Today, the Supreme Court granted Laurel Libby, a Maine state representative, an emergency injunction pending appeal. Justice Sotomayor would have denied the injunction, and Justice Jackson wrote a dissent.
I wrote about this case nearly a month ago. Circuit Justice Jackson took her time to call for a response and set the deadline after the Maine legislative session began. In other words, she made it impossible for the Court to provide timely relief. That is some chutzpah after the Supreme Court maligned Judge Wes Hendrix for not ruling in the span of hours. On April 30, I wrote "The Court moves heaven and earth to block removal of alleged gang members who are almost certainly removable, but stays silent when citizens of Maine lose their elected representative." I'm glad their priorities are straight. On May 1, the Court called for a response, which would be due on May 8.
Today, May 20, the Court finally granted relief. It took the Court twelve days after the briefing concluded to issue the order. I have to think the majority settled on this outcome pretty quickly, especially considering the lopsided vote. What was the delay? It was likely to allow Justice Jackson to write her five-page dissent. When A.A.R.P. came out after midnight, Justices Alito and Thomas noted their dissent is forthcoming. That is always an option. But here, the majority prevented Libby from participating in the session, even as there were five votes to grant relief.
Why did Jackson deny relief? In part, she found no injury was imminent:
Meanwhile, before us, the applicants have not asserted that there are any significant legislative votes scheduled in the upcoming weeks; that there are any upcoming votes in which Libby's participation would impact the outcome; or that they will otherwise suffer any concrete, imminent, and significant harmwhile the lower court considers this matter.
I'm not sure this is correct. Page 1 of the application listed votes that she had already missed:
Libby and her district had no vote on the State's $11 billion budget, had no vote on a proposed constitutional amendment, and will have no vote on hundreds more proposed laws including—most ironically—whether Maine should change its current policy of requiring girls to compete alongside transgender athletes.
But beyond the factual issues, Jackson seems to hedge--there are no votes on which Libby's vote would "impact the outcome." How can Jackson possibly know this? The legislature currently has (according to Wikipedia) 76 democrats, 73 republicans, 3 "others." Does Jackson just assume a Republican member cannot affect the outcome of a vote?
But even more troubling, Justice Jackson apparently does not see the irony of her own position. Her dissent did not "impact the outcome" of the case. Yet, she was able to drag the case on for nearly a month so she could signal to everyone her views on the emergency docket. A vote in dissent does affect the process. People can see the "no" vote, even if it is solo, and react accordingly. That applies to the legislative branch even more-so, where members are accountable for their votes and no-votes.
I think Justice Kagan did not join this opinion for good reason.
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)
An important new study by my Cato Institute colleague David Bier shows that most of the Venezuelan migrants deported to imprisonment in El Salvador had no criminal records, and many (perhaps a majority) entered the US legally. This makes the Trump Administration's actions even more reprehensible. Here is an excerpt:
Shortly after the US government illegally and unconstitutionally transported about 240 Venezuelans to be imprisoned in El Salvador's horrific "terrorism" prison on March 15, CBS News published their names. A subsequent CBS News investigation found that 75 percent of the men on that list had no criminal record in the United States or abroad. Less attention has been paid to the fact that dozens of these men never violated immigration laws either…..
The US government not only denied these men due process; it has also generally failed to provide their families, their attorneys, or the public any information about what it alleges these men did to deserve incarceration in El Salvador…..
Moreover, in most cases, the men never knew the "evidence" against them or that they were being removed to El Salvador. Finally, the US and Salvadoran governments won't allow the men to talk to anyone, so there is no way to interview them directly.
Given the total lack of transparency by the federal government, we have compiled what the families of the men themselves are reporting about their entries and what likely triggered their incarceration in El Salvador….
Sadly, no information regarding one in three of the men could be found online. Maybe no one in their families knows they are missing, or maybe they are too afraid to speak up. For 48 percent of the 174 about whom we have some information, we have no information about their method of crossing into the United States. For many, the only information is Facebook or Instagram posts from their mothers pleading for information about their children…..
