"No one likes being called names. But not every alleged insult gives rise to a lawsuit in federal court. Especially where Ms. Mai has alleged that she is so important as to be a public figure, yet failed to allege Ms. Elsaden made her allegedly defamatory statement with actual malice."
From today's decision by Judge Charlotte Sweeney in Mai v. Elsaden (D. Colo.):
This case begins with a conversation. Plaintiff Tiffany Mai alleges that on Friday, July 5, 2024, Defendant Laura Elsaden—without provocation—described Ms. Mai as a prostitute to partygoers at a dance. This description, Ms. Mai alleges, is wrong and has caused her approximately $50,000,000 in damages.
The court concluded that Mai was a public figure:
Ms. Mai alleges the following throughout her complaint:
She is an "award-winning businesswoman and philanthropist who has achieved considerable success as the owner of multiple insurance agencies in Colorado and California and is the founder of several entrepreneurial ventures;"
She has "prominence in business and social circles;"
She, along with her husband, run the "prestigious C Lazy U Ranch," that is "known for its elite membership and guests from around the world," and the Ranch is "valued at over $7.9 million;"
Mai maintains the Ranch to "cultivate and maintain business relationships;"
The Ranch is a "premier, luxury dude ranch for discerning travelers and guests;"
Guests visit the Ranch "from all over the world, including top businesspeople and people of means from both the United States and abroad."
As I listened to the oral argument and read through the Administration's filings in Trump v. Casa (the "nationwide" or "non-party" or "universal" injunction case), I was puzzled by the Solicitor General's repeated reference to the Supreme Court's power to issue "binding nationwide precedent," rather than its power to issue "binding nationwide injunctions" - the latter being what I thought the case was about.
A few examples:
JUSTICE SOTOMAYOR: So can I ask you a question? Your theory here is that Article III and principles of equity both prohibit federal courts from issuing universal injunctions. Do I have your argument correct?
GENERAL SAUER: We argue both of those and there are independent reasons.
JUSTICE SOTOMAYOR: You argue both of those?
GENERAL SAUER: Yeah.
JUSTICE SOTOMAYOR: If that's true, that means even the Supreme Court doesn't have that power.
GENERAL SAUER: The Supreme Court would have the authority to issue binding precedent nationwide, but as this Court --
JUSTICE SOTOMAYOR: But we couldn't enforce it universally - is that your argument?
GENERAL SAUER: If there was a decision that violated the precedent of the Court, then the affected plaintiffs could get a separate judgment.
And again:
JUSTICE KAGAN: I think that the question that this case presents is that if one thinks that it's quite clear that the EO is illegal, how does one get to that result, and in what time frame, on your set of rules without the possibility of a nationwide injunction?
GENERAL SAUER: On this case and on many similar cases, the appropriate way to do it is for there to be multiple lower courts considering it, the appropriate percolation that goes through the lower courts, and then, ultimately, this Court decides the merits in a nationwide binding precedent.
And again:
JUSTICE KAGAN: Suppose that there's a single person who brings a suit and it gets all the way up to us after three or four or five years, and we say, you know, we really do agree with those four precedents that Justice Sotomayor started with and your Executive Order is illegal. Is that only going to bind the one guy who brought the suit?
GENERAL SAUER: No. That would be a nationwide precedent that the government would respect.
JUSTICE KAGAN: So, finally, once it gets to us after four years, you're going to respect that?
GENERAL SAUER: Yes. And in addition, we may well respect circuit-wide precedent.
But now I see what's going on [h/t to reader/commenter J.M. Cox, one of whose comments on my earlier posting illuminated this point]. Read More
UPDATE 5/20/25 11:53 am: An excerpt from the full, 102-page opinion:
As an independent entity exercising inconsequential government power and de minimis, if any, executive power, Congress's ability to restrict the President's removal power is even greater than that outlined in Humphrey's Executor v. United States, 295 U.S. 602 (1935), Seila Law v. Consumer Financial Protection Bureau, 591 U.S. 197 (2020), and the Supreme Court's other seminal presidential removal power cases. Applying those cases, Congress's restrictions on the President's removal power of USIP Board members are squarely constitutional, and the President and his Administration's acts to the contrary are unlawful and ultra vires. The actions that have occurred since then—at the direction of the President to reduce USIP to its "statutory minimums"—including the removal of USIP's president, his replacement by officials affiliated with DOGE, the termination of nearly all of USIP's staff, and the transfer of USIP property to the General Services Administration ("GSA"), were thus effectuated by illegitimately-installed leaders who lacked legal authority to take these actions, which must therefore be declared null and void.
[T]he purported removal of members of the Board of Directors of the United States Institute of Peace ("USIP") duly appointed under 22 U.S.C. § 4605(b)(4), was unlawful, in violation of 22 U.S.C. § 4605(f), ultra vires, and therefore null, void, and without legal effect ….
[P]laintiff Board members who were purportedly terminated remain members of the USIP Board and may be removed by the United States President only pursuant to the terms of 22 U.S.C. § 4605(f) ….
[T]he purported removal of Ambassador George Moose as acting president of the Institute by a resolution adopted by less than a majority of the duly appointed Board of Directors of USIP was invalid, and therefore null, void, and without legal effect ….
