//  6/22/17  //  Commentary

By David H. Gans, Director of the Human Rights, Civil Rights and Citizenship Program at the Constitutional Accountability Center

It’s been an action packed week at the Supreme Court, with the Justices teeing up a major fight over partisan gerrymandering next Term and handing down a host of major First Amendment rulings.  Buried amidst these decisions is a huge ruling on the Constitution’s promise of access to the courts.  It’s a case that people may not be paying much attention to, but they should be.

In the case, Ziglar v. Abassi, the Supreme Court, in a 4-2 ruling, just made it very hard for individuals to sue federal officials for trampling on federal constitutional rights.  Indeed, aided by the fact that Justices Elena Kagan and Sonia Sotomayor were recused, the conservative wing of the Court was able to push the law sharply to the right.  The decision all but overrules longstanding Supreme Court precedent that allows individuals to go to federal court to sue for damages when federal agents violates the Constitution. 

The case arose out of the abuse of Muslim immigrants, who were detained in the wake of the 9/11 terrorist attacks, beaten, repeatedly strip searched, subjected to religious harassment, and held in tiny cells with light continuously left on 24 hours a day.  In an opinion by Justice Anthony Kennedy, the Court held that the federal officials could not be sued for this abuse of official power because Congress had not explicitly provided a right to sue federal officers for damages for violating the Constitution.  In all but a tiny set of circumstances, Kennedy wrote, “whether a damages action should be allowed is a decision for the Congress to make, not the courts.”  Kennedy’s opinion allows legislative inertia to do an end-run around the Constitution, effectively immunizing officers for even flagrant violations of the Constitution.  Congress does not have to enact a statute; it can disable the courts from their time-honored role simply by doing nothing.   

Under our Constitution, no officer is above the law.  The Constitution’s critical guarantees that protect our rights must be enforced, whether or not Congress takes affirmative action to facilitate that enforcement.  The Court’s opinion, however, ignores this basic rule-of-law principle.  Indeed, Justice Kennedy’s opinion is far more concerned that courts might “interfere in an intrusive way with sensitive functions of the Executive Branch” than with enforcing the Constitution.    

Justice Kennedy made much of the fact that Congress was undoubtedly aware of law enforcement abuses the wake of 9/11, but still did nothing.  But it’s exactly in those cases—in which the Executive Branch abuses those without political power or clout—that the judiciary’s role is most vital.  As Justice Breyer observed in dissent, “[h]istory tells us of far too many instances where the Executive or Legislative Branch took actions during time of war that, on later examination, turned out unnecessarily and unreasonably to have deprived American citizens of basic constitutional rights.  We have read about the Alien and Sedition Acts, the thousands of civilians imprisoned during the Civil War, and the suppression of civil liberties during World War I” as well as the “Government’s World War II action removing more than 70,000 American citizens from their west coast homes and interning them in camps.”  Congress cannot turn the Constitution off simply by doing nothing.       

Justice Kennedy’s opinion insists that closing the courthouse doors on those seeking to hold federal officials to account for violating the Constitution is compelled by respect for separation of powers principles.  “The proper balance,” Kennedy wrote, “is for the Congress, not the Judiciary, to undertake.”  But Congress has already given the federal courts the power to hear all cases arising under the Constitution—a key fact that Kennedy never even mentions—and it is the judiciary’s role in our Constitution’s system of separation of powers to enforce the Constitution’s limit on the power of the political branches.  Kennedy’s opinion turns a blind eye to this critical role our Constitution’s Framers gave to the federal courts.   

When the Framers wrote our Founding charter more than two centuries ago, they gave the judicial branch of the government a critical role to play in our system of separation of powers.  Under our Constitution, courts perform an essential checking function on the political branches of government, ensuring fidelity to the Constitution’s structure and guarantee of individual rights.  As Alexander Hamilton wrote, constitutional “[l]imitations . . . can be preserved in practice no other way than through the medium of the courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.  Without this, all the reservations of particular rights or privileges would amount to nothing.” 

In the Framers’ constitutional design, when other branches transgress the Constitution’s limits, “the judicial department is a constitutional check.”  And, as Justice Breyer’s brilliant dissent showed, Supreme Court precedent dating all the way back toMarbury v. Madison makes clear that “the Constitution provides federal courts with considerable legal authority to use traditional remedies to right constitutional wrongs.”  Requiring Congress to pass legislation in order to provide a remedy when federal officers violate constitutional rights turns our Constitution’s system of accountability upside down.  It inevitably leads to a situation where our most vital constitutional guarantees “amount to nothing.”   

For almost half a century, ever since the 1971 ruling in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, the Supreme Court’s cases have enforced the structural principle that the judiciary’s role is to enforce the Constitution and prevent abuses of power.  A host of Supreme Court rulings have chipped away atBivens, but, until Ziglar, the Supreme Court’s doctrine recognized that some remedy must be available to redress gross abuses of power by federal officers. Ziglar hollows out the Bivens doctrine, leaving courts powerless to redress blatant and obvious constitutional violations.  

Justice Kennedy’s opinion in Ziglar pays lip service to Bivens, noting that, at least in the search-and-seizure context, “Bivensdoes vindicate the Constitution by allowing some redress for injuries, and it provides instruction and guidance to federal law enforcement officers going forward.”  But in other cases—a lot of other cases—Kennedy’s opinion makes it much harder for an individual to challenge the abuse of power by the federal government.  

Kennedy’s key move is a sweeping redefinition of when Bivens applies.  Anytime there is what Kennedy calls “a new Bivens context,” courts have to ask whether Congress or the courts should be responsible for providing a right to sue for damages, an inquiry that, under Kennedy’s tortured separation of powers analysis, virtually always leads to bolting the courthouse doors to victims of government abuse of power.  Kennedy defines a “new Bivens context” in sweeping terms, broadly applicable to almost all Bivens claims.  As he wrote, “even a modest extension is still an extension.”  Outside the Fourth Amendment context that Kennedy takes pains to preserve, it is not clear what is left of Bivens.  

Ziglar offers a thin, unconvincing view of separation of powers that never takes seriously that the judiciary has an affirmative role to play in the Constitution’s system of separation of powers.  It closes the courthouse doors on victims of unconstitutional misconduct, discounting the judicial check our Constitution’s Framers insisted.  It turns its back on the rule of law, the building block of our most precious constitutional guarantees.


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