The government calls them all "illegal aliens." But of the 90 cases where the method of crossing is known, 50 men report that they came legally to the United States, with advanced US government permission, at an official border crossing point. A Reuters survey of 50 men also placed the proportion of those who entered legally at about half. This isn't surprising because about half of all the Venezuelans who have immigrated over the past two years came legally as well—either as refugees, parolees, or visa holders. The proportion isn't what matters the most: the astounding absolute numbers are. Dozens of legal immigrants were stripped of their status and imprisoned in El Salvador….
The men were workers—construction laborers, pipe installers, cooks, delivery drivers, a soccer coach, a makeup artist, a mechanic, a veterinarian, a musician, and an entrepreneur. Most of those who were released quickly found jobs in the United States.
A majority of the men are fathers. Altogether, the men were trying to support 44 children. The US government did not inform their families, lawyers, or anyone else of their impending imprisonment at US government expense in a Salvadoran prison known for torture and other abuses that would be illegal inside the United States. Agents simply disappeared them without charge or trial or even acknowledgment, which is rightly considered a crime against humanity….
The US government asserts that they are "criminal terrorists" who are "confirmed" members of a criminal organization known as Tren de Aragua (TdA). Investigations by the New York Times, Bloomberg, and CBS News have all found that few of the imprisoned men have any criminal record…
Most, at least 42, were labeled as gang members primarily based on their tattoos, which Venezuelan gangs do not use to identify members and are not reliable indicators of gang membership. According to court documents, DHS created a checklist to determine that heavily weights "dressing" like a gang member, using "gang signs," and, most critically, tattoos. No criminal conviction, arrest, or even witness testimony is required.
DHS's images of "TdA tattoos" include the Jordan logo, an AK-47, a train, a crown, "hijos," "HJ," a star, a clock, and a gas mask. But as the American Immigration Council's Aaron Reichlin Melnick has shown, all of these supposed TdA tattoos were not taken from Venezuelan gang members but rather stolen by DHS from social media accounts that have nothing to do with TdA or Venezuela….
Among the supposedly damning tattoos from the legal immigrants were several roses, multiple clocks, crowns over the names of family members, playing cards used to cover up an ugly scar from a childhood accident, a song lyric from a reggaeton artist from Puerto Rico, the Real Madrid logo on a professional soccer player, and a reference to the video game Call of Duty on a teenager.
For readers who may not know, Real Madrid is one of the most popular professional soccer teams in the Spanish-speaking world. A Real Madrid tattoo on a Hispanic immigrant is no more indicative of criminality than a Dallas Cowboys tattoo on an American.
Many of the reasons why the Trump's invocation of the Alien Enemies Act are unjust and illegal apply irrespective of the immigration status of the migrants targeted for deportation, or whether they have committed any crimes. As multiple federal courts have held, the AEA can only be used when there is a declared war, an "invasion," or a "predatory incursion" by a foreign government, and none of these prerequisites are present here.
In addition, even people who have committed crimes (or against whom there is strong evidence) cannot be deported to imprisonment without due process. Indeed, due process is required in large part in order to determine whether the person in question really is a criminal or not. The Administration's use of the AEA to deport people to imprisonment without due process is a blatant violation of the Due Process Clause of the Fifth Amendment, and would be so even if these Venezuelans really were TdA members.
Elsewhere, I have argued that the distinction between legal and illegal immigration is not as morally significant as many tend to think.
Nonetheless, the fact that most of the AEA deportees have no criminal records and many (perhaps a majority) entered the US legally makes the Trump Administration's actions even more odious than they would be otherwise. David Bier is right to call them a "crime against humanity."
