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.
<UPDATE 5/19 Just a note to draw readers' attention to the 300+ comments that this post has received. It is a good illustration of one of the things I like most about the VC - I'm not aware of another blog that can generate as intelligent and informative a conversation. Not that every comment is a gem, but the overall level of the discussion is rather remarkably high and the tone is mostly respectful. That is not always the case here; some posts dealing with controversial matters generate comments that spiral into some nasty ad hominem mud-slinging. But at its best it's much closer to good old-fashioned argument/debate, and I find I can often learn a fair bit from it.>
At oral argument Thursday in Trump v. Casa, Inc., the "nationwide injunction" case, Justice Kagan put her finger on the question that is, in my view, decisive: If district courts do not have the ability to issue "nationwide injunctions"* against executive misbehavior, i.e., if they are limited to injunctions applicable only to the specific party/ies challenging the government's actions in the cases before them, the courts cannot serve as an effective check on unlawful executive action.
*These injunctions might better be labelled "non-party injunctions" rather than "nationwide injunctions." Listening to the oral argument, it appears that what gives some Justices heartburn with respect to these injunctions is not that they operate "nationwide" (i.e., outside of the geographic district within with the court is authorized to act) but that they purport to affect the rights of non-parties.
Justice Kagan asked the Solicitor General to assume, just for argument's sake, that the Birthright Executive Order is unlawful, on the merits** - that it is an unconstitutional exercise of executive power contravening both the 14th Amendment and a number of Supreme Court precedents (as most of the courts that have looked at it have already concluded).
**This question about the merits - whether the Birthright E.O. is or is not a constitutional exercise of the President's power - was not before the Court at this point, because the government, which was the losing party in the court below, sought SCOTUS review only on the question of whether the court's injunction was valid, not on the underlying merits of the plaintiffs' claim. That turns out to be a rather interesting omission - see below.
If you are uncomfortable making this assumption, because you are convinced that that the Birthright E.O. is not an unconstitutional exercise of presidential power, feel free to craft your own hypothetical here; think of something that a President could do that would be, in your view, clearly and incontrovertibly unlawful: An order requiring, say, the State Department to fire all Jews and African-Americans in its workforce; an order placing the words "Christ is our Savior" on one-dollar bills; an order declaring that ICE can execute warrantless searches whenever it deems them to be in the public interest. Just suppose.***
***Justice Sotomayor used this hypothetical: "A new president orders that because there's so much gun violence going on in the country and he says, 'I have the right to take away the guns from everyone,' and he sends out the military to seize everyone's guns."
The ruling held that migrants detained under AEA had not been given adequate notice of their potential deportation. It also reflects the Court's growing distrust of the Trump Administration.
Today, in AARP v. Trump, the Supreme Court issued a ruling blocking deportation of a group of Venezuelan migrants the Trump Administration had been trying to use the Alien Enemies Act of 1798 deport to imprisonment in El Salvador. 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."
The Supreme Court's latest ruling doesn't address the issue of whether the administration's invocation of the AEA is legal, though multiple lower courts have ruled it is not, because there is no war, "invasion," or "predatory incursion" going on (only one badly flawed ruling goes the other way on "predatory incursion"). Instead, a 7-2 majority holds only that Venezuelan detainees slated for deportation under the AEA in the Northern District of Texas are entitled to a temporary injunction blocking deportation, because they were not granted adequate notice:
[I]n J. G. G. [the Court's first ruling on Trump AEA deportations], this Court explained—with all nine Justices agreeing—that "AEA detainees must receive notice . . . that they are subject to removal under the Act . . . within a reasonable time and in such a manner as will allow them to actually seek habeas relief " before removal. 604 U. S., at ____ (slip op., at 3). In order to "actually seek habeas relief," a detainee must have sufficient time and information to reasonably be able to contact counsel, file a petition, and pursue appropriate relief. The Government does not contest before this Court the applicants' description of the notice afforded to AEA detainees in the Northern District of Texas, nor the assertion that the Government was poised to carry out removals imminently. The Government has represented elsewhere that it is unable to provide for the return of an individual deported in error to a prison in El Salvador, see Abrego Garcia v. Noem, No. 25−cv−951 (D Md.), ECF Docs. 74, 77, where it is alleged that detainees face indefinite detention, see Application for Injunction 11. The detainees' interests at stake are accordingly particularly weighty. Under these circumstances, notice roughly 24 hours before removal, devoid of information about how to exercise due process rights to contest that removal, surely does not pass muster. But it is not optimal for this Court, far removed from the circumstances on the ground, to determine in the first instance the precise process necessary to satisfy the Constitution in this case. We remand the case to the Fifth Circuit for that purpose.
