts have
    shared that view. “The availability of damages at law is thus an ordinary remedy for
    violation of constitutional provisions, not some new-fangled innovation.” Godfrey, 898
    NW2d at 868. We share this view and make the unremarkable observation that damages
    are an available remedy for the state’s constitutional violations. “This Court is ultimately
    responsible for enforcing our state’s Constitution, and remedies are how we do that.”
    Mays, 506 Mich at 215 (MCCORMACK, C.J., concurring).
    One final point about Bivens. Defendant argues that the United States Supreme
    Court’s recent treatment of Bivens requires this Court to refrain from recognizing causes
    of action for constitutional torts. We disagree. This Court has already debated the
    continued vitality of Bivens and how federal constitutional torts differ from state
    constitutional torts. See Mays, 506 Mich at 214-224 (MCCORMACK, C.J., concurring);
    Mays, 506 Mich at 245-263 (VIVIANO, J., concurring in part and dissenting in part).
    Whatever the relative merits of those positions, they are beside the point. Our holding
    today does not rely on Bivens at all, but on the authorities that Bivens discussed and that so
    many other courts have discussed since then. Bivens is famous and often cited, and with
    good reason. It is an eloquent explanation of the judiciary’s duty to enforce constitutional
    guarantees and its authority to use available remedies to that end. But Bivens is just that—
    a discussion of the authority, not the authority itself. The plaintiffs’ cause of action is
    created by our state Constitution, not by any court. 6 Our holding today is grounded in the
    6
    See Godfrey, 898 NW2d at 866 (“As a rhetorical device, the defendants suggest that
    Bivens claims for Iowa constitutional violations amount to a ‘new cause of action.’ But we
    18
    constitutional rights relied on by plaintiffs as well as our authority and duty to say what the
    law is. See Marbury, 5 US (1 Cranch) at 177. These authorities remain undisturbed.
    Justice VIVIANO responds only in passing to the core idea that a right requires a
    remedy. He briefly and puzzlingly acknowledges Marbury, but his takeaway is that the
    Court could not enforce a remedy for William Marbury because it did not have jurisdiction.
    That is an accurate statement about Marbury, and if we similarly lacked jurisdiction in this
    matter, we would have no authority to enforce a remedy. Of course, we do have jurisdiction
    here. 7
    Further, Justice VIVIANO’S belief would prove far too much. He believes that
    constitutional rights can exist without remedies and, if a remedy is to exist, the Constitution
    must explicitly provide it. But of the 27 sections of the Declaration of Rights, only a
    handful mention remedies at all. 8 Most of the guarantees of the Declaration of Rights are
    not enacted in statute, but we enforce them nonetheless through whatever remedy is
    face an old problem, not a new problem. The old problem is whether courts have the power
    to provide an appropriate remedy for constitutional wrongs.”).
    7
    If Justice VIVIANO means to suggest that Marbury is dicta on this point, he is technically
    correct. Nonetheless, Marbury’s recognition of the judiciary’s authority to say what the
    law is has clearly been widely followed.
    8
    Const 1963, art 1, § 2 delegates authority for enforcing the right to equal protection of the
    laws to the Legislature. Const 1963, art 1, § 11 addresses available remedies for a violation
    of the protection from unreasonable searches and seizures only in that it limits application
    of the exclusionary rule, though of course it cannot impact the exclusionary rule’s
    enforcement of US Const, Am IV. Const 1963, art 1, § 15 provides a specific remedy in
    the event a criminal defendant is denied bail and trial has not commenced within 90 days.
    Const 1963, art 1, § 24 indicates the Legislature may enact its provisions. Const 1963,
    art 1, § 26 also addresses remedies.
    19
    appropriate for a violation.        Justice VIVIANO distinguishes causes of action for
    constitutional torts because the legislative power “ ‘encompasses the power to create
    causes of action.’ ” Post at 7, quoting Mays, 506 Mich at 259 (VIVIANO, J., concurring in
    part and dissenting in part). Generally, enforcing constitutional rights through injunctive
    relief is uncontroversial, see, e.g., Brown v Bd of Ed of Topeka, 
    347 US 483
    , 486 n 1; 
    74 S Ct 686
    ; 
    98 L Ed 873
     (1954), and Brown v Bd of Ed of Topeka, 
    349 US 294
    ; 
    75 S Ct 753
    ;
    
    99 L Ed 1083
     (1955), despite the lack of an explicit constitutional authorization for such a
    cause of action. So the problem is not really that it is a legislative function to “create causes
    of action”——instead, the problem appears to be that the remedy is in the form of money
    damages. Justice VIVIANO doesn’t offer any specific reason why this remedy requires
    explicit authorization while others, such as injunctive relief, do not, aside from his belief
    that “[t]he creation of that liability, dependent upon policy considerations that the judiciary
    is institutionally ill-suited to address, is a task that falls within the legislative sphere.”
    We agree with Justice VIVIANO, actually, that judges should not create liability
    based on policy considerations. We are doing nothing of the kind. The Constitution poses
    restrictions on the state for the protection of Michigan citizens, and if the state harms its
    citizens in violation of those prohibitions, that is what creates liability. Justice VIVIANO
    would err in the opposite direction; he would excuse the state’s liability based on his own
    policy concern—that a violation of constitutional rights should not be redressed by money
    damages. The core principle that guides our reasoning is that a right must be enforceable;
    otherwise, it is not right at all but a mere hope. It merits repeating that the fundamental
    rights our Constitution guarantees are “the bedrock upon which all else in the constitution
    20
    may be built.” 1 Official Record, Constitutional Convention 1961, p 106 (remarks of
    Governor John B. Swainson). Without them, there is nothing.
    C. LEGISLATIVE SILENCE DOES NOT DIVEST COURTS OF THEIR AUTHORITY
    OR RESPONSIBILITY
    Even against this long history of courts enforcing constitutional protections by
    providing remedies for constitutional violations, the Agency argues that recognizing a
    cause of action is beyond our authority and that establishing a mechanism to redress the
    alleged violations of plaintiffs’ rights falls to the Legislature. We disagree.
    Under our Constitution, “the judicial power of the State is vested exclusively in one
    court of justice . . . .” 9 Const 1963, art 6, § 1. Unlike federal courts, which are limited to
    powers specifically enumerated in the United States Constitution, this Court retains all
    judicial power not ceded to the federal government. Lansing Sch Ed Ass’n v Lansing Bd
    of Ed, 
    487 Mich 349
    , 362; 792 NW2d 686 (2010). Similarly, the legislative power of the
    state is vested in the Senate and House of Representatives—collectively, the Legislature.
    Const 1963, art 4, § 1. Each branch retains “the whole of such power . . . except as it may
    be restricted in the same instrument.” Washington-Detroit Theatre Co v Moore, 
    249 Mich 673
    , 680; 
    229 NW 618
     (1930). “The legislative power we understand to be the authority,
    under the Constitution, to make laws, and to alter and repeal them.” Cooley, p 109.
    What plaintiffs ask of us is not to make new law under the Constitution but, rather,
    to enforce the Constitution itself. As the United States Supreme Court has noted, “the
    9
    This grant is limited only by the Const 1963, art 1, § 6 requirement that this Court’s
    decisions shall be in writing and by Const 1963, art 5, § 2, which addresses the Independent
    Citizens Redistricting Commission.
    21
    judiciary has a particular responsibility to assure the vindication of constitutional
    interests . . . .” Bivens, 
    403 US at 407
     (Harlan, J., concurring). In addressing the argument
    that vindication of constitutional rights should be left to the legislative branch, one of our
    sister courts reasoned, “It would be ironic indeed if the enforcement of individual rights
    and liberties in the Iowa Constitution, designed to ensure that basic rights and liberties were
    immune from majoritarian impulses, were dependent on legislative action for
    enforcement.”    Godfrey, 898 NW2d at 865.           Similarly, “[t]he very purpose of the
    Declaration of Rights is to ensure that the violation of these rights is never permitted by
    anyone who might be invested under the Constitution with the powers of the State.”
    Corum, 330 NC at 783.
    Relying on McCahan v Brennan, 
    492 Mich 730
    , 736; 822 NW2d 747 (2012), the
    Agency argues that the Legislature holds the authority to decide whether the state can be
    sued, and if so, the extent of any liability. The Agency notes that under Const 1963, art 3,
    § 2, no person exercising the power of one branch shall exercise the power belonging to
    another branch. The Agency also criticizes Justice BOYLE’s partial concurrence in Smith
    for discussing policy concerns while inferring a damages remedy. The Agency asserts
    these considerations are better left to the Legislature.
    The fatal flaw in these arguments is that they assume their own conclusions. Our
    Constitution provides for a separation of powers generally, and specifically in Const 1963,
    art 3, § 2. But that observation does nothing to define the boundaries of the authority of
    the branches. McCahan dealt with the governmental tort liability act (GTLA), MCL
    691.1401 et seq. The issue there was interpretation of the notice requirement found in the
    GTLA.     McCahan and our other cases dealing with the GTLA did not involve
    22
    constitutional torts but, instead, dealt with conventional torts.          The scope of the
    Legislature’s authority to regulate tort liability created by statute has no bearing on whether
    the Legislature has authority to restrict rights codified in the Constitution, let alone whether
    those rights remain fallow without legislative enactment. These authorities discuss the
    Legislature’s authority within its purview, but they do not explore the boundaries of that
    purview.
    There are instances in which the Constitution specifically tasks the Legislature with
    implementing the rights it affords. An example is Const 1963, art 1, § 2, which concludes
    by stating, “The legislature shall implement this section by appropriate legislation.”
    Therefore, the Constitution delegates the construction of the remedy for violation of Const
    1963, art 1, § 2 to the Legislature. We have said as much before:
    On its face, the implementation power of Const 1963, art 1, § 2 is
    given to the Legislature. Because of this, for this Court to implement Const
    1963, art 1, § 2 by allowing, for example, money damages, would be to
    arrogate this power given expressly to the Legislature to this Court. Under
    no recognizable theory of disciplined jurisprudence do we have such power.
    [Lewis v State, 
    464 Mich 781
    , 787; 629 NW2d 868 (2001).]
    But in the absence of such a specific delegation, constitutional rights must still be
    enforceable. As we have discussed, interpreting the Constitution and determining the
    scope of the rights it affords is the core of our function as the judicial branch. We know
    “[i]t is emphatically the province and duty of the judicial department to say what the law
    is.” Marbury, 5 US (1 Cranch) at 177. Interestingly, while criticizing Justice BOYLE on
    the one hand for considering public policy in her analysis, the Agency admits that we must
    analyze “ ‘competing policies, goals, and priorities[.]’ ” (Quoting Carlson v Green, 
    446 US 14
    , 36; 
    100 S Ct 1468
    ; 
    64 L Ed 2d 15
     (1980) (Rehnquist, J., dissenting).) As to the
    23
    scope of the state’s liabilities, we agree that weighing policy considerations to pick and
    choose which harms the state should be liable for and to what extent is not within our
    purview. But neither is it within the purview of the Legislature. That consideration has
    been completed, and those choices are contained within the Constitution. 10 The state is
    prohibited from violating the rights the Constitution guarantees. If it does so, it is liable
    for the harm it causes. 11
    But the Agency’s position is weaker even than if there were some legislative action
    in play. As discussed, the Legislature cannot curtail a substantive constitutional right or
    limit the remedies available to vindicate that right. But the Agency urges us to conclude
    that legislative silence on the issue of remedies for a due-process violation under Const
    10
    To be sure, adhering to the Constitution places a burden on state government. In
    recognition of that fact, our Constitution appears to reflect policy considerations. For
    example, Const 1963, art 1, § 2 provides that “[n]o person shall be denied the equal
    protection of the laws; nor shall any person be denied the enjoyment of his civil or political
    rights or be discriminated against in the exercise thereof because of religion, race, color or
    national origin,” but also that “[t]he legislature shall implement this section by appropriate
    legislation.” Const 1963, art 1, § 11 protects against government searches and seizures in
    much the same way as US Const, Am IV. However, Const 1963, art 1, § 11 limits
    application of the exclusionary rule in criminal proceedings, making a different choice than
    under federal law. Const 1963, art 1, § 14 provides for the right to a jury trial, but allows
    for 10 out of 12 jurors to reach a verdict in a civil case. Other rights are protected without
    qualification. Our role is not to evaluate the choices reflected in the Constitution. Our role
    is to respect and enforce them.
    11
    See In re Town Highway No 20, 191 Vt 231, 248-249; 
    2012 VT 17
    ; 45 A3d 54 (2012)
    (“Thus, the rights enumerated within our Constitution provide no less authority in
    supporting a cause of action than the rights set out in our statutes or in this Court’s
    precedent, presuming those constitutional rights are found to be self-executing. Indeed,
    ‘[t]o deprive individuals of a means by which to vindicate their constitutional rights would
    negate the will of the people in ratifying the constitution, and neither this Court nor the
    Legislature has the power to do so.’ ”) (alteration in original), quoting Shields v Gerhart,
    163 Vt 219, 223; 658 A 2d 924 (1995).
    24
    1963, art 1, § 17 somehow signals the ratifiers’ intent to preclude any mechanism of
    enforcement. Under this view, constitutional guarantees that the Legislature has not
    addressed would be reduced from rights to mere hopes, or as Justice Holmes said, to
    “ghosts that are seen in the law . . . .” The Western Maid, 257 US at 433. This is not our
    view. See King v S Jersey Nat’l Bank, 66 NJ 161, 177; 330 A 2d 1 (1974) (“Just as the
    Legislature cannot abridge constitutional rights by its enactments, it cannot curtail them
    through its silence, and the judicial obligation to protect the fundamental rights of
    individuals is as old as this country.”). If the Legislature has already provided an adequate
    mechanism to remedy a constitutional tort, this Court is not required to duplicate the effort.
    However, we emphasize that the Legislature’s alternative must be at least as protective of
    a particular constitutional right as a judicially recognized cause of action and must include
    any remedy necessary to address the harm caused. To be adequate, the legislative remedy
    should be at least as protective of constitutional rights as a judicially recognized remedy
    would be.
    D. THE CONTINUED VIABILITY OF JUSTICE BOYLE’S PARTIAL
    CONCURRENCE IN SMITH
    While we agree with the Smith majority that a claim for damages against the state
    arising from a violation of the Michigan Constitution may be recognized in appropriate
    cases, Smith, 
    428 Mich at 544
    , we part ways with Justice BOYLE as to how to determine an
    “appropriate case.” As already discussed, in light of this Court’s inherent judicial authority
    and respect for the separation of powers, we believe that a cause of action exists except in
    two specific circumstances: (1) when the Constitution has delegated to another branch of
    government the obligation to enforce the constitutional right at issue or (2) when another
    25
    branch of government has provided a remedy that we consider adequate. While Justice
    BOYLE also recognized these two exceptions, her partial concurrence suggests that she
    would have also recognized additional exceptions. Justice BOYLE would presumably have
    declined to recognize a claim for damages where the existence and clarity of the
    constitutional violation at issue is unclear and where the degree of specificity of the
    constitutional protection is unclear. 
    Id. at 652
     (BOYLE, J., concurring in part and dissenting
    in part). But while these concerns may caution against imposing liability on the state for
    violation of a particular constitutional provision under particular factual situations, they
    speak to whether a right exists or has been violated, not to whether there is a constitutional-
    damages remedy for that violation. Justice BOYLE would also “consider the text, history,
    and previous interpretations of the specific provision for guidance on the propriety of a
    judicially inferred damage remedy.” 
    Id. at 650
    . But, as discussed previously, the only
    concern for the “propriety” of recognizing a damages action should be derived from this
    Court’s inherent judicial authority and the language of the Constitution itself—such as
    when the Constitution specifically delegates to another branch of government the
    obligation to enforce the constitutional right. Otherwise, this Court should not be in the
    business of determining the “propriety” of recognizing a constitutional-damages claim.
    Likewise, Justice BOYLE’s consideration of “various other factors, dependent upon the
    specific facts and circumstances of a given case,” 
    id. at 651
    , is unworkably vague. On this
    point we agree with the Agency that policy concerns about whether and when to recognize
    a constitutional-tort remedy are better left to other branches of government. But when the
    Constitution itself has not delegated to the other branches the authority to weigh those
    policy concerns, or when the other branches have not stepped in to afford an adequate
    26
    alternative remedy, our inherent judicial authority requires us to afford a remedy for all
    constitutional violations, not just those that we think are wise or justified.
    One final, but important, point of disagreement with Justice BOYLE’s partial
    concurrence in Smith: we do not limit the standard of liability in a constitutional-damages
    claim to a direct standard of liability. Justice BOYLE opined that, consistent with Monell v
    New York City Dep’t of Social Servs, 
    436 US 658
    ; 
    98 S Ct 2018
    ; 
    56 L Ed 2d 611
     (1978),
    the state’s liability for constitutional violations should arise only when the state is acting
    pursuant to a custom or policy that violates the constitution. In other words, the state cannot
    be held vicariously liable for the constitutional violations of its employees or agents. Smith,
    
