Eugene Volokh's Blog, page 98

[Josh Blackman] Paul Cassell in WSJ: "A Supreme Court Injustice to District Judge" James Wesley Hendrix

["Justice Alito’s dissent gets it right: James Hendrix handled the Alien Enemies Act case commendably."]

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.

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[Eugene Volokh] Defamation Suit Over Businessman's Wife Calling Prominent Businesswoman "Prostitute" Dismissed

["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."

These allegations show Ms. Mai is a person who has "assumed a role of especial prominence in the affairs of society." And not only has Ms. Mai allegedly assumed this prominent role in American society—she has done so globally. These allegations underscore the extent to which Ms. Mai "occup[ies]" a "position[] of such persuasive power and influence" as to be a "public figure for all purposes," and bely Ms. Mai's argument that there is only a "small number" of Ranch community members. Particularly where the "elite" guests for the "prestigious" and "luxury" C Lazy U Ranch come from "around the world" and arrive for business purposes, and Ms. Mai operates the Ranch to maintain "business relationships" rather than for purely recreational or personal purposes.

The court also concluded that, given Mai's public figure status, it didn't matter under Colorado law whether the allegations were matters of public concern. (The court cited Seible v. Denver Post Corp. (Colo. App. 1989), which states that "publications which concern either a public figure or a matter of public concern are constitutionally protected, and a showing of actual malice is necessary to defeat the protection and make a defamatory publication actionable.") The court then went on to concluded that Mai hadn't adequately alleged that Elsaden knew her allegations were false or acted with reckless regard of that (the legal meaning of the confusing phrase "actual malice"):

[A]t most Ms. Mai has advanced conclusory allegations that Ms. Elsaden's statement was malicious. Reading the Complaint in its entirety, Ms. Mai has not pleaded facts showing Ms. Elsaden made her statement with either actual knowledge it was false or reckless disregard as to whether it was true.

And the court concluded with the quote I excerpted in the subtitle to this post:

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.

Mai's husband's defamation lawsuit against Elsaden, based on related claims against him made the same day, remain pending. [UPDATE 5/20/2025 12:19 pm: Less than two hours ago, the court denied Elsaden's motion to dismiss in the husband's case, so it is proceeding at least to the motion for summary judgment.]

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[David Post] Further Thoughts on Non-Party Injunctions and the Constitution

[Will judicial ambition counteract executive ambition? ]

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].

The Administration's position is that Article III's case and controversy requirement disables the district court from issuing an order requiring the Executive to act lawfully towards non-parties - individuals who are not themselves before the court. Thus, a finding that the Birthright Executive Order is unlawful as to Able does not - cannot, in the Administration's view - cover Baker (if Baker is not party to Able's suit), because there is no "case or controversy" between the government and Baker for the court to decide.

But if the district court can't do it, the Courts of Appeals can't do it, and neither can the Supreme Court, because they are all subject to the same "case or controversy" requirement of Article III. No federal court, including the Supreme Court, can order an Executive officer to act (or refrain from acting) in a particular manner with respect to anyone not a party to an action before the court.

Hmm.  I certainly can understand why the S.G. might have felt a little uncomfortable, having to stand up before the Supreme Court to make that argument!

So the Administration's position is that a Supreme Court decision concerning the constitutionality of the Birthright E.O., if and when it is handed down, will be binding nationwide as precedent - that is, the decision is binding on courts who, under the rules of stare decisis, must decide the question as directed by the Supreme Court should it arise in future cases.

But it's not an "order" that the President is obligated to obey.  It's not a "nationwide injunction," it's a "nationwide precedent," and only courts are bound by "precedent."

So in this view of things, even if the Supreme Court ultimately decides that the government's treatment of Able was unlawful, the government can treat similarly-situated Baker the same way it treated Able, without violating any order or injunction. Baker may bring suit, and he/she will win, because the court in Baker's case will be bound by the Government v. Able precedent to decide the case in Baker's favor. But the Baker case, too, is not and cannot constitute an "order" requiring the Executive branch to treat similarly-situated Charlie, or Drake, or Evans, et al., in accordance with the courts' view of the illegality of the actions taken.

That's a pretty fundamental attack on one of the basic premises underlying the Constitutional balance of powers - the idea that it is "emphatically the province and duty of the judicial department to say what the law is." Marbury v. Madison, 5 U.S. 137 (1803).