To be clear, we decide today only that the detainees are entitled to more notice than was given on April 18, and we grant temporary injunctive relief to preserve our jurisdiction while the question of what notice is due is adjudicated.
In a highly unusual earlier ruling in this same case, the Supreme Court literally issued an order blocking deportation in the middle of the night. The per curiam majority opinion in today's ruling recounts the circumstances of that previous episode, and its relevance to the current decision. The combination of that earlier ruling and today's decision reflects the majority's growing distrust of the Trump Administration's handling of AEA - and perhaps other - deportations. Note the reference to the Administration's refusal to return an illegally deported migrant in the Abrego Garcia case.
I could be wrong, and my record as a Supreme Court prognosticator is far from perfect. But I think when the Court does review the Administration's use of the AEA more fully, they are unlikely to be deferential. In a concurring opinion, Justice Kavanaugh argues the Court should immediately move to resolve the broader issues at stake, in this very case. All or most of the other justices must have disagreed. But it seems likely these issues will return to the Court sooner or later.
In a forceful dissent joined by Clarence Thomas, Justice Samuel Alito disputes the majority's characterization of the facts (contending, among other things, that deportation wasn't really imminent) and argues the Supreme Court lacked jurisdiction to consider the case at this time. I will not go into these points in detail. But I think the majority's account is more persuasive, and also that the Administration does not deserve the benefit of the doubt in such matters, given their earlier shenanigans in Abrego Garcia, and at least one of the AEA cases.
Justice Alito also argues that class action certification is inappropriate in a habeas case, like this one. I will leave that issue to habeas and class action experts, except to note that multiple lower courts have certified habeas classes in AEA cases, and doing so may be the only way to ensure meaningful due process for detained migrants threatened with deportation.
For the moment, as Georgetown Prof. Steve Vladeck notes,"[b]ecause lower courts have blocked use of the act in every other district in which the president has sought to invoke it, that means it's effectively pausing all removals under the act until the 5th Circuit – and, presumably, the Supreme Court itself – conclusively resolves whether they're legal and how much process is due if so." The legal battle over Trump's invocation of the AEA will surely continue, and I will have more to say about it in due time.
The past 24 hours have been something of a Rorschach Test for the Supreme Court. In the birthright citizenship case, the Court made clear that in emergencies, the judiciary must retain the power to enter universal injunctions, even if Article III does not otherwise permit such injunctions. And in A.A.R.P. v. Trump, the Court made clear that in emergencies, the court should certify a class without going through Rule 23, and grant an ex parte tro without considering any of the usual TRO factors.
What lesson should lower court judges take away? In cases of perceived emergencies, forget all the rules and make stuff up. When the executive branch takes such actions we call it an autocracy. When the courts do it, they call it the "rule of law."
I will have much more to say about this order in due course.
This afternoon, the Supreme Court granted an application for an injunction against the federal government barring the summary removal of Venezuelan nationals alleged to be members of Tren de Aragua (TdA) under the Alien Enemies Act. By a 7-2 vote, the justices concluded that the detainees were entitled to greater process than they had been provided, and that the U.S. Court of Appeals for the Fifth Circuit erred in dismissing the detainee's claims for lack of jurisdiction. The Court further treated the application for an injunction as a petition for certiorari, granted the petition, and remanded the case back to the U.S. Court of Appeals for the Fifth Circuit for further proceedings.