    428 Mich at 642-643
     (BOYLE, J., concurring in part and dissenting in part). But, in Monell,
    the United States Supreme Court was faced with the question of whether, and when, an
    entity, such as a municipality, may be held liable under a specific statutory provision, 42
    USC 1983, that imposes liability only on “persons.” Monell, 
    436 US at 690-691
    . The
    Court’s adoption of the direct custom or policy theory and rejection of a respondeat
    superior theory of liability under the statute was, in large part, based on the intent of
    Congress in adopting the specific statute at issue, the Civil Rights Act of 1871. 
    Id.
     at 665-
    689. Whatever the merit of the policy concerns considered by Congress in adopting the
    statute and considered by the Supreme Court in deciding the standard of liability under that
    statute, we are not in a position to vindicate those policy concerns by incorporating the
    same reasoning into damages remedies under Michigan’s Constitution. While we respect,
    and may even share, some of Justice BOYLE’s “prudential concerns” favoring a direct
    standard of liability over respondeat superior liability, our obligation is to interpret the
    Constitution. Weighing policy concerns is the work of other branches in crafting, if they
    27
    choose, a different, albeit adequate, remedy for constitutional violations. 12 Absent clear
    language in the Constitution or a legislatively crafted remedy, we hold that people who
    have been deprived of a constitutional right deserve to seek redress through the courts,
    regardless of whether their harm was inflicted pursuant to state custom or policy. 13
    12
    The oft-cited prudential concerns favoring direct liability over respondeat superior
    liability are not beyond debate. For example, some Courts and legal scholars have opined
    that imposing direct liability would better deter future constitutional violations. Smith, 
    428 Mich at 643-644
     (BOYLE, J., concurring in part and dissenting in part), citing Note,
    Rethinking sovereign immunity after Bivens, 57 NYU L R 597, 637 (1982). But others
    believe that respondeat superior liability affords equal, if not better, opportunities to
    prevent future harm because it incentivizes the state to train, supervise, and discipline its
    employees and agents to avoid violations. See Brown v New York, 89 NY2d 172, 194; 
    674 NE2d 1129
     (1996).
    13
    Justice VIVIANO worries our decision “represents a massive and amorphous expansion
    of constitutional tort liability.” Of course, there is nothing new about suing the state for
    monetary damages. That has been happening since Smith, though the Court of Appeals has
    generally employed Justice BOYLE’S analysis. Whatever the difference in outcomes
    between her analysis and ours, it simply is not our role to place guardrails on constitutional
    rights based on judicial policy preferences. Justice VIVIANO worries that our decision
    poses “ ‘dangers to liberty,’ ” but his is the view which would leave fundamental rights
    merely recognized, but not redressed. (Citation omitted.) That is an odd way of thinking
    about liberty.
    Justice VIVIANO mentions liability for cities and villages as well as individuals who
    operate public utilities. But our holding is that the state is liable for harms it commits in
    violation of the Constitution; whether other entities, such as municipal governments or
    individual government actors, can be liable for constitutional torts is not before us, and we
    decline to address that question in what would be dictum. Justice VIVIANO also worries
    about Const 1963, art 9, § 41, which establishes the Michigan game and fish protection
    trust fund, and whether violations of this provision would be grounds for money damages
    and if so, to whom; on a similar note, Justice WELCH asserts we should limit our holding
    to violations of the Declaration of Rights. Again, we decline to opine on hypothetical cases
    not before this Court.
    28
    IV. APPLICATION
    Plaintiffs allege that the Agency violated their due-process rights by seizing their
    property without providing them with adequate notice and an opportunity to be heard.
    Plaintiffs allege that the Agency systematically and unlawfully intercepted their state and
    federal tax refunds, garnished their wages, and forced them to repay unemployment
    benefits that they had lawfully received. Plaintiffs allege that the Agency took these actions
    (1) without providing proper notice or hearing, (2) without allowing plaintiffs to present
    evidence, and (3) by using a computerized system to detect and determine fraud cases that
    does not comport with due process. These allegations, if proven, are sufficient to sustain
    a constitutional-tort claim for a violation of the Due Process Clause of the Michigan
    Constitution, Const 1963, art 1, § 17, which provides as follows:
    No person shall be compelled in any criminal case to be a witness
    against himself, nor be deprived of life, liberty or property, without due
    process of law. The right of all individuals, firms, corporations and voluntary
    associations to fair and just treatment in the course of legislative and
    executive investigations and hearings shall not be infringed.
    Nothing in the language of this provision, or any other constitutional provision, confers
    authority on another branch of government to provide a remedy for violation of this right.
    Accordingly, the first exception to recognizing a damages action is not met here. In
    addition, the Legislature has not enacted a statutory remedy that adequately compensates a
    plaintiff for violation of this due-process right, so the second exception is likewise not
    present. While the Agency argues that plaintiffs have a remedy in the form of an appeal
    under the Michigan Employment Security Act, MCL 421.1 et seq., plaintiffs are not
    challenging the administration of the act and this isn’t a “super appeal” from a benefits
    29
    determination. 14 Rather, this is a tort claim challenging the Agency’s use of MiDAS to
    deprive plaintiffs of property without due process of law. There is no remedy available to
    vindicate their substantive rights other than an action under the Michigan Constitution.
    Administrative agencies don’t have the power to determine constitutional questions or
    afford consequential damages. See Dickerson v Warden, Marquette Prison, 
    99 Mich App 630
    , 641-642; 298 NW2d 841 (1980). And the state’s sovereign immunity, guaranteed by
    the Eleventh Amendment of the United States Constitution, precludes plaintiffs from suing
    the state in federal court to remedy a violation of either the Michigan Constitution,
    Pennhurst State Sch and Hosp v Halderman, 
    465 US 89
    , 121; 
    104 S Ct 900
    ; 
    79 L Ed 2d 67
     (1984) (“[A] claim that state officials violated state law in carrying out their official
    responsibilities is a claim against the State that is protected by the Eleventh Amendment.”),
    or a parallel provision of the federal Constitution, Seminole Tribe of Florida v Florida, 
    517 US 44
    , 55-56; 
    116 S Ct 1114
    ; 
    134 L Ed 2d 252
     (1996). Because enforcement of Const
    1963, art 1, § 17 has not been delegated to the Legislature and because no other adequate
    remedy exists to vindicate the alleged violations of plaintiffs’ rights, we agree that plaintiffs
    have alleged a cognizable constitutional-tort claim for which they may recover monetary
    damages.
    14
    Regardless, for some in the plaintiff class such as Mr. Broe, the time to appeal the
    Agency’s decisions expired before plaintiffs were aware of the existence of a possible
    cause of action because of the alleged due-process violations.
    30
    V. CONCLUSION
    Plaintiffs seek redress of the alleged deprivation of their property without notice or
    an opportunity to be heard in violation of Const 1963, art 1, § 17. This Court bears the
    authority and ultimate responsibility to enforce our state’s Constitution and to ensure that
    rights have remedies. When the language of the Constitution itself does not delegate that
    responsibility to another branch of government and when the Legislature has not enacted
    an adequate alternate remedy for the constitutional violation, we will recognize and enforce
    a monetary-damages remedy.         We agree that plaintiffs have alleged a cognizable
    constitutional-tort claim for which they may recover money damages, and we agree with
    the lower courts that the Agency was properly denied summary disposition. We remand
    the case to the Court of Claims for further proceedings not inconsistent with this opinion.
    Megan K. Cavanagh
    Bridget M. McCormack
    Richard H. Bernstein
    Elizabeth M. Welch
    31
    STATE OF MICHIGAN
    SUPREME COURT
    GRANT BAUSERMAN, KARL
    WILLIAMS, and TEDDY BROE, on Behalf
    of Themselves and All Others Similarly
    Situated,
    Plaintiffs-Appellees,
    v                                                            No. 160813
    UNEMPLOYMENT INSURANCE
    AGENCY,
    Defendant-Appellant.
    WELCH, J. (concurring).
    Today, a majority of this Court confirms that a party has the ability to directly sue
    the state for monetary damages on the basis of an alleged violation of our Constitution. We
    have previously recognized these claims and that a remedy for monetary damages exists in
    appropriate cases. Smith v Dep’t of Pub Health, 
    428 Mich 540
    , 544; 410 NW2d 749 (1987).
    When the only way to adequately remedy a constitutional violation is to allow for monetary
    damages, then such a remedy will be implied. 1 The majority opinion adopts a framework
    1
    Coined by Professor Marshall S. Shapo in his article Constitutional Tort: Monroe v. Pape,
    and the Frontiers Beyond, 60 Nw U L Rev 277 (1965), the term “constitutional tort” has
    evaded a precise definition. See, e.g., Wells, Marshall Shapo’s Constitutional Tort Fifty-
    Five Years Later, Nw U L Rev Colloquy (2020), p 257 (describing constitutional torts as
    “suits for damages for constitutional violations committed by government officials or the
    governments themselves”), available at  (accessed July 18, 2022)
    [https://perma.cc/QR5H-J83K]; Donoghue & Edelstein, Life After Brown: The Future of
    State Constitutional Tort Actions in New York, 42 NYL Sch L Rev 447, 449 n 10 (1998)
    (describing a “ ‘state constitutional tort’ to mean any direct civil action for the violation of
    that would allow recognition of monetary damages against the state for the violation of any
    constitutional right if (1) the constitutional right is self-executing, unless the Constitution
    delegates to a different branch of government discretion in implementing that right, and (2)
    there is not an adequate alternative remedy. While I agree with the framework and with
    the holding that plaintiffs pleaded a valid constitutional tort for monetary damages in this
    matter, I write separately for two reasons. First, I would go further than my colleagues and
    expressly limit the Court’s recognition of monetary damages for constitutional torts to
    claims arising from a violation of a right enumerated in Michigan’s Declaration of Rights,
    Const 1963, art 1. Accordingly, while I join the majority opinion, I limit my concurrence
    with Part III of the majority opinion to the extent it could be interpreted to apply beyond a
    claim under the Declaration of Rights, and I do not join footnote 13 of that opinion to the
    extent that it declines to adopt such a limitation. Second, the majority’s “adequate
    alternative remedy” requirement limits the “expansion of liability for the state and its
    taxpayers” that Justice VIVIANO foretells in his dissent. In other words, constitutional-tort
    a state constitutional right, with the caveat that state civil rights litigation, like its federal
    counterpart, does not fit neatly into the area of tort law.”).
    Generally speaking, the term has been described in academic literature as a direct
    private civil cause of action to redress the violation of a state constitutional right by a
    government actor, regardless of the remedy. The default remedies to cure the constitutional
    violations in such civil actions are often injunctive or declaratory relief, unless some other
    remedy is provided in a statute or the constitution itself. The Court’s decision today
    concerns a narrower subclass of constitutional torts for which a monetary-damages remedy
    will be implied because no other adequate alternative common-law, statutory, or
    administrative remedy exists, and it sets forth the general framework for determining when
    allowing such a remedy is appropriate.
    2
    claims are, and will continue to be, rare given that adequate alternative remedies to an
    implied monetary-damages remedy exist in most cases.
    I. CONSTITUTIONAL TORTS AND THE DECLARATION OF RIGHTS
    In Part III of its opinion, the majority has set forth a framework, with which I agree,
    for recognizing a constitutional tort for monetary damages. I would, however, go further
    than my colleagues and expressly limit our recognition of constitutional-tort actions for
    monetary damages to claims based on a violation of the fundamental liberties enumerated
    in Michigan’s Declaration of Rights, Const 1963, art 1. My colleagues in the majority do
    not consider such a limitation because they “decline to opine on hypothetical cases not
    before us.” Ante at 28 n 13. But given that the claim in this matter arises under the
    Declaration of Rights, I believe addressing this limitation is appropriate.
    Our state Constitution has long contained a distinct Bill or Declaration of Rights. 2
    Const 1963, art 1; Const 1908, art 2; Const 1835, art 1. Michigan’s Declaration of Rights
    sets forth basic, fundamental individual liberties that are secured to each person in the state.
    Additionally, we have previously recognized that “[t]he Michigan Declaration of Rights,
    like the federal Bill of Rights, is ‘drawn to restrict governmental conduct and to provide
    protection from governmental infringement and excesses . . . .’ ” Sitz v Dep’t of State
    2
    This fact sets our Constitution apart from its federal counterpart because the federal Bill
    of Rights, proposed by our nation’s first congress in 1789, was a series of amendments of
    the original federal Constitution. See, e.g., National Archives and Records Administration,
    The Bill of Rights: How Did it Happen?  (accessed July 13, 2022) [https://perma.cc/GPK7-2NUU];
    National Archives and Records Administration, The Bill of Rights: A Transcription
     (accessed July 13,
    2022) [https://perma.cc/T5XM-66QT].
    3
    Police, 
    443 Mich 744
    , 760; 506 NW2d 209 (1993), quoting Woodland v Citizens Lobby,
    
