Concurring in Trump v. Slaughter, Justice Gorsuch rightly observes that by concentrating power in the President, the Supreme Court’s decision creates new opportunities for that power to be abused. Emphasizing that the “whole of the President’s authority” might be “greater than the sum of its parts,” Justice Gorsuch asks how “a business out of favor with the party in control of the White House” or “disfavored individuals” can fend off the “now-coordinated” attacks by federal agencies.

Justice Gorsuch argues that “any real response” to these risks “will have to come from this Court,” which had a hand in their making. At that level of generality, I agree. Where I part company is over the appropriate judicial response. The judicial responses that Justice Gorsuch envisions — such as ratcheting up the nondelegation doctrine — would put new limits on Congress’s ability to rely on federal agencies to carry out federal law. But if the driving concern is the potential abuse of presidential power, that approach seems to throw out the baby with the bathwater.

I propose a more calibrated response. Rather than putting new constraints on Congress’s power to rely on federal agencies to serve the public good, the Court should recognize a narrow damages remedy against federal officers who knowingly carry out a superior’s directive to take unconstitutional action. The damages remedy would be subject to the usual qualified-immunity standard.

Imagine, for example, that the President directs the Commissioner of the IRS to “audit any law professors who criticized me.” If the Commissioner knowingly carries out that directive, the Commissioner should face potential personal liability. The President’s power to take care that the laws be faithfully executed is not a license to target political enemies. And it has been settled since Chief Justice Marshall’s 1804 decision in Little v. Barreme that a presidential directive does not excuse a federal officer from personal liability.

The Little principle protects the rule of law by giving subordinate officers an incentive to resist unlawful orders. This venerable doctrine has become even more important after Slaughter. To be clear, my goal is not for federal officers to end up paying out of pocket for a superior’s misdeeds. On the contrary, giving the officers skin in the game gives them leverage to push back internally against improper directives from on high. In other words, a federal officer’s potential damages liability helps to ensure that the laws are faithfully executed.

Justice Gorsuch may object, as he did with respect to Bivens remedies in Egbert v. Boule, that Congress should be tasked with explicitly creating damages remedies. But as he recognized in Slaughter, “any President keen on his own authority” will “have a strong incentive to veto any effort” to curb that authority.

Furthermore, my proposal is not a new Bivens remedy. Whereas a Bivens remedy arises under the Constitution, my proposed remedy rests on statutory interpretation. When Congress entrusts federal officers to carry out statutory directives, it is fair to infer that Congress intends for such officials to be personally liable if they knowingly carry out a superior’s directive to take unconstitutional action.

No special factors counsel hesitation in recognizing a damages remedy in such circumstances, particularly if the usual qualified-immunity standard applies and discovery is appropriately cabined. I suggest that discovery be available only if the complaint plausibly alleges specific facts—such as the superior’s public statements or leaked private statements—that support a claim that the defendant official knowingly carried out the superior’s directive to take unconstitutional action. Like the potential damages remedy itself, the very prospect of discovery could have the salutary effect of deterring official misdeeds.

Alisa Klein is an Associate Professor at the Wilmington University Farnan School of Law who formerly worked as a career appellate litigator for the Department of Justice.