The opinion for the Court in A.A.R.P. v. Trump was per curiam (the fifth such opinion this term). Justice Alito dissented, joined by Justice Thomas, arguing that the Court lacked jurisdiction and, even assuming jurisdiction, the applicants failed to satisfy the requirements for injunctive relief. Justice Alito also objected to granting certiorari before judgment given the lack of lower court decisions on the merits.
Here's how the opinion sets up the questions before the Court:
The President has invoked the Alien Enemies Act (AEA), Rev. Stat. §4067, 50 U. S. C. §21, to remove Venezuelan nationals who are members of Tren de Aragua (TdA), a designated foreign terrorist organization. See Presidential Proclamation No. 10903, 90 Fed. Reg. 13033 (2025). Applicants are two detainees identified as members of TdA and a putative class of similarly situated detainees in the Northern District of Texas. All of the alleged TdA members in the putative class are currently being held in U. S. detention facilities. In the application before the Court, the detainees seek injunctive relief against summary removal under the AEA.
In recounting the facts, the Court highlights how close it appears some of the applicants came to being deported without adequate process. The way these facts are recounted suggests that at least some of the justices are increasingly skeptical of the Justice Department's representations and the extent to which administration attorneys are attempting to comply with court orders and legal requirements in good faith. (It is no accident the opinion makes reference to Abrego Garcia, and the federal government's representation that no federal court has jurisdiction to fix the federal government's error in deporting him to El Salvador.) This would seem to confirm that a majority of the justices are no longer willing to automatically grant the presumption of regularity to the Trump Administration on deportation-related matters, and this may affect the ability of the Solicitor General to advance Administration positions in other cases.
As in several other recent cases, the Court's opinion highlights its disagreement with the Fifth Circuit.
The Fifth Circuit erred in dismissing the detainees' appeal for lack of jurisdiction. Appellate courts have jurisdiction to review interlocutory orders that have "the practical effect of refusing an injunction." . . . A district court's inaction in the face of extreme urgency and a high risk of "serious, perhaps irreparable," consequences may have the effect of refusing an injunction. . . . Here the District Court's inaction—not for 42 minutes but for 14 hours and 28 minutes—had the practical effect of refusing an injunction to detainees facing an imminent threat of severe, irreparable harm. Accordingly, we vacate the judgment of the Court of Appeals.
The Court then goes on to reiterate the basic constitutional point that Due Process is guaranteed to persons, and not merely citizens or those lawfully present in the country.
"[T]he Fifth Amendment entitles aliens to due process of law in the context of removal proceedings." Trump v. J. G. G., 604 U. S. ___, ___ (2025). . . "Procedural due process rules are meant to protect" against "the mistaken or unjustified deprivation of life, liberty, or property." . . . We have long held that "no person shall be" removed from the United States "without opportunity, at some time, to be heard." . . . Due process requires notice that is "reasonably calculated, under all the circumstances, to apprise interested parties" and that "afford[s] a reasonable time . . . to make [an] appearance." . . . Accordingly, in J. G. G., this Court explained—with all nine Justices agreeing—that "AEA detainees must receive notice . . . that they are subject to removal under the Act . . . within a reasonable time and in such a manner as will allow them to actually seek habeas relief " before removal. , , , In order to "actually seek habeas relief," a detainee must have sufficient time and information to reasonably be able to contact counsel, file a petition, and pursue appropriate relief.
None of this means the applicants will not ultimately be removed from the country, however. Rather, any removal will only come after they have received the process to which they are due. As the Court notes further:
To be clear, we decide today only that the detainees are entitled to more notice than was given on April 18, and we grant temporary injunctive relief to preserve our jurisdiction while the question of what notice is due is adjudicated. . . . We did not on April 19—and do not now—address the underlying merits of the parties' claims regarding the legality of removals under the AEA. We recognize the significance of the Government's national security interests as well as the necessity that such interests be pursued in a manner consistent with the Constitution. . . .
