Late Friday, two of the nation's most right-wing circuit judges adopted an odious legal claim that district court judges from across the country (and ideological spectrum) have overwhelmingly rejected
"And in J.G.G., a 5-4 majority rejected an attempt by individuals who the Trump administration was seeking to remove under the Alien Enemies Act to challenge their detention and removal through a nationwide class action under the Administrative Procedure Act—holding that they had to proceed through habeas petitions filed in the district(s) in which they were confined. (As Justice Sotomayor pointed out in her dissent, which was joined in these respects not just by Justices Kagan and Jackson, but also by Justice Barrett), this reading was “dubious,” all the more so given the Supreme Court’s 2020 conclusion that challenges to removal orders are not within the historical “core” of habeas corpus protected by the Constitution’s Suspension Clause.)"
First of all, I am impressed that you pulled off this cogent analysis off as many of us were drifting off to sleep last night.
Secondly, the two cases you mention, particularly the recent one alluded to above, seem to go some ways towards explaining why our courts are under such extreme stress right now (I believe one of our local judges in the Philly area compared their role vis a vis the administration to Hercules battling Hydra). It's really a disturbing phenomenon.
It sounds like we can't be confident that the Supreme Court will overrule this Fifth Circuit panel.
Thank you for continuing to address the historic departure of the once great Fifth Circuit Court of Appeals from the core principles of basic statutory interpretation, common sense and constitutional decency and order. Judge Edith Jones persistent references to “aliens” is deep projection from her alienation and career trajectory of transferring the Court from the rule of law to the rule of the lawless few. Judge Douglas’ dissent destroys the facade of warped and dishonest statutory interpretation wrapped in Jones’ MAGA cultism.
Thanks again for your timely and trenchant analysis; you are providing a valuable public service.
May I suggest a topic for a future piece? Given the govt’s headlong rush to build and acquire space to “warehouse” the people it’s snatching, it will become increasingly important for Americans to know how—in our names—those detained are being treated. At least one court has ordered the govt to allow Congress members to inspect facilities, but those orders appear to be ignored. What is the status of that legal battle?
The coming Supreme Court case will determine whether Congress’s bond hearing framework survives or gets swallowed by an interpretation that converts nearly every undocumented immigrant into a permanently detainable “applicant for admission.”
The Statutory Interpretation dilemma : The government’s textualist reading faces three fatal problems. First, it nullifies § 236(a)—Congress’s general provision authorizing bond hearings for warrant-based arrests—by making it applicable to almost no one. Second, it produces absurd results: someone who entered 30 years ago, raised U.S. citizen children, and was arrested in Chicago is treated identically to someone apprehended at the border yesterday. Third, it collapses the border-interior distinction—treating interior enforcement as if it were border processing, despite Congress creating separate statutory frameworks for each.
The 1997 INS Got It Right: Facing the same statutory text, the INS made the sensible choice: § 235(b) applies to arriving aliens at or near the border; § 236(a) applies to interior arrests on warrants, regardless of original entry. This interpretation gave effect to both provisions, avoided absurdity, and preserved the statutory structure. It held for 28 years until the Trump administration abandoned it.
Constitutional Avoidance Demands Reversal: Zadvydas established that indefinite detention without individualized review raises “serious constitutional concerns,” requiring courts to read implicit limits even into mandatory language. The government’s interpretation authorizes exactly what Zadvydas forbade—indefinite imprisonment without any assessment of flight risk or dangerousness.
The Overwhelming Consensus: Over 3,000 district court rulings—from judges “across the ideological spectrum, including plenty of dyed-in-the-wool conservative stalwarts”—have rejected this interpretation. That’s not activism; it’s recognition that the government’s reading produces statutory incoherence, nullifies § 236(a), creates absurd results, and raises constitutional problems Congress didn’t intend.
Given Zadvydas, the § 236(a) nullification problem, the absurdity of treating decades-old entry as permanent “arriving” status, the INS’s 28-year interpretation, and 3,000+ judicial rejections, the Supreme Court should reverse. The votes will be close—likely 5-4 with Barrett as the swing—but the legal principles are clear: textualism means reading statutes as a whole, not nullifying provisions; statutory interpretation means avoiding absurd results; and constitutional avoidance means preserving judicial review, not blessing indefinite detention without hearings.
