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On Justice Kennedy’s Flawed and Depressing Narrowing of Constitutional Damages Remedies

On a day on which the Supreme Court (1) agreed to take up the most important partisan gerrymandering case in over a decade; (2) decided a pair of major First Amendment cases (one indirectly about the Redskins and one about Facebook); (3) handed down a 5-4 decision in a death penalty case; and (4) made it harder for certain kinds of civil suits against corporations to proceed in state courts, it would be easy to understand the lack of attention being paid to Ziglar v. Abbasia decision about remedies, not rights, and in which the Supreme Court rejected an effort by non-citizens caught up in the post-September 11 immigration roundup of Muslims (and other young men of Arab descent) in and around New York City to bring suit to challenge the onerous conditions of their confinement. But make no mistake: Abbasi is perhaps the most important case the Court has decided so far this Term, and one of the most important it has handed down with regard to remedies for unconstitutional federal government conduct in decades. Even though the Court could easily have limited its analysis to the unique context of these facts, it didn’t. Instead, Justice Anthony Kennedy’s opinion for a 4-2 majority (Justices Gorsuch, Kagan, and Sotomayor did not participate) will make it much harder, going forward, for almost any plaintiff to obtain relief for constitutional violations that have ceased, even though constitutional rights aren’t worth that much if they can’t be enforced.

And it’s terribly unconvincing, in the process.

In the post that follows, I want to unpack 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. But lest the analysis that follows bury the lede, the Supreme Court today held that, even if the government systematically abused and discriminated against post-9/11 detainees for no other reason than because they are Muslims or of Arab descent, the federal courts are powerless to provide a damages remedy in the absence of express congressional authorization to do so. That’s a stunning bottom line, and one that rests on a series of galling analytical missteps. 

I.  Misstep #1: Ignoring the Rich History of Common-Law Damages Remedies Against Federal Officers

After recounting the background in Part I, Justice Kennedy opens Part II of his majority opinion by noting that Congress, in 1871, enacted 42 U.S.C. § 1983, a statute that authorizes federal suits against state officers for violations of federal rights (including constitutional rights). In contrast, he notes, “Congress did not create an analogous statute for federal officials. Indeed, in the 100 years leading up to Bivens, Congress did not provide a specific damages remedy for plaintiffs whose constitutional rights were violated by agents of the Federal Government.” This statement is true, but misleading, for Justice Kennedy uses it to imply that the Court’s 1971 decision in Bivens (first recognizing circumstances in which federal courts could imply a damages remedy for a federal constitutional violation) was a bolt from the blue. Far from it.

As I’ve written about in some detail (including in an American Constitution Society Issue Brief from which some of this analysis is borrowed), from the Founding into the 1960s, there was actually a robust regime of damages suits against federal officers for constitutional violations in the form of judge-made civil remedies—remedies that, for the better part of the Nation’s first two centuries, derived from state, rather than federal law. A pre-Civil War Supreme Court decision rejected the argument that federal jurisdiction in such cases ought to be exclusive, and the Court would still explain as late as 1963 that, “When it comes to suits for damages for abuse of power, federal officials are usually governed by local law.” The notion that state courts (and state remedies) would be the primary means for enforcing the federal Constitution may seem entirely foreign to us today, but it’s deeply consistent with Founding-era understandings of the relevant roles of state versus federal courts, and, more fundamentally, with the core principle behind the “Madisonian Compromise” (the notion that Congress never even had to create lower federal courts).

By the 1960s, though, several flaws in the state-law model had crystallized. First, although it had been possible to loosely analogize certain constitutional protections to state tort law (e.g., vindicating Fourth Amendment violations through trespass), that analogy did not hold up well to some of the other constitutional rights (such as equal protection) into which the courts were then breathing new life. Second, the same period saw federal courts more routinely asserting the power to enjoin unconstitutional conduct by the federal government—even though, as with damages, no statute expressly authorized them to provide such relief—creating both a strange jurisdictional asymmetry between prospective and retrospective relief against federal officers and a precedent for a more aggressive federal judicial role. Third, and related, the 1950s and 1960s brought with them the rise of what Judge Henry Friendly called “the new federal common law,” pursuant to which federal courts identified more specific—and more analytically coherent—grounds on which to fashion judge-made (as opposed to statutory) rules of decision, defenses, and causes of action.