And as if to make the point clear, the opinion ends noting "The Government may remove the named plaintiffs or putative class members under other lawful authorities."
As for what comes next, the Court explains:
The judgment of the Fifth Circuit is vacated, and the case is remanded to the Fifth Circuit. In resolving the detainees' appeal, the Fifth Circuit should address (1) all the normal preliminary injunction factors, including likelihood of success on the merits, as to the named plaintiffs' underlying habeas claims that the AEA does not authorize their removal pursuant to the President's March 14, 2025,Proclamation, and (2) the issue of what notice is due, as to the putative class's due process claims against summary removal. The Government is enjoined from removing the named plaintiffs or putative class members in this action under the AEA pending order by the Fifth Circuit and disposition of the petition for a writ of certiorari, if such writ is timely sought. Should the petition for a writ of certiorari be denied, this order shall terminate automatically. In the event the petition for a writ of certiorari is granted, the order shall terminate upon the sending down of the judgment of this Court.
Justice Kavanaugh also wrote a separate concurrence, agreeing with the Court's decision to grant the injunction, but disagreeing with the Court's decision to remand the case back to the Fifth Circuit. In Justice Kavanaugh's view, the Court should have granted certiorari, ordered expedited briefing, and resolved the underlying legal issues.
From today's opinion by Judge William Sessions in Ozturk v. Trump (D. Vt.), providing the written explanation for a May 9 order granting bail to Ozturk [UPDATE: you can read Ozturk's op-ed here]:
To briefly summarize, Ms. Ozturk has argued that her arrest and detention are retaliation for her co-authorship of an op-ed in a student newspaper. The government has identified her op-ed, and potentially related associations, as the precipitating factor for her visa revocation. As the Court cited in its April 18, 2025, Opinion and Order, then-candidate Trump reportedly threatened to deport foreign students involved in campus protests. And Secretary of State Marco Rubio, in response to press inquiries about Ms. Ozturk's arrest, opined that Ms. Ozturk's activities "meet the standard of what I've just described to you: people that are supportive of movements that run counter to the foreign policy of the United States" and that detention was "basically asking them to leave the country."
Arrest and detention, let alone termination of status, are not a natural consequence of visa revocation. Ms. Ozturk has presented credible evidence to show that similarly situated individuals historically have not been detained following visa revocation or termination of status.
To date, the government has neither rebutted the argument that retaliation for Ms. Ozturk's op-ed was the motivation for her detention nor identified another specific reason for Ms. Ozturk's detention, arguing instead that such decisions are committed to the discretion of the executive branch. While it is uncontested that the government has discretion in this area, that discretion is not accompanied by the authority to violate the Constitution.
The Court need not decide at this stage whether Ms. Ozturk's detention actually constitutes a First Amendment violation. As the April 18 opinion established, Ms. Ozturk's op-ed carries all the hallmarks of protected speech on public issues, and it does not fall into any recognized exception…. The Court therefore concluded that Ms. Ozturk has presented, at the very least, a substantial claim of a First Amendment violation.
Many people have worried that the Trump administration might refuse to respect a Supreme Court decision. In yesterday's oral argument in the birthright citizenship emergency order case, Solicitor General John Sauer said several times that the Trump administration views itself to be bound not just by a Supreme Court judgment, but, much more broadly, by the precedent those judgments create. This is a major concession to judicial supremacy, and a major stand-down on departmentalism, by the Trump administration.
What I did not fully understand until yesterday's oral argument is why this concession is needed to make the government's argument against universal injunctions work. It is, as I explain below, the price the Trump administration must pay to get relief from universal injunctions.