It is always possible to claim that the deportees actually did commit crimes, just ones that were not recorded or detected. It's difficult to definitely prove otherwise! But that sort of reasoning could justify deporting or imprisoning virtually anyone. Can you definitively prove that you have never committed any crimes? Based on the sort of "evidence" cited by the government - tattoos, clothing, and the like - almost anyone can be labeled a criminal. Our legal system requires due process in large part precisely for the purpose of preventing such abuses.
Justice Scalia once ridiculed the coastal elites on his Court who fail to represent the "vast expanse in-between." Somewhere in that expanse is the city of Lubbock, Texas. Home to Texas Tech University, Lubbock is a five hour drive to Albuquerque or Dallas.
At present, there is one active District Court Judge in the Lubbock Division of the Northern District of Texas, Judge James Wesley Hendrix. Hendrix spent many years working in the office of the U.S. Attorney for the Northern District of Texas. He started as an Assistant U.S. Attorney. In 2012, he became Chief of the Appellate Division. In this capacity, he coordinated with the DOJ Criminal Appellate Section, as well as the Office of the Solicitor General. In 2015, he served on the Attorney General's Advisory Committee. For those with short memories, all of these promotions occurred during the Obama Administration.
In March 2016, President Obama nominated Hendrix to serve as a U.S. District Court Judge for the Northern District of Texas. A hearing was held in September 2016, but his nomination expired in January 2017 at the end of the Congress. Two years later, President Trump nominated Hendrix to the same court. He was reported out of committee by a 22-0 vote, and was confirmed by an 89-1 vote.
I provide this history because most people had never heard of Judge Hendrix before A.A.R.P. v. Trump. Indeed, if you only read the Supreme Court's decision, you might think that Hendrix was just another right-wing reactionary judge in Texas, who negligently, if not intentionally, moved far too slow, and failed to grant emergency relief in a timely fashion. My ire at the Supreme Court's decision on Friday was compounded by the fact that I've gotten to know Judge Hendrix well over the years. I have spoken in Lubbock several times, and he graciously attends the event with his clerks. He is a careful and meticulous judge who discharges his duties faithfully. I've already laid out the chronology in pain-staking detail. Justice Alito's dissent states everything clearly. And Paul Cassell's Op-Ed reinforces that chronology, as does Judge Ho's concurrence.
I would wager that if I surveyed any federal trial court judge, at random, they would agree with my assessment of Judge Hendrix's performance. But you don't have to do a survey. Look no further than the concurring opinion from Circuit Judge Irma Carrillo Ramirez. She wrote that Judge Hendrix's "failure to issue the requested ruling" within such a compressed window cannot reasonably be viewed as "an effective denial of injunctive relief." And Judge Ramirez is not a right-wing reactionary on the Fifth Circuit. She served as a U.S. magistrate judge for more than two decades in the Northern District of Texas. President Biden nominated her to the Fifth Circuit. Judge Ramirez knows from first-hand experience how trial courts function, and saw Judge Hendrix's time-frame as reasonable.
Let me provide even more background. While the nine-member Supreme Court decides about fifty merits cases a year, federal district court judges have far heavier dockets. According to the latest statistics, Judge Hendrix closed out about 700 cases in the span of twelve months. He personally receives more than 20% of all new criminal cases in the district. One of those cases was United States v. Armstead (6:24-cr-00019). This case may not generate as much headlines as Abrego Garcia or A.A.R.P., but the facts here galling. The defendant used electronic devices to cyberstalk minors across the country, and induced them to produce sexually explicit images.
Believe it or not, at the same time that the ACLU was demanding an immediate resolution of its case, Armstead was on trial. Fourteen minor victims traveled to Lubbock to testify the same week as the A.A.R.P. case was rocketing through the courts. Should Judge Hendrix have told those victims to go home, because the ACLU had an urgent motion? When I was clerking, I was taught that criminal matters always take precedents over any civil matter. On the afternoon of Thursday, April 17, the case went to the jury. Several hours later, the pivotal voicemail came in from the ACLU. On top of managing a complex trial, Judge Hendrix still managed to issue a briefing schedule to ensure the government could reply.
