an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Maintaining Constitutional Checks on the Cusp of a Trump Administration
On January 18, the Supreme Court will hear argument inZiglar v. Abassi(formerly Turkmen v. Ashcroft), the first of two cases this Term raising the question of civil liability for constitutional violations by federal officials. (I previously wrote here about the other case, Hernandez v. Mesa, which is scheduled for argument in February). Abassi will be heard by six members of the present eight-Justice Court (Justices Kagan and Sotomayor are recused because of their earlier participation in the case as the former Solicitor General and as a judge on the Second Circuit, respectively).
Abassi is a class action arising out the arrests and detention of more than 750 men from South Asian and Middle Eastern countries in immigration sweeps in the United States following the 9/11 attacks. The men, many of whom were arrested on nothing more than vague tips about “suspicious” Arabs, were detained for minor visa violations. None was ever connected to the 9/11 attacks or convicted of terrorism. While the suit seeks a remedy for past harms, the Court will hear it against the backdrop of an incoming administration that has raised palpable fears about executive branch overreach, placing the question of civil accountability -- and importance of deterring future constitutional misconduct -- into sharp relief.
Plaintiffs in Abassi brought claims against two sets of defendants: senior level Justice Department officials, including former Attorney General John Ashcroft and former FBI director Robert Mueller; and wardens of the federal detention center in New York where the plaintiffs were held. They assert that the defendants arrested them and subjected them to uniquely harsh and abusive conditions of confinement based solely on their race, religion, and ethnicity. Under the government’s “hold until cleared” policy, federal officials continued the men’s detention in solitary confinement in a super-maximum wing of a federal facility—without any individualized determination of criminality or a connection to terrorism—until they were formally cleared by the Justice Department, a process that took months in many cases.
In 2009, in Ashcroft v. Iqbal, the Supreme Court addressed similar claims arising out of the sweeps. There, the Court held that the claims did not plausibly allege Ashcroft and Mueller’s personal involvement in the alleged policy of discriminatory treatment. Plaintiffs subsequently amended their complaint, bolstering it with nonconclusory allegations against Ashcroft and Mueller, based partly on findings of two Inspector General reports highly critical of the sweeps. They describe Ashcroft and Mueller’s role at the front and back ends: from approving arrests based solely on the men’s race, religion, ethnicity, or country of origin, to approving their continued detention in harsh and punitive conditions notwithstanding the absence of any information connecting them to the 9/11 investigation or terrorism more generally. A divided panel of the U.S. Court of Appeals for the Second Circuit found the allegations plausible and refused to dismiss. (As to Ashcroft and Mueller, the Second Circuit limited its ruling on discriminatory animus to their respective roles in continuing plaintiffs’ exposure to harsh conditions of confinement, thus excluding potential liability for their arrest and initial detention). The Second Circuit denied rehearing en banc by a 6-6 vote, over a vigorous dissent by Judge Raggi, who had previously dissented from panel decision.
If the Court finds the allegations plausible—and every judge below recognized that plaintiffs at least stated plausible claims against one federal warden for deliberate indifference to their physical and verbal abuse—the Court will address whether the constitutional rights were sufficiently established to defeat the defendants’ assertion of qualified immunity. Here, the defendants emphasize the unique post-9/11 threat and security challenge. But despite the unprecedented nature of the terrorist attack, this assertion seems insufficient given the clarity and strength of the constitutional norm against facial classifications based on race, religion, and ethnicity. Notwithstanding the extraordinary law enforcement challenges presented by the 9/11 attacks, a reasonable official should have known that targeting individuals and detaining them in extraordinarily harsh conditions—and continuing the mistreatment for months after the attacks—solely because they were Arab or Muslim violates the Constitution.
The most significant and far-reaching issue, however, concerns the availability of a remedy under Bivens v. Six Unknown Named Agents, assuming clearly established constitutional violations occurred. In particular, the senior Justice Department defendants argue that a combination of special factors all arising in a new context—high-level decisions concerning the detention of foreign nationals following an unprecedented terrorist attack—counsel hesitation and foreclose a remedy. The Supreme Court, however, has never recognized either national security or immigration as Bivens special factors, even for high-level federal officials. As to national security, the Court in Mitchell v. Forsyth, stressed the importance of ensuring a remedy is available where federal officials rely on claims of national security since it is precisely in those cases that officials are more prone to commit constitutional abuses through overzealous action. Although the Court held that the Attorney General in Mitchell was protected by qualified immunity against claims for his approval of warrantless electronic surveillance, it never questioned the availability of a Bivens remedy merely because the case implicated national security. The Supreme Court in Carlson v. Green, along with lower courts in multiple cases, have recognized a Bivens remedy for unconstitutional treatment in detention.
Creating an exception to Bivens because a case involves high-level decisions and implicates national security—whether alone or in combination with immigration—would be inconsistent with this basic understanding and could have significant ramifications. Not only would it immunize federal officials from civil liability for racial and religious discrimination in the post-9/11 immigration sweeps, one the most notorious violations of civil liberties during that period. It would also have a dangerous signaling effect, potentially emboldening an incoming president who has openly endorsed Islamophobic policies. Whether the potential availability of a damages remedy would deter Trump (or a future president) from engaging in the type of dragnet sweeps and abuse against Muslim and Arabs (or other vulnerable groups) is uncertain. But the Court should not remove this check against revival of the discredited legacy ofKorematsu v. United States. It should instead take the opportunity Abassi offers to affirm rule of law values by maintaining the possibility of a Bivens remedy, not only against rogue federal agents, but also against the most senior government officials.