The question isn’t whether immigration enforcement matters—it’s whether Congress eliminated bond hearings for millions based solely on decades-old entry, regardless of ties, criminal history, or individualized assessment. The INS said no in 1997. Three thousand district judges said no since 2025. The Supreme Court should say no in 2026.
Good column. We know what we’ve always known. We;have an evil;regime;that wants to detain indefinitely very large numv-bees of;p »lol »; a,d we,ts to do;it with as much,chaos as possible; and we have at least o,e appellate court that understands what the,regime;was,ts and is deter to help.
There needs to be a compromise regarding uninvited immigrants who are already here. Otherwise, ICE will remain too large, too powerful, and, ultimately, too great a threat to our democracy. Grant amnesty (but not citizenship) to uninvited immigrants who came here before Biden's presidency and who have lived productive lives ever since. But no amnesty -- only justified asylum hearings -- for uninvited immigrants who came here during Biden's presidency. I believe that would demonstrate that the Democratic party is not indifferent to illegal immigration; and it is a compromise that I believe a majority of the country would support.
There is another piece of case law adding to this problem which the author touches on in conclusion but which he does not identify, and that is the ruling by the Supreme Court (again on shadow docket, if I recall correctly) in Kilmar Abrego Garcia case that came before Judge Boasberg in Maryland and its companion cases, which incidentally could also have formed the basis for a class action. There are so many instances now in which administration officials have thumped their noses at federal judges. This is one, and thst is why Judge Boasberg still has the case, although he was stripped of his ability to do anything with it by the high court, rendering further proceedings a Kafkaeque exercise in absurdity. He is holding contempt hearings against those who left the barn door open while the horses are now all long gone.
Bankruptcy Court judges have nationwide jurisdiction. But not so Federal Disttict Court judges. And the Supreme Court in that case ruled that habeas corpus cases must be brought in the jurisdiction where the body is found, or might we say, is being hidden, rather than the jurisdiction in which he was (wrongfully as will be alleged in the petition) arrested. Not where he lived. Not where his legal residence was and where he rightfully should be.
Federal District Court judges have no long arm jurisdiction in such cases. And this of course opened the barn door wide to allow ICE officials and agents to engage in the very sorts of forum shopping shell games, wrongful detentions and concealment that have given to these great case load and procedural problems facing district court judges at over the country and the territories. It is not even clear at least to me at this time, that a judge can retain jurisdiction over a case already underway in which the body is transported out of it afterwards. If so, then what constitutes the point at which jurisdiction attaches ? When the petition is stamped in by the clerk ? When process is served ? When it is returned ? When the first hearing is scheduled ? When ?
And what bloody difference does it make if the person is truly disposed of, as in gone.....from the United States ? This was basically the "Sorry Charlie" argument offered right up to the Supreme Court, by the DOJ, after the 300 or so Venezuelans were flown off El Salvadore to be held indefinitely in a terrible prison, at Emile Bove's direction, after the writ had issued. "Fuck the judge" he is reported to have said. Now he is one. And the ever companionable John Sauer got up in front of the Supreme's and said "I know it was wrong your honor. But what do you all expect us to do about it now ? They are out of our hands and beyond our jurisdiction". Plus, "Judge Boasberg never had jurisdiction in the first place, since by the time his clerk called the case the bodies were in Texas".
Thus do the lawless, dishonest, and violent bear it away by making fools of judges. But in so far as the narrow problem brought to our attention by the author is concerned, of course, it should be noted that there are many ways in which the disabilities associated with having entered the country illegally can be CURED. To wit by:
1. Pardon.
2. Amnesty.
3. Grant of asylum.
4. Retroactive issuance of a visa.
5. Issuance of a Green Card
6. Award of Citizenship.
7. Or plain old arbitrary and capricious exercise of discretion by some nameless bureaucrat or the turning of a blind eye, rather like in the case of Elon Musk, I should think.
And this of course would make spicilege of the "Governments" position in this 5th Citcuit case that ICE has blanket authority to arrest and deny due process to all who can be found to have entered the country allegedly illegally at some point in the past.
