The Supreme Court granted the Trump administration’s request on Nov. 22 to take up a case from several Muslim men who claim they were wrongfully placed on the U.S. “no-fly list” for refusing to act as government informants and are seeking damages from federal officials.
The Justice Department argued in a brief that lawsuits like this must be curtailed because they will deter officials “from performing their duties by the prospect of litigation and potentially severe personal financial consequences.”
The no-fly list contains around 81,000 names, fewer than 1,000 of which belong to U.S. citizens, Sen. Dianne Feinstein (D-Calif.) said in June 2016.
The decision to hear the case came after Judge Anthony J. Trenga of the U.S. District Court for the Eastern District of Virginia ruled on Sept. 4 that the government’s Terrorist Screening Database (TSDB)—a watchlist of more than 1 million known or suspected terrorists, including around 4,600 U.S. citizens—violates the constitutional rights of those included on it. The no-fly list is a small subset of the TSDB.
Being wrongly included on the watchlist can lead to great inconvenience and discomfort, Trenga wrote in his opinion, noting that some of the plaintiffs in the litigation before him have been handcuffed at ports of entry and put through invasive secondary inspections at airports.
In the case the Supreme Court has decided to hear, cited as Tanzin v. Tanvir, the court didn’t provide reasons for its decision, according to its custom.
The high court could prohibit lawsuits against federal officials for violating religious freedom after granting the administration’s request to hear the case that questions whether the Religious Freedom Restoration Act of 1993 (RFRA) permits suits for damages against individual federal officials, in this case, members of the FBI.
The U.S. Court of Appeals for the 2nd Circuit said the statute clearly allows such lawsuits and gave the plaintiffs permission to pursue their claims.
In legal terms, the case concerns the scope of the remedy Congress provided in the RFRA “to those whose exercise of religion has been substantially burdened by the government,” according to the Trump administration’s petition to the court.
The question is whether the passage in the RFRA that allows litigants to “obtain appropriate relief against a government” means they can seek an award of money damages against federal employees sued in their individual capacities.
“The answer to that question raises fundamental separation-of-powers concerns with a significant impact on Executive Branch operations nationwide, warranting this Court’s review.”
Muhammad Tanvir and other plaintiffs claim their names were placed on the no-fly list as retaliation after they refused to serve as informants, conduct they said would have violated their sincerely held religious beliefs.
Meanwhile, Justice Ruth Bader Ginsburg, 86, was released from the hospital on Nov. 24 after being admitted the day before for chills and a fever. A Supreme Court official said she is “home and doing well,” Bloomberg News reported.
Ginsburg, who was appointed by President Bill Clinton in 1993, missed oral arguments on Jan. 7 for the first time as an associate justice of the Supreme Court. In early November, she took a sick day and missed hearing an oral argument. A court official said she had a stomach virus.
The health of Ginsburg, who has recovered from cancer four times, is being closely watched by political observers on both sides of the aisle. Should a vacancy arise, President Donald Trump, who has been successfully reshaping federal appeals courts, would have the opportunity to appoint a third justice to the nine-member court. Trump has already placed two of his picks, Justices Neil Gorsuch and Brett Kavanaugh, on the Supreme Court.