Another federal appeals court just ruled that holding illegal immigrants without a bail hearing is illegal — making nine circuit courts that have now blocked the Trump administration's mandatory detention policy, versus two that have upheld it. The practical stake for ordinary Americans: whether immigration law gets enforced as written or rewritten by judges who answer to nobody.
The 4th U.S. Circuit Court of Appeals issued the ruling Thursday, with two Obama- and Biden-appointed judges forming the majority over a Trump-appointed dissenter. The decision deepens a circuit split that makes U.S. Supreme Court intervention almost certain. DHS says it has already asked the high court to take up the issue.
The policy at issue is straightforward. Last July, immigration officials issued guidance expanding mandatory detention to immigrants arrested in the U.S. interior — not just those caught at the border, which had been the longstanding practice. The administration's argument is simple: Congress changed immigration law in 1996 to authorize mandatory detention beyond the border, and previous administrations simply chose not to enforce it. DHS put it plainly: "President Trump and Secretary Mullin are now enforcing the law as it was actually written to keep America safe."
The 4th Circuit majority wasn't buying it. Judge Nicole Berner, a Biden nominee, wrote that Congress in 1996 would have provided greater clarity if it intended to allow the mandatory detention of millions of people. She called the policy even more expansive than Japanese internment and the mass detention of Chinese immigrants in the late 1800s — "those shameful and abhorrent past detentions," in her words. Judge Barbara Keenan, an Obama nominee, joined her. Judge Allison Rushing, a Trump nominee, dissented.
The ACLU is leading the legal charge. Michael K.T. Tan, deputy director of the ACLU's Immigrants' Rights Project and lead attorney on the lawsuit, said "the government's track record speaks for itself at this point." The ACLU has built a nationwide litigation machine to dismantle immigration enforcement piece by piece, and federal courts have become their most reliable weapon — nine circuits and counting.
The real-world consequence of the circuit split is a two-tier immigration system. Immigrants in some parts of the country get bail hearings while their cases are pending. In others — including Texas and Louisiana — they face additional hurdles to seek release. The law means one thing in Maryland and another in Dallas, depending on which panel of unelected judges happens to draw the case.
Arkansas Online framed the ruling as a rebuke of policies that "hearken back to some of the darkest moments in our country's history," centering the judges' internment comparison. The New York Post, which ran an unrelated story on 9/11 education guidance the same day, did not cover the ruling at all — a notable omission for an outlet that regularly covers border security. The question of who funds the sustained legal campaign to dismantle immigration enforcement — and which donors profit from an undefended border — remains largely unexamined by the establishment press.
The Supreme Court will likely have the final word. Whether the justices enforce the statute Congress actually wrote or defer to the judiciary's preferred policy is the open question that will determine whether the American people or the robe get the last say on border security.