    423 Mich 188
    , 204; 378 NW2d 337 (1985). The majority opinion implicitly acknowledges
    this through its quotation of statements made by Governor John B. Swainson at the
    constitutional convention of 1961, but a fuller quotation of the Governor’s statement is
    helpful:
    Another of your heavy responsibilities will be review of our
    constitutional declaration of rights. As that part of our constitution that
    guarantees the civil and political integrity, the freedom and independence of
    our citizens, the bill of rights is the bedrock upon which all else in the
    constitution may be built. [1 Official Record, Constitutional Convention
    1961, p 106 (remarks of Governor John B. Swainson).]
    Governor Swainson made similar statements in a letter he provided to the committee
    examining and proposing amendments of the Declaration of Rights:
    “The drafting of a declaration of rights that will incorporate the
    distilled wisdom of the past and provide for the protection of individual rights
    emerging from the social and economic ferment of the twentieth century
    could very well be the most important and lasting contribution that this
    convention can make to the preservation of the democratic ideal.
    Other provisions of the fundamental law of the state affect some of us
    in our relation to state government and the services it provides for us. But
    the rights guaranteed by the declaration of rights affect all of us.
    Action by the state to buttress the protection of the individual against
    the possible tyrannies of bureaucracy, the exploitation, discrimination,
    invasion of privacy, and unequal access to justice will give strong support to
    the revitalization of our state.
    * * *
    In a society that is becoming more highly organized in groups, the
    proper expression of these group interests and activities must be harmonized
    with the urgent necessity to reassert the doctrine that the essential feature of
    democracy remains the statutes of the individual.” [1 Official Record,
    Constitutional Convention 1961, pp 400-401 (remarks of Governor John B.
    Swainson).]
    4
    Professor James K. Pollock, chairman of the committee examining the Declaration
    of Rights, noted the fundamentals underlying a bill of rights in a statement made on Bill of
    Rights Day. Pollock explained, “The basic theory underlying the early bills of rights is a
    belief in the rights of individual men and in rights existing in the law of nature independent
    of states or their laws, as set forth especially in Locke’s Second Treatise on Government
    (1690).” 1 Official Record, Constitutional Convention 1961, p 403 (remarks of James K.
    Pollock).   Pollock noted that some rights and liberties are so fundamental and
    individualized that they must be considered “inalienable” in the sense that their execution
    and protection cannot be fully entrusted to the state. 
    Id.
     In contrast, he noted that other
    rights and liberties, such as those associated with creating the operational “ ‘frame’ or form
    of government” have long been considered “alienable” to the extent that they can be
    entrusted to the state “under proper safeguards for due compensation in the form of just
    and effective government[.]” 
    Id.
     A bill of rights, Pollock explained, is intended to
    enumerate the “inalienable rights of the people which they cannot delegate to their
    government and upon which the latter is explicitly forbidden ever to infringe.” 
    Id.
    When the proposed amendments of the Declaration of Rights were presented to the
    full body of the convention, the committee recommended movement of the Declaration of
    Rights from Article 2 to Article 1. Pollock explained why:
    In the committee’s opinion[,] the liberties of the people are so fundamental
    to the Michigan constitution and to free representative government generally
    that the declaration of rights which establishes the fundamental principles of
    liberty and sets up the basic legal guideposts for their implementation and
    enforcement, should appear as the first article in the new constitution. In
    retaining or altering any present provisions, the committee has carefully
    considered the exact language in question, as well as committee intent, with
    the purpose of reducing as far as possible the necessity of judicial
    5
    construction. [1 Official Record, Constitutional Convention 1961, p 466
    (remarks of James K. Pollock).]
    The substance of the Declaration of Rights was vigorously debated over many weeks at the
    constitutional convention, but the core purpose and importance of having a declaration of
    rights was widely agreed upon.
    The notion that monetary recovery is available for the violation of inalienable
    fundamental liberties set forth in our Constitution aligns with the robust public statements
    and debate at the constitutional convention of 1961. An untenable situation would arise if
    the state could violate an individual’s fundamental, inalienable rights without the
    individual having a legal pathway to an adequate remedy. Our fundamental and inalienable
    liberties would hardly be fundamental at all without such a remedy.
    In light of these considerations, I wholeheartedly agree with the majority that the
    liberties enumerated in the Declaration of Rights are fundamental, and “[w]ithout them,
    there is nothing.” Ante at 21. But not everything in our Constitution creates a right that is
    clearly individualized or inalienable. While Part IV of the majority opinion applies the
    newly adopted legal framework to a due process claim, the legal analysis in Part III of the
    opinion is broad enough that it could apply to any alleged violation of any provision of our
    Constitution, despite the caveats contained in footnote 13. I do not endorse such a broad
    ruling, even if implicit, given existing law and the arguments that have been presented in
    this case.
    Beyond Article 1, much of the balance of our Constitution focuses on the
    operational mechanics for state and local government, elections, taxation, and public
    employment, as well as other more technical details, as Justice VIVIANO’s dissent
    6
    acknowledges. These technical details are the alienable rights and liberties described by
    Pollock at the constitutional convention of 1961. While the Declaration of Rights must
    remain a protective backdrop, the degree of individualization of other alienable rights is
    lessened once the people have entrusted the state with administration of these alienable
    rights and liberties for the sake of allowing a democratic government to operate. Generally
    speaking, the violation of nonindividualized, alienable rights that have been entrusted to
    the state appear poorly suited to vindication through an award of monetary damages against
    the state. At least one other state Supreme Court appears to have likewise limited
    monetary-damage remedies for constitutional-tort claims arising under its state’s
    declaration of rights. See Corum v Univ of N Carolina, 330 NC 761, 783-786; 413 SE2d
    276 (1992).
    The constitutional claim before the Court today is premised on a due process
    violation. The same was true of the constitutional claims at issue in Smith and Mays v
    Governor, 
    506 Mich 157
    ; 954 NW2d 139 (2020). Michigan’s Due Process Clause is
    contained in the Declaration of Rights. Const 1963, art 1, § 17. For the reasons discussed
    in Part III of the majority opinion, the violation of other rights set forth in the Declaration
    might also give rise to a facially valid claim seeking monetary compensation for a
    constitutional tort. But application of the framework in Part III of the majority opinion is
    not clearly limited to violations of the Due Process Clause or even the Declaration of
    Rights. Rather, even with the limitations acknowledged in footnote 13, the majority’s
    analysis could plausibly be read to apply to any violation of any provision of the Michigan
    Constitution. While the majority has not broadly held that the analysis in Part III applies
    7
    to all violations of Michigan’s Constitution, it also has declined to address whether there
    is any limitation on the application of the Part III framework.
    This Court has never given comprehensive consideration to whether a monetary-
    damages remedy should be recognized for the violation of any right or liberty outside of
    the Declaration of Rights. In light of the history I have set forth and the cases this Court
    has considered in the past, I am doubtful that a claim for monetary damages should be
    recognized in such circumstances, even if all other criteria of the framework the majority
    adopts today have been satisfied.
    It is worth repeating: implying a monetary-damages remedy for constitutional torts
    is reserved as a “narrow remedy,” Jones v Powell, 
    462 Mich 329
    , 337; 612 NW2d 423
    (2000), and when necessary, as an ultimate stop-gap measure to vindicate the constitutional
    right. I believe a violation of an individualized liberty contained in the Declaration of
    Rights provides a pathway for an action for monetary damages under some circumstances,
    but I do not believe the same can be assumed for the rest of our Constitution. Accordingly,
    while I agree with the analysis in Part III, I limit my concurrence to allowing a monetary-
    damages remedy only for violations of the Declaration of Rights, Const 1963, art 1, and I
    do not join footnote 13 of the majority opinion to the extent that it declines to adopt such a
    limitation.
    II. ADEQUATE ALTERNATIVE REMEDIES
    Contrary to Justice VIVIANO’s view, I believe that the majority’s adequate-
    alternative-remedy criteria for setting forth a constitutional-tort claim will substantially
    limit the liability faced by the state. Under the test adopted by the majority today, if there
    8
    is an adequate alternative remedy that vindicates the violation of a fundamental
    constitutional right, then monetary damages will not be allowed for violation of that
    constitutional right. I write separately to emphasize that an adequate remedy need not
    necessarily make a plaintiff “whole” in every circumstance, and that this limitation
    provides more protection to the state’s coffers than Justice VIVIANO suggests.
    Rather, the question is also whether the existing remedy—injunctive relief,
    declaratory relief, more process, a refund, or whatever it is—will be adequate such that the
    constitutional right is preserved and not rendered ineffectual. See, e.g., Lum v Koles, 314
    P3d 546, 556-557 (Alas, 2013) (“The alternative remedies do not need to provide the same
    level of protection, ‘may include federal remedies,’ ‘need not be an exact match,’ and are
    alternatives even if no longer procedurally available.”) (citation omitted). Just as our state
    courts are well-equipped to determine whether a state constitutional violation has occurred,
    In re Apportionment of State Legislature–1982, 
    413 Mich 96
    , 114; 321 NW2d 565 (1982),
    they are also well-equipped to determine whether adequate alternative remedies exist.
    The Legislature will generally be able to manage its potential exposure by providing
    rights and remedies in legislation so long as those remedies are substantial enough to
    adequately secure and give meaning to the constitutional right. When there is a legislative
    scheme at issue, other state supreme courts have deferred to the other branches of
    government. See, e.g., Spackman ex rel Spackman v Bd of Ed of Box Elder Co Sch Dist,
    16 P3d 533, 539; 
    2000 UT 87
     (2000) (urging “caution in light of the myriad policy
    considerations involved in a decision to award damages against a governmental agency
    and/or its employees for a constitutional violation” and “deference to existing remedies out
    of respect for separation of powers’ principles”); Binnette v Sabo, 244 Conn 23, 42-43; 710
    9
    A2d 688 (1998) (recognizing the separation-of-powers principle and “its requirement for
    judicial deference to legislative resolution of conflicting considerations of public policy”)
    (quotation marks and citation omitted). Although recognizing it “has the authority to
    fashion a common law remedy for the violation of a particular constitutional right,” the
    New Hampshire Supreme Court added that it “will avoid such an extraordinary exercise
    where established remedies—be they statutory, common law, or administrative—are
    adequate.” Marquay v Eno, 139 NH 708, 721; 662 A2d 272 (1995); see also Dick Fischer
    Dev No 2, Inc v Dep’t of Admin, 838 P2d 263, 268 (Alas, 1992) (stating same); Shields v
    Gerhart, 163 Vt 219, 234-235; 658 A2d 924 (1995) (“Where the Legislature has provided
    a remedy, although it may not be as effective for the plaintiff as money damages, we will
    ordinarily defer to the statutory remedy and refuse to supplement it.”).
    These cases are persuasive. There is an ongoing relationship between the roles of
    the different branches of government that deserves respect. Unless monetary damages are
    necessary to secure and vindicate a violation of a constitutional right, it is inappropriate to
    second-guess policy-type decisions of the Legislature or the Executive Branch regarding
    how to remedy violations of legal rights under a statutory scheme. The threshold question
    for judges is whether a remedy is adequate, not whether it is ideal or equally
    comprehensive. In practice, it appears that courts in other states have held that adequate
    alternative remedies preclude a constitutional remedy for monetary damages under many
    circumstances. 3
    3
    See, e.g., Fields v Mellinger, 244 W Va 126, 129-136; 851 SE2d 789 (2020) (declining
    to recognize a constitutional tort for money damages on the basis of alleged employment
    discrimination because there were adequate alternative remedies under common-law
    actions and state and federal statutes); Salminen v Morrison & Frampton, PLLP, 
    377 Mont 10
    244, 255; 
    2014 MT 323
    ; 339 P3d 602 (2014) (“Since the Salminens have a basis in law for
    a claim to redress this allegation, they need not proceed under the Constitution.”); Lum,
    314 P3d at 556-557 (holding that there were adequate alternative remedies because the
    plaintiff “could have brought a common-law trespass claim or a federal civil rights action
    under 
    42 U.S.C. § 1983
    ”); Boatright v Glynn Co Sch Dist, 315 Ga App 468, 471; 726 SE2d
    591 (2012) (rejecting the plaintiff’s constitutional-tort claim on the basis that the plaintiff’s
    prior request for mandamus relief and claims asserted under Ga Code Ann 20-2-940 would
    have provided adequate state remedies had plaintiff not dropped the claims); St Luke Hosp,
    Inc v Straub, 
    354 SW3d 529
    , 537-538 (Ky, 2011) (noting that traditional common-law tort
    actions were available and provided adequate alternative remedies for the alleged violation
    of the defendant’s rights under the state constitution); Khater v Sullivan, 160 NH 372, 374;
    999 A2d 377 (2010) (holding that the plaintiffs had adequate alternative statutory remedies
    through the appeal process for zoning and land-use decisions); Giraldo v Dep’t of
    Corrections & Rehabilitation, 168 Cal App 4th 231, 255-256; 85 Cal Rptr 3d 371 (2008)
    (holding that adequate alternative remedies existed for the asserted cruel-and-unusual-
    punishment claim under the state constitution because the plaintiff could have filed a claim
    under 42 USC 1983); Sunburst Sch Dist No 2 v Texaco, Inc, 
    338 Mont 259
    , 279-280; 
    2007 MT 183
    ; 165 P3d 1079 (2007) (holding that the recent adoption of Restatement Torts, 2d,
    § 929 to allow for the recovery of restoration damages meant that the district court had
    “erred in instructing the jury on the constitutional tort theory where . . . adequate remedies
    exist[ed] under statutory or common law”); Lowell v Hayes, 117 P3d 745, 754 (Alas, 2005)
    (holding that the existence of a viable defamation claim was an adequate alternative remedy
    and noting that “the inadequacy of alternative remedies for alleged constitutional violations
    cannot be measured per se by the dismissal or defeat of those remedies”); Degrassi v Cook,
    29 Cal 4th 333, 342-343; 58 P3d 360 (2002) (holding that a timely action for injunctive
    relief, if meritorious, would have adequately remedied the complained of conduct); Lyles
    v New York, 
    194 Misc 2d 32
    , 36-37; 
    752 NYS2d 523
     (2002) (holding that adequate
    remedies could have been obtained through various common-law tort theories and that
    there was no need, therefore, to imply a constitutional-tort remedy for money damages);
    Martinez v Schenectady, 97 NY2d 78, 83-84; 
    761 NE2d 560
     (2001) (holding that a tort
    claim for money damages was unavailable because reversal of the plaintiff’s prior
    conviction provided an adequate remedy); Marquay, 139 NH at 722 (holding that common-
    law tort and statutory causes of action provided adequate remedies even if not as
    “ ‘complete’ as would be an additional constitutional tort”); Davis v Town of Southern
    Pines, 116 NC App 663, 675-676; 449 SE2d 240 (1994) (holding that plaintiff’s
    “constitutional right not to be unlawfully imprisoned and deprived of her liberty [was]
    adequately protected by her common law claim of false imprisonment” and that she could
    therefore not bring a constitutional-tort claim); Rockhouse Mountain Prop Owners Ass’n,
    Inc v Town of Conway, 127 NH 593, 598-599; 503 A2d 1385 (1986) (holding that
    alternative adequate remedies existed for the plaintiff’s equal protection claim because its
    11
    This case concerns an alleged procedural due process violation that allegedly caused
    substantial financial loss for the plaintiffs beyond what was garnished and later returned
    with no established legal path to recovery. In most cases, I fully expect that the remedy
    for a violation of procedural due process will be more process. 4 The way to remedy
    procedural due process violations has historically been through additional process afforded
    in equity by courts, not monetary damages. Unless a well-trained lawyer is going to
    supervise every single instance of official action that could affect a private interest, there
    are bound to be procedural due process violations (even in the form of a mistake).
    Unsurprisingly, other state supreme courts have likewise been hesitant to recognize a
    constitutional tort with an attendant monetary-damages remedy for procedural due process
    violations. See, e.g., Spackman, 16 P3d at 539; Carlsbad Aquafarm, Inc v State Dep’t of
    Health Servs, 83 Cal App 4th 809, 821, 822; 100 Cal Rptr 2d 87 (2000) (recognizing a
    litigant complaining of lack of procedural due process “had an alternative remedy” because
    it “could have immediately petitioned the superior court for a writ of mandate ordering [the
    defendant] to provide it with due process” and that it was not the “role of the judiciary to
    create a damages action merely to provide a more ‘complete’ remedy”). However, in light
    of the remarkable and extraordinary allegations of systemic due process violations in this
    membership had a statutory right to seek de novo review of the decision not to construct
    and maintain roads to their homes).
    4
    The Utah Supreme Court has stated that “procedural due process claims would appear to
    be particularly amenable to redress through equitable means” exactly because “a court can
    generally require the offending party to redo correctly the ‘procedure’ that allegedly lacked
    the mandated safeguards.” Spackman, 16 P3d at 539 n 11.
    12
    case, I agree with the Court of Appeals and my colleagues in the majority that additional
    process would be an inadequate remedy and that allowing for monetary damages is justified
    in this case.
    III. CONCLUSION
    For the reasons already discussed, I concur with the majority that a claim against
    the state for monetary damages can be recognized for certain constitutional violations and
    with the holding that a claim for monetary damages is appropriate in this case. While I
    agree with the legal framework and analysis in Part III of the majority opinion, I qualify
    my concurrence with the majority opinion in the manner previously discussed. Finally,
    while I appreciate Justice VIVIANO’s concerns, I believe the requirement that no adequate
    alternative remedy exist before a monetary-damages remedy can be implied will ensure
    that recognition of such a remedy for constitutional-tort claims will remain relatively rare.
    Elizabeth M. Welch
    13
    STATE OF MICHIGAN
    SUPREME COURT
    GRANT BAUSERMAN, KARL
    WILLIAMS, and TEDDY BROE, on Behalf
    of Themselves and All Others Similarly
    Situated,
    Plaintiffs-Appellees,
    v                                                           No. 160813
    UNEMPLOYMENT INSURANCE
    AGENCY,
    Defendant-Appellant.
    VIVIANO, J. (dissenting).
    Our Constitution establishes the structure of our government, its powers and limits,
    and the rights of the people. 1 After today’s decision, the Constitution will also provide
    individuals with a cause of action for money damages when their constitutional rights are
    violated if the Legislature has not provided a remedy that a majority of this Court deems
    “adequate.” This represents an expansion of liability for the state and its taxpayers, without
    any legal grounding. In fashioning this new cause of action for monetary damages, the
    Court wields legislative power, unjustified by our common-law authority or the text and
    history of the Constitution itself. I would instead hold that this Court has no power to
    create these new causes of action and would overrule our caselaw suggesting otherwise.
    1
    Friedman, A History of American Law (New York: Simon & Schuster, 2005), p 74.
    I. SMITH, BIVENS, AND THE SEPARATION OF POWERS
    I believe that it is a violation of the separation of powers for courts to create causes
    of action for money damages for constitutional violations. The fashioning of remedies for
    constitutional wrongs is the work of the legislative branch, not the courts. While we have
    authority over the common law, it is a gross abuse of that authority to create causes of
    action for damages in these circumstances.
    A. CASELAW
    Today, for the first time in Michigan’s history, a majority of this Court has held that
    a plaintiff has properly alleged a claim for money damages to redress a violation of
    Michigan’s 1963 Constitution. In the handful of our cases addressing this general subject,
    we have recognized the possibility that violations of the Constitution could result in a cause
    of action for monetary damages, but we have never before found such a cause of action.
    Our initial decision establishing that such claims exist came in the hopelessly fractured
    memorandum opinion in Smith v Dep’t of Pub Health. 2                The Court issued a brief
    memorandum opinion signed by all six participating justices; that opinion simply listed six
    propositions that at least four of the participating justices agreed upon, two of which were:
    5) Where it is alleged that the state, by virtue of custom or policy, has
    violated a right conferred by the Michigan Constitution, governmental
    immunity is not available in a state court action.
    6) A claim for damages against the state arising from violation by the
    state of the Michigan Constitution may be recognized in appropriate cases.[3]
    2
    Smith v Dep’t of Pub Health, 
    428 Mich 540
    ; 410 NW2d 749 (1987).
    3
    