[T]he purported appointments of Kenneth Jackson and Nate Cavanaugh to the positions of president of USIP pursuant to resolutions adopted by less than a majority of the duly appointed Board of Directors of USIP were invalid and therefore null, void, and without legal effect ….
In yesterday's decision by Judge Tracie Cason (Ga. Super. Ct. Gwinnett County) in Walters v. OpenAI, L.L.C., gun rights activist Mark Walters sued OpenAI after journalist Frederick Riehl ("editor of AmmoLand.com, a news and advocacy site related to Second Amendment rights") received an AI-generated hallucination from ChatGPT that alleged Walters was being sued for alleged embezzlement. The court granted OpenAI summary judgment, concluding that OpenAI should prevail "for three independent reasons":
[1.] In context, a reasonable reader wouldn't have understood the allegations "could be 'reasonably understood as describing actual facts,'" which is one key element of a libel claim. The court didn't conclude that OpenAI and other such companies are categorically immune whenever they include a disclaimer, but stated just that "Disclaimer or cautionary language weighs in the determination of whether this objective, 'reasonable reader' standard is met," and that "Under the circumstances present here, a reasonable reader in Riehl's position could not have concluded that the challenged ChatGPToutput communicated 'actual facts'":
{Riehl pasted sections of the Ferguson complaint [a Complaint in a civil case that Riehl was researching] into ChatGPT and asked it to summarize those sections, which it did accurately. Riehl then provided an internet link, or URL, to the complaint to ChatGPT and asked it to summarize the information available at the link. ChatGPT responded that it did "not have access to the internet and cannot read or retrieve any documents." Riehl provided the same URL again. This time, ChatGPT provided a different, inaccurate summary of the Ferguson complaint, saying that it involved allegations of embezzlement by an unidentified SAF Treasurer and Chief Financial Officer. Riehl again provided the URL and asked ChatGPT if it could read it. ChatGPT responded "yes" and again said the complaint involved allegations of embezzlement; this time, it said that the accused embezzler was an individual named Mark Walters, who ChatGPT said was the Treasurer and Chief Financial Officer of the SAF.}
In this specific interaction, ChatGPT warned Riehl that it could not access the internet or access the link to the Ferguson complaint that Riehl provided to it, and that it did not have information about the period of time in which the complaint was filed, which was after its "knowledge cutoff date." Before Riehl provided the link to the complaint, ChatGPT accurately summarized the Ferguson complaint based on text Riehl inputted. After Riehl provided the link, and after ChatGPT initially warned that it could not access the link, ChatGPT provided a completely different and inaccurate summary.
Additionally, ChatGPT users, including Riehl, were repeatedly warned, including in the Terms of Use that govern interactions with ChatGPT, that ChatGPT can and does sometimes provide factually inaccurate information. A reasonable user like Riehl—who was aware from past experience that ChatGPT can and does provide "flat-out fictional responses," and who had received the repeated disclaimers warning that mistaken output was a real possibility—would not have believed the output was stating "actual facts" about Walters without attempting to verify it….
That is especially true here, where Riehl had already received a press release about the Ferguson complaint and had access to a copy of the complaint that allowed him immediately to verify that the output was not true. Riehl admitted that "within about an hour and a half" he had established that "whatever [Riehl] was seeing" in ChatGPT's output "was not true." As Riehl testified, he ''understood that the machine completely fantasized this. Crazy." …
Separately, it is undisputed that Riehl did not actually believe that the Ferguson complaint accused Walters of embezzling from the SAF. If the individual who reads a challenged statement does not subjectively believe it to be factual, then the statement is not defamatory as a matter of law.… [Riehl] knew Walters was not, and had never been, the Treasurer or Chief Financial Officer of the SAF, an organization for which Riehl served on the Board of Directors….
[2.a.] The court also concluded that Walters couldn't show even negligence on OpenAI's part, which is required for all libel claims on matters of public concern:
Today, Ed Whelan wrote a post about A.A.R.P. v. Trump II. For argument's sake, Ed assumes that Justice Alito is correct that the majority "acted wrongly in enjoining action that is probably, or even certainly, illegal." If Alito is right, how would Ed assign blame?
I am not going to argue that two wrongs make a right. That is, if we continue to assume for the sake of argument that Alito's dissent is right, I am not going to argue that the blatant illegality of the Trump administration's actions would justify or excuse the majority's injunction. But if we are going to assign relative blame, I would place much more blame on the Trump administration for its entire Alien Enemies Act folly, which quite predictably triggered an unnecessary and unproductive clash with the courts. Others might well disagree.
I disagree. I think Ed gets things 100% backwards.
Donald Trump is who he is. On the campaign trial, Trump said he would invoke the Alien Enemies Act to effect mass removals, including of foreign gang members. The American people knew this, and still voted for him. As soon as Trump came into office, he kept this campaign promise, and invoked the AEA. These are statutes with very little judicial precedent. His order, even if contrary to how judges now read the Alien Enemies Act, was not foreclosed by any binding precedent when signed.