Some future (socialist?) government comes to power asserting that tax evasion is an existential threat to the US the way Trumpists claim illegal immigration is. They massively find the IRS and access all sorts of data to track down tax evasion at all levels (especially small business, and self-employed). They claim tax evasion is closely tied with organized crime and violent drug gangs, and foreign dictatorships using the US as a tax haven/laundromat, operations to corrupt US politicians, and manipulate markets. IRS sees a massive increase in funding and employees, IRS-CI are also massively increased in number and fitted out just like ICE. They start surging in massive numbers in states like Texas and Florida using the same tactics as ICE. There is no distinction drawn in practice between massive tax evasion operations and petty tax reporting infringements by individuals. Those arrested are kept for long periods awaiting trial in special purpose built detention camps to deal with the large numbers.
Question: Would the fifth circuit be happy with its precedents? (keep in mind most tax cases are civil not criminal - just like immigration).
Judge Jones has deployed dishonest and strategic statutory interpretation in a results-oriented way. She has intentionally created a 5th Circuit safe space for a DHS policy that is very hard to square with the statutory text after application of the most standard and commonly used rules of statutory interpretation. I doubt SCOTUS will use its shadow docket to overturn this. This disingenuous opinion will fester for at least one year, and likely longer. DHS will spirit detained non-citizens into the 5th Circuit before detainees' families can find a lawyer to file a habeas petition.
Great piece. On your footnote 4, does that mean that if ICE were to nab Liam Conejo Ramos and his father again and rush them down Texas before a habeas petition could be filed such that they would have to file their habeas petition in Texas, the federal district court in Texas would be bound to follow this ruling just issued by this Fifth Circuit panel.
Thanks to the Federalist Society, and to the dixie irredentists and Trump bootlickers in the Senate, the American judicial system is now perfectly equipped to dispense equal injustice under law to all except those who are fat, white, male, obscenely wealthy, and/or speak with a southern accent.
When I briefly practiced immigration law back in 2011 I tried and failed to get my client released on bail. When I tried to find out what happened, I learned that an illegal alien out on bail had killed a nun in Illinois. It took about three months for the furor to die down. Then the immigration courts started granting bail again. My client eventually got deported despite my best efforts. This was prior to 2014 when the grounds for applying for asylum were expanded to include fear of gang violence or domestic violence. Unfortunately my client admitted that he had come to the U.S. just to seek a better life.
"And in J.G.G., a 5-4 majority rejected an attempt by individuals who the Trump administration was seeking to remove under the Alien Enemies Act to challenge their detention and removal through a nationwide class action under the Administrative Procedure Act—holding that they had to proceed through habeas petitions filed in the district(s) in which they were confined. (As Justice Sotomayor pointed out in her dissent, which was joined in these respects not just by Justices Kagan and Jackson, but also by Justice Barrett), this reading was “dubious,” all the more so given the Supreme Court’s 2020 conclusion that challenges to removal orders are not within the historical “core” of habeas corpus protected by the Constitution’s Suspension Clause.)"
First of all, I am impressed that you pulled off this cogent analysis off as many of us were drifting off to sleep last night.
Secondly, the two cases you mention, particularly the recent one alluded to above, seem to go some ways towards explaining why our courts are under such extreme stress right now (I believe one of our local judges in the Philly area compared their role vis a vis the administration to Hercules battling Hydra). It's really a disturbing phenomenon.
It sounds like we can't be confident that the Supreme Court will overrule this Fifth Circuit panel.
Am I wrong?
Thank you for continuing to address the historic departure of the once great Fifth Circuit Court of Appeals from the core principles of basic statutory interpretation, common sense and constitutional decency and order. Judge Edith Jones persistent references to “aliens” is deep projection from her alienation and career trajectory of transferring the Court from the rule of law to the rule of the lawless few. Judge Douglas’ dissent destroys the facade of warped and dishonest statutory interpretation wrapped in Jones’ MAGA cultism.
Thanks again for your timely and trenchant analysis; you are providing a valuable public service.
