If you wanted even more ways for government officials to bypass accountability, you've got it. Courtesy of the US Supreme Court, the immunity for federal officials has just been expanded. On a day when the court handed down two significant First Amendment victories, the court has dialed back an avenue of redress for people whose rights have been violated by federal employees.
This case has its origins in the 2001 Twin Towers attack. In the wake of the attack, the government engaged in some questionable behavior (not unlike some of its World War II actions), rounding up undocumented Arab immigrants and detaining them under harsh conditions.
When they were finally released, they sued the US government for violating their rights. Unfortunately, options for directly suing federal officers are severely limited. Up until the Supreme Court's 1971 Bivens decision, plaintiffs had almost no way to seek redress for rights violated by federal employees. Bivens produced a new option, but its limited scope still made it very difficult for plaintiffs to secure a ruling in their favor. It's especially useless in cases like the one before the Supreme Court -- a case where the plaintiffs have no other way to bring a suit against the government other than going the Bivens route, thanks to their status as undocumented aliens at the time the rights violations allegedly occurred.
This new decision limits Bivens even further by adding national security concerns to the mix. In cases like these -- prompted by federal government reactions to a domestic terrorist attack -- the Supreme Court comes down on the side of the US government. But it's not just national security playing a limiting factor in seeking justice for violated rights. It's pretty much any case where the government hasn't seen this particular sort of violation before.
Cornell law prof Michael Dorf points out how severely restricting this ruling is for plaintiffs who have a single recourse option available to them:
The key move in the majority opinion is one of characterization. The Court says that it is not enough for a Bivens action to be available that there are precedents in the same general area holding that no "special factors" warrant denial of a Bivens action; the "special factors" must be evaluated by reference to a highly particularized description of the case at hand. How particularlized? The Court says:
Without endeavoring to create an exhaustive list of differences that are meaningful enough to make a given context a new one, some examples might prove instructive. A case might differ in a meaningful way because of the rank of the officers involved; the constitutional right at issue; the generality or specificity of the official action; the extent of judicial guidance as to how an officer should respond to the problem or emergency to be confronted; the statutory or other legal mandate under which the officer was operating; the risk of disruptive intrusion by the Judiciary into the functioning of other branches; or the presence of potential special factors that previous Bivens cases did not consider.
The shorthand version is the same excuse used in tons of normal, non-Bivens civil rights cases: if the court hasn't previously ruled on this specific set of circumstances before (and judged them to be a violation of rights), qualified immunity for government employees will be upheld. The problem is violations must be "clearly established" by a court decision to bypass immunity -- which is an extreme rarity in a system that heavily relies on precedent, frequently punts on tough legal questions, and often tells plaintiffs their redress is tied to legislation Congress has yet to write, much less pass.
Mix in national security concerns, "special considerations," and expansive immunity protections for government employees and this decision demands future Bivens petitioners do the impossible:
That means that it is now possible for a federal officer to violate clearly established rights--i.e., to commit rights violations that are established as clear in virtue of being very similar to rights violations that were adjudicated in prior cases--but still not be subject to a Bivens action because the case is nonetheless too different from prior Bivens cases to overcome the "special factors" limitation.
To bring a successful Bivens action a civil rights plaintiff must now pass through the eye of a tiny needle inside the eye of another tiny needle.
The decision [PDF] also suggests plaintiffs just wait around with their rights violated until Congress does something about it:
The proper balance in situations like this, between deterring constitutional violations and freeing high officials to make the lawful decisions necessary to protect the Nation in times of great peril, is one for the Congress to undertake, not the Judiciary.
What remains after this decision is almost nothing for plaintiffs -- like the Muslims and Arabs rounded up in a legally-unsound reaction to a terrorist attack -- and another expansion of immunity protections for federal officers and officials. As Steve Vladeck pointed out on Twitter, future Bivens cases will be limited to a small subset of prior Bivens decisions. The chances of previous decisions being perfectly applicable to the facts at hand in future cases hovers right around 0%. In the context of this case, it means the government can again engage in such a roundup of Muslims and Arabs without worrying about future lawsuits. None of the courts involved declared this roundup to be a violation of rights, so as far as the judiciary is concerned, similar actions won't violate any established precedent.
Plaintiffs bringing these complaints -- plaintiffs who often have no other options under the law -- will have to be willing to spend lots of time and money pursuing miracles. The Supreme Court has ruled that if it walks like a duck, acts like a duck, but quacks a bit more like a Canvasback than a Mallard, federal immunity will be upheld..