Richard Samp is Chief Counsel of the Washington Legal Foundation, which filed a brief in Ziglar v. Abbasi on behalf of five former attorneys general and two former FBI directors, and a brief in Jennings v. Rodriguez on behalf of 31 members of Congress.
The Supreme Court has long recognized that federal policy affecting aliens, in light of its national security implications, is entrusted to the political branches of government; those matters are largely immune from judicial inquiry or interference. In three important cases it heard during October Term 2016, the court demonstrated its recognition of the appropriateness of judicial deference on such issues. In Ziglar v. Abbasi, the court refused to permit aliens to assert damages claims against senior administration officials (for subjecting the aliens to allegedly unconstitutional conditions of confinement) – in the absence of congressional authorization for such claims. In two other cases, the court balked at upholding appellate court decisions that struck down federal immigration statutes as unconstitutional. It held those two cases, Jennings v. Rodriguez and Sessions v. Dimaya, for reargument next term.
Ziglar: It is up to Congress to create damages remedies
Many commentators critical of the Ziglar decision have distorted both the Supreme Court’s holding and the underlying facts. The case involved six unauthorized aliens arrested in 2001 for immigration violations and detained for several months in connection with the Justice Department’s investigation into the 9/11 terrorist attacks. The plaintiffs did not contest the government’s authority to detain them pending removal. Rather, they contended that their detention in highly restrictive conditions of confinement violated their Fifth Amendment substantive-due-process rights. They also asserted an equal-protection violation, contending that they were singled out for harsh treatment because of their Arab and/or Muslim backgrounds. Those named as defendants included former attorney general John Ashcroft, former FBI director (and current special counsel) Robert Mueller and former Immigration and Naturalization Services commissioner James Ziglar.
The Supreme Court explained that it was acting out of deference to Congress in declining to recognize a damages action against senior officials. The court noted that Congress has adopted numerous statutes in the past 15 years regarding the detention of aliens being investigated for terrorism ties, yet it has not seen fit to authorize detainee damages claims alleging unconstitutional conditions of confinement. In light of congressional inaction, the court was unwilling to strike out on its own to recognize an “implied” right of action under these circumstances (e.g., senior officials investigating a serious national security threat), which are dissimilar from those under which the court had previously recognized a Bivens remedy. That refusal reflects the court’s repeated recognition that Congress is in a much better position than the courts to evaluate the impact of a new species of litigation on those who act in the public’s behalf.
It would have been especially inappropriate for the Supreme Court to reach out to recognize a right of action here, given that the plaintiffs were challenging broadly applicable policies adopted by the Bush administration, rather than actions directed at them in particular. Those being detained pursuant to policies they deem unconstitutional have remedies: They can seek injunctive relief or a writ of habeas corpus. But an after-the-fact challenge to those policies, under the guise of a claim for damages, smacks of political grandstanding.
Indeed, this is the second occasion on which a case involving post-9/11 detainees has reached the Supreme Court. The two cases raised virtually identical allegations against the same defendants based on allegedly unconstitutional conditions of confinement at the same Brooklyn detention facility. The court ruled in the previous case, Ashcroft v. Iqbal, that the claims against senior officials failed to state a cause of action. Those officials were unaware of the identity of individuals being detained in harsh conditions, and thus (Iqbal concluded) the claims that the officials acted with anti-Muslim animus simply were not plausible. There is no reason to conclude that the identical claims raised by this second set of plaintiffs are any more plausible.
Adverse consequences of Bivens actions
Yet, as our amicus brief pointed out, subjecting senior officials to such lawsuits can have serious, adverse consequences. If the threat of Bivens liability looms in the background, senior government officials might refrain from taking urgent and lawful action in a time of crisis. Moreover, as Justice John Paul Stevens recognized in a case that arose more than 30 years ago, “Persons of wisdom and honor will hesitate to answer the President’s call to serve in these vital positions if they fear that vexatious and politically motivated litigation associated with their public decisions will squander their time and reputation, and sap their personal financial resources when they leave office.”
Reasonable people may disagree and may conclude that, absent a damages remedy, there will be insufficient deterrent to prevent senior government officials from violating the Constitution when they craft national security policy with respect to unauthorized aliens. If so, as the Supreme Court correctly concluded in Ziglar, the appropriate course of action is to take their case to Congress, not the courts.
Jennings: Court’s delay suggests a willingness to defer
The Supreme Court’s orders directing reargument in two other cases involving government policy toward aliens, Jennings and Dimaya, indicate that the court may defer to congressional policy in those cases as well. The court’s failure to issue decisions in those cases suggests that it is divided 4-4. The court could simply have announced its deadlock, thereby automatically affirming the decisions below – U.S. Court of Appeals for the 9th Circuit rulings that struck down congressional immigration statutes as unconstitutional. By instead ordering reargument next term, the court permits the participation of the newly appointed Justice Neil Gorsuch, who may well provide a fifth vote for upholding the statutes.
Jennings presents a particularly important test of whether the courts will continue to accept the political branches’ pre-eminent role in establishing immigration policy. Federal law has long provided that aliens convicted of serious crimes should be deported as soon as they complete their prison sentences. However, alien felons appealing removal orders are often able to delay final removal for several years. If they are released from custody while their appeals linger, experience demonstrates that more than three in four will be arrested at least once more, and nearly half will be arrested multiple times. Congress responded to that evidence by adopting legislation that requires all criminal aliens to remain in custody while they appeal a removal order.
The 9th Circuit held in Jennings that the mandatory-detention statute violates aliens’ substantive-due-process rights. (Technically, the court of appeals applied the doctrine of constitutional avoidance to construe the statute as permitting release on bond. But none of the parties defend the 9th Circuit ruling as a plausible interpretation of the statute; they simply assert that the statute is unconstitutional if it does not permit release on bond.) The Supreme Court is reviewing that decision.
The 9th Circuit’s decision flies in the face of the Supreme Court’s 2003 decision in Demore v. Kim, which upheld the constitutionality of the mandatory-detention statute. Those challenging mandatory detention argue that Kim does not apply to cases in which a criminal alien has been detained for a particularly long time pending appeal. But the challengers overlook an important aspect of detention pursuant to the contested statute: Criminal aliens hold the keys to their own jail cells. They can end government detention at any time by agreeing to leave the country. Indeed, an alien who leaves the country under such circumstances does not forfeit all hope of regaining a place in American society; he is permitted to continue to contest the removal order while living in his native country.
Congress: Mandatory detention prevents new crime
Reasonable people may disagree with Congress’ mandatory-detention policy, but the fact remains that – as the Supreme Court has repeatedly recognized – immigration-policy determinations are matters for the political branches, not the courts, to sort out. The challengers contend that criminal aliens are entitled to a bond hearing for purposes of determining whether they pose a threat to public safety or a flight risk if released. But Congress has determined that such hearings cannot accurately predict which individuals will commit crimes or flee if released, and thus that mandatory detention is the only means of ensuring public safety and enforcement of the immigration laws. Courts simply have no basis for second-guessing those legislative determinations.
Although aliens subject to removal are afforded a reduced level of constitutional rights, they undoubtedly enjoy some constitutional protections – including the right to be free from indefinite government detention. But removal proceedings always have a definite termination point, and thus criminal aliens contesting removal need not fear indefinite detention. If, as appears likely, the Supreme Court in Jennings ultimately defers to Congress’ determination that public safety requires that aliens convicted of particularly serious crimes be detained pending deportation, it will be upholding a bipartisan policy position defended by the Clinton, Bush, Obama and Trump administrations.