    Id. at 544, 545
    .
    2
    “The Smith opinion was silent as to why a majority of the Court had agreed on these
    tenets.” 4 As my partial dissent in Mays v Governor 5 explained, the Court’s memorandum
    opinion was followed by four separate opinions written or joined by the participating
    justices. Justice BOYLE set forth the test that, until today, was applied by the lower courts
    and this Court. 6     Under her test, courts should analyze the following factors when
    determining whether to infer a damages remedy for violations of the Constitution caused
    by a custom or policy:
    (1) the existence and clarity of the constitutional violation itself, (2) the
    degree of specificity of the constitutional protection, (3) support for the
    propriety of a judicially inferred damages remedy in any “text, history, and
    previous interpretations of the specific provision,” (4) “the availability of
    another remedy,” and (5) “various other factors” militating against a
    judicially inferred damages remedy.[7]
    In neither of the two consolidated appeals we addressed in Smith did the Court infer a
    damages claim: in one appeal, we determined that the plaintiff had failed to preserve the
    argument, and in the other appeal, we remanded for a determination of whether a
    4
    Mays v Governor, 
    506 Mich 157
    , 188; 954 NW2d 139 (2020) (plurality opinion by
    BERNSTEIN, J.).
    5
    
    Id.
     at 246 & n 52 (VIVIANO, J., concurring in part and dissenting in part).
    6
    See id. at 196 (plurality opinion by BERNSTEIN, J.) (“[W]e agree with the Court of Claims
    and the Court of Appeals that the multifactor test elaborated in Justice BOYLE’s separate
    opinion in Smith provides a framework for assessing the damages inquiry.”).
    7
    Id. at 247 (VIVIANO, J., concurring in part and dissenting in part), quoting Smith, 
    428 Mich at 648-652
     (BOYLE, J., concurring in part and dissenting in part).
    3
    constitutional violation occurred and, if so, “whether it is one for which a damage remedy
    is proper.” 8
    We have addressed the subject of inferred damages claims in only three other cases.
    In Jones v Powell, we characterized Smith as a “narrow remedy.” 9 In that case, the plaintiff
    sued the city of Detroit as well as the Detroit police officers who had stormed her house
    and searched it because they falsely believed a fleeing suspect had entered the house. We
    affirmed the Court of Appeals’ ruling “that our decision in Smith provides no support for
    inferring a damage remedy for a violation of the Michigan Constitution in an action against
    a municipality or an individual government employee” because those plaintiffs had
    adequate alternative remedies under federal law. 10 In Lewis v Michigan, we declined to
    infer a cause of action under the Equal Protection Clause of our Constitution, Const 1963,
    art 1, § 2, because that provision expressly states it will be implemented by the
    Legislature. 11 Finally, in Mays, only a plurality of the Court supported inferring a damages
    claim under Justice BOYLE’s test for due-process claims for violation of the right to bodily
    integrity. 12
    
    8 Smith, 428
     Mich at 545.
    9
    Jones v Powell, 
    462 Mich 329
    , 337; 612 NW2d 423 (2000).
    10
    Id. at 331, 335, 337.
    11
    Lewis v Michigan, 
    464 Mich 781
    , 782, 787; 629 NW2d 868 (2001).
    12
    Mays, 506 Mich at 195-200 (plurality opinion by BERNSTEIN, J.).
    4
    The Court’s caselaw is clearly undergirded by the United States Supreme Court’s
    decision in Bivens v Six Unknown Named Agents of Fed Bureau of Narcotics. 13 In Bivens,
    the Supreme Court concluded that the plaintiff had stated a cause of action for money
    damages for violation of the Fourth Amendment. 14 But as I have explained, Bivens offers
    a shaky foundation for our caselaw, and the Supreme Court has recognized Bivens-style
    damages claims on only two other occasions. 15 From the outset, and continuing today,
    “Bivens was criticized . . . as posing separation-of-powers concerns” because the creation
    of damages remedies involves inherently policy-based considerations that fall within the
    Legislature’s purview, not the judiciary’s. 16 As the United States Supreme Court stated
    13
    Bivens v Six Unknown Named Agents of Fed Bureau of Narcotics, 
    403 US 388
    ; 
    91 S Ct 1999
    ; 
    29 L Ed 2d 619
     (1971); see also Mays, 506 Mich at 251-263 (VIVIANO, J., concurring
    in part and dissenting in part) (discussing Bivens).
    14
    Bivens, 
    403 US at 397
    .
    15
    Mays, 506 Mich at 257 (VIVIANO, J., concurring in part and dissenting in part), citing
    Davis v Passman, 
    442 US 228
    ; 
    99 S Ct 2264
    ; 
    60 L Ed 2d 846
     (1979), and Carlson v Green,
    
    446 US 14
    ; 
    100 S Ct 1468
    ; 
    64 L Ed 2d 15
     (1980).
    16
    Mays, 506 Mich at 253-255 (VIVIANO, J., concurring in part and dissenting in part)
    (noting that Congress, rather than the courts, would most often be the branch to establish
    damages remedies because the “issue ‘ “involves a host of considerations that must be
    weighed and appraised” ’ ” and thus “should be committed to ‘ “those who write the
    laws” ’ rather than ‘ “those who interpret them” ’ ”), quoting Ziglar v Abbasi, 
    582 US ___
    ;
    
    137 S Ct 1843
    , 1857; 
    198 L Ed 2d 290
     (2017) and Carlson, 
    446 US at 37
     (Rehnquist, J.,
    dissenting) (“[C]ongressional authority here may all too easily be undermined when the
    judiciary, under the guise of exercising its authority to fashion appropriate relief, creates
    expansive damages remedies that have not been authorized by Congress.”); Bivens, 
    403 US at 411-412
     (Burger, C.J., dissenting) (“We would more surely preserve the important
    values of the doctrine of separation of powers—and perhaps get a better result—by
    recommending a solution to the Congress as the branch of government in which the
    Constitution has vested the legislative power. Legislation is the business of the Congress,
    and it has the facilities and competence for that task—as we do not.”).
    5
    just this year, “Now long past ‘the heady days in which this Court assumed common-law
    powers to create causes of action,’ . . . we have come ‘to appreciate more fully the tension
    between’ judicially created causes of action and ‘the Constitution’s separation of legislative
    and judicial power . . . .’ ” 17 “At bottom,” the Court continued, “creating a cause of action
    is a legislative endeavor.” 18 The Court appears to have limited Bivens and the two other
    cases allowing damages to their exact factual circumstances, and multiple justices have
    called for overruling this line of caselaw. 19 The Court will now refuse to create a cause of
    17
    Egbert v Boule, 
    596 US ___
    , ___; 
    142 S Ct 1793
    ; ___ L Ed 2d___ (2022); slip op at 6.
    18
    
    Id.
     at ___; slip op at 6. See also 
    id.
     at ___ (Gorsuch, J., concurring); slip op at 1 (“Our
    Constitution’s separation of powers prohibits federal courts from assuming legislative
    authority. As the Court today acknowledges, Bivens . . . crossed that line by ‘impl[ying]’
    a new set of private rights and liabilities Congress never ordained.”) (alteration in original);
    
    id.
     at ___ (Gorsuch, J., concurring); slip op at 2 (“To create a new cause of action is to
    assign new private rights and liabilities—a power that is in every meaningful sense an act
    of legislation.”).
    19
    As discussed in Mays, the United States Supreme Court recently observed:
    We have stated that expansion of Bivens is “a ‘disfavored’ judicial activity,”
    and have gone so far as to observe that if “the Court’s three Bivens cases
    [had] been . . . decided today,” it is doubtful that we would have reached the
    same result. And for almost 40 years, we have consistently rebuffed requests
    to add to the claims allowed under Bivens. [Mays, 506 Mich at 257
    (VIVIANO, J., concurring in part and dissenting in part) (alteration in
    original), quoting Hernández v Mesa, 
    589 US ___
    , ___; 
    140 S Ct 735
    , 742-
    743; 
    206 L Ed 2d 29
     (2020).]
    See also Egbert, 596 US at ___ (opinion of the Court); slip op at 17 (noting same). Justices
    Clarence Thomas and Neil Gorsuch have called for overruling Bivens. See id. at ___
    (Gorsuch, J., concurring); slip op at 3 (“I would only take the next step and acknowledge
    explicitly what the Court leaves barely implicit” and overrule Bivens.); Hernández, 589 US
    at ___; 140 S Ct at 750 (Thomas, J., concurring) (“I write separately because, in my view,
    the time has come to consider discarding the Bivens doctrine altogether. The foundation
    for Bivens—the practice of creating implied causes of action in the statutory context—has
    already been abandoned. And the Court has consistently refused to extend the Bivens
    6
    action for money damages if “there is any reason to think that Congress might be better
    equipped to create a damages remedy.” 20
    B. SEPARATION OF POWERS
    I continue to believe that “[t]he critiques of Bivens apply equally to Smith,” which
    “poses the same separation-of-powers concerns that Bivens does.” 21 I cannot see how a
    damages
    remedy is required when the text of neither the United States nor the
    Michigan Constitution mentions it. Rather, both Constitutions vest their
    respective legislative branches with the legislative power. This power
    encompasses the power to create causes of action. While there may be a
    narrow category of cases for which there is no state tort law cause of action
    and for which damages appear to be the only effective remedy, I am skeptical
    that these practical concerns justify allowing the courts to exercise the
    legislative power by implying causes of action when the Legislature has not
    seen fit to create a statutory cause of action.[22]
    The constitutional separation of powers protects against the threat posed by
    unrestrained judicial lawmaking. “Lawmaking, the framers of the federal Constitution
    believed, should be difficult because it poses dangers to liberty; thus, federal statutes
    require passage by two legislative bodies and approval by the executive to become law.” 23
    doctrine for nearly 40 years, even going so far as to suggest that Bivens and its progeny
    were wrongly decided.”).
    20
    Egbert, 596 US at ___ (opinion of the Court); slip op at 7.
    21
    Mays, 506 Mich at 260 (VIVIANO, J., concurring in part and dissenting in part).
    22
    Id. at 259 (citations omitted).
    23
    In re Certified Questions from United States District Court, Western District of Mich,
    
    506 Mich 332
    , 415; 958 NW2d 1 (2020) (VIVIANO, J., concurring in part and dissenting in
    part), citing Gundy v United States, 
    588 US ___
    , ___; 
    139 S Ct 2116
    , 2131; 
    204 L Ed 2d 522
     (2019) (Gorsuch, J., dissenting).
    7
    “Our own Constitution, of course, reflects these same requirements.” 24 Indeed, our
    Constitution contains express protection of the separation of powers not contained even in
    the federal Constitution. 25 “[T]hese hedges against hasty lawmaking and the separation of
    powers . . . were . . . meant to ‘respect[] the people’s sovereign choice to vest the
    legislative power’ in one branch alone and to ‘safeguard[] a structure designed to protect
    their liberties, minority rights, fair notice, and the rule of law.’ ” 26 These protections are
    obliterated when the judiciary takes it upon itself to craft monetary damages for
    constitutional violations.     The creation of that liability, dependent upon policy
    considerations that the judiciary is institutionally ill-suited to address, is a task that falls
    within the legislative sphere. 27
    Some have suggested, however, that state courts, unlike federal courts, are suited to
    the task of creating causes of action under our common-law powers, which federal courts
    24
    In re Certified Question, 506 Mich at 415 (VIVIANO, J., concurring in part and dissenting
    in part), citing Const 1963, art 4, §§ 24 and 33.
    25
    See 1963 Const., art 3, § 2 (“No person exercising powers of one branch shall exercise
    powers properly belonging to another branch except as expressly provided in this
    constitution.”).
    26
    In re Certified Question, 506 Mich at 416 (VIVIANO, J., concurring in part and dissenting
    in part) (alteration in original), quoting Gundy, 588 US at ___; 
    139 S Ct at 2135
     (Gorsuch,
    J., dissenting).
    27
    See, e.g., Egbert, 596 US at ___ (opinion of the Court); slip op at 6 (noting the “ ‘range
    of policy considerations’ ” required, including economic concerns, costs, and effects on
    governmental operations) (citation omitted). The Legislature is better positioned to address
    these issues, including the argument that damages remedies for constitutional violations
    have little deterrent effect (and might even have a perverse incentive effect) on
    governmental actors because those actors do not internalize costs the same way that private
    actors do. See Levinson, Making Government Pay: Markets, Politics, and the Allocation
    of Constitutional Costs, 67 U Chi L Rev 345, 345-348, 367-373, 402-406 (2000).
    8
    lack. 28 In declining to extend Bivens, the Supreme Court has noted that it does not have
    common-law authority. 29 This is taken by some as a signal that a common-law court, such
    as ours, has a free hand to fashion tort-based causes of action for monetary damages. The
    cause of action would be separate from the constitutional provision in the sense that the
    tort would not arise from or be required by the state Constitution itself. It would, instead,
    28
    See Bowers, The Implied Cause of Action for Damages Under the Idaho Constitution,
    56 Idaho L Rev 339, 350 (2020) (“The most important distinction between state and federal
    courts with regard to Bivens actions . . . is the differing scope of jurisdiction in state and
    federal courts. Judicial implication of damages remedies may pose knotty questions in
    Article III courts of limited jurisdiction, but it is widely accepted that ‘state courts remain
    common-law generalists with equitable and inherent authority to create law, shape policy,
    and devise remedies.’ ”) (citations omitted).
    Although there is some ambiguity on this point in the majority opinion, the majority
    does not appear to rely on this rationale, instead purporting to find the right to a damages
    remedy as inherent in the Constitution itself. See note 39 of this opinion (discussing the
    majority’s justifications for its holding). Nonetheless, because no such right exists in the
    Constitution (as explained below), the majority’s action must ultimately rest on the judicial
    creation of a freestanding tort. It is therefore necessary to examine our power in this regard.
    Numerous common-law courts have considered their power to create torts for
    constitutional violations independent from any such cause of action arising from the
    constitutional text. See, e.g., Spackman ex rel Spackman v Bd of Ed of Box Elder Co Sch
    Dist, 16 P3d 533, 537-538; 
    2000 UT 87
     (2000) (explaining that “[i]n the absence of
    applicable constitutional or statutory authority” for a right to damages for constitutional
    violations, “Utah courts employ the common law,” and “a Utah court’s ability to award
    damages for violation of a self-executing constitutional provision rests on the common
    law”); cf. Cantrell v Morris, 
    849 NE2d 488
    , 505-507 (Ind, 2006) (recognizing that a
    damage remedy might “arise[] under the state Constitution itself or under state common
    law tort doctrines” but finding “little practical significance” between the two modes and
    holding that any damages remedy would be limited by statutory immunities for
    governmental actors); Beaumont v Bouillion, 
    896 SW2d 143
    , 150 (Tex, 1995) (rejecting
    the argument that “we may look to the Constitution to define the element of duty for a
    Texas common law cause of action”).
    29
    See Hernández, 589 US at ___; 140 S Ct at 742 (“With the demise of federal general
    common law, a federal court’s authority to recognize a damages remedy must rest at bottom
    on a statute enacted by Congress . . . .”).
    9
    be a pure act of judicial lawmaking. One scholar, concluding that Bivens could not be
    justified as an exercise of constitutional interpretation, thought that decision was an
    exercise of “preemptive lawmaking” in the mold of the common law. 30
    Putting it in those stark terms underscores the activism inherent in the enterprise.
    And this view fundamentally misunderstands our common-law powers. As explained more
    fully later in this opinion, we certainly do not claim that power when it comes to statutes,
    and there is no history supporting the creation of such torts for violations of the
    Constitution. It goes well beyond our role as the principal steward of the common law:
    Acting in [our capacity as the principal steward of Michigan’s common law],
    we have on occasion allowed for the development of the common law as
    circumstances and considerations of public policy have required. See, e.g.,
    Berger [v Weber, 
    411 Mich 1
    ; 303 NW2d 424 (1981)]. But as Justice YOUNG
    has recently observed, our common-law jurisprudence has been guided by a
    number of prudential principles. See Young, A judicial traditionalist
    confronts the common law, 8 Texas Rev L & Pol 299, 305-310 (2004).
    Among them has been our attempt to “avoid capricious departures from
    bedrock legal rules as such tectonic shifts might produce unforeseen and
    undesirable consequences,” id. at 307[.][31]
    30
    See Merrill, The Common Law Powers of Federal Courts, 52 Univ Chi L Rev 1, 51-52
    (1985) (“By definition, the remedy in question is not authorized by the text itself. . . . Thus,
    as a general matter, it is unlikely that an examination of the structure and history of the
    enactment will yield evidence of a specific intent to create such a remedy. . . . But for the
    most part, the techniques of conventional interpretation will not authorize judicial creation
    of remedies beyond those expressly provided by Congress. At this point, however, the
    doctrine of preemptive lawmaking comes into play. Although at first blush it may seem
    odd to apply the concept of preemptive lawmaking in order to create additional remedies,
    the underlying rationale is essentially the same in this context as it is when a court finds it
    necessary to preempt or supplement state substantive rules in order to preserve federal
    statutory policies.”) (citations and paragraph structure omitted).
    31
    Henry v Dow Chemical Co, 
    473 Mich 63
    , 83; 701 NW2d 684 (2005).
    10
    We went on to explain that the judiciary has an “obligation to exercise caution and to defer
    to the Legislature when called upon to make a new and potentially societally dislocating
    change to the common law” and that separation-of-powers concerns support this cautious
    approach. 32 Indeed, the very concept of the common law defies innovation given that it is
    defined as “custom.” 33
    To the extent the majority’s decision today is grounded on the Court’s common-law
    powers, it dangerously aggrandizes those powers. The decision represents a massive and
    amorphous expansion of constitutional tort liability. Under the majority’s decision, unless
    the Constitution provides otherwise, or the Legislature has established a remedy that we
    deem adequate, damages will lie for a constitutional violation. How will we know when
    the Legislature’s alternative remedy is “adequate”? When it is “at least as protective of a
    particular constitutional right as a judicially recognized cause of action,” and it “must
    include any remedy necessary to address the harm caused.” Ante at 25. In other words,
    32
    
