By now, the Supreme Court headlines have slowed down for the summer. After bringing on a new Justice in April, the 2016-2017 Supreme Court decided cases on racially sensitive band names, the death penalty, and the temporary stay on Trump’s controversial entry ban. The Court also agreed to hear a number of cases for the October 2017 term, including a gerrymandering case and the Circuit Courts’ rulings on Trump’s controversial immigration order. But one decision handed down on Monday, June 19th deserves just as much attention. The Court’s 4-2 majority opinion in Ziglar v. Abbasi will have profound repercussions for future plaintiffs seeking remedies for constitutional violations, particularly those who seek a Bivens claim. Before diving into some of the legal weeds, some brief context will help us to understand just how important the Ziglar decision is.
On the morning of November 16, 1965, Federal Bureau of Narcotic (FBN) agents stormed a Brooklyn residence and arrested Webster Bivens without a warrant. Drug charges were filed after the arrest, but later dropped. Bivens sought compensation by filing a suit for violation of his Fourth Amendment freedom from unreasonable search and seizure. Although privacy violations had been subject to state law claims in the past, the government claimed that the Fourth Amendment provided no cause of action against the FBN, a federal agency. After the district court and the Second Circuit Court of Appeals affirmed the government’s argument, the Supreme Court granted certiorari on the issue of whether plaintiffs could bring Fourth Amendment violation claims in federal court.
In 1971, in a decision by Justice Brennan, the Supreme Court found an implied cause of action for citizens to bring constitutional damage claims against federal agents when no other remedy exists. This was based on the equity principle that “for every wrong, there is a right.” Thus, the Bivens claim was born. Subsequent cases would see Bivens suits successfully argued to vindicate Fifth Amendment rights.
To some observers, the Court’s 1971 Bivens decision looked a lot like groundless “legislating from the bench” by judicial activists. While these concerns are valid, the history of constitutional torts is a lot more complicated, beginning with the Marshall Court’s vindication of maritime tort claims brought by foreigners against the Federal Government in the early 19th Century. For the interested reader, James E. Pfander’s Constitutional Torts and the War on Terror provides a timely history and discussion on the matter.
2. ZIGLAR v ABBASI
Since 9/11, SCOTUS has been willing to grant writs of habeas corpus in instances of unlawful detention and torture (a fantastic review of these cases can be purchased here), however, it has balked on deciding detention and torture cases on the merits in which a Bivens or other federal tort is at issue. While some scholars applaud the Court’s restraint in deferring these issues to the Executive, other scholars worry that the Supreme Court as a whole is no longer comfortable being recourse for plaintiffs suffering constitutional damages. Enter Ziglar v Abassi…
After 9/11, the FBI got swamped with over 96,000 “tips “(some legitimate, but many of them overtly racist and unfounded). In response the FBI detained over one thousand citizens and noncitizens across the United States, including over 700 individuals detained on immigration charges. Many were subject to brutal conditions and treatment. In this case, eight former detainees brought a class action suit against several high-ranking policy-making officials, among them former INS Commissioner James Ziglar.
After a federal district court dismissed the claims in 2013, the United States Court of Appeals for the Second Circuit reversed and remanded, vindicating the respondents’ equal protection, conspiracy, and due process claims while dismissing four others. Ziglar filed a petition for a writ of certiorari, which the Supreme Court granted on October 11, 2016.
On June 19th, 2017 the Court upheld the Government’s request in a 4-2 decision delivered by Kennedy. The court would not authorize Bivens damages against Ziglar, since doing so would apply the remedy to a new context. The court further sided with Ziglar in holding that the federal officials were eligible for qualified immunity. Finally, the court remanded part of the case, sending it back to the Second Circuit to conduct an analysis on whether or not prisoner abuse claims could be made against a state (as opposed to federal) defendant.
Many will hail the Court’s decision in Ziglar as a victory. Some policymakers worry that naming individual government agents (which is required for Bivens suits) is costly and risky. The threat of money damages might deter would-be public servants from entering the public sector, and otherwise distract federal employees from their regular duties. Other policymakers worry about creating a “stall tactic” for terrorists to abuse our legal system, initiating federal tort litigation for “lawfare” purposes. These scholars also argue that war and foreign policy are distinctly executive prerogatives, and that the Court was right to respect the Constitutional balance of power by dismissing Bivens claims and staying in its own lane.
Other legal scholars worry because the Court’s opinion holds that even if detainees are tortured, they are not entitled to compensation for Constitutional violations. Although proponents of the Court’s decision point to habeas and injunctive relief as an alternative to Constitutional torts, habeas cases must be brought by a “next friend,” which may not exist for unfortunate souls who are captured abroad and whisked away to black sites. What is more, habeas and injunctive suits can only be brought while the plaintiff is in unlawful custody. If the government simply moves the plaintiff, his/her suit is moot Furthermore, granting habeas only provides custody relief. It cannot make amends for past abuses.
Here, Pfander’s book may be prescient. Although published before the Ziglar decision, Pfander worried about the Court’s growing reluctance to recognize Bivens suits, especially when brought by plaintiffs implicated in the War on Terror. In his book, he cites two main concerns: the inadequacy of habeas relief and lack of clear boundaries for the Federal Government. Some of the alleged shortcomings of habeas relief are mentioned above. Pfander also worries that the federal courts’ unwillingness to decide constitutional damages claims in national security cases ultimately leads to unclear boundaries in matters of arrest, detention, and interrogation. Steve Vladeck, professor of law at University Texas School of Law, underscores this concern:
“The Supreme Court today held [in Ziglar v. Abbasi] that, even if the government systematically abused and discriminated against post-9/11 detainees for no other reason than because they are Muslims or of Arab descent, the federal courts are powerless to provide a damages remedy in the absence of express congressional authorization to do so.”
This year, The Supreme Court of the United States reached a decision on actions taken in 2001 that has signaled the near-extinction of a Constitutional remedy that has been in play since 1971. Regardless of one’s perspective on Bivens, recent cases have brought to light fascinating dynamics that underscore both the uniqueness of the Judicial Branch and the considerable impact that 9/11 has had on the US rule of law. The average observer might be vaguely aware of the Supreme Court detention reviews in the early 2000s, as well as the electronic privacy issues that erupted after the Snowden leaks, however, some may be unaware of how post-9/11 policy decisions are still having substantial impact on our legal system.
Depending on a person’s perspective and priorities, the decision reached by the Supreme Court on Ziglar can be considered a huge win for proponents of stringent national security, or a staggering blow to the integrity of the War on Terror and the Constitution.