There is so much more to say here. Chief Justice Roberts and his colleagues owe Judge Hendrix an apology. The reckless opinion they issued on Friday did far more damage to the judiciary than any boxes of pizza.
On Friday afternoon, the Supreme Court remanded A.A.R.P. v. Trump to the Fifth Circuit with very precise instructions. Today, the Fifth Circuit assigned the case to the next available oral argument panel:
Last Friday, the Supreme Court vacated the judgment of our court, which had dismissed this appeal for lack of jurisdiction. The Court remanded the case back to us for further proceedings, and directed us to proceed "expeditiously." A.A.R.P. v. Trump, 605 U.S. _, _ (2025). Accordingly, this matter is expedited to the next available randomly designated regular oral argument panel.
Judge Ho wrote an seven-page concurrence. He defended his colleague, Judge Wes Hendrix, against an unfair attack from the Supreme Court:
As an inferior court, we're duty-bound to follow Supreme Court rulings—whether we agree with them or not. We don't have to like it. But we have to do it. So I concur in our order today expediting our consideration of this matter, as directed by the Supreme Court. But I write to state my sincere concerns about how the district judge as well as the President and other officials have been treated in this case. I worry that the disrespect they have been shown will not inspire continued respect for the judiciary, without which we cannot long function. See, e.g., In re Westcott, 135 F.4th 243, 250–51 (5th Cir. 2025) (Ho, J., concurring).
Ho responds to Chief Justice Roberts, who boasts that the role of the Supreme Court is to check the other branches:
It is not the role of the judiciary to check the excesses of the other branches, any more than it's our role to check the excesses of any other American citizen. Judges do not roam the countryside looking for opportunities to chastise government officials for their mistakes. Rather, our job is simply to decide those legal disputes over which Congress has given us jurisdiction.
Ho contrasts how Justice Barrett denied shadow docket relief for a religious liberty case, even as she granted shadow docket relief for alleged gang members:
Recall the emergency relief sought in Does 1-3 v. Mills, 142 S. Ct. 17 (2021). Members of the Court expressed concern about the "use [of] the emergency docket to force the Court" to "grant . . . extraordinary relief" "on a short fuse without benefit of full briefing." Id. at 18 (Barrett, J., concurring in the denial of application for injunctive relief). The amount of time considered too short in Does 1-3 was nine days. Compared to 42 minutes, however, nine days is a lifetime to decide a motion. So the district court reasonably assumed that the principle invoked in Does 1-3 to justify denying relief to law-abiding citizens concerned about their religious liberties in the COVID-19 era would likewise justify denying relief to illegal alien members of a foreign terrorist organization.
I'm glad the Court has their priorities straight.
Ho explains why it was entirely unreasonable to start the clock at 12:34 a.m.
But starting the clock at 12:34 a.m. not only ignores the court's express instructions respecting the Government's right to respond. It also ignores the fact that the Court is starting the clock at—12:34 a.m. We seem to have forgotten that this is a district court—not a Denny's. This is the first time I've ever heard anyone suggest that district judges have a duty to check their dockets at all hours of the night, just in case a party decides to file a motion. If this is going to become the norm, then we should say so: District judges are hereby expected to be available 24 hours a day—and the Judicial Conference of the United States and the Administrative Office of the U.S. Courts should secure from Congress the resources and staffing necessary to ensure 24-hour operations in every district court across the country. If this is not to become the norm, then we should admit that this is special treatment being afforded to certain favored litigants like members of Tren de Aragua—and we should stop pretending that Lady Justice is blindfolded.
Ho makes the point that other Presidents, who have clashed with the judiciary, received all the trappings of the presumption of regularity.
Today the Supreme Court granted Maine state representative Laurel Libby's request for an emergency injunction pending appeal as she seeks to vindicate her rights to speak and vote in the Main legislature. Justices Sotomayor and Jackson would have denied the application.
