Ziglar v. Abbasi, 582 US 120 - Supreme Court 2017

The Supreme Court "has made clear that expanding the Bivens remedy is now a `disfavored'judicial activity. "

First, the Court must determine whether the claim presents a new Bivens context, and if so, the Court must determine whether "there are `special factors counseling hesitation in the absence of affirmative action by Congress.'"

"[T] he inquiry must concentrate on whether the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed."

I] t is possible that the analysis in the Court's three Bivens cases might have been different if they were decided today

The context is new "[i] f the case is different in a meaningful way from previous Bivens cases decided by [the Supreme Court]."

The Court held that 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�…

I] f there is an alternative remedial structure present in a certain case, that alone may limit the power of the Judiciary to infer a new Bivens cause of action

—the Supreme Court re-emphasized that "expanding the Bivens remedy is now a `disfavored'judicial activity, "explaining: When a party seeks to assert an implied cause of action under the Constitution itself, just as when a party seeks to assert an implied cause of action under a federal statute, separation-of-powers principles are or should be central to the analysis.

"[I] fa reasonable officer might not have known for certain that the conduct was unlawful [,] then the officer is immune from liability."

The Supreme Court has stated that "[n] ational-security policy is the prerogative of the Congress and President."