* * * * * * * * *

In Federalist #51, Publius asks:

To what expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the Constitution?

The answer - "the only answer" - is "by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places. . . . [E]ach department should have a will of its own . . ."

[T]he great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.

It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary.

It's my favorite sentence in the Federalist Papers.

I'm reasonably confident that the Justices understand full well that this case is about judicial power - i.e., their power, and the power ultimately of the entire edifice of the federal judiciary at the apex of which they sit. And I also think they understand that the Administration's position here tilts the scales away from the Article III team in favor of the Article IIs pretty decisively.

I'm hopeful that if the fate of the Republic [see my earlier posting] isn't enough to shake five votes from the tree to push back against Executive overreach here, that ambition and self-interest will help carry the day.

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[Josh Blackman] Is POTUS Or SCOTUS More To Blame In A "Clash Of Illegalities"?

[Our expectations must be much higher for the unaccountable Supreme Court than the popularly-elected President.]

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.

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[Ilya Somin] Fourth Circuit Rules Against Trump Administration in Alien Enemies Act Case

[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 in J.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 orpredatory incursion [ ] perpetrated, attempted, or threatened against the territory of theUnited 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 andhistory 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.

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[Eugene Volokh] Monday Open Thread

[What's on your mind?]

The post Monday Open Thread appeared first on Reason.com.

[Jonathan H. Adler] Supreme Court Allows DHS to Suspend Temporary Protected Status for Venezuelans

[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.

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[Eugene Volokh] Judge Rules Removal of U.S. Institute of Peace (USIP) Directors Was Illegal

Judge Beryl Howell's decision today in United States Institute of Peace v. Jackson declares (see NBC News [Ryan J. Reilly] for more on the matter):

[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 ….

Amb. Moose therefore remains president of USIP and may be removed only by a duly constituted Board of Directors, under 22 U.S.C. § 4606 ….

[A]ll actions taken or authorized by Kenneth Jackson or Nate Cavanaugh as acting presidents of USIP were invalid and therefore null, void, and without legal effect ….

[G]iven the illegitimate appointment of Nate Cavanaugh to the position as USIP president, the actions and documents by which he purportedly transferred USIP's headquarters, located at 2301 Constitution Avenue, NW, Washington, DC 20037, to the General Services Administration were invalid and therefore null, void, and without legal effect ….

[T]the transfer of USIP's other financial or physical assets to the General Services Administration was likewise invalid, null void, and without legal effect ….

[T]he resolution adopted by two ex officio Directors of USIP's Board purportedly appointing Adam Amar as president of the Endowment of the USIP Fund and authorizing and instructing him to transfer any and all of the Endowment's assets to USIP was invalid, null, void, and without any legal effect ….

The court also orders that:

plaintiff Board members duly appointed under 22 U.S.C. § 2605(b)(4) shall continue to serve in accordance with § 4605(e) and may not be removed or treated in any way as having been removed, or otherwise obstructed from carrying out their duties, except in accordance with § 4605(f); …

USIP Acting President Amb. Moose shall continue to serve in accordance with § 4606(a) and may not be removed or treated in any way as having been removed, or otherwise obstructed from carrying out his duties, except in accordance with §§ 4601-11; …

[D]efendants, except for the ex officio members of USIP's Board of Directors to the extent their official positions allow, are ENJOINED from further trespass against the real and personal property belonging to the Institute and its employees, contractors, agents, and other representatives; …

[D]efendants, except for the ex officio members of USIP's Board of Directors to the extent their official positions allow, are ENJOINED from maintaining, retaining, gaining, or exercising any access or control over the Institute's offices, facilities, computer systems, or any other records, files, or resources, and from acting or purporting to act in the name of Institute, and from using the Institute's name, emblem, badge, seal and any other mark of recognition of the Institute; …

[D]efendants who are ex officio members of USIP's Board of Directors may not act unilaterally or in any combination of the three of them together, without additional consent constituting a majority of members of the duly constituted USIP Board of Directors, to transfer any of USIP's assets ….

I don't know enough about the dispute to opine it, but I thought the news was worth passing along.

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[Ilya Somin] Lee Kovarsky, D. Theodore Rave, and Steve Vladeck on Class Actions and the Alien Enemies Act Litigation

[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.]