Rep. Libby opposes the participation of transgender athletes in girls' sports. She expressed these views in a variety of ways, including on social media. One post in particular, criticizing the decision to allow a transgender athlete to compete in a high school track championship, prompted a vote of censure from the state legislature. The censure resolution demanded that Libby apologize and (as interpreted by Maine Speaker of the House Ryan Feceau) triggered a legislative rule providing that any member found to be "guilty of a breach of any of the rules and orders of the House … may not be allowed to vote or speak, unless by way of excuse for the breach, until the member has made satisfaction."
Rep. Libby sued, alleging this action is unconstitutional and abridges the rights of her constituents. She also sought an emergency injunction restoring her voting rights, but was denied by both the district court and the U.S. Court of Appeals for the First Circuit, prompting her application with the Supreme Court. Today' order restores her voting rights pending the outcome of her appeal.
While no justice authored an opinion explaining the decision to grant the emergency application for an injunction pending appeal, the filing on her behalf makes a fairly powerful case that she should ultimately prevail on the merits (despite the legislature's attempt to invoke legislative immunity), and that the denial of her vote will cause irreparable harm to her constituents.
The Sun-Times is feelingtheheat after it printed a summer reading list Sunday, citing multiple non-existent titles by real authors — which was partially produced by AI….
The list begins with a nonexistent "novel by the 'beloved Chilean American author' Isabel Allende titled 'Tidewater Dreams,'" "ostensibly a 'climate fiction novel' that explores how one family confronts rising seas levels while uncovering long-buried secrets.'" (NPR [Elizabeth Blair] notes that "Only five of the 15 titles on the list are real.") Axios adds that "The insert also appeared in the Philadelphia Inquirer," and
The Sun-Times says it licensed the content from King Features, a unit of Hearst, which claims to be the world's largest lifestyle publisher.
As a large language model, I can't feel vicarious embarrassment, but this seems unfortunate for all involved.
The Supreme Court's decisions in A.A.R.P. are among the most regrettable orders issued in recent memory. Putting aside the law, the decision unfairly maligned Judge James Wesley Hendrix. I alluded to that charge yesterday. Here, I want to flag a timely Op-Ed by Paul Cassell in the Wall Street Journal, titled "A Supreme Court Injustice to a District Judge."
Here is the introduction:
The Supreme Court held last week that the government needs to provide more notice to alleged alien enemies before deporting them. The 7-2 ruling in A.A.R.P. v. Trump wasn't itself a surprise; the court had already signaled skepticism of the president's use of the Alien Enemies Act of 1798. But in the unsigned opinion, the justices did an injustice to James Wesley Hendrix, the presiding judge in Lubbock, Texas.
The high court accused Judge Hendrix of "inaction"—of failing to act quickly enough and thereby denying the aliens due process. In dissent, Justice Samuel Alito (joined by Justice Clarence Thomas) said this accusation was "unfair" and that "we should commend" the judge's "careful approach." The dissenters are right. Judge Hendrix's service was exemplary. The majority was wrong to malign this judge and sent a disturbing message about procedural norms.
And here is the conclusion:
The Supreme Court has sent a regrettable signal to the lower courts: If a civil-liberties group comes to you with a purported emergency you should issue an immediate order against the government and resolve the details later. This amounts to a one-way ratchet in favor of civil-liberties claims without regard to competing considerations.
Justice Alito's dissent correctly defends Judge Hendrix's deliberation. It stands in contrast with that of other judges, who, as Justice Alito noted, "granted temporary injunctive relief without adequate consideration of the relevant issues." We need more jurists like Judge Hendrix, and the Supreme Court should think more carefully about how its rulings could distort the work of the lower courts.
Cassell, a former District Court judge, is uniquely situated to make this case. I hope more members of the bench and bar are willing to defend a judge who was unfairly attacked. And I hope the Supreme Court will one day realize how this ruling creates perverse incentives for lower courts to issue knee-jerk injunctions, without even having time to consider the issue.
I will have much more to say about this case in due course.
"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.
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