Dem
47
GOP
53
The Trump administration, as is its habit when practicable, recently went judge-shopping to get a favorable ruling on its new policy of locking up anyone suspected of being in the country unlawfully and denying them any opportunity for a bond hearing while their case is pending. And that judge-shopping paid off last week when a 3-judge panel on the U.S. Court of Appeals for the Fifth Circuit ruled 2-1 that locking people up without any due process is fine and dandy with them and completely consistent with immigration statutes and the Constitution.
The two judges in the majority are arguably the most extreme right-wing partisans on an already extremely conservative court. Judge Edith Jones (a Ronald Reagan appointee) and Judge Kyle Duncan (a Donald Trump appointee) held that anyone anywhere in the U.S. is subject to indefinite detention while their cases are pending. This court is in the minority: 360 judges, regardless of who appointed them, in 3,000 cases, have ruled that this new policy violates the law and the Constitution. In dissent, Judge Dana Douglas (a Joe Biden appointee) said that "The government's proposed reading of the statute would mean that, for purposes of immigration detention, the border is now everywhere. That is not the law Congress passed, and if it had, it would have spoken much more clearly."
This practice began in July 2025 when Donald Trump & Co. decided to re-interpret the law so that "applicant for admission" or someone "seeking admission" now means "anyone out of status, regardless of where they are in the country or how long they've been here." Non-citizens are now subject to mandatory detention and are no longer eligible for a bond hearing, which is heard by an immigration judge to determine eligibility for release. This has resulted in the mass detentions that have allowed ICE and CBP to operate with such impunity in cities across the country without regard to their proximity to the border. This is a break from any previous administration, including Trump himself in his first term.
And we're seeing the consequences—in addition to the human toll and the abuses of not only immigrants but also American citizens, the strain on every aspect of the system (including on government lawyers who are breaking down in court and asking to be held in contempt in order to get some sleep) shows how completely unworkable indefinite detentions of millions of people are, even if the detentions were lawful, which they are clearly not. And thanks to the Supreme Court, the only way to fight this overreach is through an individual habeas corpus petition, which is why the courts and attorneys are so completely overwhelmed with these cases. It is possible to file a class action, but that is very difficult, costly and time consuming—last December a California judge certified a nationwide class action, but there has been no ruling in that case, as yet. The most efficient tool, an injunction that applies nationally, was killed off by the Supreme Court in the midnight ruling several months back.
The rush to get a ruling from the Fifth Circuit before another court of appeal could rule also explains why most people who are swept up in these raids are immediately shipped off to prison camps in Texas or Louisiana, the states covered by the Fifth Circuit. Any challenge to a detention has to be heard in the district where the person is being held. So, the White House just sends people anywhere it thinks it's likely to get a favorable ruling. Some judges in Minnesota have noticed this pattern and have started issuing injunctions prohibiting detainees from being sent out of state before a hearing can be held to determine if they're entitled to be released while their case is pending.
Steve Vladeck did an excellent writeup back in December of the various immigration statutes and how they have been interpreted by the courts and by every previous administration up to now. Basically, the immigration statutes distinguish between those who are stopped at the border as they "arrive," where detention may be mandatory, versus discretionary detention with a right to a bond hearing for non-citizens found elsewhere in the country who meet certain criteria. Non-citizens who hadn't committed any crimes and were following the rules could work, pay taxes, start families and become a part of the community—which many of them did. Subjecting such people to mandatory detention without bond violates the due process clause of the Fifth Amendment to the Constitution, which, as readers will recall, applies to all "persons."
A ruling from last year from Judge Lynn Winmill, U.S. District Judge in Idaho, sums up the thinking of the majority of judges who have heard this issue:
Since the United States began restricting immigration into this country in the late 19th century, it has distinguished between those noncitizens seeking entry into the country and those already residing within it. Noncitizens "stopped at the boundary line" who have "gained no foothold in the United States," do not enjoy the same constitutional protections afforded to persons inside the United States. But once a noncitizen enters the United States, "the legal circumstance changes," for the constitutional right to due process applies to all "persons" within our nation's borders, "whether their presence here is lawful, unlawful, temporary, or permanent." This distinction between noncitizens who have entered and reside in the United States and those who have not yet entered "runs throughout immigration law."
In case readers are wondering about the odd use of quotations, no, Donald Trump did not get ahold of the judge's ruling and rewrite it. Those are allusions to specific phrases in specific cases that the judge's ruling is referencing.
The 2-1 ruling from the Texas judges could be appealed to the entire Fifth Circuit or the plaintiffs could petition for review in the Supreme Court. Our guess is that they will try for an en banc hearing first before venturing into the great unknown that is SCOTUS. The Fifth Circuit has been known to issue rulings consistent with the Constitution on some of these matters, so it's probably worth a shot. (L)