Whether the Trump administration can be trusted to deliver on Sauer's concession is a very fair and open question, as I discuss at the end of this essay. But in the main thrust of the essay I will explain the logic and potential significance of the concession. I think the Court in its opinion will latch on to the concession, in a fashion reminiscent of Marbury, to give the government some degree of relief from universal injunctions even as the Court asserts the government-acknowledged supremacy of its precedents vis-á-vis the executive branch.
The main issue addressed in yesterday's birthright citizenship oral argument before the Supreme Court was whether federal courts should have the power to issue nationwide injunctions against illegal government policies, as opposed to injunctions limited to the parties to the case, or perhaps to a particular state or local government. As I see it, there is a simple, but powerful reason why courts must have the power to issue such injunctions, at least in some cases. In many situations, there is no other way to stop widespread illegality, especially that perpetrated by the federal government. Nationwide wrongs require a nationwide remedy.
Justice Ketanji Brown Jackson put it well in yesterday's argument:
[T]he real concern, I think, is that your argument [meaning that of the federal government] seems to turn our justice system, in my view at least, into a "catch me if you can" kind of regime from the standpoint of the executive, where everybody has to have a lawyer and file a lawsuit in order for the government to stop violating people's rights.
Justice Kagan says let's assume for the purpose of this that you're wrong about the merits, that the government is not allowed to do this under the Constitution. And yet it seems to me that your argument says we get to keep on doing it until everyone who is potentially harmed by it figures out how to… file a lawsuit, hire a lawyer, et cetera. And I don't understand how that is remotely consistent with the rule of law
This is especially true when, as in the birthright citizenship case, there are hundreds of thousands of victims of the government's illegal policies, and many of them are poor or otherwise unable to readily file a lawsuit.
Moreover, even if all current victims file lawsuits and win, the unconstitutional policy will remain in place with respect to future victims (in this case, future children born to undocumented immigrants and those in the US on temporary visas). Thus, the illegality - and the need for endless lawsuits to combat it - will continue on into the indefinite future.
Imagine if school desegregation litigation rules required each individual black student (or her family) to file a separate lawsuit in order to be able to attend a racially integrated school. Black students whose families don't file a lawsuit can kept in segregated schools, even if courts rule they are unconstitutional. By that "logic," we might well still have legally segregated public schools to this day.
As discussed in the oral argument, these problems can sometimes be partially overcome by class action suits. But class action certification rules will often make it difficult or impossible to include all the victims of a large-scale injustice in a single class, or indeed in any class. Moreover, the logic of the government's case against nationwide injunctions is that courts have no power to compel defendants to respect the rights of third parties. By that reasoning, class actions are also suspect. After all, they necessarily include remedies for third parties (members of the putative class who didn't file a lawsuit themselves, and in many cases may not even know about the class action's existence).
Perhaps such injustices must be accepted if that is clearly required by the text and original meaning of the Constitution. But it isn't. Article III of the Constitution states that "the judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, [and] the Laws of the United States," and "to Controversies to which the United States shall be a Party." Such cases - and especially "controversies" - can obviously sometimes raise issues that go beyond the interests of the particular people who filed the lawsuit in question. And, as the amicus brief by legal historians effectively summarizes, broad injunctions that extend to third parties (sometimes even covering thousands of people) have been imposed by courts throughout American history.
For reasons summarized in a previous post, I am not much impressed by the argument that it's dangerous if one rogue federal judge can impose an injunction blocking a policy nationwide. If the judge is indeed a rogue outlier, and his or her ruling is indeed badly wrong, it can be overturned on appeal, if necessary on an expedited basis. Appellate courts have substantial discretion to swiftly stay injunctions, when needed. It is much less of a burden for the federal government - with its vast resources - to seek such appellate review than for many thousands of people to have to file individual lawsuits to vindicate their rights. And, again, that's especially true if many of the victims of the government's illegal actions are poor or otherwise unable to easily file a suit.