What this important and widely accepted history teaches is that Bivens was a practical response to a series of problems that had emerged in the state-law remedial model, not a dramatic usurpation of judicial power vis-a-vis the legislature. It was “Bivens or state law” not “Bivens or nothing.” Indeed, the Nixon administration’s argument in Bivens itself was not that the Constitution denied Bivens a remedy; it was that the appropriate remedy for his constitutional claim was provided by New York state law—and that judge-made federal damages remedies would only be appropriate in cases in which they were “indispensable for vindicating constitutional rights.” Against that backdrop, the question Bivens meant to raise was whether we’d be better off with remedies for constitutional violations by federal officers being creatures of federal, rather than state, law. If that‘s the question, it’s easy to see why even Justice John Marshall Harlan II thought the answer ought to be “yes.”

In Abbasi, Justice Kennedy completely ignores this history. Worse, he suggests that his cryptic, remarkably incomplete summation of history is the background “against which” Bivens was decided. Of course, if courts didn’t recognize damages remedies against federal officers before Bivens, it would be easy to understand the reaction that Bivens is an outlier, and an arrogation of judicial power. But a proper understanding of the story (one Kennedy seems wholly uninterested in telling) paints a very different picture of the stakes in Bivens itself—and in many of the cases that have followed.

II.  Misstep #2: Refusing to Grapple with the Constitutional Implications of the Westfall Act

Whereas the choice that cases like Bivens had thus far presented was, as in Bivens itself, between federal damages remedies and state damages remedies, Congress in 1988 amended the Federal Tort Claims Act (FTCA) to provide that all state-law tort claims against federal officers acting within the scope of their employment had to be brought in federal court under the FTCA. As Professor Carlos Vázquez and I have argued at some length, the 1988 amendment—known as the Westfall Act—was actually unclear as to whether it also applied to state-law claims for federal constitutional violations, such as that which the Nixon administration had supported in Bivens. Indeed, as we’ve explained, there are compelling reasons to conclude that it did not—and that it left intact the power of state courts to provide damages against federal officers for constitutional violations.

But what is clear about the Westfall Act on this point is how it has been read by every subsequent court—to (perhaps incorrectly) also encompass state-law claims for federal constitutional violations. In other words, whereas the choice the Bivens Court faced was between state-law damages and damages under the federal Constitution, the choice that federal courts have confronted in post-1988 Bivens cases (at least where there is no alternative remedy) isBivens or nothing.” And increasingly, the lower courts, at least, chose “nothing,” without acknowledging the dramatically different consequences of such a ruling today as compared to before the Westfall Act.

Justice Kennedy compounded that error in Abbasi, saying nary a word about the Westfall Act  (he sort of cites it at one point for an unrelated proposition) or the very different question Bivens suits present today as compared to prior to 1988. Instead of grappling with the implications of Congress (apparently) shutting the door to the state-law remedies that thrived prior to (and, indeed, through) Bivens, Kennedy just pretends they didn’t exist, a point that matters a whole lot when he turns to why courts should be skeptical about implied statutory remedies.

III.  Misstep #3: Accepting the Deeply Flawed Analogy to Implied Statutory Remedies

Instead of confronting the rich history of common-law remedies and the messy problem of the Westfall Act, the analytical core of Justice Kennedy’s hostility to Bivens is Part II(C), where he basically adopts for a Supreme Court majority a deeply flawed analogy first articulated by Justice Scalia in a two-Justice 2001 concurrence. After recognizing the (obvious) point that judicial implication of a statutory remedy raises different issues than implication of a constitutional remedy, he nevertheless observed that:

it is a significant step under separation-of-powers principles for a court to determine that it has the authority, under the judicial power, to create and enforce a cause of action for damages against federal officials in order to remedy a constitutional violation. When determining whether traditional equitable powers suffice to give necessary constitutional protection–or whether, in addition, a damages remedy is necessary–there are a number of economic and governmental concerns to consider. Claims against federal officials often create substantial costs, in the form of defense and indemnification. Congress, then, has a substantial responsibility to determine whether, and the extent to which, monetary and other liabilities should be imposed upon individual officers and employees of the Federal Government. In addition, the time and administrative costs attendant upon intrusions resulting from the discovery and trial process are significant factors to be considered.

In other words, courts should be skeptical of recognizing damages claims for constitutional violations because Congress is in a better position to decide when the government (not the officer, which had been Chief Justice Rehnquist’s concern in an earlier case) should have to pay damages awards, and because discovery and trial could be onerous (never mind that that’s what qualified immunity is for).