I think his actions are far more legally defensible than Biden's policies concerning student loans and the eviction moratorium. If Trump ultimately loses this litigation--and I suspect he will--he has stated many times that he will abide by the Supreme Court's judgment. But above all else, Trump is accountable. He has suffered political losses for removing aliens under the AEA, and these actions will likely help Democrats take the House in the midterm elections. Once that happens, we will be see non-stop hearings, subpoenas, investigations, and likely another impeachment for abuse of power.
But what are the consequences when the Supreme Court abuses its power? Chief Justice Roberts has lectured us that judges cannot be impeached for their decisions. The only remedy is the "normal appellate process" to the Supreme Court. But what happens when the Supreme Court is at fault? To quote Justice Alito's flag, does the only appeal go to heaven? Brutus, the Anti-Federalist, warned that Supreme Court Justices who were "independent of the people, of the legislature, and of every power under heaven" would "generally soon feel themselves independent of heaven itself." Brutus was right.
In John Roberts's world, he is the alpha and omega: he determines what is legal, and his determinations are therefore legal. L'État, c'est moi. The standard for the Supreme Court must be much higher. The Supreme Court should avoid even the slightest hint of impropriety. Yet the Court's decision in A.A.R.P. v. Trump blatantly misstated the facts, slandered the good name of Judge James Wesley Hendrix, manufactured a new legal principle by citing a conclusory legal treatise, permanently curtailed the President's executive powers, and expanded the Court's original jurisdiction (Justice Alito's dissent picked up on this point). And all of this was done to halt a policy that invoked a two-hundred year old authority, that was the centerpiece of Trump's presidential campaign.
Only Justices Alito and Thomas had the fortitude to call out the majority. At least Justice Kavanaugh--who has really been distinguishing himself of late--would have pushed through to decide the case.
Going back to Ed's post, if we are to assign relative blame, the unaccountable Supreme Court warrants far more blame than the accountable President. I don't think this comparison is even remotely close.
On Friday, I dashed off a quick post about A.A.R.P. v. Trump II. I read the decision, and wrote the post on my phone while waiting on the three-hour queue for the new Harry Potter ride at Epic Universe. (I did a TV interview with a view of the park.) I will have much more to say about this case in due course.
In a 2-1 ruling, the Court ruled Trump's invocation of the Alien Enemies Act cannot supersede a settlement barring deportation of a group of migrants. One judge also held the AEA was invoked illegally.
A prison guard transfers Alien Enemies Act deportees from the U.S., alleged to be Venezuelan gang members, to the Terrorism Confinement Center in Tecoluca, El Salvador. Mar. 16, 2025 (El Salvador Presidential Press Office)
Today, in a 2-1 ruling inJ.O.P. v. Department of Homeland Security, the US Court of Appeals for the Fourth Circuit ruled that the Trump Administration's invocation of the the Alien Enemies Act of 1798 cannot override a legal settlement barring deportation of a group of migrants. Judge Roger Gregory's concurring opinion (the only one of the three opinions in the case to address the issue) joins a growing list of federal court rulings and opinions holding that Trump's invocation of the AEA is illegal.
The AEA allows detention and deportation of foreign citizens of relevant states (including legal immigrants, as well as illegal ones) "[w]henever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government." Four federal judges - three district judges and Judge Henderson of the DC Circuit - have previously ruled that Trump's invocation of the AEA is illegal because there is no declared war, and the activities of the Venezuelan drug gang Tren de Aragua (which Trump cites as justification for invoking AEA) are not an "invasion" or "predatory incursion." Judge Gregory's opinion makes it five. One federal district judge has issued a badly flawed ruling holding that TdA's actions qualify as a "predatory incursion."
In today's Fourth Circuit ruling, Judge Benjamin, joined by Judge Gregory, ruled that Trump's invocation of the AEA - even if valid - could not override a settlement barring deportation of a Venezuelan migrant who was among many illegally deported to imprisonment in El Salvador under Trump's AEA proclamation. In a concurring opinion, Judge Gregory joins the rapidly growing list of judges concluding that Trump's invocation of the AEA is illegal:
The President's ipse dixit declaration that the nation of Venezuela, albeit through Tren de Aragua ("TdA") as a proxy, has engaged in an "invasion" or "predatory incursion" against territory of the United States is unsupportable. Even worse, the government's argument in this case is that this plainly invalid invocation of the Act can be used to void any and all contractual obligations of the federal government. That cannot be––and is not– –the rule of law.
To begin, the AEA has been invoked sparingly and only during wartime….
Before now, the AEA has been invoked only three times during our nation's history: the War of 1812, World War I, and World War II…. The last of these began the day after the attack on Pearl Harbor in 1941 and was used as the legal mechanism for Japanese internment…. In each of these three instances, judicial review was available to noncitizens removed or detained, as required by the AEA.
Now, for only the fourth time, President Donald Trump has invoked the AEA, and without affording the required process. On March 14, 2025, President Trump signed a Proclamation invoking his authority under the AEA to apprehend, detain, and remove "all Venezuelan citizens 14 years of age or older who are members of [Tren de Aragua]" and who are not "naturalized or lawful permanent residents of the United States." Invocation of the Alien Enemies Act Regarding the Invasion of the United States by Tren de Aragua, 90 Fed. Reg. 13,033 (Mar. 14, 2025).
