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Wednesday, June 21, 2017

SCOTUS Symposium: A Pair of Posts on Abbasi's Flawed Historical, Analytical, and Theoretical Foundations

I'm embarrassingly late to the non-stop party that is the Prawfs end-of-Term symposium, but thought I should at least flag here a pair of posts I've written elsewhere about Monday's decision in Ziglar v. Abbasi, why I think it's the clubhouse leader for most important ruling of the Term, and why that—and it—should bother all of us (a lot).

On Monday, over at Just Security, I wrote a post about "the four key analytical moves Justice Kennedy makes in laying the groundwork for the holding that courts shouldn’t recognize such 'Bivens' claims here (or in most other contexts), and break down why each of the moves is independently problematic." In a nutshell, the Abbasi opinion (1) ignored the rich history of common-law damages remedies against federal officers; (2) refused to grapple with the (potentially constitutional) implications of the Westfall Act, which has been read to foreclose previously available state-law remedies for federal constitutional violations; (3) accepted the deeply problematic analogy to the role of courts in implying statutory causes of action; and (4) held out habeas petitions as a meaningful alternative remedy for the constitutional violations alleged by the plaintiffs.

Today, I have a post up at Lawfare that more directly confronts the normative claim at the heart of Justice Kennedy's opinion—that judge-made remedies for constitutional violations, especially in national security cases, represent an undue intrusion into the prerogatives of the political branches (and more so than claims for prospective relief). As today's post suggests, 

[T]here are three different defects in his normative case against Bivens: First, it rests on a view of the intrusive effect of Bivens that is not just wholly unsubstantiated but also internally inconsistent as a logical matter. Second, it incorporates into Bivens concerns about undue intrusion that other doctrines already account for in more nuanced, sophisticated ways. Third, and most importantly, it assumes that damages actions represent a greater intrusion into the function of the political branches in general (and in national security cases, specifically) than does prospective relief (like injunctions, habeas, etc). That’s a theory of the separation of powers that, frankly, makes no sense. Certainly one can reasonably be opposed to an aggressive judicial role in national security cases in general, or in cases seeking prospective relief, specifically. But the idea that judicial recognition of an after-the-fact damages suit represents a greater threat to the separation of powers than judicial imposition of an injunction against ongoing national security policies (ranging from the 1973 bombing of Cambodia to military detention at Guantánamo to the travel ban) is, for lack of a better word, nuts.

Anyway, since neither Just Security nor Lawfare allows comments (directly, at least), I thought I'd flag these contributions here in case they provoke further discussion...

Posted by Steve Vladeck on June 21, 2017 at 04:32 PM in 2018 End of Term, Constitutional thoughts, Steve Vladeck | Permalink


The plaintiffs were in the country unlawfully, detained for four months and change, then deported. Unless they were beaten severely by jail guards, it's difficult to see why they would have any cause of action were the law not an ass.

Posted by: Art Deco | Jun 22, 2017 11:22:03 AM

Justice Breyer -- for him -- lurid dissent, example provided:

Given these safeguards against undue interference by the Judiciary in times of war or national-security emergency, the Court’s abolition, or limitation of, Bivens actions goes too far. If you are cold, put on a sweater, perhaps an overcoat, perhaps also turn up the heat, but do not set fire to the house.”

Need a trigger warning!

Posted by: Joe | Jun 21, 2017 6:11:41 PM

Two thoughts:

1. One now wonders what's doing the work in EPY, on which Harlan also relied in Bivens: rights to sue implied by the Constitution or that body of federal equity that Justice Scalia identified in Armstrong v. Exceptional Child.

2. We now have two decisions by AMK, one that re-wrote pleading law and now Ziglar. Both would have been unnecessary, perhaps, had Butz gone the other way on high official absolute immunity.

Posted by: Jim Pfander | Jun 21, 2017 5:42:25 PM

Apologies in advance for a long comment; I was thinking of doing a post at my own blog but you've happily provided me with a forum better suited to my relatively minor point. About "the deeply problematic analogy to the role of courts in implying statutory causes of action," which you say at JS was "first articulated by Justice Scalia," Kennedy says that Justice Harlan drew that analogy in Bivens itself, and he's quite right. Harlan wrote in Bivens:

"The contention that the federal courts are powerless to accord a litigant damages for a claimed invasion of his federal constitutional rights until Congress explicitly authorizes the remedy cannot rest on the notion that the decision to grant compensatory relief involves a resolution of policy considerations not susceptible of judicial discernment. Thus, in suits for damages based on violations of federal statutes lacking any express authorization of a damage remedy, this Court has authorized such relief where, in its view, damages are necessary to effectuate the congressional policy underpinning the substantive provisions of the statute.

If it is not the nature of the remedy which is thought to render a judgment as to the appropriateness of damages inherently 'legislative,' then it must be the nature of the legal interest offered as an occasion for invoking otherwise appropriate judicial relief."

Harlan then reasons in the next paragraph that, if courts can imply damages remedies into statutes, there's no reason why they can't imply a damages remedy into the Constitution. In your Just Security post, you quote a sentence in that paragraph, which you say supports or makes your argument that it would be anomalous for courts to have the power to enjoin violations of the Constitution but not the lesser power to award damages for violations of the Constitution. But if you read the whole sentence, which you partially elide, what he's actually saying is that it would be anomalous for courts to be able to imply damages into statutes but not the Constitution: "Initially, I note that it would be at least anomalous to conclude that the federal judiciary—[your elision starts here]while competent to choose among the range of traditional judicial remedies to implement statutory and common-law policies, and even to generate substantive rules governing primary behavior in furtherance of broadly formulated policies articulated by statute or Constitution, [your elision stops here] is powerless to accord a damages remedy to vindicate social policies which, by virtue of their inclusion in the Constitution, are aimed predominantly at restraining the Government as an instrument of the popular will." There is, to be sure, something of an a fortiori quality to this argument, but he never suggests that even if there were a problem with implied statutory damages remedies, implied constitutional damages remedies would be just fine. Rather, implied statutory remedies really ground the whole argument.

Harlan does go on to make an argument from equitable relief, but it's a rather convoluted and question-begging argument that seems to go:

1. We have unquestioned power to enjoin violations of the Constitution.
2. To the extent it's the case that express congressional authorization is required to award damages for violations of the Constitution, the same must be true of equitable relief. (Why?)
3. But the only authorization of equitable relief I find is in 1331.
4. So it follows that 1331 is enough to authorize damages in actions under the Constitution.

Your argument from equitable relief is more straightforward and sounder, and I don't doubt that there are, at the very least, coherent positions on which both a robust Bivens and current law on implied statutory remedies can both be correct. But I don't think it's fair to say that Kennedy's making a deeply flawed analogy that Scalia and Thomas invented when he's just responding to Bivens' own reasoning, or at least the reasoning of the one opinion in Bivens that's any good. Absent some new explanation for Bivens, like the one you give, Bivens has become pretty shaky, since implied statutory remedies played a foundational role in Harlan's reasoning.

Posted by: Asher Steinberg | Jun 21, 2017 5:21:13 PM

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