The Trump Administration often targets specific organizations and individuals for deliberate harm. For instance, Donald Trump said, “Harvard is treating our country with great disrespect, and all they’re doing is getting in deeper and deeper and deeper. They’ve got to behave themselves.” He said this while his administration was canceling up to $3 billion in contracts with Harvard, subjecting the university to at least eight different investigations, and blocking foreign students from attending–actions that could cost the university more billions.

If any private actor caused such damages, it would be subject to a tort claim and would face damages if it lost in court. If Congress passed a law targeting a specific entity, that legislation would violate the Bill of Attainder clause of the US Constitution and would be struck down.

However, the executive branch can violate a basic principle of the rule of law by acting against an individual or entity and face only the risk that its actions will be stopped. The government risks no penalty for persecuting a target, and there is no provision for the victim to win damages. This is because the Sovereign Immunity Doctrine generally shields the government and its officials from civil liability, and the Federal Tort Claims Act carves out very modest exceptions. (See this explanation by Glenn C. Altschuler and David Wippman.)

There is, however, a solution. Congress could pass a law enabling organizations and individuals who were persecuted in certain ways to seek damages in federal court. Victims’ rights could be made retroactive so that they could sue the government in the future for damages being caused now–or, indeed, for damages caused by Trump’s predecessors. If it’s really true that Obama took executive actions to bankrupt coal companies, then those companies might have a case, because such actions would bypass due process. I am skeptical that this claim is valid, but it could be assessed in court.

The goals would be: (1) to repair some of the damage incurred by the many victims of federal actions, and (2) to reinforce rule of law by creating a cost for the government when it targets organizations or individuals and harms them without due process.

I am fully aware that a Republican Congress would not pass this law, and if it did, Trump would veto it. But I think it is important to begin identifying specific priorities for the period of repair that must follow Trump. (See also “a generational call to rebuild” — on the opportunity to reconstruct the federal civil service.)