Relevant to this case, the invocation of the AEA is being used for an entirely new purpose: to set aside contractual obligations of the United States…. I have severe difficulty in accepting that the invocation of the AEA can justify the voiding of all contractual obligations of the United States, particularly without any analysis of the legality of that invocation. Thus, I explain briefly why the President's invocation of the Act plainly violates its terms.
As mentioned above, the AEA's conditional clause requires (i) "a declared war between the United States and any foreign nation or government, or" (ii) an "invasion or predatory incursion [ ] perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government," and (iii) a presidential "public proclamation of the event…."
We need not wade into the thicket of political questions surrounding whether the Maduro regime truly directs the activities of TdA, relevant to whether the supposed invasion is attributable to a "foreign nation or government." That is because, as nearly every court to have reached the question has concluded, TdA's actions cannot constitute an invasion or predatory incursion within the ordinary meaning of the AEA's text. As a sister circuit so thoroughly explained, dictionary definitions, statutory context, and history reveal that "an invasion is a military affair, not one of migration." J.G.G., 2025 WL 914682, at *8–10 (Henderson, J., concurring). As for "predatory incursion," text and history again show that the term "referred to a form of hostilities against the United States by another nation-state, a form of attack short of war. Migration alone did not suffice." J.G.G., 2025 WL 914682, at *10; see also J.A.V. v. Trump, --- F. Supp. 3d ---, 2025 WL 1257450, at *15–16 (S.D. Tex. May 1, 2025) (discussing historical records to support idea that "invasion" and "predatory incursion" refer to an attack by military forces); D.B.U. v. Trump, --- F.Supp. 3d ---, 2025 WL 1304288, at *6 (D. Col. 2025) (relying on "Founding-era definitions and historical sources" to conclude the same). I agree that "invasion" and "predatory incursion" require some type of military attack, evidence for which was present in all previous instances where the AEA was invoked.
Turning to the text of President Trump's recent Proclamation, I see no evidence of any kind to suggest any "invasion" or "predatory incursion" is afoot…. TdA is a brutal criminal organization, but there is nothing aside from the President's unsupported assertion that suggests any military action within the meaning of the AEA. Thus, I would find that the AEA was illegally invoked in this case.
Like every previous court decision on Trump's use of the AEA, Judge Gregory also concludes that invocation of that statute is not a "political question" exempt from judicial review.
I think Judge Gregory is right on all these points. In previous writings, I have covered the many of the legal flaw with Trump's use of the AEA, including explaining why "invasion" and "predatory incursion" require a military attack, not mere illegal migration or drug smuggling (see, e.g., here, here, here, and here). As James Madison put it, "invasion is an operation of war."
The dissent by Judge Richardson does not address the legality of Trump's invocation of the AEA. It argues that the government should be allowed to deport the migrant in question even aside from that issue. I think the majority has the better of the debate over that question, but will not try to address it here.
The latest SCOTUS order shows the justices are taking a more nuanced approach to district court injunctions of Trump Administration policies than its critics, left or right.
Today, over a lone noted dissent, the Supreme Court stayed a district court injunction barring the Department of Homeland Security from terminating Temporary Protected Status for Venezuelans in the United States. The unsigned order in Noem v. National TPS Alliance noted that Justice Jackson would not have granted the stay.
The order was not an unqualified victory for the Trump Administration, as it does not extent--and expressly does not prejudice--challenges to the Administration's withdrawal of other benefits or status designations for TPS beneficiaries. Those questions will be litigated separately.
The Court's action was likely driven by the justices' conclusion that the federal government is likely to prevail on the merits, as the decision whether to confer, maintain, or terminate TPS is largely discretionary. Indeed, it is not even clear TPS decisions are subject to judicial review (as the Administration argued in its stay application).
The Court's order also highlights that, even within the constraints of the emergency docket, the justices are considering each application for relief on its own terms, and will police district court overreach where such overreach is clear. So while a majority of justices will not allow the Trump Administration to summarily deport individuals under the Alien Enemies Act without providing for adequate process, it is will also prevent individual district court judges from enjoining policy decisions that are clearly within the discretion of the administration.
This approach may not satisfy partisans, or those who presume the Trump Administration is entitled to prevail (or should be stymied) on every question (often without acknowledging, let alone understanding, the legal questions at hand), but it suggests the justices are endeavoring to pay attention to what the law actually allows or requires.
Kovarsky and Rave defend the use of class actions in AEA habeas cases. Vladeck highlights the significance of the Supreme Court's grant of an injunction to a "putative class" of AEA detainees.
I have previously written about how multiple lower courts have certified habeas classes in Alien Enemies Act deportation cases, and doing so may be the only way to ensure meaningful due process for detained migrants threatened with deportation. But I am not a class action expert, and am therefore limited in what I can say about the case for class action certification in habeas cases.
