This piece was originally published on the American Constitution Society's ACSblog. 

Having litigated the case that would become Ziglar v. Abbasi for the last fifteen years, since the summer I graduated from law school, my first impressions of the Supreme Court’s 4-2 decision were somewhat provincial. I represent six men who were detained after 9/11 for minor immigration violations. Though there was never any reason to suspect my clients of ties to terrorism, they were beaten, harassed, kept from contacting lawyers and loved ones, denied the ability to practice their religion, deprived of sleep and held in solitary confinement until they were cleared of any potential connection to terrorism by the FBI and deported. Last week’s Supreme Court decision denying them an opportunity to sue for monetary damages against the former federal officials that designed the policies that led to their restrictive confinement marks a low point in their long struggle for justice and compensation. Perhaps unsurprisingly, my first thoughts were how they would be impacted and where the case could go from here. With the benefit of a few days distance, I have forced myself to undertake the decidedly unpleasant task of considering the bigger picture: Just how badly does Justice Kennedy’s opinion eviscerate the Bivens doctrine? Spoiler alert: quite a lot.

Some background first: unlike constitutional violations by State officials, there is no statute that allows people to sue federal officials for damages for constitutional violations. Instead, civil rights plaintiffs have relied on a trio of Supreme Court cases, stating with Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, that implied a damages cause of action directly under the Fourth Amendment, the Equal Protection Clause and the Eighth Amendment. Since 1980 the Supreme Court has consistently rejected attempts to “expand” the Bivens doctrine to allow damage actions against federal agencies, private corporations and private actors and to limit its application where Congressional action in the field leaves no room or no need for an implied cause of action. But over the same period, the Supreme Court and the circuits assumed the availability of many other Bivens claims that met the central purpose of the doctrine: compensating victims of federal officer wrongdoing where such compensation would otherwise be unavailable, and deterring individual federal officers from future illegality. Abbasi stands in sharp contrast to these decades of precedent. 

Justice Kennedy’s decision in Abbasi identifies four special factors weighing against recognition of a Bivens action. The first factor is that Respondents bring claims against “Executive Officials.” Having re-read the operative paragraphs about 15 times, I simply cannot tell if Kennedy means to question all Bivens actions against “executive officials” or only Bivens challenges to policies set by executive officials. If a defendant’s high-rank is a special factor in every challenge then “executive officials” may very well enjoy absolute immunity, and Justice Kennedy has effectively overruled Mitchell v. Forsyth, a 1985 decision which permitted a damages action to proceed against the former attorney general.

There is however reason to believe that Justice Kennedy is only referring to policies set by executive officers, as he takes pains to describe the claims in question as challenging the “detention policy” and begins his analysis by noting that a Bivens action is not “a proper vehicle for altering an entity’s policy.”  Perhaps Justice Kennedy’s concern is that the policy claims at issue in Abbasi are the type that would lead to problematic discovery about policy deliberations, distracting or deterring federal officers from doing their jobs. If that is the case, civil rights practitioners will recognize these concerns as nothing new. In fact, they are the reason why federal and state officials already enjoy “qualified immunity,” which protects government actors from reasonable but mistaken judgments as to what the law might allow. Insulating executive policy from Bivens challenges suggests that high-level officials should also be free to make unreasonable mistakes as to what the law allows, without fear of individual liability.

This is new. The Supreme Court recognized decades ago in Butz v. Economou that “It makes little sense to hold that a Government agent is liable for warrantless and forcible entry into a citizen’s house . . . but that an official of higher rank who actually orders such a burglary is immune simply because of his greater authority.” After all, unconstitutional polices hurt more people than individual unconstitutional acts, shouldn’t we care more about deterring and compensating them? And while the Supreme Court has previously stated that Bivens is not “a proper vehicle for altering an entity’s policy,” taken in context, all the Court was saying was that a claim for injunctive relief is the proper way to stop an ongoing constitutional violation by an entity, not a claim for damages against the entity brought in hopes the entity would subsequently be deterred from future illegality. 

