Atheist group to sue House chaplain

[struggle4progress]

12. I read the complaint. I don't really understand its alleged grounds for a Bivens action:

there seems to me to be no constitutional right to offer an invocation on the House floor, so I cannot see how the failure of the plaintiff to be allowed the opportunity to offer such invocation can be regarded as deprivation of a constitutional right

Moreover, it is my understanding that a Bivens action requires wrongful intrusion against constitutional right under color of law --- which is to say, intrusion against constitutional right disguised as an official act. But where there is no constitutional right, there cannot be any intrusion against constitutional right; and here, in fact, there is not even any intrusion whatsoever against the plaintiff

As the chaplain is elected by the House to provide for the invocations, the office is of a political character, and the chaplain's continuation in office depends on the chaplain's ability to mollify a majority of the representatives who hear the daily invocations. The courts are therefore likely to regard questions about the chaplain's performance as prerogatives of the House, essentially political on nature, and therefore not a proper topic for the courts, which will naturally find themselves reluctant to intervene in the internal operations of a co-equal federal branch. The plaintiff's remedy, as for any other citizen who might wish to offer an invocation on the House floor but was denied, is political in nature: the plaintiff may lobby congress to replace the chaplain or to abolish the chaplaincy entire, but will not succeed in obtaining a directive from the courts that the House must hear a particular invocation delivered on the House floor