Legal scholars Lee Kovarsky and D. Theodore Rave (both at the University of Texas) are leading experts on habeas and class action issues, and their recent Lawfare article on "Class Actions and the Alien Enemies Act" is a must-read for anyone interested in these issues. Here is an excerpt:
Removal under the Alien Enemies Act (AEA) raises profound questions of government power, due process, and human dignity—so people sometimes wonder why skirmishes over class action certification are consuming so much legal energy. The answer is that justice is often bound up with procedure. And a federal court in the Northern District of Texas (NDTX) just created a major procedural problem when it refused to certify an AEA detainee class.
In what follows, we want to explain: (1) why AEA detainee class certification is so important and (2) why some of the ideas in the NDTX order are so troubling. (In the interests of disclosure, we have co-authored and signed an amicus brief on behalf of class action and habeas professors in this case.)
The Trump administration is trying to remove noncitizens who it alleges to be members of a Venezuelan gang, Tren de Aragua (TdA). The president invoked AEA removal authority in a proclamation asserting that TdA is an arm of the Venezuelan government that is "inva[ding]" or making a "predatory incursion" into the United States. The Supreme Court later held, in J.G.G. v. Trump, that AEA detainees are entitled to challenge the legality of their removal under the Act by seeking a writ of habeas corpus. The catch: Under the "immediate custodian rule," detainees must ordinarily mount habeas corpus challenges in the federal districts where they are detained. In other words, the AEA detainees can't all sue together in DC; instead, they have to bring their suits in the districts where they are being held.
But that doesn't mean they have to bring their habeas challenges on an individual basis. Nothing the Supreme Court said in J.G.G. forecloses seeking habeas relief through a class action lawsuit, and no matter where the litigation takes place, class treatment remains an indispensable procedural protection. In a class action, one or more named plaintiffs sues on behalf of a class of people who have similar legal claims. And the court can certify a class action to decide common questions that apply to the class as a whole. Class actions avoid inconsistent judgments and other inefficiencies that plague individual adjudication of common issues. They can also guarantee legal representation to vulnerable class members who would otherwise have limited access to counsel.
Since they published that article on May 15, the Supreme Court (a day later) extended injunctive relief to a "putative class" of Alien Enemies Act detainees (I wrote about the case here). Prof. Steve Vladeck (Georgetown) has an insightful piece on the significance of this aspect of the Court's ruling. An excerpt:
I know it's wonky, but the majority's holding that plaintiff classes can be provisionally certified by district courts for purposes of providing temporary relief even without resolving the likelihood of full class certification is going to have an impact in lots of cases—well beyond the AEA. That impact may well help to mitigate the damage caused by a ruling in the birthright citizenship cases that does away with, or even narrows, nationwide injunctions. But it is almost certainly going to have significant effects in other contexts, too—and not just in challenges to Trump administration policies. I remain very much not a fan of the justices reaching significant holdings in rulings on emergency applications. But here's one, at least, that might actually do some good on the ground.
I largely agree. But I would caution that temporary relief for a "putative class" is not the same thing as permanent relief for an actually certified class. And even the potential availability of full class certification is not a fully adequate substitute for nationwide injunctions.
In previous writings, I have covered the many substantive flaws with Trump's invocation of the AEA as a tool for deporting migrants in peacetime (see, e.g., here, here, and here). I have substantially more expertise on these issues than on the procedural questions involving class actions.
UPDATE: In the initial version of this post, I referred to D. Theodore Rave as D. Theodore "Rabe." I apologize for the mistake, which has now been corrected.
A decision by Judge Michael Simon (D. Or.) today in Future Motion, Inc. v. Lai denies plaintiff's request for an All Writs Act injunction against nonparty Google:
Plaintiff develops, manufactures, markets, and sells a line of self-balancing electric skateboards and related items. In November 2023, Plaintiff brought this lawsuit against Defendant Tony Lai, doing business as Floatwheel. Plaintiff alleges that Defendant is infringing four of Plaintiff's patents on its skateboard technology by manufacturing, importing, and selling Floatwheel-branded, self-balancing electric skateboards to customers in the United States.
Earlier, Judge Simon had issued an injunction purporting to bind third parties, including domain name registrars and video platform providers:
[4.] Any Registrar of record of an internet domain hosting a website that advertises or sells the Floatwheel Adv and/or the Floatwheel Adv Pro products, or any colorable imitation thereof, including but not limited to GoDaddy.com, LLC, must promptly upon receipt of a copy of this Order disable public access to the domain until further notice;
[6.] Any video platform provider, including but not limited to Google LLC doing business as YouTube, must promptly upon receipt of a copy of this Order either disable public access to (i) the entire Floatwheel YouTube channel at https://www.youtube.com/floatwheel or (ii) to all individual videos teaching viewers how to make and/or use a product that infringes Future Motion's patents, including but not limited to … 48 videos [listed below with titles and URLs] currently hosted at the YouTube channel https://www.youtube.com/floatwheel[;]
[8.] Pursuant to this Court's inherent powers, any person or entity failing to comply promptly with this Order … shall be subject to sanctions for civil and/or criminal contempt.
