Aaron Reichlin-Melnick
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reichlinmelnick.bsky.social
Aaron Reichlin-Melnick
@reichlinmelnick.bsky.social
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Senior Fellow at the American Immigration Council. Commenting generally on immigration law and policy. Retweets =/= endorsements, views are my own.
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reichlinmelnick.bsky.social
Read Andrew Free: detentionkills.substack.com/p/first-geo-...
First GEO Forced Labor Case at SCOTUS
How Records About a Death in ICE Custody Helped Propel a Case to the Supreme Court
detentionkills.substack.com
November 11, 2025 at 3:36 AM
reichlinmelnick.bsky.social
Equatorial Guinea is routinely ranked as one of the most corrupt countries in the world. It has been ruled by the same person since 1982 - for 45 years. Despite the title of President, he rules with near-absolute power.

The Trump admin just deposited $7.5 million in his government's bank account.
November 11, 2025 at 1:20 AM
reichlinmelnick.bsky.social
The oral arguments are a great read. My prediction is 8-1 against GEO on the issue.
www.supremecourt.gov/oral_argumen...
www.supremecourt.gov
November 11, 2025 at 1:05 AM
reichlinmelnick.bsky.social
Of course, as the lawyer for GEO reminded the Justices, this is about a very real-world issue; the fact that lawyers have been successful in throwing sand in the deportation machine's gears is bad for their profit and thus bad for ICE.

The merits of one of those cases may go to the Court next year.
And, as a result, you know, the government and GEO cite the Nwauzor case in the Ninth Circuit, where the State of Washington sought to impose its minimum wage law on GEO's operation of the Voluntary Work Program. The Ninth Circuit said that was A-okay. Cert petition coming. But the -- the government in the meantime suspended, as Judge Bumatay noted in dissent from denial, suspended the operation of the Voluntary Work Program at that facility. The point here is that it's not strictly monetary, Justice Barrett. This also goes to the operation of policy. That is determination that having a Voluntary Work Program that reduces idleness and encourages, you know, cooperation and -- and reduces disciplinary incidents is a good penological policy, has been suspended at that facility exclusively because of the crushing liability that's coming for the contractors.
November 11, 2025 at 12:57 AM
reichlinmelnick.bsky.social
Justice Roberts asked no questions at all. Neither did Justice Gorsuch (I'm not even sure he was there, he was never even called on by Justice Roberts).

Jennifer Bennett, arguing for the people suing GEO, did great -- she handled Alito well and guided the the Justices towards an obvious answer.
November 11, 2025 at 12:53 AM
reichlinmelnick.bsky.social
In the end, only Justice Alito came in with a first question that took GEO's side, suggesting GEO had a good policy argument that lawsuits against it should be treated like lawsuits against ICE itself.

But even his heart didn't really seem into it. By the end he almost sounded defensive.
JUSTICE ALITO: Well, when GEO is doing exactly what government officials can do and generally have done, running facilities like this, so imagine you had brought these claims against ICE and specific ICE officials. ICE and the officials could raise sovereign immunity, they could raise qualified immunity and Westphal active immunity. And if the district court denied any of those, then they could get an interlocutory appeal. So why shouldn't the rule be the same for GEO? Don't the considerations that justify interlocutory appeal when the suit is against a government official also justify an interlocutory appeal here? JUSTICE ALITO: All right. Well, what how about the policy? Why isn't the policy the same -- policy considerations the same here? MS. BENNETT: Sure. So what -- what Filarsky and what Mitchell say are the policy considerations that specifically justify the immunity from suit is the consideration of wanting government employees to show initiative in the face of unclear law. That is why you would get qualified immunity. That is not why you get Yearsley. Yearsley, in fact, is precisely the opposite of JUSTICE ALITO: But it's not really -- the -- the justification for qualified immunity is not just that you want government officials to be able to take bold action. It's that you don't want them to be -- to have to bear the burdens of litigation which can be quite substantial when it may well be that they didn't do -- and they didn't -- they didn't do anything that was unjustified based on what they knew. So why doesn't that apply just as well here? USTICE ALITO: Well, I mean, policy is a dirty word, but isn't something similar to policy what is going on in Mitchell and in the other cases where we have said there's a right not to be -- there's a right not to trial unless a certain requirement is met? MS. BENNETT: I absolutely agree with that, Your Honor. And Mitchell was before Congress passed a statute enabling the court to create new categories of interlocutory orders through rule-making and interpret the final decision through rule-making.
November 11, 2025 at 12:48 AM
reichlinmelnick.bsky.social
Justices Kagan and Jackson also expressed very clear skepticism for GEO's argument, both making it clear on their first questions they believed GEO was trying to invent a brand new immunity out of thin air.
JUSTICE JACKSON: Why isn't Yearsley better understood as a defense than an immunity? MR. DRAYE: Yes. Well, the Court has consistently said that it's an immunity and an immunity from suit. And the rationales that this Court and others have given for it is because of the relationship to the sovereign. So it's not just -- JUSTICE JACKSON: But, usually, the sovereign can't delegate or give away their immunity. I thought the immunity really is unique to the sovereign. That's the essence of it. JUSTICE KAGAN: Mr. Draye, when -- when your client claims this Yearsley protection, is your client saying I satisfied the Yearsley criteria and -- and -- and that shows that I did nothing wrong? Or is your client saying I satisfied the Yearsley criteria; that means that even though I did something wrong, it was, in fact -- you know, I am, in fact, protected from legal consequences? RAYE: The latter. So -- so, in fact, immunities are only useful when they protect -- same thing with defenses JUSTICE KAGAN: See, I -- well, go ahead. Explain to me why it's the latter, because it seems to me that the Yearsley criteria suggests that you're saying the former. In other words, when somebody says, look, I did only what the government authorized by way of a lawful authorization, what I'm really saying is so how could I have done anything wrong?
November 11, 2025 at 12:40 AM
reichlinmelnick.bsky.social
Justice Sotomayor's first question pushed GEO on how they were stretching the precedent to create a new kind of immunity (one which they claimed had actually been there the whole time!).

