Monday, June 19, 2017
The Supreme Court Term ends this month. Expect a flurry of decisions in the next two weeks. In the decisions released today, the Court did not decide any of the immigration cases before it, including Sessions v. Dimaya (void for vagueness challenge to a criminal removal provision) or Jennings v. Rodriguez (immigrant detention). However, it did decide a challenge to detention after September 11, 2001 (Ziglar v. Abassi) and decided in a 4-2 split (Justices Kagan and Sotomayor recusing; Justice Gorsuch not participating) that a Second Circuit ruling allowing a damages action to proceed could not stand. Here is the opinion. Justice Kennedy wrote for the majority, Justice Breyer for the dissent. Amy Howe analyzes the decision for SCOTUSBlog here.
Here is a description of the issues in Ziglar v. Abassi:
"This case first asks the Supreme Court to determine whether non-citizens’ claims against government officials who arrested them in connection with the September 11, 2001 attacks and subjected them to harsh conditions during their detention arose in a “new context” under Bivens. Second, it asks whether the government officials were erroneously denied qualified immunity, which would preclude the government officials’ liability for their involvement in the non-citizens’ arrest and detention. Third, this case asks whether the pleading requirements of Ashcroft v. Iqbal are satisfied where the pleading relies on hypothetical scenarios and assumed discriminatory intent. James W. Ziglar, the petitioner, argues that a Bivens remedy is not applicable in this case because Bivens applies to individual government officials’ behavior, not policy concerns such as national security and immigration. Ziglar also argues that the government officials’ actions were reasonable within the context, given the national security concerns, and that the government officials should, therefore, be precluded from liability for their actions. Lastly, Ziglar argues that the respondent Ahmer Iqbal Abbasi failed to demonstrate sufficient evidence to support his claim against the government officials. Meanwhile, Abbasi argues that harsh treatment in federal detention is not a new context under Bivens, that government officials are aware that the Equal Protection Clause categorically prohibits race-based government action, and that Abbasi’s claim satisfied Iqbal’s facial plausibility standard. The Supreme Court’s decision in this case will impact the balance between government officials’ qualified immunity and detained non-citizens’ constitutional rights."