Tuesday, June 20, 2017

Speaking of Executive Deference

Deborah Pearlstein

The Supreme Court’s decision yesterday in Ziglar v. Abbasi is an abysmal result for those who believe there should be some remedy available when the government violates your constitutional rights – even if Congress has not gotten around to enacting separate legislation creating one.   As others have by now pointed out, it is abysmal as an exercise in legal reasoning as well, whether one agrees with the outcome or not.  What it should not be, as some colleagues have suggested, is fodder for the broader debate – about which I wrote last week in the Trump immigration order context, below – about whether and when the President’s reasoning is entitled to judicial deference in matters of national security. 

 It should perhaps go without saying that the question of executive deference in the immigration order cases – about whether to defer to the executive’s interpretation and application of a statute, or to the executive’s statement of his motive for constitutional purposes – is importantly different from the doctrinal context in which deference arose in Ziglar. Here, in assessing whether or not to imply the existence of a cause of action to sue for money damages for violation of a constitutional right, the Court attended to longstanding (though perhaps not for much longer standing) criteria, including whether “special factors” might counsel hesitation before the courts imply a remedy when Congress had offered none.  Finding such “special factors” present here (more on which anon), the 4-justice majority in Ziglar declined to recognize the availability of a civil remedy for constitutional violations surrounding plaintiffs’ post-9/11 detention.  The result, however wrong, was in no sense surprising.  It has famously been more than three decades since the Court has found a context in which it has thought a judicially implied right to sue for constitutional violations warranted.  Put differently, in the modern Court “special factors,” whatever they may be, have invariably counseled hesitation.  Somewhere in existing canons of judicial prudence, the modern Court has always found a reason why no remedy may be had.

Fair enough, one might respond, but among several reasons Justice Kennedy’s opinion identifies for not recognizing a right to sue here is the argument that plaintiffs’ suit challenged not only the abusive conduct of particular law enforcement officials, but also “elements of the Government’s whole response to the September 11 attacks, thus of necessity requiring an inquiry into sensitive issues of national security.”  The opinion then offers a few boilerplate paragraphs (written as if a clerk had been instructed to hit the “Alt-F7” Executive Deference key) invoking historic (and substantively unrelated) cases in which the Court has recognized (among other things) the President’s entitlement to deference on questions of national security.  Had the opinion left it there, notwithstanding the uniquely disfavored doctrinal context, I might have wondered more whether this language signaled a return to an era of more judicial deference to presidential decision-making.  Happily (in one sense, for no one should welcome a Supreme Court opinion this weakly argued), the very next paragraph hits the “Alt-F8” key, listing cases in which the Court has insisted (in Justice O’Connor’s popular terms) that “[w]hatever power the United States Constitution envisions for the Executive . . . in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.”

Having put the two conflicting canons on the table, even the modestly sage law student exam writer knows the money paragraph must follow. That is, the opinion’s next move must be to explain why the present case more directly implicates the one set of concerns rather than the other.  Herewith, the Ziglar opinion’s money paragraph (on this topic) in its entirety.

Even so, the question is only whether “congressionally uninvited intrusion” is “inappropriate” action for the Judiciary to take. Stanley, 483 U. S., at 683. The factors discussed above all suggest that Congress’ failure to provide a damages remedy might be more than mere oversight, and that congressional silence might be more than “inadvertent.” Schweiker, 487 U. S., at 423. This possibility counsels hesitation “in the absence of affirmative action by Congress.” Bivens, 403 U. S., at 396.

In other words, notwithstanding any question of the executive’s entitlement to deference on questions of national security policy nominally invoked in the preceding paragraphs, what we’re really basing our decision on here is something else entirely – namely, as best I can make out, that it is more reasonable to interpret congressional silence as congressional opposition when it comes to the availability of remedies for unconstitutional government conduct ostensibly carried out for the purpose of protecting national security.  One could set aside I suppose the long list of dangers associated with trying to intuit the intent of a collective body at all, much less a collective body whose relevant action here is to have said nothing one way or another.  One might equally wonder whether precisely the opposite presumption is required about congressional views when it comes to matters of national security – for example, because Congress’ established political incentives against taking any action on any question of national security are by now so apparent, it should be assumed Congress approves of another branch’s conduct (whether the use of force against ISIS or the implication of judicial remedy for a violation of individual rights) unless Congress says otherwise.  One might set all this aside in rejecting the decision’s import for executive deference, because this reasoning has nothing to do with the Executive at all, but rather to how the Court should interpret Congress’ failure to enact a statutory cause of action on which plaintiffs could otherwise rely.  

Ziglar is a bad outcome for judicial enforcement of constitutional rights, no doubt. But grounds for celebration that the Court might look more favorably on Trump’s immigration justification after all?  That I don’t see.

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