    Id. at 89
    .
    33
    Boorstin, The Mysterious Science of the Law: An Essay on Blackstone’s Commentaries
    (Chicago: University of Chicago Press, 1969), pp 73-74 (“Indeed, all the virtues of
    tradition seemed to be inherent in the very definition of the English common law because,
    after all, the common law was rooted in custom. The definition of the common law as
    custom, at the same time that it allowed Blackstone to attribute to the law the virtues of
    those early times in which English law had originated, permitted him to find in the law the
    accumulated wisdom of all the ages since. And who would dare to set his private stock of
    wisdom against the accrued capital of wisdom of all the past? . . . ‘Custom, which is the
    life of the common law,’ derived much of its validity from the presumption in favour of
    the products of experience.”) (citation omitted).
    11
    the Legislature’s remedy will be adequate if it is that which we would have come up with
    ourselves. This leaves no guidance whatsoever. 34
    More importantly, what is the scope of the Court’s holding—will the violation of
    any provision of the Constitution result in damages, or only the violation of certain
    provisions? Although the opinion appears to focus on the provisions in the Declaration of
    Rights, the opinion also presents its holding in sweeping terms, stating that “when the
    Constitution itself has not delegated to the other branches the authority to weigh those
    policy concerns, or when the other branches have not stepped in to afford an adequate
    alternative remedy, our inherent judicial authority requires us to afford a remedy for all
    constitutional violations . . . .” Ante at 26-27.
    While only three justices appear to leave open the possibility that implied causes of
    action for damages could be found outside the Constitution’s Declaration of Rights, it is
    worth explaining why such a view cannot (and should not) garner majority support. Our
    Constitution, unlike the federal Constitution, contains a host of more technical details that
    have now become potential tripwires for money-damages claims, including many that
    would seem to bear little relation to individual rights. Cities and villages, for example,
    cannot acquire certain public utilities unless the transaction is first approved by the voters. 35
    Individuals and entities that operate public utilities cannot use various public places to run
    wire and other utility facilities without first obtaining a franchise from the pertinent local
    34
    Justice WELCH characterizes the majority’s adequate-alternative-remedy requirement as
    limited, suggesting that it will not require the Legislature to provide for monetary relief “in
    every circumstance[.]” Whether this proves true remains to be seen; the majority opinion
    offers no such assurances.
    35
    Const 1963, art 7, § 25.
    12
    government. 36 Our Constitution establishes a “game and fish protection trust fund” and
    establishes how it shall be financed and managed. 37 Are violations of these provisions
    grounds for money damages? And if so, to whom? These ambiguities are present in more
    central provisions as well. For example, our Constitution requires that the Independent
    Citizens Redistricting Commission adopt redistricting plans with districts of equal
    population. 38 How would money damages remedy a violation of this provision?
    The Court’s decision today portends a staggering extension of liability that is alien
    to the incremental and customs-based nature of the common law. The decision cannot be
    justified as a proper use of common-law authority. Accordingly, I believe that the creation
    of money-damages claims for constitutional violations is a legislative function. It is
    therefore a violation of the separation of powers for the Court to step in and create such
    claims.
    36
    Const 1963, art 7, § 29. The majority opinion claims that these examples of provisions
    on municipalities are irrelevant because the opinion is limited to the potential liability of
    the state, not municipalities. But the opinion fails to offer any principled reason for
    interpreting other provisions as allowing damages remedies, but not these. That is, if the
    damages remedy is truly just an interpretation of the Constitution, the opinion cites no
    language or principle that would limit the remedy to claims against the state. To the extent
    the opinion rests upon the “rights”-giving provisions of the Constitution, it never expressly
    limits its reasoning to those provisions. Rather, three of the four justices in the majority
    decline to decide whether the holding applies outside of violations of the Declaration of
    Rights or other possible rights in the Constitution. Even if the holding is eventually limited
    to violations of constitutional “rights,” those three justices never explain how a court is to
    determine whether a provision grants a right for purposes of the majority’s holding. For
    example, does a resident have a “right” to vote on whether a city can acquire public
    utilities? See Const 1963, art 7, § 25. Their attempt to clarify and limit their holding by
    pure ipse dixit is bound to create confusion.
    37
    Const 1963, art 9, § 41.
    38
    Const 1963, art 4, § 6(13)(a).
    13
    II. CONSTITUTIONAL TORTS AS CONSTITUTIONAL INTERPRETATION
    Perhaps because of the stunning sweep of today’s holding, and concerns with the
    separation of powers, the majority purports to ground its decision in the Constitution itself,
    suggesting that the remedy crafted today is constitutionally required. 39 A cause of action
    established by the text would arguably avoid the separation-of-powers concerns noted
    above. But the majority never bothers with any textual analysis and only gestures vaguely
    at historical practices. Neither text nor history suggest any hidden causes of action for
    constitutional violations generally, nor do they reveal a cause of action for the provision at
    issue here, the Due Process Clause.
    39
    I read the majority opinion as attempting to ground its holding in the Constitution itself
    rather than the Court’s authority over the common law. Somewhat confusingly, however,
    the majority at times suggests that its holding rests on inherent judicial power, implying
    that the damages remedies created today are creatures of the common law (or some other
    ambiguous source) rather than requirements arising from the constitutional text itself.
    Compare ante at 2 (“Inherent in the judiciary’s power is the ability to recognize remedies,
    including monetary damages, to compensate those aggrieved by the state . . . for violating
    the Michigan Constitution . . . .”), ante at 26-27 (“But when the Constitution itself has not
    delegated to the other branches the authority to weigh . . . policy concerns, or when the
    other branches have not stepped in to afford an adequate alternative remedy, our inherent
    judicial authority requires us to afford a remedy for all constitutional violations . . . .”), and
    ante at 7 (“[T]his Court retains the authority—indeed the duty—to vindicate the rights
    guaranteed by our Constitution.”), with ante at 18-19 (“Our holding today is grounded in
    the constitutional rights relied on by plaintiffs as well as our authority and duty to say what
    the law is.”), and ante at 21 (“What plaintiffs ask of us is not to make new law under the
    Constitution but, rather, to enforce the Constitution itself.”). One would hope that with
    such a momentous holding, the majority would take greater pains to locate and specify the
    grounds for its holding rather than serving up vague platitudes. In any case, for the reasons
    addressed in this dissent, the majority errs no matter which basis its opinion ultimately
    employs.
    14
    A. INTERPRETING THE CONSTITUTIONAL TEXT
    Some courts and scholars have asserted that looking to the Constitution itself is the
    proper approach to constitutional torts. The Supreme Court has acknowledged that Bivens
    simply extended the then-regnant interpretive practice of inferring causes of action from
    statutes. 40 As another example, the Oregon Supreme Court looked for any “textual or
    historical basis” in that state’s bill of rights “for implying a right to damages for
    constitutional violations,” finding no such basis. 41 Our decision in Lewis was likewise
    grounded in the text: because the constitutional provision at issue entrusted its
    implementation to the Legislature, the Court would not infer a damages remedy. 42 The
    40
    Hernández, 589 US at ___; 140 S Ct at 741; see also Katzberg v Regents of Univ of
    California, 29 Cal 4th 300, 314; 58 P3d 339 (2002) (“[M]ost California decisions issued
    during the past two decades . . . have viewed the determinative question as whether an
    action for damages exists in (or can be inferred from) the constitutional provision at issue.
    Accordingly, most of the recent California decisions expressly focus their analysis upon
    whether the provision at issue was intended, either expressly or impliedly, to afford relief
    in damages.”). Some who disagree that Bivens can be justified by constitutional
    interpretation have nonetheless noted that Bivens purported to ground its decision as an
    interpretation of the Constitution. Monaghan, Forward: Constitutional Common Law, 89
    Harv L Rev 1, 24 (1975) (“The majority opinion [in Bivens] apparently derives the right to
    damages from the fourth amendment itself. But, unless the Court views a damage action
    as an indispensable remedial dimension of the underlying guarantee, it is not constitutional
    interpretation, but common law.”) (citations omitted).
    41
    Hunter v Eugene, 
    309 Or 298
    , 303; 787 P2d 881 (1990); see also Bouillion, 896 SW2d
    at 148-149 (examining the text and history of the provisions in deciding that there was no
    cause of action for damages when the state constitutional rights of speech and assembly
    were violated).
    42
    Lewis, 
    464 Mich at 786
    .
    15
    Restatement likewise seems to locate the activity of implying damages in the interpretive
    sphere. 43
    But to infer causes of action for money damages from the constitutional text requires
    a contortion of interpretive principles. This contortion was commonplace when Bivens was
    decided, and the Court extended the practice to the constitutional sphere. At that time, the
    United States Supreme Court generally read private causes of action into statutes. 44 The
    43
    See Restatement Torts, 2d, § 874A, p 301 (“When a legislative provision [which is
    defined to include the Constitution] protects a class of persons by proscribing or requiring
    certain conduct but does not provide a civil remedy for the violation, the court may, if it
    determines that the remedy is appropriate in furtherance of the purpose of the legislation
    and needed to assure the effectiveness of the provision, accord to an injured member of the
    class a right of action, using a suitable existing tort action or a new cause of action
    analogous to an existing tort action.”). Although the Restatement suggests that the action
    is a tort, the comments indicate that the process of inferring a civil remedy is tied to
    interpretation. The Restatement centers the analysis on discovering legislative intent, even
    though the effectuation of that intent might be a court-created tort cause of action.
    Restatement, § 874A, comments c and d, p 302 (“If the court determines that the legislative
    body did actually intend for civil liability to be imposed or not imposed, whether the intent
    is explicit or implicit, then the court should treat the situation as if it had expressly so
    provided. . . . If this was the intent of the legislative body, a study of the text of the
    provision, including the title and preamble, if any, will often disclose the fact. Tracing the
    legislative history may sometimes prove helpful. Some courts give careful attention to this
    source, while others decline to allow it to be considered at all. . . . If the court has reached
    the conclusion that the legislative body did actually have the intent either to establish a
    civil remedy to protect and enforce the right or to limit the relief to that expressly provided
    for in the legislative provision, the issue is settled, and the court is warranted in declaring
    that it is complying with the legislative intent.”) (paragraph structure omitted); but see
    Katzberg, 29 Cal 4th at 325 (suggesting that the Restatement calls for the “exercise
    [of] . . . authority over the common law” to, “in appropriate circumstances, recognize a tort
    action for damages to remedy a constitutional violation”).
    44
    Mays, 506 Mich at 256 (VIVIANO, J., concurring in part and dissenting in part) (“ ‘Bivens
    is a relic of the heady days in which this Court assumed common-law powers to create
    causes of action—decreeing them to be ‘implied’ by the mere existence of a statutory or
    constitutional prohibition.’ ”), quoting Correctional Servs Corp v Malesko, 
    534 US 61
    , 75;
    
    122 S Ct 515
    ; 
    151 L Ed 2d 456
     (2001) (Scalia, J., concurring).
    16
    understanding was that this approach effectuated the legislative purpose behind a statute. 45
    But the Court has “abandoned” that view, 46 and the touchstone of the present test for
    implied causes of action has been whether the text and structure of a statute displayed the
    legislature’s intent to create such a cause of action. 47 Therefore, a private cause of action
    should only be implied from the fair import of the statute’s text. 48 A judicially created
    private remedy in a statute that does not provide for such a remedy “would be a major
    addition to the statute,” akin to an amendment. 49 The present approach has been labeled
    the “presumption against implied right of action” canon of interpretation. 50
    45
    Alexander v Sandoval, 
    532 US 275
    , 287; 
    121 S Ct 1511
    ; 
    149 L Ed 2d 517
     (2001),
    discussing J I Case Co v Borak, 
    377 US 426
    , 433; 
    84 S Ct 1555
    ; 
    12 L Ed 2d 423
     (1964);
    see also Cort v Ash, 
    422 US 66
    , 78; 
    95 S Ct 2080
    ; 45 L Ed 2d (1975) (positing various
    factors in deciding whether to infer a cause of action, including whether the legislation
    sought to benefit or protect a discrete class and whether the private remedy furthers the
    statute’s purposes).
    46
    Alexander, 
    532 US at 287
    .
    47
    See 
    id. at 288
     (“We therefore begin (and find that we can end) our search for Congress’s
    intent with the text and structure of Title VI.”).
    48
    Scalia & Garner, Reading Law: The Interpretation of Legal Texts (St. Paul:
    Thomson/West, 2012), pp 316-317.
    49
    
    Id.
    50
    
    Id. at 313
    . See also Callahan v Fed Bureau of Prisons, 965 F3d 520, 523 (CA 6, 2020)
    (“What started out as a presumption in favor of implied rights of action has become a firm
    presumption against them.”).
    17
    Our caselaw charts a similar course. 51 At one time, we followed the Restatement
    view and inferred causes of action to further legislative purposes. 52 But we have since
    adopted the view that implied causes of action must arise, if at all, from the statutory text
    itself and not from vague perceptions of legislative objectives. 53 In a 2005 opinion, we
    noted that the United States Supreme Court had “become increasingly reluctant to imply a
    private cause of action” and had instead focused on the “central inquiry [of] whether
    Congress intended to create, either expressly or by implication, a private cause of action.” 54
    And, in fact, we said that the United States Supreme Court had apparently moved to “a
    completely textual analysis in determining whether a private remedy exists under a
    particular statute.” 55 We likewise indicated that the criterion for implied causes of action
    was the statutory text. 56
    51
    See generally Mays, 506 Mich at 260 n 89 (VIVIANO, J., concurring in part and dissenting
    in part) (discussing the caselaw).
    52
    See Gardner v Wood, 
    429 Mich 290
    , 301; 414 NW2d 706 (1987) (“Where a penal statute
    is silent concerning whether a violation of its provisions should give rise to a civil remedy,
    courts will infer a civil remedy for the violation ‘to further the ultimate policy for the
    protection of individuals which they find underlying the statute, and which they believe the
    legislature must have had in mind.’ ”), quoting Prosser & Keeton, Torts (5th ed), § 36,
    p 222.
    53
    See Myers v Portage, 
    304 Mich App 637
    , 643 n 12; 848 NW2d 200 (2014) (discussing
    this Court’s changing caselaw).
    54
    Office Planning Group, Inc v Baraga-Houghton-Keweenaw Child Dev Bd, 
    472 Mich 479
    , 497, 498; 697 NW2d 871 (2005) (quotation marks and citation omitted).
    55
    