Thus, Abbasi special factor number one calls into question the continued vitality of any Bivens claim against a “high ranking” official, and establishes for the very first time a presumption against a Bivens challenge to high-level policies that violate the Constitution.    

Justice Kennedy identifies three other special factors, all closely related: (1) that the policy in question involves national security; (2) that Congress has been silent about a remedy for 9/11 detainees, and (3) that Respondents could have sought injunctive relief. As for the first, it initially appears to be something of a wash even by Kennedy’s reasoning. On the one hand, courts must defer “to what the Executive branch has determined is essential for national security.” But on the other hand, “there are limitations…on the power of the Executive … even with respect to national security.” This tension is overstated in context, as Abbasi is not a case about men whom the executive thought presented a national security threat. To the contrary, the Office of the Inspector General found that the 9/11 detainees were treated as suspected terrorists and subjected to harsh conditions of confinement because the FBI could not say whether or not it had any interest in investigating them further. The “sensitive issue of national security” which Kennedy insulates from review is the determination to treat every Muslim man of Arab or South Asian descent who has overstayed his visa as a national security threat until he is proven harmless. Thus, under special factor number two, any racist or arbitrary policy decision is insulated from judicial review so long as it is undertaken in the name of national security, regardless of whether it has any factual basis whatsoever.

Next, Kennedy discusses Congressional “silence” as a special factor counseling against implying a Bivens remedy. This is both factually and doctrinally incoherent. It is true that Congress was interested in the 9/11 detentions and heard evidence about the detainees’ conditions of confinement. And it is also true that Congress did not create a cause of action for damages in response to this information. Missing from Kennedy’s analysis, however, is the highly relevant fact that Congress was told in those same hearings that 9/11 detainees were bringing Bivens claims that were working their way through the courts. And at the time of those hearings, the availability of such a Bivens claim was not even questioned by Defendants. Congressional action was therefore totally unnecessary, and evidences nothing.

Finally, Kennedy finds it “of central importance” that “this is not a case like Bivens or Davis in which ‘it is damages or nothing’” because Respondents could have challenged their conditions of confinement by seeking injunctive relief. Actually, Respondents did seek injunctive relief. But as they were kept from contacting attorneys until late in their detention, their injunctive claims were mooted before judicial review was possible. In this way, Respondents’ situation is precisely like that in Davis - where injunctive relief was theoretically available at the time of the Constitutional violation but unavailable by the time the case reached the Supreme Court, prompting the Court’s adoption of Justice Harlan’s famous “damages or nothing” language. Thus under Abbasi  special factor four, Kennedy transforms the Court’s previous inquiry into whether Bivens is, at the time of review, the only available remedy, into an inquiry into whether some other relief might theoretically have been available at the moment the violation occurred.   

With these four “special factors” in mind, Kennedy comes to his conclusion: a balance must be struck between deterring constitutional violations and freeing high-level officials to act. But no balancing follows; for Kennedy, the fact that there is a balance to strike means Congress must strike it. Never mind Marbury v. Madison; the Court has no special role to play.  

What does this mean for future civil rights plaintiffs, injured by federal officials? Kennedy does not opine that any one of these factors alone would be enough to foreclose Bivens, and for now at least, Bivens challenges to Constitutional violations by low-ranking officials will likely continue. It is not the small injustices that have been foreclosed from compensation; it is the large ones, the outrageous ones, the ones we thought maybe, in this day and age, the Court would care to consider. Instead, should the attorney general decide tomorrow that every single American Muslim is a potential threat to national security and must be rounded up and detained, a lawsuit to enjoin that policy might succeed, but those unlucky few detained before the court could rule would have no recourse. The injury to their rights would be collateral damage; regrettable, but of no constitutional consequence. And the officials who planned and ordered this gruesome violation of the Constitution; they would remain undeterred from trying again, perhaps with a few tweaks, the following week. Somehow I doubt this outcome would be the same if the conservatives on the Court felt any real kinship at all toward the Brown and Black communities likely to be the target of future discriminatory policies. The Court’s kinship for high-level federal policy-makers forced to make tough decisions about other people’s freedom, on the other hand, is on clear display.