First Korematsu and Now Ashcroft v. Iqbal: The Latest Chapter in the Wartime Supreme Court’s Disregard for Claims of Discrimination

88 Pages Posted: 27 Sep 2009 Last revised: 20 Apr 2010

Date Written: April 17, 2010


Upon his arrest in New York in the aftermath of the September 11, 2001, attacks for charges related to identity theft, Javaid Iqbal, a Muslim male, was classified as a person of “high interest” and thereafter placed in a federal prison facility housing “September 11 detainees.” Iqbal, claiming that this classification was premised on his race, religion, and national origin, and not based on any evidence tying him to terrorism, filed suit against John Ashcroft, Robert Mueller, and others. Ashcroft and Mueller moved to dismiss the complaint on the grounds that Iqbal’s allegations were insufficient to overcome their entitlement to qualified immunity. The district court and U.S. Court of Appeals for the Second Circuit disagreed, denying the motion.

Last term, the Supreme Court, in a 5-4 ruling, reversed, holding that Iqbal’s allegations of discrimination were implausible under the pleading standards announced in Bell Atlantic v. Twombly, and finding unremarkable the accepted fact that the government targeted Muslims in the wake of 9/11.

The purpose of this Article is to challenge both the procedural and substantive rulings in Iqbal. In particular: Part I will provide an overview of the factual background and procedural history of the case, Part II will examine the arguments put before the Court by the parties and amici, Part III will summarize the Court’s decision and the dissenting opinions, while Part IV will argue that the Court not only drastically altered the traditional pleading standards that apply to civil cases, but erroneously concluded that Iqbal’s allegations of constitutional violations were insufficient at the motion to dismiss stage. It also offers an alternative framework as to how motions to dismiss for failure to state a claim and claims of discrimination in the wartime context should be assessed by courts when and if Iqbal is revisited.

Though Iqbal has largely escaped serious scholarly attention, hundreds of federal court orders are now relying upon it for its explication of the pleading requirements under Rule 8(a)(2) and even for its approval of racial profiling. This Article sheds light on Iqbal and charges that, because it dissolved notice pleading and sanctioned blanket profiling of Muslims for national security reasons, it is one of the worst decisions of our generation.

It is, in other words, 9/11’s Korematsu.

Keywords: Ashcroft, Iqbal, discrimination, profiling, Muslims, motion to dismiss, national security, terrorism, First Amendment, Equal Protection

JEL Classification: K10, K19, K40, K41

Suggested Citation

Sidhu, Dawinder S., First Korematsu and Now Ashcroft v. Iqbal: The Latest Chapter in the Wartime Supreme Court’s Disregard for Claims of Discrimination (April 17, 2010). Buffalo Law Review, Vol. 58, p. 419, 2010, Available at SSRN:

Dawinder S. Sidhu (Contact Author)

Hopwood & Singhal PLLC ( email )

1701 Pennsylvania Avenue, NW
Suite 200
Washington, DC 20006
United States

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