    Id. at 499
    .
    56
    
    Id. at 500
     (interpreting a federal statute); see also Lash v Traverse City, 
    479 Mich 180
    ,
    193; 735 NW2d 628 (2007) (noting that in a case involving the government as a defendant,
    we would not recognize a cause of action without express provision by the Legislature).
    18
    Nothing in the text of our state Constitution generally allows damages remedies for
    constitutional violations. Like the federal Constitution, our Constitution does not generally
    refer to remedies. 57 This distinguishes our Constitution from those that contain a remedies
    clause that expressly entitles individuals to a remedy for violations of those constitutions. 58
    It is noteworthy that even with such a constitutional provision, at least one state has rejected
    inferring causes of action for damages. 59 Nothing in the text of the provision at issue here,
    the Due Process Clause, supports a damages remedy: “No person shall . . . be deprived of
    life, liberty or property, without due process of law.” 60
    Plaintiffs and the majority try to invoke the 1961 constitutional convention records
    for support, but they point to nothing very useful. The closest they come is that the
    57
    See Fallon, Jr. & Meltzer, New Law, Non-Retroactivity, and Constitutional Remedies,
    104 Harv L Rev 1731, 1779 (1991) (“The Constitution generally makes no reference to
    remedies.”); cf. Hill, Constitutional Remedies, 69 Colum L Rev 1109, 1132 (1969) (“It
    may fairly be assumed that the founding fathers did not contemplate a new species of
    constitutional tort.”). Of course, there are some exceptions. For example, “[p]rivate
    property shall not be taken for public use without just compensation therefore being first
    made or secured in a manner prescribed by law.” Const 1963, art 10, § 2; see also US
    Const, Am V (“[N]or shall private property be taken for public use, without just
    compensation.”).
    58
    See, e.g., Minn Const, art 1, § 8 (“Every person is entitled to a certain remedy in the laws
    for all injuries or wrongs which he may receive to his person, property or character, and to
    obtain justice freely and without purchase, completely and without denial, promptly and
    without delay, conformable to the laws.”); see also Phillips, The Constitutional Right to a
    Remedy, 78 NYU L Rev 1309, 1310 (2003) (noting that the remedies clause “expressly or
    implicitly appears in forty state constitutions”).
    59
    See Tex Const, art 1, § 13 (“All courts shall be open, and every person for an injury done
    him, in his lands, goods, person or reputation, shall have remedy by due course of law.”);
    Bouillion, 896 SW2d at 147 (declining to find an implied private right of action for
    damages under various provisions of the state constitution).
    60
    Const 1963, art 1, § 17.
    19
    convention considered—but did not add—the line that “[t]his provision [i.e., the
    Declaration of Rights] shall not be construed to enable the denial to any citizen of any
    direct and immediate legal remedy in the courts of this state.” 61 This is a far cry from the
    proposition that the drafters intended for damages remedies to be available, if such an
    argument from unstated intentions were even relevant. This language was eventually
    reflected in the section on the civil rights commission: “Nothing contained in this section
    shall be construed to diminish the right of any party to direct and immediate legal or
    equitable remedies in the courts of this state.” 62 Thus, to the extent the language even
    appears in the Constitution, it involves only a specific section not relevant here. If
    anything, to the extent that the language was considered but not placed in the Declaration
    of Rights, that would seem to weigh in favor of concluding that the convention rejected the
    notion that the Declaration would keep undiminished the ability of individuals to access
    the courts to obtain monetary damages for violations of their constitutional rights. 63
    Finally, it is not at all clear that the language is referring to money damages for
    constitutional violations. Bivens had not yet been decided at the time of the convention,
    and we had no history of providing damages for constitutional violations at that time. There
    is no reason to believe that the convention delegates and the ratifying public had the
    61
    2 Official Record, Constitutional Convention 1961, p 1946.
    62
    Const 1963, art 5, § 29.
    63
    Cf. In re MCI Telecom Complaint, 
    460 Mich 396
    , 415; 596 NW2d 164 (1999) (“Where
    the Legislature has considered certain language and rejected it in favor of other language,
    the resulting statutory language should not be held to explicitly authorize what the
    Legislature explicitly rejected.”).
    20
    clairvoyance to anticipate the coming caselaw creating those damages remedies. And even
    if they had, they left no marks on the Constitution itself approving such remedies. 64
    The majority’s textual analysis instead amounts to the proposition that the very
    nature of a right implies a remedy. This proposition does have some intuitive pull and a
    distinguished provenance. In Marbury v Madison, Chief Justice Marshall proclaimed that
    the “government of law, and not of men,” will “cease . . . if the laws furnish no remedy for
    the violation of a vested legal right.” 65 But it is equally clear that a government of laws
    requires that those remedies be established and enforced by the proper legal process. That
    is why, in Marbury, despite finding that William Marbury’s rights had been violated, the
    Court left him without a remedy: Congress had not properly granted the Court jurisdiction
    to hear the case in the first place, and thus no remedy could be crafted or enforced for the
    violation of Marbury’s rights. 66
    64
    Another textual argument some have made to support damages remedies is that such
    remedies flow from the fact that a constitutional provision is self-executing. See Brown v
    New York, 89 NY2d 172, 186; 
    674 NE2d 1129
     (1996) (“A civil damage remedy cannot be
    implied for a violation of the State constitutional provision unless the provision is self-
    executing . . . .”); Bandes, Reinventing Bivens: The Self-Executing Constitution, 68 S Cal
    L Rev 289, 292 (1995) (arguing that Bivens could be justified by the self-executing nature
    of constitutional provisions). A self-executing provision is one that “ ‘supplies a sufficient
    rule by means of which the right given may be enjoyed and protected, or the duty imposed
    may be enforced,’ ” Detroit v Oakland Circuit Judge, 
    237 Mich 446
    , 451-452; 
    212 NW 207
     (1927) (citation omitted), such that “it takes effect immediately, without the necessity
    for supplementary or enabling legislation,” Brown, 89 NY2d at 186. But as the Vermont
    Supreme Court has explained, “The fact that the constitutional provision is self-executing
    means only that the rights contained therein do not need further legislative action to become
    operative. It does not necessarily mean that monetary damages is the proper remedy for a
    violation.” Shields v Gerhart, 163 Vt 219, 227-228; 658 A2d 924 (1995).
    65
    Marbury v Madison, 5 US (1 Cranch) 137, 163; 
    2 L Ed 60
     (1803).
    66
    
    Id. at 180
    ; see also Nixon v Fitzgerald, 
    457 US 731
    , 755 n 37; 
    102 S Ct 2690
    ; 
    73 L Ed 2d 349
     (1982) (“Yet Marbury does not establish that the individual’s protection must come
    21
    The United States Supreme Court has elsewhere recognized that not all areas of law
    provide for damages remedies for rights violations: “Our implied-rights-of-action cases
    identify another area of the law in which there is not a damages remedy for every legal
    wrong.” 67
    We, too, have explained that not all rights are vindicated in court:
    But it is said that this conclusion will leave parties who have rights, in
    many cases, without remedy. Practically, there are a great many such cases,
    but theoretically, there are none at all. All wrongs, certainly, are not
    redressed by the judicial department. A party may be deprived of a right by
    a wrong verdict, or an erroneous ruling of a judge, and though the error may
    be manifest to all others than those who are to decide upon his rights, he will
    be without redress. A person lawfully chosen to the legislature may have his
    seat given by the house to another, and be thus wronged without remedy. A
    just claim against the State may be rejected by the board of auditors, and
    neither the governor nor the courts can give relief. A convicted person may
    conclusively demonstrate his innocence to the governor, and still be denied
    a pardon. In which one of these cases could the denial of redress by the
    in the form of a particular remedy. Marbury, it should be remembered, lost his case in the
    Supreme Court. The Court turned him away with the suggestion that he should have gone
    elsewhere with his claim.”); Colegrove v Green, 
    328 US 549
    , 556; 
    66 S Ct 1198
    ; 
    90 L Ed 1432
     (1946) (opinion by Frankfurter, J.) (“The Constitution has many commands that are
    not enforceable by courts because they clearly fall outside the conditions and purposes that
    circumscribe judicial actions.”); Fallon, Jr., Bidding Farewell to Constitutional Torts, 107
    Calif L Rev 933, 970-971 (2019) (“Critics routinely pillory the Supreme Court’s retreat
    from Bivens . . . as [a] betrayal[] of Marbury’s promise of an individually effective remedy
    for every violation of an individual right. But Marbury, as properly interpreted in the
    context of our tradition, made no such promise. The Supreme Court awarded no remedy
    to William Marbury. It is not clear that any other court would have done so either.”)
    (citations omitted).
    67
    Nixon, 
    457 US at
    754 n 37; see also Webster v Doe, 
    486 US 592
    , 613; 
    108 S Ct 2047
    ;
    
    100 L Ed 2d 632
     (1988) (Scalia, J., dissenting) (“[I]t is simply untenable that there must be
    a judicial remedy for every constitutional violation.”); New Law, 104 Harv L Rev at 1786
    (“But the existence of constitutional rights without individually effective remedies is a fact
    of our legal tradition, with which any theory having descriptive pretensions must come to
    terms.”).
    22
    proper tribunal constitute any ground for interference by any other authority?
    The law must leave the final decision upon every claim and every
    controversy somewhere, and when that decision has been made, it must be
    accepted as correct.[68]
    This also reflects the limited scope of the common-law principle, ubi jus, ibi remedium—
    “ ‘the principle that where one’s right is invaded or destroyed, the law gives a remedy to
    protect it or damages for its loss.’ ” 69 One scholar has observed that, at the time of the
    country’s founding and in the early nineteenth century (when Michigan was formed), this
    principle was more of a “platitude” than “black letter legal doctrine” because “a plaintiff
    had a cause of action at law or in equity only if judicial relief was available through a
    particular form of proceeding.” 70 Writs available to plaintiffs were not invented to meet
    each new wrong. 71
    And historically—at least until the twentieth century—individuals generally looked
    to the legislative branch for protection and fulfillment of rights. 72 One court, for example,
    noted that the Second Amendment,
    68
    People ex rel Sutherland v Governor, 
    29 Mich 320
    , 330-331 (1874).
    69
    People v Kabongo, 
    507 Mich 78
    , 135; 968 NW2d 264 (2021) (opinion by ZAHRA, J.),
    quoting Oxford Dictionary of Law (8th ed).
    70
    Bellia, Jr., Article III and the Cause of Action, 89 Iowa L Rev 777, 784 (2004).
    71
    Id. at 786 (“Notwithstanding the oft-recited platitude ubi jus, ibi remedium, if no form
    of action afforded judicial relief, there was no remedy regardless of whether it could be
    said that there was a right.”).
    72
    See Dinan, Keeping the People’s Liberties: Legislators, Citizens, and Judges as
    Guardians of Rights (University Press of Kansas, 1998), p xi (noting, in a study of
    Michigan and a handful of other states, that “[d]uring a republican regime, which had its
    origins in the initial state constitutions and predominated throughout the nineteenth
    century, rights were secured primarily through representative institutions and the political
    process, particularly through the passage of legislative statutes” and that “[n]ot until the
    middle of the twentieth century can we identify the emergence of a judicialist regime”);
    23
    like similar provisions in our own Declaration of Rights, declares a great
    general right, leaving it for other more specific constitutional provision or to
    legislation to provide for the preservation and practical security of such right,
    and for influencing and governing the judgment and conscience of all
    legislators and magistrates, who are thus required to recognize and respect
    such rights.[73]
    Consequently, I find nothing in the text of the Constitution that would remotely
    justify the creation of a cause of action for money damages in these circumstances.
    B. HISTORICAL PRACTICE
    The majority also suggests that there is a historical practice of inferring causes of
    action in the Constitution and allowing damages remedies. 74 Some courts and scholars
    have pointed to 19th century caselaw and, even further back, to English common-law cases
    as support. 75 But these cases were run-of-the-mill tort actions in which the constitutional
    Wood, The Creation of the American Republic, 1776-1787 (Chapel Hill and London: The
    University of North Carolina Press, 1998), pp 301-302 (“Reform-minded Americans were
    thus committed to equity as a basis of law, but by resting their plans on legislative
    enactment they at the same time denied the judicial discretion that made equitable
    interpretations necessary and possible. . . . Not the courts but only the legislatures could
    redress the grievances of the people, said a New Jerseyite in 1781, ‘because they are the
    representatives of the people.’ . . . Legislatures should be the sole source of law.”); but see
    Wood, Power and Liberty: Constitutionalism in the American Revolution (New York:
    Oxford University Press, 2021), ch 6 (noting the fear of judicial power but explaining that
    it began to be seen as a check upon the legislature in constitutional matters).
    73
    Opinion of Justices, 80 Mass 614, 620 (1859).
    74
    The text-and-history approach is increasingly used as the appropriate method for
    constitutional interpretation. See, e.g., Dobbs v Jackson Women’s Health Org, 
    597 US ___
    , ___; ___ S Ct ___; ___ L Ed 2d ___ (2022); slip op at 9 (beginning with the
    constitutional text before turning to history and tradition); New York State Rifle & Pistol
    Ass’n, Inc v Bruen, 
    597 US ___
    , ___; ___ S Ct ___; ___ L Ed 2d ___ (2022); slip op at 10
    (adopting “a test rooted in the Second Amendment’s text, as informed by history”).
    75
    See generally Widgeon v Eastern Shore Hosp Ctr, 300 Md 520; 479 A2d 921 (1984)
    (discussing the early English cases); Woolhandler & Collins, Was Bivens Necessary?, 96
    Notre Dame L Rev 1893, 1920 (2021) (“Bivens was supported by the Framers’
    24
    arguments were incidental to the cause of action and entitlement to damages. These cases
    were common-law trespass actions in which the governmental defendant attempted to
    defend his or her actions by claiming that those actions were legally justified. The
    constitutional issue would arise to “negate a defendant’s plea of legal justification.” 76 In
    many cases, the governmental official would claim immunity for his or her action under
    federal law—the Constitution—but would lose that immunity if the official’s action was
    unconstitutional. 77
    expectations that trespass actions against officials would be a means of implementing the
    Constitution.”); Vladeck, The Inconsistent Originalism of Judge-Made Remedies Against
    Federal Officers, 96 Notre Dame L Rev 1869, 1871 (2021) (noting the “ ‘long history’ of
    challenging completed unconstitutional conduct by federal officers, including the robust
    regime of judge-made damages actions that persisted well into the twentieth century in
    both state and federal courts”) (citation and emphasis omitted); Vladeck, The Disingenuous
    Demise and Death of Bivens, 2019-2020 Cato Sup Ct Rev 263, 267-268 (2020) (noting the
    early United States Supreme Court caselaw); Baker, The Minnesota Constitution as a
    Sword: The Evolving Private Cause of Action, 20 Wm Mitchell L Rev 313, 322 (1994)
    (“Other states have grounded the right to sue for constitutional violations in the common
    law of England.”).
    76
    Was Bivens Necessary?, 96 Notre Dame L Rev at 1897; see also Amar, Of Sovereignty
    and Federalism, 96 Yale L J 1425, 1506-1507 (1987) (“The structure of these pre-Bivens
    cases was quite simple: The ultimate issue before the court concerned the federal
    Constitution, but standing was conferred by the vertically-pendent state law cause of
    action. Plaintiff would sue defendant federal officer in trespass; defendant would claim
    federal empowerment that trumped the state law of trespass under the principles of the
    supremacy clause; and plaintiff, by way of reply, would play an even higher supremacy
    clause trump: Any federal empowerment was ultra vires and void because of Fourth
    Amendment limitations on federal power itself. If, but only if, plaintiff could in fact prove
    that the Fourth Amendment had been violated, defendant’s shield of federal power would
    dissolve, and he would stand as a naked tortfeasor.”).
    77
    See Butz v Economou, 
    438 US 478
    , 490-491; 
    98 S Ct 2894
    ; 
    57 L Ed 2d 895
     (1978) (“As
    these cases demonstrate, a federal official was protected for action tortious under state law
    only if his acts were authorized by controlling federal law. ‘To make out his defence he
    must show that his authority was sufficient in law to protect him.’ . . . Since an
    unconstitutional act, even if authorized by statute, was viewed as not authorized in
    25
    Plaintiffs point to such a case from our Court, Bishop v Vandercook, as evidence
    that we have long recognized constitutional torts. 78 But Bishop was a traditional common-
    law action. In Bishop, the Governor had issued an order sending state troops to help crack
    down on bootleggers who were “lawless and viciously inclined drivers of automobiles[.]”79
    A few months later, with troops in place, the Governor authorized them to place a log
    across Dixie Highway to stop travelers. 80         He required that warnings be given and
    contemplation of law, there could be no immunity defense.”); Kian, The Path of the
    Constitution: The Original System of Remedies, How it Changed, and How the Court
    Responded, 87 NYU L Rev 132, 135 (2012) (“Those who suffered a violation of their rights
    were able to bring suit, in common law or equity, against the responsible agent. . . . [I]f
    that agent did something unconstitutional, he would have no legally cognizable defense for
    violating the plaintiff’s rights.”); New Law, 104 Harv L Rev at 1781 (“Sovereign immunity
    and related doctrines generally barred direct suits against the government. In many cases,
    a plaintiff denied relief from the sovereign could seek alternative redress from the official
    through whom the government had acted; a tradition arose under which an official who
    pleaded a defense of official authority would be ‘stripped’ of that shield when his conduct
    violated the Constitution, and hence held liable like a private tortfeasor.”); Constitutional
    Remedies, 69 Colum L Rev at 1122-1123 (“In mitigation of the rigors of the doctrine of
    sovereign immunity, the view developed that the governmental officer acting under a void
    statute, or outside the bounds of a valid statute, may be regarded as stripped of his official
    character, and answerable, like any private citizen, for conduct which, when attributable to
    a private citizen, would be an offense against person or property.”).
    Some of the cases commonly cited by proponents of Bivens, such as Little v
    Barreme, 6 US (2 Cranch) 170; 
    2 L Ed 243
     (1804), were trespass actions in which the
    defense did not implicate any constitutional issues. See generally The Path of the
    Constitution, 87 NYU L Rev at 147 (noting that Little did not involve constitutional rights
    but simply “affirmed a dynamic” that the “government could not exercise power not
    delegated to it”). It is difficult to see how such a case could stand for the proposition that
    the founders expected that damages remedies would be available through tort actions when
    a federal officer violated the Constitution.
    78
    Bishop v Vandercook, 
    228 Mich 299
    ; 
    200 NW 278
     (1924).
    79
    