From N.Y. trial court judge Lisa Headley in Doe v. Kipp New York, Inc.; the decision was handed down in August, but I just noticed it because an appellate decision earlier this month allowed the case to proceed under a pseudonym:
[P]laintiff commenced this action a year after her employment as a teacher at KIPP middle school and high school was terminated following the dissemination of a video to students depicting plaintiff in a sex act that was saved on her KIPP-issued cellular phone (the "Video"). On June 3, 2022, plaintiff alleges she became aware of the video dissemination, when students brought it to her attention that the video had just been "airdropped" to certain students at KIPP. The plaintiff maintains that the video was taken on personal time and personal property and was potentially accessed and disseminated by students and others, without her consent.
The incident was reported to KIPP administrators, … who investigated the incident. The KIPP administrators determined that the video either may have been disseminated from a KIPP student to whom the plaintiff loaned her phone, or as the plaintiff depicted, that a student airdropped the video to other students. On June 16, 2022, the plaintiff filed a police report regarding the unauthorized access and dissemination of said video, and then on June 24, 2022, the plaintiff was terminated from her employment.
Plaintiff sued alleging many sorts of discrimination, but one in particular seemed a bit unusual:
The Court finds that the plaintiff has stated a legally sufficient fourth cause of action for … Sexual Orientation Discrimination [under New York state law] given that she asserts that she was a member of a protected class as a heterosexual and engaged in self-sexual (auto-erotic) activity, and defendants took adverse action against plaintiff, including terminating her employment, and her lawful expression of her sexuality was a motivating or other causally sufficient factor in defendants' actions….
Non-party Leslie Nelson … moves to redact or anonymize all references to him contained in the government's memorandum of law in opposition to defendant's post-trial motions and the Court's Opinion and Order of February 14, 2025 [available here -EV] …. Nelson also seeks an Order requiring the parties to anonymize future references to him in public filings and to seal his own filings in support of this motion…. [T]he Court concludes that the right of public access significantly outweighs the countervailing interests identified by Nelson. His sealing motion will be denied.
Familiarity with the charges against Wilson Da Costa and the underlying proceedings is assumed. On November 18, 2024, a unanimous jury found Da Costa guilty of one count of wire fraud and two counts of aggravated identity theft. On March 16, 2025, the Court sentenced Da Costa principally to a term of 84 months' imprisonment. The charges against Da Costa related to the forgery of certain letter-agreements that were necessary to facilitate the so-called Angola Fast Power Deal. At the time, Da Costa was an executive at General Electric ("GE"), and one witness described him as GE's "leader" in Angola.
Nelson was Da Costa's manager at GE. The Opinion and the government's memorandum of December 20, 2024 summarized some of the trial evidence concerning Nelson. Nelson and Da Costa participated in group text messages with the founder of AEnergia, Ricardo Machado. As recounted in the Opinion, the government submitted evidence that Da Costa and Nelson expected Machado to compensate them with side-payments for their work facilitating the Angola Fast Power Deal. Text messages received into evidence reflected frustration by Da Costa and Nelson that Machado did not pay them more than $5 million each. The Opinion quoted extensively from those messages.
Witnesses referenced Nelson throughout the trial, due in part to his position in GE's corporate hierarchy, his involvement in the Angola Fast Power Deal, and his inclusion in group emails about the underlying transaction. By the Court's count, eight trial witnesses referred to Nelson, and his name or image appeared in numerous trial exhibits. Da Costa also mentioned Nelson by name in his post-arrest interview and an audio recording of Nelson's voice was received into evidence. The Court received into evidence portions of text messages between Da Costa, Nelson and Machado.
Nelson states that friends, acquaintances and business colleagues have questioned him about the references to him contained in the Opinion and the government's post-trial memorandum. Nelson states that he previously had been contacted about his possible interest in seeking a position as a "high-level corporate officer" but that an attorney who conducted a background check on Nelson's behalf recommended that he withdraw due to publicity about this case.
The Administration isn't wrong to admit white South African migrants. But it is wrong to exclude all other refugees, including many fleeing far worse discrimination and oppression.
In this post, I am going to simultaneously offend many on both right and left by arguing 1) the federal government is right to admit the Afrikaners, 2) the decision to do so while simultaneously barring all other refugees is an instance of incredible hypocrisy and bias by the administration, and 3) if allowed to stand, the admission of the Afrikaners might set some useful precedents for advocates of expanded migration rights; if the Afrikaners qualify for expedited admission as "refugees," so too do a vast range of other people!
Why it is Right to Let Afrikaners Migrate to the US
Some on the left who accept that idea in most other contexts might balk at doing so here because of the association of Afrikaners with the evils of apartheid. But it is wrong to ascribe collective guilt to entire racial or ethnic groups. The Chinese government perpetrated the biggest mass murder in the history of world. That does not mean all Mandarin Chinese bear an onus of collective guilt, and Chinese migrants should be barred from the West. Germans don't bear collective guilt for the Holocaust (I say that even though, like most other European Jews, I lost many members of my own family to that atrocity). Russians are not collectively response for Vladimir Putin's atrocities, or those of the communist regime before him. And so on.
Moreover, many of today's white South Africans were either not even born yet when apartheid ended in 1994, or were minors at that time. Such people obviously are not responsible for apartheid-era injustices.
