A Law-Free Zone for All the King’s Men

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By Anthony F. Renzo, Professor of Law, Vermont Law School. Professor Renzo specializes in constitutional law and litigation.

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In what can only be described as results oriented decision-making of the worst sort, a divided Supreme Court in Ashcroft v. Iqbal, went the extra mile to protect high-ranking federal officials from accountability for their unlawful conduct. The case involved a Bivens damage action by Javaid Iqbal, a former inmate of a super-max prison in New York, alleging that a number of federal officials, including Attorney General John Ashcroft and FBI Director Robert Mueller, violated his rights under the First and Fifth Amendments when they created a policy that assigned Iqbal to a harsh-treatment detention facility solely because he is an Arab Muslim.

In reversing the ruling of the Second Circuit, the Court's five most conservative members ignored precedent and reversed longstanding policy in a head-long rush to protect Ashcroft and Mueller (right) from answering for their discriminatory actions. In the process the Court ended all supervisor liability for federal officials under Bivens even though various forms of such liability were conceded by the Government and recognized by all federal circuits that had addressed the issue.

The majority did not stop, however, with protecting supervisory federal officials from constitutional accountability. The opinion, written by Justice Kennedy, went further and also found that even if, as alleged by Iqbal, Ashcroft and Mueller were not acting as mere supervisors, but were personally involved in designing a intentionally discriminatory policy, such allegations were insufficient under Rule 8 to state a claim because they were too general to be afforded the assumption of truth when ruling on a motion to dismiss. Using its newly minted "plausibility" test for interpreting Rule 8's notice pleading standards, the majority, in effect, required Iqbal to do the impossible and include behind-the-scenes factual detail in his complaint to withstand a motion to dismiss. This one-two punch - no supervisor liability and a new Rule 8 plus pleading standard requiring factual detail known only to the government - will place most high-ranking federal officials beyond the reach of judicial remedies for constitutional violations.

After Iqbal, it's no longer simple Rule 8 notice pleading for plaintiffs, it's now Rule 8 plus, not only in Bivens actions against federal officials, but in all civil cases. What is Rule 8 plus? It begins with identifying those factual allegations that are somehow "too general' to warrant the traditional assumption of truth when challenged by a motion to dismiss. In stark contrast to long standing Rule 8 practice and procedure, the majority in Iqbal proceeds to identify factual allegations in Iqbal's complaint that it deems are so general that they amount to legal conclusions that are not entitled to the assumption of truth. These include that Ashcroft and Mueller "knew" "condoned," and "agreed" to subject Iqbal and others like him to harsh conditions of confinement "solely on account of their religion, race, and/or national origin." Likewise, the assumption of truth was not available for allegations that Ashcroft was the "principal architect" of the discriminatory policy, and that Mueller was "instrumental" in adopting and executing it. According to the majority these allegations did not warrant treatment as factual pleadings even though other allegations of the complaint described in detail the policy itself, and gave the time, place, and manner in which the policy was executed and the circumstances that gave rise to it. Moreover, the majority ventures out on this limb despite the explicit language of Rule 9(b) that allows "[m]alice, intent, knowledge, and other conditions of a person's mind [to] be alleged generally."

After disqualifying Iqbal's most salient allegations as too general, the majority then proceeds to subject the pleadings that qualify as sufficiently specific to an ad hoc balancing test that pits the inference that favors the plaintiff's claim against "more likely explanations" favored by these five members of the Court. As applied to Iqbal's pleading, the majority concludes that, although the remaining allegations that must be afforded the assumption of truth "are consistent with [Ashcroft's and Mueller's] purposefully designating detainees [for harsh confinement] because of their race, religion, or national origin," such inferences "do not plausibly establish this purpose" because of the "obvious alternative explanation" that legitimate law enforcement activities in the wake of September 11 would "produce a disparate, incidental impact on Arab Muslims, even though the purpose of the policy was to target neither Arabs nor Muslims." With this combination of bending the rules and creating new ones, the majority tries to justify its decision that Iqbal's complaint does not "contain any factual allegations sufficient to plausibly suggest" that Ashcroft or Mueller had a "discriminatory state of mind."

The most ominous import of the Iqbal decision, however, is that it provides a blueprint for like-minded lower federal court judges to justify denying access to the courts to future victims of constitutional torts seeking redress for injuries caused by high-ranking federal officials. The majority opinion makes clear that, in its hierarchy of constitutional values, protecting the rights of racial minorities is far less important than protecting federal officials from facing the consequences of their discriminatory conduct. In the final analysis the Iqbal majority was more than content to shield Ashcroft and Mueller from "the concerns of litigation," not because they were innocent, but simply because such high-ranking officials are too busy and important to at least answer the claims of an Arab Muslim man who was victimized by these discriminatory policies.

For those with experience in constitutional rights civil litigation, the practical impact of Iqbal threatens to render most high-ranking federal officials above the law and unaccountable for the constitutional injuries they cause. The majority's opinion manages to provide a de facto path to something tantamount to absolute immunity notwithstanding the Court's ruling in Mitchell v. Forsyth, rejecting absolute immunity for cabinet-level federal officials. This, of course, is not the first time this same far right wing of the Court has thumbed its nose at precedent it did not like, all the while gushing with sanctimonious references to ‘strict construction' and ‘judicial restraint.' On the heels of a decision like Iqbal, one can't help but wonder, along with Franklin, if we can keep this Republic.