    Id. at 303
     (quotation marks omitted).
    80
    
    Id.
    26
    precautions be taken to allow “ ‘good citizens’ ” to get through. 81 The plaintiff was driving
    down the road at 50 to 60 mph. The troopers used flashlights to signal for him to stop.
    When he did not, they “fired a signal.” Other troopers placed the log across the highway
    and then used flashlights and red lanterns to signal the driver to stop, but without success.
    The plaintiff crashed into the log, and liquor was subsequently found in his car. 82
    The plaintiff brought a tort action to recover damages for harm to the car and
    personal injuries and won a money verdict. 83 The claim was that the defendants’ actions
    “constituted a purposeful and wilful trespass.” 84 Thus, from the start, Bishop is not the
    same as Smith: Bishop was never an action under the Constitution. In fact, the Constitution
    barely factors into the case aside from the stray line of dicta that plaintiffs have seized
    upon. Instead, the issue was whether the defendants could claim immunity because they
    were acting under direction of the Governor. 85 Specifically, they cited a statute that
    allowed troops to be dispatched to aid civil authorities—the command officer was to “be
    subject to the general direction of the sheriff or other civil officer who shall require his
    aid.” 86     While serving, “troops shall always be amenable to the civil authorities as
    represented by the governor, and shall be privileged from prosecution by the civil
    81
    
    Id.
    82
    
    Id. at 304
    .
    83
    
    Id. at 305
    .
    84
    
    Id.
    85
    
    Id.
    86
    
    Id. at 305
    , quoting 
    1917 PA 53
    , § 41 (quotation marks omitted).
    27
    authorities, except by direct order of the governor, for any acts or offenses alleged to have
    been committed while on such service.” 87
    The sum of the Court’s holding was the rejection of the defendants’ “contention that
    the State troops in time of peace, and in actual service in aid of civil authority, are
    privileged from civil accountability for wrongs committed, except by direct order of the
    governor.” 88 We read the statute as simply “stay[ing] interference by the civil authorities,
    but . . . not clos[ing] the courts to persons wronged by military lawlessness.” 89 In our
    analysis, we stated that “[n]o legislative enactment can confer power upon the chief
    executive of the State to render the military immune from civil responsibility for wrongs
    done to citizens in time of peace, or grant to the military security beyond that accorded the
    civil officers in whose aid they act.” 90
    The Court also mentioned that the Constitution subordinated the military to civilian
    authority and could be used only to aid that authority. 91 The Court then made the statement
    used by plaintiffs here:
    The emphatic provision of the Constitution (Art. 2, § 6) of the State,
    that: “the military shall in all cases and at all times be in strict subordination
    to the civil power,” is not an empty phrase, but the wisdom of the ages
    expressed in a succinct mandate. Any transgression of this fundamental law
    by military officers renders them liable to respond in damages for injury done
    87
    Vandercook, 
    228 Mich at 305-306
    , quoting 
    1917 PA 53
    , § 41 (quotation marks omitted).
    88
    Vandercook, 
    228 Mich at 306
    .
    89
    
    Id.
    90
    
    Id. at 308
    .
    91
    
    Id. at 309-310
    .
    28
    no matter how high the command to so act can be traced. Mitchell v.
    Harmony, 13 How. (U. S.) 115; Bates v. Clark, 
    95 U. S. 204
    .[92]
    Immediately following this statement, the Court concluded that the acts at issue were not
    authorized by the Governor. 93 The Court made clear the holding was simply that the
    defendants could be liable under tort law. 94
    Bishop therefore does not stand for the proposition that monetary damages can be
    claimed in actions arising under the Constitution. In proper context, the line plaintiffs rely
    on merely meant that the military officers could be liable for damages in a common-law
    tort action if their actions exceeded civil authority. The source of the liability did not flow
    from the Constitution—it does not arise from the provision subordinating the military.
    Rather, the military officers could be liable based on tort law, just like anyone else. The
    only difference was the potential defense that military members might raise of following
    orders.
    This conclusion is further confirmed by the sources Bishop cited: Mitchell v
    Harmony 95 and Bates v Clark. 96 Both cases concerned actions for “trespass.” In the
    former, a merchant trailing United States troops during the Mexican-American War was
    ordered to remain with the troops—his request to depart from the army was denied. 97
    92
    
    Id. at 310
    .
    93
    
    Id.
    94
    
    Id. at 314-315
    .
    95
    Mitchell v Harmony, 54 US (13 How) 115; 
    14 L Ed 75
     (1851).
    96
    Bates v Clark, 
    95 US 204
    ; 
    24 L Ed 471
     (1877).
    97
    Mitchell, 54 US at 129.
    29
    Subsequently, the plaintiff’s items were captured by the Mexican army and he sued the
    federal army officer who had earlier detained him. 98 The Court held that the officer could
    be liable. 99 In Bates, the plaintiff’s whiskey was confiscated by military officers and the
    Court held that the “officers can no more protect themselves than civilians in time of peace
    by orders emanating from a source which is itself without authority.” 100 A statute allowed
    military officers to seize liquor in Indian country, but the plaintiffs were not in Indian
    country when their liquor was seized. The Court observed that the officers’ good-faith
    belief that the plaintiffs were in Indian country might excuse them from punitive damages
    but that it would not preclude the action itself.101 In citing these cases, Bishop was not
    establishing a rule allowing damages for violations of the Constitution—neither case
    involved the Constitution at all. And not surprisingly, Bishop itself has, as far as I can tell,
    never been cited for that proposition either.
    The earlier English common-law cases are even further from the mark. In Wilkes v
    Wood, for example, the plaintiff sued for trespass when a government officer entered the
    plaintiff’s house, broke his locks, and seized his papers. 102 As the court said, the “present
    cause chiefly turned upon the general question, whether a Secretary of State has a power
    to force persons houses, break open their locks, seize their papers, &c. upon a bare
    98
    Id. at 129-130.
    99
    Id. at 135.
    100
    Bates, 
    95 US at 209
    .
    101
    
    Id.
    102
    Wilkes v Wood, 98 Eng Rep 489, 489 (King’s Bench, 1763).
    30
    suspicion of a libel by a general warrant, without name of the person charged.” 103 Under
    neither the English constitution nor statutory law was there “legal authority . . . to justify
    the action.” 104 Although the court emphasized the dangers of allowing the government to
    have such authority, it is clear that the case was a typical trespass action that the plaintiff
    could have brought against any private individual—the only difference being that the
    defendant could defend based on alleged legal authority for his actions. 105 And, of course,
    another critical distinction between these cases and Bivens and Smith is that they were
    decided under the unwritten and amorphous British constitution. 106 The significance of the
    written constitution, created in our states and then the national government, represented
    something profoundly new, the significance of which had to be worked out over time. 107
    103
    Id. at 490.
    104
    Id.
    105
    See also Huckle v Money, 95 Eng Rep 768, 768-769 (King’s Bench, 1763) (representing
    essentially the same situation); Widgeon, 300 Md at 527 (“Again, in Entick v. Carrington,
    19 How. St. Tr. 1029 (1765), the plaintiff brought a trespass action against the King’s
    messengers for unjustifiably entering his house and seizing his books and papers, and the
    jury awarded damages to the plaintiff. Lord Camden, after a lengthy historical review,
    upheld the damage award on the ground that the warrant to seize the papers was ‘illegal
    and void . . . .’ ”) (emphasis added).
    106
    Norton, Governing Britain: Parliament, Ministers and Our Ambiguous Constitution
    (Manchester: Manchester University Press, 2020), pp 7, 10-11 (noting that the British
    constitution’s “history and form give rise to ambiguities and uncertainties” and that the
    British constitution can refer to “a body of laws (statutes and common law), conventions
    and practices that have developed over time”).
    107
    See Wood, Power and Liberty: Constitutionalism in the American Revolution (New
    York: Oxford Univ Press, 2021), pp 49-50 (“Although Americans were convinced that
    constitutions were decidedly different from legislation, the distinction was not easy to
    maintain. They hadn’t yet imagined what a constitution meant.”); Gienapp, The Second
    Creation: Fixing the American Constitution in the Founding Era (Cambridge: Belknap
    Press of Harvard University Press, 2018), pp 3, 5 (“When the Constitution was born, it was
    31
    It has been recognized, therefore, that these types of cases do not stand for the
    proposition that courts have historically implied causes of action in the constitutional text.
    The cause of action in these cases arose from the common law. 108 And those actions were
    never understood to be coterminous with constitutional provisions, i.e., a common-law
    action might or might not adequately redress a constitutional violation. 109 In addition, the
    framers of the state and federal Constitutions would have also recognized that the
    legislature could repeal the common law. 110 Consequently, it is hard to see how their mere
    unclear what kind of thing it was. . . . When it first appeared, the new Constitution was a
    completely unprecedented kind of object; as a result, describing and interpreting it was an
    entirely novel exercise.”) (paragraph structure omitted).
    108
    The Supreme Court of Texas reached a similar conclusion with regard to caselaw in that
    state, which had previously recognized a false-imprisonment claim for monetary damages
    against a government officer. Bouillion, 896 SW2d at 150, discussing Gold v Campbell,
    54 Tex Civ App 269; 
    117 SW 463
     (1909). “However,” the court stated, “the cause of
    action alleged in Gold was the traditional common law tort of false imprisonment, not a
    tort for the violation of constitutional rights. Gold did not create a new cause of action;
    rather, it recognized that an officer who acts outside the scope of his authority is amenable
    to suit under a traditional common law cause of action.” 
    Id.
     Therefore, the court
    “disapprove[d] of any interpretation of Gold that concludes it authorized a constitutional
    tort cause of action.” 
    Id.
    109
    See Constitutional Remedies, 69 Colum L Rev at 1121 (1969) (“Some conduct violative
    of the Constitution is not of a kind that would be actionable at common law.”).
    110
    See Const 1963, art 3, § 7 (“The common law and the statute laws now in force, not
    repugnant to this constitution, shall remain in force until they expire by their own
    limitations, or are changed, amended or repealed.”); Nelson, Americanization of the
    Common Law: The Impact of Legal Change on Massachusetts Society, 1760-1830 (Athens:
    University of Georgia Press, 1994), p 90 (noting the development of written constitutions
    in this period and stating “the power to modify or even entirely repeal the common law[]
    now fell explicitly within the jurisdiction of the legislature”); see generally Redish,
    Constitutional Remedies as Constitutional Law, 62 BC L Rev 1865, 1868 (2021) (“Many
    have concluded that constitutional remedies present a sub-constitutional issue, and are
    therefore fully within the power of Congress to regulate as it sees fit.”).
    32
    expectation of the availability of such common-law actions could be interpreted as a
    constitutional requirement that such actions exist. 111 Even so, the expected applications of
    constitutional text, not reflected in the text itself, are usually entitled to little or no
    interpretive weight. 112
    111
    Some have nonetheless made that argument. See Vázquez, Bivens and the Ancien
    Regime, 96 Notre Dame L Rev 1923, 1929 (2020) (“This history is not relevant because it
    supports an analogous federal judicial power to create damage remedies in a common-law
    fashion. Rather, this history is important because it reflects the understanding when the
    Constitution was ratified, and subsisting long thereafter, that damages were an appropriate
    remedy for constitutional violations by federal (and state) officials.”); The Path of the
    Constitution, 87 NYU L Rev at 134 (noting the original expectation that “the Constitution
    was to be implemented through remedies available for violations of common law rights”).
    112
    See McGinnis & Rappaport, Original Interpretive Principles as the Core of
    Originalism, 24 Const Comment 371, 378 (2008) (noting that while expected applications
    can provide some evidence of original meaning, “[t]he original meaning of the words
    would not normally be defined by the expected applications, but instead by the meaning
    that people at the time would understand the words to have”). In this regard it is
    noteworthy, as some have argued, that these expectations might have been stymied over
    time as common-law actions against governmental officers became increasingly more
    difficult because of trends such as officer immunity and practical challenges such as
    parsimonious views of damages. The Path of the Constitution, 87 NYU L Rev at 149-161.
    But even to the extent the framers conceived of common-law remedies as a manner for
    vindicating constitutional rights, these changes were baked into the system because the
    common law has always been subject to change. Certainly, constriction of common-law
    actions against officers does not justify the judicial creation of constitutional-damages
    actions simply so that the prospects facing plaintiffs today approximate those plaintiffs
    experienced at the founding. Such an ends-driven approach is anathema to the rule of law.
    1 Story, Commentaries on the Constitution of the United States (4th ed), §§ 425, 426,
    pp 313, 314 (“A power, given in general terms, is not to be restricted to particular cases
    merely because it may be susceptible of abuse, and if abused may lead to mischievous
    consequences. . . . [A] rule of equal importance is not to enlarge the construction of a given
    power beyond the fair scope of its terms merely because the restriction is inconvenient,
    impolitic, or even mischievous.”) (paragraph structure omitted).
    33
    C. CONCLUSION
    For these reasons, nothing in the text or history of our Constitution supports finding
    a general cause of action for damages based on constitutional violations or a specific cause
    of action for such damages regarding the provision at issue here, the Due Process Clause.
    Consequently, in allowing such claims, I believe that Smith was wrongly decided and that
    the majority compounds this error today by broadening Smith.
    Seeking to avoid this conclusion, the majority notes that lawsuits can be filed to
    enjoin violations of the Constitution—I agree—and thus the majority contends that my
    complaint is not with implying a cause of action but with the relief being granted, i.e.,
    money damages. 113 This Court has already addressed the substance of this argument:
    There is obviously a distinction between a judicial decree invalidating
    unconstitutional governmental action and the adoption of judicially created
    doctrines that effectively serve as de facto statutory enactments to implement
    Const 1963, art 1, § 2. The former is classic judicial review recognized as a
    core judicial function since, at least, the decision in Marbury v Madison, 5
    US (1 Cranch) 137; 
    2 L Ed 60
     (1803). The latter is an improper usurpation
    of legislative authority. To fail to heed this limitation on judicial power
    would be to fail “to maintain the separation between the Judiciary and the
    other branches.” [Lewis, 
    464 Mich at 788-789
     (citation omitted).]
    A suit for an injunction seeks to prevent or end a constitutional violation; a cause of action
    for money damages seeks to remedy past constitutional violations. The former have been
    available from the start of constitutional litigation, whereas the latter are a creature of the
    twentieth-century judiciary.
    113
    In this regard, even, my position is essentially the same one staked out by the United
    States Supreme Court, which allows enforcement of the Constitution through suits for
    injunctions but has severely constricted the availability of implied causes of actions for
    damages. See, e.g., Ziglar, 582 US at ___; 137 S Ct at 1862 (noting the availability of
    injunctive relief for constitutional violations).
    34
    Critically, the injunctive remedy arises from an equitable action seeking to invoke
    a court’s equitable powers rather than from a legal cause of action grounded in the
    constitutional text. 114 As the Supreme Court has noted, “The ability to sue to enjoin
    unconstitutional actions by state and federal officers is the creation of courts of equity, and
    reflects a long history of judicial review of illegal executive action, tracing back to
    England.” 115 For that reason, the Court held that a suit for an injunctive remedy to enforce
    a constitutional provision—the Supremacy Clause in that case—did not “rest[] upon an
    implied right of action contained in the” constitutional text. 116 Accordingly, recognition
    of the ability to invoke a court’s equitable powers to prevent or restrain constitutional
    violations is not inconsistent with a rejection of inferring causes of action for damages from
    the constitutional text.
    III. STARE DECISIS
    Given this analysis, I believe not only that the majority’s expansion of Smith is
    wrong but also that Smith itself should be overruled. In addition to concluding a precedent
    was wrongly decided—which I have established above with regard to Smith—we must
    114
    See 13A Wright & Miller, Federal Practice and Procedure (Apr 2022 update), § 3531.6
    (“Rather than infer a cause of action directly from a constitutional provision, courts may
    resort to finding a cause of action in equity for injunctive relief . . . .”).
    Armstrong v Exceptional Child Ctr, Inc, 
    575 US 320
    , 327; 
    135 S Ct 1378
    ; 
    191 L Ed 2d 115
    471 (2015).
    116
    Id.; see also Fed Defenders of NY, Inc v Fed Bureau of Prisons, 954 F3d 118, 133-134
    (CA 2, 2020) (noting, in the context of Sixth Amendment claims, the “narrow but well-
    drawn line of precedent establishing that a plaintiff may invoke the court’s equitable
    powers to enjoining a defendant from violating constitutional provisions that do not,
    themselves, grant any legal rights to private plaintiffs”).
    35
    examine three other factors before overruling it: (1) whether the rule has proved not to be
    practically workable, (2) whether reliance interests in the rule would lead to hardships if
    the rule were overruled, and (3) “whether changes in the law or facts no longer justify the
    questioned decision.” 117
    With regard to the first factor, Smith defies practicable workability. Critically, until
    the majority’s thunderbolt today, a majority of the Court has never even agreed on a test
    for discerning when causes of action can be inferred. And although the Court of Appeals,
    and a plurality of this Court in Mays, may have applied Justice BOYLE’s multifactor
    approach, that approach is awash in policy considerations that leave parties and courts no
    clear guidance on whether a cause of action will be inferred in any given case. Most
    clearly, the open-ended final factor—allowing consideration of “various other factors”—
    gives courts permission to consider anything they would like to create a cause of action. 118
    With regard to the second factor, any reliance interests must be greatly diminished
    by the fact that a majority of this Court has never inferred a cause of action for money
    damages under Smith—not even in Smith itself. As the United States Supreme Court
    recently explained in the criminal law context, “Continuing to articulate a theoretical
    exception that never actually applies in practice offers false hope to defendants, distorts the
    law, misleads judges, and wastes the resources of defense counsel, prosecutors, and courts.
    Moreover, no one can reasonably rely on an exception that is non-existent in practice, so
    117
    Devillers v Auto Club Ins Ass’n, 
    473 Mich 562
    , 584; 702 NW2d 539 (2005).
    