A more plausible justification for excluding white South Africans is the idea that, even if most don't bear personal responsibility for apartheid, they may have horrible racist attitudes, that we should keep out. I would argue the government should not be restricting migration (or any other liberties) based on judgments about people's political views. Speech-based deportations are unconstitutional and unjust, and the same goes for speech-based and viewpoint-based restrictions on migration. If we (rightly) don't trust the government to censor the speech and viewpoints of native-born citizens, the same principle applies to migrants.
Moreover, it is far from clear that most white South Africans today are still virulent racists. The Democratic Alliance - the party supported by most South African whites today (and led by Afrikaner John Steenhuisen) - is a multiracial party that favors racial equality (while opposing affirmative action preferences for blacks).
If some white South African migrants do have awful racial views, we should have confidence in the assimilative power of our own liberal values to mitigate them. In my book Free to Move: Foot Voting, Migration, and Political Freedom, I describe how most American Muslims (a large majority of whom are immigrants or children thereof) support same-sex marriage, in sharp contrast to the homophobia prevalent in most of the Muslim world. I see a similar pattern among my own immigrant community - those from Russia and other post-Soviet nations. Racism and homophobia are common in their countries of origin, but largely disappear by the second generation among immigrants. Overall, the evidence strongly indicates that home-grown nationalists, not immigrants with illiberal values, are the main threat to liberal democratic institutions in the US and Europe.
There is also a plausible case that white South Africans qualify for refugee status under current law. US law defines a "refugee" as a person who has "a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." If "persecution" on the basis of race includes racial discrimination by the government, then South African whites plausibly qualify. As my Cato Institute colleague Alex Nowrasteh points out in a piece that is also highly critical of many aspects of the Trump Administration's policy, "The South African government clearly discriminates on the basis of race through its Black Economic Empowerment system and subsequent amended policies with similar-sounding names."
The state-sponsored racial discrimination faced by white South Africans is nowhere near as bad as that endured by blacks under apartheid, or by many oppressed minorities around the world today. But, if "persecution" is defined broadly enough, it might justify allowing them refugee status.
I have advocated broadening the definition of "refugee" to include victims of all forms of persecution and oppression. In that event, the admission of white South Africans would be still easier to defend.
Trump's Policy is Based on Bigotry and Hypocrisy
Though there is a solid case for admitting the Afrikaners, the administration's decision to do so while trying to bar all other refugees is, nonetheless, an example of blatant bigotry and hypocrisy. It is beyond obvious that many refugees and other migrants barred by Trump face far worse oppression and discrimination than that threatening South African whites.
While the South African government discriminates against whites in some ways, it has not engaged in large-scale systematic oppression or mass murder. Despite some Western right-wingers' claims to the contrary, there is no "white genocide" going on there. The government's controversial land confiscation law also falls far short of genocide and only allows uncompensated land seizures in very limited circumstances. The coalition government in power in South Africa right now includes the Democratic Alliance (the party supported by most whites), and even the Freedom Front Plus party (a right-wing party representing primarily Afrikaners).
The fact that only a few dozen Afrikaners have so far taken up Trump's resettlement offer is another indication that their group doesn't face genocide or other genuinely massive violence and oppression. When populations face genuinely massive threats of repression and murder, millions flee, as in the case of the roughly 8 million who have fled Venezuela's oppressive socialist government, and the similar number fleeing Russia's brutal invasion of Ukraine. The Trump Administration, of course, has blocked admission of new Ukrainian and Venezuelan migrants, among others, and is trying to deport many Venezuelans previously admitted to the US.
I won't try to go over them all here. But other examples of refugees fleeing far greater threats of violence and oppression than South African whites are legion.
Thus, it's hard to avoid the conclusion that Trump's policy is based on hypocrisy and bigotry. Relatively modest racial discrimination against a group of whites gets absolute priority over far greater oppression targeting a vast range of other groups. It's not just that South African white Afrikaners get a degree of priority over more severely victimized groups, but the latter are barred from the US refuge program entirely. The government's policy pretty obviously reflects the obsession with white racial grievances prevalent in sectors of the US far right, rather than any objective, racially neutral, standards for allocating refugee admissions.
That conclusion can't be avoided by citing South African whites' relatively high levels of education or other human capital. Lots of high-education people facing persecution and oppression far worse than anything endured by South African whites are nonetheless excluded from refugee admissions under Trump's policy.
If not for the unusually high deference to executive decisions on immigration policy wrongly granted by the Supreme Court in cases like Trump v. Hawaii, the Trump policy would likely be struck down as an example of blatant racial discrimination. At the very least, the policy is obviously hypocritical and internally inconsistent (unless the consistency is provided by a racist double-standard).
As Nowrasteh emphasizes, this discrimination and hypocrisy are not the fault of the Afrikaner migrants. Don't blame them; blame Trump and his allies.
A Potentially Useful Precedent
Despite the awful motivations underlying it, Trump's bestowal of refugee admissions on Afrikaner South Africans could potentially be a useful precedent for advocates of expanded migration rights.
Nowrasteh notes that the same reasoning that justifies granting refugee status to Afrikaners would also justify extending it to other minority groups victimized by affirmative action policies, such as "Hindu Indians based on their caste, Malaysian citizens who are ethnically Chinese and Indian, people from disfavored regions of Pakistan under the region-based quota system, and other groups in other countries." More generally, it would justify extending refugee status to any group facing comparable or greater racial or ethnic discrimination, anywhere in the world. That includes a vast number of groups with many millions of members.