She made the obvious point: if the government pays someone to break the law, why should the company be immune?
JUSTICE SOTOMAYOR: I'm sorry, you're skipping a big step. Yearsley was never an immunity case not because it was after trial but because the issue in Yearsley was who was responsible for the taking. And what we said is the agent was not responsible; it was the government. He was acting at the government's direction. The government can take. So sue the government. All right? That's what we said in Yearsley. The fact that we've inartfully called it an immunity, it's really a question of relief from liability. That's all Yearsley was about, was saying you, the agent, is not liable, the principal is liable. So I don't know why the reliance on or even claiming this is an immunity defense. But putting that aside, you're taking a step further. You're taking what the Yearsley Court said it was, is the government -- was what the government did lawful? Congress can pass a law that permits the government to send texts to 16-year-olds, but if it passes a law that says our military, no one can send a text, including our military, then I don't think the -- that the military giving an order to its contractor to do it gives the contractor immunity. It may give it a defense to liability. I'm not sure what that defense was -- would be because Yearsley said you have to be following a lawful government order. But I -- I -- this is circular to me.
November 11, 2025 at 12:37 AM
reichlinmelnick.bsky.social
The first time Justice Barrett asked a question, it was to push back against GEO's policy arguments, asking why contractors couldn't just price litigation risk into their contracts?

GEO's lawyer claimed that would be illegal. The government, when it was up, basically went "Huh? No it's not."
JUSTICE BARRETT: But couldn't you negotiate for that in your contract with the government, that they cover your litigation expenses? MR. DRAYE: No. I wish we could. So the Antideficiency Act, of course, prevents us from having an open-ended indemnification. FAR 31.205 prevents any number of litigation costs from being built in. This is a fixed-price contract, as all of these are. JUSTICE BARRETT: Well, couldn't you fix that into the price of the contract? MR. DRAYE: No, because the FARs exclude -- it's a very fair question. The FARs exclude these litigation expenses. And if we were to put them in as sort of, like, overhead or something, that would be a false claim and would expose us to suit under the False Claims Act. So there again, although it is a real problem for -- for GEO and other contract - JUSTICE KAVANAUGH: -- you mentioned -- your friend on the other side mentioned the False Claims Act. That's not a concern? MR. JOSHI: I'm not entirely sure why it would be a False Claims Act violation -- violation to say in a contract here are overhead costs and, government, you can accept our bid or not. JUSTICE KAVANAUGH: Okay. Well, I'm sure that will be used in the future then, that representation. (Laughter.) MR. JOSHI: Well, I just -- I'm just not sure what Mr. Draye is referring to, to be -- to be honest. You know, in my own
November 11, 2025 at 12:31 AM
reichlinmelnick.bsky.social
The first time Justice Kavanaugh chimed in, it was also to express skepticism. Here's the first thing he asked GEO's lawyer.
JUSTICE KAVANAUGH: Why -- why is the government on the other side from you then? I mean, that seems like a big -- MR. DRAYE: It's a good question. JUSTICE KAVANAUGH: -- a big -- big hurdle. And it's -- and it's been that way.
November 11, 2025 at 12:27 AM
reichlinmelnick.bsky.social
The biggest problem for GEO is that their whole theory was a biiiig overstretch -- so much so that even the Trump administration wasn't on their side. The Solicitor General argued that GEO Group was wrong.

The first very question GEO's lawyer got was clear skepticism from Justice Thomas.
JUSTICE THOMAS: Could you cite the -- show us the language in Yearsley that indicates that -- this immunity from suit and also the basis for that? I thought Yearsley was just a -- seemed to be -- it's a short opinion, but it seemed to be more about the fact that there was a takings claim that there was -- which had gone to the court of claims and that -- certainly, that Yearsley, the construction company, could not effect a taking? MR. DRAYE: So Yearsley itself arises after trial, so the Court doesn't have to engage the ability not to endure a suit.
November 11, 2025 at 12:22 AM
reichlinmelnick.bsky.social
GEO was sued under forced labor laws for operating ICE's "Voluntary Work Program," which pays $1 per day to people held in ICE detention who "voluntarily" cook, clean, and maintain a facility (which cuts GEO's costs). They wanted immunity because ICE authorized it. Here's how GEO's lawyer started.
MR. DRAYE: Mr. Chief Justice, and may it please the Court: The government can act only through agents, either employees or non-employee contractors, and the common law draws no distinction between public servants and private individuals engaged in public service. That makes sense. Contractors following the government's instructions are immune from suit for the same reason government employees are immune. That is, they are doing the sovereign's work.
November 11, 2025 at 12:17 AM