Ziglar v. Abbasi

What Happened

In the days and weeks after September 11, 2001, the federal government swept up hundreds of undocumented immigrants — almost all of them men of Arab or South Asian descent — and detained them in a federal facility in Brooklyn, New York. The government held them for months while it investigated whether any of them had connections to terrorism. Six of these men later brought suit.

The detainees alleged horrific conditions. They were held in tiny cells for 23 hours a day under a communications blackout. Guards subjected them to frequent strip searches. They were slammed into walls, had their arms bent behind their backs, and were dragged across the floor. One guard allegedly told a detainee: “You’re never going to get out of here.” When the investigations cleared the men of terrorism ties, they were deported.

After their release, the six men filed a class action seeking damages from two groups of federal officials. The first group — the “Executive Officials” — included former Attorney General John Ashcroft, former FBI Director Robert Mueller, and former INS Commissioner James Ziglar. The plaintiffs alleged these officials designed the detention policy that caused their suffering. The second group — the “Wardens” — included the facility’s warden and assistant warden, who allegedly knew about and permitted the guard abuse.

Because these were federal officials (not state or local), the detainees couldn’t sue under § 1983. Instead, they relied on Bivens v. Six Unknown Named Agents (1971), which had implied a constitutional damages remedy against federal officers. They also brought a conspiracy claim under 42 U.S.C. § 1985(3).

What the Court Decided

Justice Kennedy, writing for the majority, delivered a sweeping opinion that effectively shut the door on expanding Bivens to new contexts. The Court held that the detainees’ claims — challenging high-level executive policy in the national security context — presented a “new context” that was meaningfully different from any prior Bivens case. And the “special factors” counseling against extending Bivens were overwhelming.

The Court identified several special factors. These claims challenged the formulation and implementation of national security policy in the immediate aftermath of the worst terrorist attack in American history. Allowing damages suits would invite the judiciary to second-guess sensitive executive decisions and could burden senior officials with litigation that impairs their ability to perform their duties. Congress had been aware of these issues for years and had not provided a damages remedy — a silence that was “relevant and telling.” 582 U.S. at 148.

The Court essentially announced a presumption against extending Bivens: “When a party seeks to assert an implied cause of action under the Constitution, separation-of-powers principles should be central to the analysis.” 582 U.S. at 134. If there are “sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy,” courts “must refrain from creating that kind of remedy.” Id.

The Court also held that the Executive Officials were entitled to qualified immunity on the § 1985(3) conspiracy claim, because the right at issue — freedom from national-security-related detention based on race or national origin — was not “clearly established” at the time. Justice Thomas wrote a notable concurrence arguing that the Court should reconsider its qualified immunity jurisprudence altogether.

What It Means in Practice

Ziglar v. Abbasi is primarily a Bivens case — it matters most when you’re suing federal officers rather than state or local ones. But it has significant implications for § 1983 practitioners as well.

First, it reflects the Supreme Court’s broader skepticism of implied constitutional remedies. The same institutional concerns that drove Abbasi — deference to the executive, reluctance to create remedies Congress hasn’t authorized, fears about burdensome litigation — show up in § 1983 cases too, particularly in the qualified immunity context.

Second, Justice Thomas’s concurrence questioning qualified immunity has become one of the most cited passages in the growing movement to reform or abolish the doctrine. Thomas wrote that the Court’s qualified immunity jurisprudence has “diverge[d] significantly” from the common-law backdrop against which § 1983 was enacted, and that “in an appropriate case, we should reconsider our qualified immunity jurisprudence.” Though only a concurrence, it opened a door that scholars and advocates have been pushing on ever since.

Third, Abbasi reinforced that supervisory liability requires personal involvement. You can’t sue a high-ranking official merely because subordinates under their authority violated your rights. This principle, established in Ashcroft v. Iqbal, was reiterated here.

How You Can Use It

Abbasi is mostly bad news for plaintiffs, but it contains useful material:

• Thomas’s QI concurrence. When arguing for narrowing qualified immunity, cite Justice Thomas’s concurrence at 582 U.S. at 157–160 (Thomas, J., concurring in part and concurring in the judgment). His observation that modern QI has “no basis in the statutory text” of § 1983 is powerful.
• Distinguish from Bivens. If you’re suing state or local officials under § 1983, Abbasi doesn’t directly apply. § 1983 is an express statutory remedy — not an implied one — so the “special factors” framework doesn’t govern.
• Key quote (Thomas concurrence): “I write separately … to note my growing concern with our qualified immunity jurisprudence… . [W]e should reconsider our qualified immunity jurisprudence.”
• Template for QI reform arguments: “As Justice Thomas recognized in Ziglar v. Abbasi, 582 U.S. 120, 157 (2017) (Thomas, J., concurring), the Court’s qualified immunity jurisprudence has ‘diverge[d] significantly’ from the common-law principles that informed § 1983. In an appropriate case, the doctrine should be reconsidered.”

How It Can Be Used Against You

Abbasi gives defendants multiple tools:

• Closing the door on Bivens. If you’re suing federal officials, Abbasi makes it nearly impossible to bring a damages claim in any “new context” — which includes essentially anything that doesn’t look exactly like the three original Bivens cases.
• National security deference. Any case touching on national security, immigration enforcement, or executive policy will invoke Abbasi’s warnings about judicial intrusion into executive functions.
• Supervisory liability blocked. Abbasi reinforces that you can’t hold senior officials liable for the actions of their subordinates without showing personal involvement. Vague allegations of “knowledge” or “acquiescence” are insufficient.

How to counter: If you’re suing state or local officials, emphasize that § 1983 provides an express cause of action — Abbasi’s hostility to implied remedies is irrelevant. If you’re suing federal officials, try to fit your claim within one of the three recognized Bivens contexts (Fourth Amendment search and seizure, Fifth Amendment gender discrimination, Eighth Amendment prisoner abuse). And if you’re arguing against qualified immunity at any level, cite Justice Thomas’s concurrence — it’s the most prominent recent signal from the Court that the doctrine may be ripe for reconsideration.