(NA)

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.

The post Lee Kovarsky, D. Theodore Rave, and Steve Vladeck on Class Actions and the Alien Enemies Act Litigation appeared first on Reason.com.

[Eugene Volokh] Google, as Non-Party, Can't Be Subjected to All Writs Act Injunction Ordering It to Take Down YouTube Posts

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.

A follow-up injunction also ordered that:

Google LLC, doing business as YouTube, shall promptly upon receipt of a copy of this Order remove or disable Defendant's entire "Floatwheel" YouTube channel at www.youtube.com/floatwheel, along with any other YouTube channel Defendant operates now or in the future that publishes videos and/or information about the Floatwheel Adv and/or Floatwheel Adv Pro products ….

Google "blocked 48 videos from view by identifiable U.S.- based users," but declined to block them for "users that Google's systems identified as outside the United States, including users who implement VPN technology to 'mask' their true location." Plaintiff sought sanctions against Google, but in January, Judge Simon concluded that the injunction couldn't permissibly bind Google, because Federal Rule of Civil Procedure 65(d)(2)(C) allowed injunctions against third parties only when they were aiding and abetting the defendant, and Google "did not aid and abet Defendant, as that phrase is used under Rule 65(d)(2)(C)."

Future Motion then sought the All Writs Act injunction "ordering Google to remove or disable Plaintiff's entire YouTube channel, 'including disabling access to the channel through all mirror sites Google controls,'" or at least "to remove the 48 specific infringing videos" (and not just hide them from U.S. users).

The court today said no. First, the court concluded that it lacked jurisdiction to order nonparty Google around in this context:

As a threshold matter, the Court cannot grant a preliminary injunction under the All Writs Act if the relief is beyond the Court's jurisdiction because that Act does not enlarge the Court's jurisdiction. A court may issue an injunction against a nonparty only where the nonparty is "in active concert or participation" with an enjoined party. Fed. R. Civ. P. 65(d)(2)(C). As the Court held in its Order denying Plaintiff's motion for sanctions against Google, Google is not in active concert or participation with Defendant. Thus, the Court lacks jurisdiction to issue a preliminary injunction against Google, and the requested injunction under the All Writs Act is not "in aid" of the Court's jurisdiction."

(Readers who recall my adventure with the Florida judge who seemed to briefly order various third parties, including me, to remove certain posts, may correctly infer that I think this result is right.)

In the alternative, the court argued that the injunction was also unnecessary because:

Plaintiff could obtain Chinese intellectual property rights and enforce them in China against Defendant and … Plaintiff can obtain relief against other parties that are engaging in patent infringement or aiding and abetting Defendant. Because Google has blocked the infringing videos for all U.S.-based users, the Court agrees that Plaintiff has obtained sufficient relief and thus a preliminary injunction against Google is neither necessary nor appropriate….

Finally, and relatedly, the court reasoned that patent law is generally not extraterritorial:

Google notes that the Supreme Court has held that "[t]he traditional understanding that our patent law operates only domestically and does not extend to foreign activities is embedded in the Patent Act itself." Google also argues that Plaintiff has no indisputably clear right permanently to suspend Defendant's channel and prevent Defendant from posting any videos in the future, even ones that do not infringe on Plaintiff's patent.

And it seemed to disagree with some district court copyright and trademark cases that reasoned otherwise:

Plaintiff cites copyright and trademark cases where district courts, including district courts in the Ninth Circuit, have granted injunctions ordering an internet service provider completely to disable a website. See, e.g., Entrepreneur Media, Inc. v. Alfonso, 2021 WL 2941983, at *6 (C.D. Cal. July 12, 2021); Microsoft Corp. v. Tu, 2024 WL 4516416, at *3-4 (S.D.N.Y. Aug. 29, 2024); United King Film Distrib. Ltd. v. Doe, 2022 WL 2473430, at *4 (S.D.N.Y. July 6, 2022); DISH Network LLC v. Khalid, 2021 WL 765709, at *8-9 (S.D. Tex. Feb. 23, 2021). Although these cases did not involve the Patent Act, the copyright and trademark laws have also been held to operate only domestically.

In the absence of controlling or even persuasive appellate authority, the Court does not find that Plaintiff has shown that it has an indisputably clear right to worldwide injunctive relief pursuant to a statute that applies only domestically….

 

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