I am also not impressed by the Trump Administration's argument that there is an "epidemic" of an especially large number of nationwide injunctions blocking their poliies. As I explained to the New York Post when asked about this point:
Trump administration attorneys argued in a petition to the Supreme Court that "Universal injunctions have reached epidemic proportions since the start of the current Administration."
"What we have is an epidemic of nationwide illegal actions by this administration, and in fairness, to some degree by the previous administration as well," Somin argued.
"If you engage in rampant illegality that's nationwide in scope, then you can expect to get nationwide remedies imposed against you."
Nationwide wrongs require nationwide remedies. For those keeping track, I also supported some nationwide injunctions against the Biden Administration, as in the case of the student loan forgiveness litigation.
In fairness, I am, at this point, not a completely disinterested observer when it comes to nationwide injunctions. As I told the Post, the Liberty Justice Center and I are seeking a nationwide injunction in the lawsuit we filed against Trump's "Liberation Day" tariffs. Like the birthright citizenship cases, our case challenges a large-scale illegal policy that victimizes millions of people, making a universal injunction the only feasible remedy that can fully put an end to the illegality.
But, for what it is worth, I have been a supporter of universal injunctions since long before I became involved in this case. And I am doing the tariff case pro bono. So it cannot be said that my support for universal injunctions is based on narrow self-interest - except in so far as I (like most Americans) will benefit from lower prices for foreign products, if the Trump tariffs are struck down!
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
New cert petition: Humboldt County, Calif. fines people millions of dollars for things they didn't do because it doesn't care if they are innocent. For instance, it fined IJ clients Corrine and Douglas Thomas over $1 mil a mere six days after they bought their home (with a clean title) because the county believes a prior owner grew cannabis. Now, IJ is asking the Supreme Court to revisit its 1916 decision that the Seventh Amendment's guarantee of a jury trial in suits at common law—a bulwark against tyranny for 800 years—does not apply to the states. As it stands, the county need not present its case to a jury of the Thomases' peers; rather, it'd be heard by lawyers hired by Humboldt County. Phooey!
New on the Short Circuit podcast: In jail without trial and death row without all the DNA tests.
Boston police officer is found dead in the front yard of his friend's house amid a nor'easter. Investigators conclude that the man's girlfriend ran him over with her car and left him to die. (Perhaps you've seen the docuseries or read the Vanity Fair longreads.) A jury hangs at the first trial, and her second trial is now under way. Throngs of demonstrators (both pro- and anti-girlfriend) have shown up for the trials, leading the state court to create a buffer zone around the courthouse. First Circuit: And to the extent that that prohibits quiet, offsite demonstrations on public property directed toward non-trial-participants, that raises some First Amendment problems.
Buffalo, N.Y. detective feeds nonpublic information about a 2004 double murder to a schizophrenic man, who then "confesses" and spends over 10 years in prison before being exonerated. (The real culprits have since been caught and convicted.) Second Circuit: No need to disturb the $6.5 mil verdict against the detective.
Newburgh, N.Y. man buys a house in 2006 but falls behind on his taxes. After several years of paying some back to the city he can't keep up and it forecloses on the place, with him still owing over 92 G's in tax. The city turns around and sells it for a tidy $350k. Does it owe him the difference? Second Circuit: It might. Reversed and remanded. Read More
From the White House statement; congratulations to Josh on the appointment! The list also includes:
Francis Beckwith … Professor of Philosophy & Church-State Studies, Affiliate Professor of Political Science, and Associate Director of the Graduate Program in Philosophy at Baylor University…..
Jason Bedrick … a Research Fellow in the Center for Education Policy at The Heritage Foundation ….
Gerald Bradley … professor of law at the University of Notre Dame ….
Alyza Lewin … President of The Louis D. Brandeis Center for Human Rights Under Law … [and] President of the American Association of Jewish Lawyers and Jurists from 2012 – 2017.
Kristen Waggoner … CEO, president, and general counsel of Alliance Defending Freedom ….
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