As Nowrasteh also points out, the Afrikaners were processed and admitted into the United States far faster than all or most previous refugees (within just a few weeks, as opposed to the normal excruciating long wait of about 24 months). If that is acceptable for the Afrikaners, why not for other refugees?
The Trump administration even sent a plane to pick up the first group of Afrikaners at US taxpayer expense. This is in blatant contradiction to right-wing immigration restrictionists' complaints that taxpayer dollars should not be spent on immigrant admissions. They even falsely claim that the Biden Administration spent public funds to fly in CHNV migrants fleeing communist oppression in Latin America, despite the fact that their travel was actually funded by the migrants themselves or by private US sponsors.
With extremely rare exceptions, I think migrant transportation should be funded by the migrants themselves or by private sector organizations. But restrictionists who accept Trump's use of public funds here should not complain about similar expenditures in other cases involving refugees facing far greater oppression.
In sum, there is good reason to open doors to white South African migrants, while also condemning the blatant hypocrisy and bigotry underlying the Trump Administration's policies on this score. If allowed to stand, the admission of the Afrikaners might nonetheless create a useful precedent for future refugee admissions.
UPDATE: Those interested (or those inclined to accuse me of racial double standards on refugees), may wish to check out my 2022 post with links to my long history of writings advocating migration rights for a variety of non-white refugees and other non-white migrants. I would now add my more recent work advocating for Latin American CHNV migrants (most of whom are also not white, at least as that concept is conventionally understood in the US).
From Damien Charlotin, 87 cases so far, mostly from the U.S. but also from Brazil, Canada, Israel, Italy, the Netherlands, South Africa, Spain, and the UK. I expect that there are many more out there that didn't make the list (especially since many state trial court decisions don't end up in computer-searchable databases, and I expect the same is true for other countries' courts).
Note that the pace has been increasing: There are more than 22 listed (all but five from U.S. courts) over the last 30 days alone.
Venezuelans fleeing the socialist regime of Nicolas Maduro. (NA)
On Friday, the Cato Institute and I filed a Supreme Court amicus brief inNoem v. Doe, a case where the Trump Administration is trying to terminate parole status for over 500,000 legal immigrants from four Latin American nations. The brief is available here. Here's a summary of the brief I prepared for the Cato website:
In early 2023, the Department of Homeland Security established a program under which citizens of Cuba, Haiti, Nicaragua, and Venezuela ("CHNV") were eligible to request two years of humanitarian parole into the United States if someone lawfully present in the United States was willing to sponsor them and commit to providing financial and other support. The policy was based on the highly successful Uniting for Ukraine parole program and a more limited parole program for Venezuelan nationals, both of which began in 2022, with the important difference that the number of CHNV parolees was capped at a total of 30,000 per month.
Parole under the CHNV program was granted for two-year terms. In 2025, the new Administration attempted to cut short all of those two-year terms for over 500,000 parolees—giving them only thirty more days of lawful status and associated work authorization. The federal government seeks a stay of a district court order temporarily pausing that termination, which would immediately throw into chaos the lives of half a million people and those connected to them. Termination of parole would render participants vulnerable to deportation to countries wracked by poverty, violence, and horrific oppression by authoritarian socialist governments. A central element of the government's position is the claim that the CHNV program was illegal. Our brief demonstrates that claim is badly mistaken.
In Part I, we show that broad, categorical parole programs have deep historical roots. Since the Eisenhower Administration, the Government has implemented over 125 such categorical programs, involving thousands or even millions of parolees in a single year. Part II explains why the CHNV parole programs are consistent with the statutory requirement that parole be considered on a "case-by-case basis."
In Part III, we demonstrate that migrants from the CHNV countries indeed have "urgent humanitarian reasons" to seek refuge in the United States. They are fleeing a combination of rampant violence, brutal oppression by authoritarian socialist regimes, and severe economic crises. We further show that paroling CHNV migrants also creates a "significant public benefit." That benefit is reducing pressure and disorder on America's southern border. The CHNV program massively reduced cross-border illegal migration by citizens of the nations it covers.
Finally, Part IV shows that, if the Court accepts the Government's position on the legality of the CHNV program, it would also potentially imperil over 100,000 people who received parole under the Uniting for Ukraine program, for people fleeing Russia' brutal invasion of that country. The latter relies on the same legal authority as the former.
This brief is based in part on an earlier amicus brief defending the legality of the CHNV program in Texas v. Department of Homeland Security, a lawsuit filed by twenty GOP-controlled states (that case was eventually dismissed by a conservative Trump-appointed federal judge for lack of standing). I also defended the legality of CHNV in a 2023 article in The Hill, and criticized Trump's attempts to revoke it in a March 2025 post at this site.
The Cato Institute and I are grateful to Grant Martinez, a partner at Yetter Coleman in Houston, TX, for his excellent work in helping adapt my arguments from the earlier brief to this case, at a time when I was extremely busy and could not do this task entirely on my own.