    118 Smith, 428
     Mich at 648-652 (BOYLE, J., concurring in part and dissenting in part).
    36
    no reliance interests can be affected by forthrightly acknowledging reality.” 119 In addition,
    the general rule of allowing monetary damages is diffuse enough—in that it applies to all
    relevant constitutional rights—that it is difficult to see what institutions have formed or
    behavior has changed in reliance upon it. That is, the possibility of obtaining damages for
    constitutional violations does not seem to have led individuals to enter into relationships
    or associations or engage in any activities that would be disrupted by overruling Smith.
    Finally, the third factor also weighs in favor of overruling Smith. As discussed,
    there was no precedent from this state supporting Smith. To the extent it could claim any
    supporting authority, that authority—Bivens—has since been severely undercut.               A
    damages claim will not be inferred in federal court if “there is any reason to think that
    Congress might be better equipped to create a damages remedy.” 120 Courts will rarely, if
    ever, be better placed than a legislature to create damages remedies. 121
    Accordingly, I would overrule Smith and put an end to our usurpation of the
    Legislature’s authority to create causes of action for damages for constitutional violations.
    IV. APPLICATION OF SMITH
    As a last consideration, it is worth addressing how this case would have been
    resolved if the majority had simply applied Justice BOYLE’s test. Just two terms ago, three
    119
    Edwards v Vannoy, 
    593 US ___
    , ___; 
    141 S Ct 1547
    , 1560; 
    209 L Ed 2d 651
     (2021).
    120
    Egbert, 596 US at ___ (opinion of the Court); slip op at 7 (emphasis added).
    121
    Id. at ___ (Gorsuch, J., concurring); slip op at 2 (“When might a court ever be ‘better
    equipped’ than the people’s elected representatives to weigh the ‘costs and benefits’ of
    creating a cause of action? It seems to me that to ask the question is to answer it.”)
    (paragraph structure omitted).
    37
    justices in the current majority noted that this test was “persuasive.” 122 The majority
    opinion in this case provides nothing of substance to explain why the test has somehow
    become less persuasive. The majority nonetheless casts it aside, perhaps because applying
    it here would not yield a cause of action.
    The first question under the test is whether a custom or policy caused the
    constitutional violation. 123 Defendant, the Unemployment Insurance Agency, argues there
    was no custom or policy because nothing required it to intercept tax refunds or garnish
    wages—it simply employed software that identified potential fraud. I will assume for
    present purposes that this requirement is satisfied because, even if it was, the agency would
    still prevail on the other factors. First, I will address “the degree of specificity of the
    constitutional protection[.]” 124 While the Due Process Clause, as interpreted by the courts,
    covers a broad swath of territory, the general procedural components of the clause are
    clear. 125 But how those requirements apply in any given case is a different matter. As the
    Court of Appeals recognized in the present case, “due process is flexible and the procedural
    protections that it offers may vary depending on the circumstances . . . .” 126 Indeed, Justice
    BOYLE herself indicated that the Due Process Clause does not offer sufficiently clear
    122
    Mays, 506 Mich at 188 (plurality opinion by BERNSTEIN, J.).
    
    123 Smith, 428
     Mich at 642-643 (BOYLE, J., concurring in part and dissenting in part).
    124
    Mays, 506 Mich at 196 (plurality opinion by BERNSTEIN, J.).
    125
    Orth, Due Process of Law: A Brief History (Lawrence: University Press of Kansas,
    2003), p 88 (noting that the United States Supreme Court had “spelled out exactly what
    [due process’s hearing requirement] means”).
    Bauserman v Unemployment Ins Agency (On Remand), 
    330 Mich App 545
    , 569; 950
    126
    NW2d 446 (2019).
    38
    protection. 127 Thus, the clarity of the constitutional provision does not support a damages
    remedy.
    I do not find the “existence and clarity of the constitutional violation itself” to be
    sufficient to support plaintiffs’ argument in this case. 128 Plaintiffs received notices in the
    form of letters, which detailed how to appeal; both plaintiffs here had the opportunity to
    and did, in fact, file an appeal. Plaintiffs’ amended complaint stated that the lack of due
    process was in the use of the automated decision-making system because it determined
    guilt without meaningful notice or opportunity to be heard before imposition of the
    penalties. If the penalties were truly imposed before notice and a hearing, then this might
    state a due-process claim. But it is not clear that this is the case here. In general, the
    automated system makes the initial determination, but the amended complaint
    acknowledged that notice was sent. The problem, according to the amended complaint,
    was that the notice was practically useless because it was sent through the online
    unemployment system, which former recipients of unemployment benefits were unlikely
    to check. As the agency’s brief notes, however, plaintiffs here elected to receive notices
    through the online account. The amended complaint also states that plaintiffs wrote to
    defendant and submitted online appeals, although they never received a response. Of
    course, if it is true that they never received a response, then perhaps there was a due-process
    127
    See Smith, 
    428 Mich at 651
     (BOYLE, J., concurring in part dissenting in part) (“These
    search and seizure protections are, however, relatively clear-cut in comparison to the Due
    Process and Equal Protection Clauses.”).
    128
    Mays, 506 Mich at 196 (plurality opinion by BERNSTEIN, J.).
    39
    violation. But plaintiffs received numerous notices and had a number of opportunities to
    object to the agency’s action.
    The next factor is the “support for the propriety of a judicially inferred damages
    remedy in any text, history, and previous interpretations of the specific provision[.]” 129 As
    discussed above, nothing in the text or history of the Due Process Clause supports a
    damages remedy. With regard to precedent, we have never inferred damages remedies for
    procedural due-process violations. And the United States Supreme Court likewise has
    never “extended a Bivens remedy to an alleged substantive or procedural due process
    violation of the Fifth Amendment by a federal official.” 130
    The next consideration is “the availability of another remedy[.]” 131 In this regard,
    the United States Supreme Court’s decision in Schweiker v Chilicky is instructive. 132 In
    that case, the Court rejected a Bivens claim involving the federal Due Process Clause. 133
    The plaintiffs were individuals whose Social Security disability benefits were terminated—
    most of the plaintiffs appealed and were restored benefits with full retroactivity, while the
    remaining plaintiff filed a new application, was granted benefits, and received almost all
    the unpaid benefits for the period he had been denied benefits. 134 As here, the plaintiffs’
    129
    Id.
    130
    Doe v United States, 381 F Supp 3d 573, 612 (MD NC, 2019).
    131
    Mays, 506 Mich at 196 (plurality opinion by BERNSTEIN, J).
    132
    Schweiker v Chilicky, 
    487 US 412
    ; 
    108 S Ct 2460
    ; 
    101 L Ed 2d 370
     (1988).
    133
    
    Id. at 414
    .
    134
    
    Id. at 417
    .
    40
    due-process claims centered on the allegedly unconstitutional procedures by which the
    agencies wrongfully terminated their benefits. 135 In rejecting the claim, the Court noted
    the comprehensive review procedures available to the plaintiffs through the relevant
    legislation. The process enabled claimants to appeal wrongful terminations with new
    evidence and arguments along the way, ending in judicial review (which could include
    review of constitutional claims). 136
    The point of contention in Schweiker was that the review process enacted by
    Congress did not provide for money damages when unconstitutional conduct led to the
    wrongful denial of benefits. 137 Looking to its caselaw, the Court explained that Congress’s
    failure to provide for “ ‘complete relief’ ” was not a reason to infer a damages remedy. 138
    The bare fact that some injuries would go unredressed was not determinative because
    Congress had created an elaborate system. “[T]he presence of alleged unconstitutional
    conduct that is not separately remedied under the statutory scheme” did not “imply that the
    statute has provided ‘no remedy’ for the constitutional wrong at issue.” 139 Imposing
    personal liability for acts within that system would no doubt disrupt Congress’s balancing
    135
    
    Id. at 418
    .
    136
    
    Id. at 424
    .
    137
    
    Id.
    138
    
    Id. at 425
    , quoting Bush v Lucas, 
    462 US 367
    , 388; 
    103 S Ct 2404
    ; 
    76 L Ed 2d 648
    (1983) (noting that the question of whether to infer a remedy “obviously cannot be
    answered simply by noting that existing remedies do not provide complete relief for the
    plaintiff”).
    139
    Schweiker, 
    487 US at 427-428
    .
    41
    of interests. 140       Moreover, the harm for which the plaintiffs sought damages—
    “consequential damages for hardships resulting from an allegedly unconstitutional denial
    of a statutory right”—could not “be separated from the harm resulting from the denial of
    the statutory right.” 141 Summing up, the Court stated:
    We agree that suffering months of delay in receiving the income on
    which one has depended for the very necessities of life cannot be fully
    remedied by the “belated restoration of back benefits.” The trauma to
    respondents, and thousands of others like them, must surely have gone
    beyond what anyone of normal sensibilities would wish to see imposed on
    innocent disabled citizens. Nor would we care to “trivialize” the nature of
    the wrongs alleged in this case. Congress, however, has addressed the
    problems created by state agencies’ wrongful termination of disability
    benefits. Whether or not we believe that its response was the best response,
    Congress is the body charged with making the inevitable compromises
    required in the design of a massive and complex welfare benefits
    program. . . . Congress has discharged that responsibility to the extent that it
    affects the case before us, and we see no legal basis that would allow us to
    revise its decision.[142]
    The Court of Appeals in the present case distinguished Schweiker on the
    unpersuasive ground that it “did not involve highly egregious facts such as those alleged
    in the instant case.” 143 In particular, the Court of Appeals noted that the plaintiffs in
    Schweiker were simply denied benefits whereas plaintiffs here had their own property
    taken. This distinction, even if true, is irrelevant. The egregiousness of the conduct is not
    a factor that this Court or the United States Supreme Court has ever considered or endorsed.
    140
    
    Id. at 425
    .
    141
    
    Id. at 428
    .
    142
    
    Id. at 428-429
    .
    143
    Bauserman (On Remand), 330 Mich App at 575.
    42
    Moreover, it is unclear whether the Court of Appeals was correct: are disability claimants
    who depended on government benefits to survive in a better position to weather the
    termination of those benefits than the plaintiffs here are in to withstand garnishments and
    collection actions? It is certainly possible that the disabled plaintiffs in Schweiker were
    even more deeply affected by the wrongful denial of benefits than plaintiffs in this case.
    As in Schweiker, the procedures available to plaintiffs in the present case were
    extensive. Unemployment claimants can protest any determination made with regard to
    recoupment of overpayments. 144 If a protest is made—or the claimant asks for a hearing
    before an administrative law judge—the agency will review its decision and can affirm,
    modify, or reverse it, or send the protest for an administrative hearing. 145 “The Agency
    can also review a prior determination in the absence of a protest so long as it does so
    within” a certain period. 146 Even if the protest is not filed within the required period, the
    agency can still review the earlier determination. 147      “A claimant or employer who
    disagrees with a redetermination [by the agency] can appeal the decision to an
    administrative law judge . . . .” 148 That judge “shall decide the rights of the interested
    parties” and render a decision with findings of fact and supporting rationales. 149 After this
    144
    Dep’t of Licensing & Regulatory Affairs/Unemployment Ins Agency v Lucente, 
    508 Mich 209
    , 223-225; 973 NW2d 90 (2021), discussing MCL 421.32a(1).
    145
    MCL 421.32a(1).
    146
    Lucente, 508 Mich at 224-225.
    147
    See id., discussing MCL 421.32a.
    148
    Lucente, 508 Mich at 225, citing MCL 421.32a(1) and (3).
    149
    MCL 421.33(1).
    43
    decision, claimants have yet another opportunity to prevail within the agency by appealing
    to the Michigan Compensation Appellate Commission. 150 From there, the claimant can
    appeal in the circuit court and can seek further appellate review of any decision rendered
    by the court. 151
    This elaborate scheme provides ample opportunities for the agency to correct any
    mistakes internally before judicial review is invoked. It is at least as extensive as the Social
    Security disability review process discussed in Schweiker. Indeed, the agency here used
    this redetermination process to undo its erroneous decisions within just a few months of
    plaintiffs’ challenges. 152 The Court of Appeals here required far more than the United
    States Supreme Court ever has when deciding that the statutory framework in this case
    failed to provide a suitable alternative remedy because it did not allow for monetary
    damages or a way to raise constitutional due-process challenges. Under Schweiker and the
    caselaw discussed there, it does not matter if the alternative remedy is incomplete and fails
    to provide monetary damages. Moreover, the agency judges handling Social Security
    disability reviews also lack the power to adjudicate constitutional challenges. 153 For these
    reasons, I believe that the alternative remedies here were adequate.
    150
    Lucente, 508 Mich at 225-226, citing MCL 421.34.
    151
    MCL 421.38.
    152
    Bauserman v Unemployment Ins Agency, 
    503 Mich 169
    , 175-176; 931 NW2d 539
    (2019).
    153
    See Carr v Saul, 
    593 US ___
    , ___; 
    141 S Ct 1352
    , 1361-1362; 
    209 L Ed 2d 376
     (2021)
    (noting and agreeing with internal Social Security guidance explaining that administrative
    law judges (ALJs) lacked the power to rule on a constitutional challenge); Culclasure v
    Comm’r of Social Security Admin, 375 F Supp 3d 559, 569 (ED Penn, 2019) (noting that
    ALJs were powerless to decide the constitutional question raised in the case).
    44
    With regard to Justice BOYLE’s last factor, I see no other “factors” relevant to this
    case that would justify a damages remedy. I therefore believe that a damages remedy
    cannot properly be inferred under this test. Perhaps this clear result explains why the
    majority adopts a brand new test under which money damages will almost always be
    available.
    V. CONCLUSION
    The Court’s holding today lacks any basis in our common-law powers or the
    constitutional text. It represents a gross overreach given that the judicial branch has now
    seized legislative power to fashion remedies for all manner of constitutional violations.
    The Constitution, our foundational document and source of law, has been transformed into
    a wellspring of potential new claims against the state and its political subdivisions. And
    under today’s ruling, the Legislature is largely powerless to act: it can create remedies for
    constitutional violations but unless we bless them as “adequate”—whatever that means to
    the members of the Court serving at that time—we will superimpose our own preferred
    remedies. A deluge of cases and a swelling of taxpayer liability will surely ensue. I dissent.
    David F. Viviano
    Brian K. Zahra
    45
    STATE OF MICHIGAN
    SUPREME COURT
    GRANT BAUSERMAN, KARL
    WILLIAMS, and TEDDY BROE, on Behalf
    of Themselves and All Others Similarly
    Situated,
    Plaintiffs-Appellees,
    v                                                             No. 160813
    UNEMPLOYMENT INSURANCE
    AGENCY,
    Defendant-Appellant.
    CLEMENT, J. (dissenting).
    Because plaintiffs do not ask us to reconsider the test Justice BOYLE set out in her
    partial concurrence in Smith v Dep’t of Pub Health, 
    428 Mich 540
    ; 410 NW2d 749 (1987),
    and replace it with a more lenient test, I would simply apply that test to their claims. For
    the reasons stated in Part IV of Justice VIVIANO’s dissent, under that test, I do not believe
    that we should infer a damages remedy in the instant case. Therefore, I dissent.
    Elizabeth T. Clement