Indeed, in contrast to the separation-of-powers objection to implying a statutory remedy, I just don’t understand the objection where constitutional rights are at stake. First, unlike statutory rights (the existence and scope of which are wholly a matter of legislative grace), constitutional rights are the province of the federal judiciary, which is “supreme in the exposition of the law of the Constitution,” including the means by which that law must be enforced. Second, and related, the purpose of constitutional rights is to constrain the political branches, and not the other way around. Thus, whatever separation of powers problems might arise from judicial recognition of implied statutory remedies, recognition of implied constitutional remedies is a central means of vindicating, rather than aggrandizing, separated powers. Third, as Justice Harlan emphasized in his Bivens concurrence, objections to Bivens remedies sounding in judicial power ring especially hollow in light of the far more coercive authority the federal courts have long (and rightly) exercised to enjoin unconstitutional federal conduct without an express cause of action. Indeed, as Harlan concluded in Bivens, ““it would be . . . anomalous to conclude that the federal judiciary . . . 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.” And yet, that’s not only what Abbasi held, but it’s why it did so.

IV.  Misstep #4: Holding Out Habeas Petitions as a Meaningful Alternative to Damages Suits

Perhaps aware of the potentially stunning implications of his hostility to Bivens in Part II of his opinion, Justice Kennedy offered a modest series of olive branches in Part III, including the notion that Bivens claims will still be available on facts resembling Bivens itself (including, perhaps, the detainee abuse claim against lower-level officials in Abbasi). He also suggested that this case doesn’t really present the specter of “Bivens or nothing,” because the Petitioners had an alternative means of challenging their detention—through habeas petitions:

[T]he habeas remedy, if necessity required its use, would have provided a faster and more direct route to relief than a suit for money damages. A successful habeas petition would have required officials to place respondents in less-restrictive conditions immediately; yet this damages suit remains unresolved some 15 years later. (As in Bell and Preiser, the Court need not determine the scope or availability of the habeas corpus remedy, a question that is not before the Court and has not been briefed or argued.) In sum, respondents had available to them ‘other alternative forms of judicial relief.’ And when alternative methods of relief are available, a Bivens remedy usually is not.

Yes, you read that correctly: “We’re not sure if habeas could even have been used to bring a challenge to the conditions of confinement, but it was (theoretically?) available, so Bivens isn’t.” Even if habeas could reach challenges to conditions of confinement (and the lower courts are still divided today), I’m unaware of any suggestion prior to this case that habeas was an adequate alternative to damages, and for good reason: Habeas is about unlawful detention, and so is mooted by a detainee’s release or transfer. It is therefore usually a woefully inefficient tool for challenging policies such as the ones at issue in Abbasi. There’s also the little problem that many (if not most) of the detainees were held in conditions where it would not have been possible for them to even bring habeas petitions. Finally, and taken to its extreme, Justice Kennedy is effectively suggesting that Bivens will never be available for a claim that could’ve been pursued via habeas, and so may thereby have doomed the one claim he actually kind of preserved…

*                                           *                                           *

There’s lots more to say about Abbasi, including Justice Kennedy’s explanation for why “national security” cases are somehow worthy of special deference (I think that’s crap, but at least it’s narrower), and Justice Breyer’s remarkably (for him) lurid dissent (e.g., “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.”).

But I should stop here because it’s the non-national security-specific aspects of Abbasi (the house-burning features) that are the most troubling. By categorically ignoring the rich history of common-law remedies, by paying no-never-mind to the Westfall Act, and by accepting without any real skepticism the claim that courts are intruding upon the political branches simply by deigning to award damages (why, pray tell, are injunctions less of an intrusion?), Abbasi could be a huge nail in the coffin of Bivens—and, more generally, in the ability of plaintiffs in a wide range of contexts to obtain remedies for even the most egregious constitutional violations. Congress, of course, could always respond by finally considering some kind of federal analogue to 42 U.S.C. § 1983, but we (and Justice Kennedy) know that they won’t. That’s why it’s so important for courts to be especially zealous in the recognition of remedies for constitutional violations, and why today’s decision is such a stunning (and, especially in these times, depressing) development.

Image: Eric Thayer / Stringer (via Getty)

About the Author

is co-editor-in-chief of Just Security. Steve is a professor of law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).