May I suggest a topic for a future piece? Given the govt’s headlong rush to build and acquire space to “warehouse” the people it’s snatching, it will become increasingly important for Americans to know how—in our names—those detained are being treated. At least one court has ordered the govt to allow Congress members to inspect facilities, but those orders appear to be ignored. What is the status of that legal battle?
wtf 😳 we can’t just lock people away!! That’s a concentration camp and cecot
This "crisis" about immigration manufactured by the Trump administration is wrecking our country in so many ways.
The coming Supreme Court case will determine whether Congress’s bond hearing framework survives or gets swallowed by an interpretation that converts nearly every undocumented immigrant into a permanently detainable “applicant for admission.”
The Statutory Interpretation dilemma : The government’s textualist reading faces three fatal problems. First, it nullifies § 236(a)—Congress’s general provision authorizing bond hearings for warrant-based arrests—by making it applicable to almost no one. Second, it produces absurd results: someone who entered 30 years ago, raised U.S. citizen children, and was arrested in Chicago is treated identically to someone apprehended at the border yesterday. Third, it collapses the border-interior distinction—treating interior enforcement as if it were border processing, despite Congress creating separate statutory frameworks for each.
The 1997 INS Got It Right: Facing the same statutory text, the INS made the sensible choice: § 235(b) applies to arriving aliens at or near the border; § 236(a) applies to interior arrests on warrants, regardless of original entry. This interpretation gave effect to both provisions, avoided absurdity, and preserved the statutory structure. It held for 28 years until the Trump administration abandoned it.
Constitutional Avoidance Demands Reversal: Zadvydas established that indefinite detention without individualized review raises “serious constitutional concerns,” requiring courts to read implicit limits even into mandatory language. The government’s interpretation authorizes exactly what Zadvydas forbade—indefinite imprisonment without any assessment of flight risk or dangerousness.
The Overwhelming Consensus: Over 3,000 district court rulings—from judges “across the ideological spectrum, including plenty of dyed-in-the-wool conservative stalwarts”—have rejected this interpretation. That’s not activism; it’s recognition that the government’s reading produces statutory incoherence, nullifies § 236(a), creates absurd results, and raises constitutional problems Congress didn’t intend.
Given Zadvydas, the § 236(a) nullification problem, the absurdity of treating decades-old entry as permanent “arriving” status, the INS’s 28-year interpretation, and 3,000+ judicial rejections, the Supreme Court should reverse. The votes will be close—likely 5-4 with Barrett as the swing—but the legal principles are clear: textualism means reading statutes as a whole, not nullifying provisions; statutory interpretation means avoiding absurd results; and constitutional avoidance means preserving judicial review, not blessing indefinite detention without hearings.
The question isn’t whether immigration enforcement matters—it’s whether Congress eliminated bond hearings for millions based solely on decades-old entry, regardless of ties, criminal history, or individualized assessment. The INS said no in 1997. Three thousand district judges said no since 2025. The Supreme Court should say no in 2026.
It has to do to the Supreme Court. Human rights, decency and dignity must be protected and restored.
Good column. We know what we’ve always known. We;have an evil;regime;that wants to detain indefinitely very large numv-bees of;p »lol »; a,d we,ts to do;it with as much,chaos as possible; and we have at least o,e appellate court that understands what the,regime;was,ts and is deter to help.
There needs to be a compromise regarding uninvited immigrants who are already here. Otherwise, ICE will remain too large, too powerful, and, ultimately, too great a threat to our democracy. Grant amnesty (but not citizenship) to uninvited immigrants who came here before Biden's presidency and who have lived productive lives ever since. But no amnesty -- only justified asylum hearings -- for uninvited immigrants who came here during Biden's presidency. I believe that would demonstrate that the Democratic party is not indifferent to illegal immigration; and it is a compromise that I believe a majority of the country would support.
Another variant of forum shopping, albeit at the appellate level. How did we eff all of this up so, so badly?
There is another piece of case law adding to this problem which the author touches on in conclusion but which he does not identify, and that is the ruling by the Supreme Court (again on shadow docket, if I recall correctly) in Kilmar Abrego Garcia case that came before Judge Boasberg in Maryland and its companion cases, which incidentally could also have formed the basis for a class action. There are so many instances now in which administration officials have thumped their noses at federal judges. This is one, and thst is why Judge Boasberg still has the case, although he was stripped of his ability to do anything with it by the high court, rendering further proceedings a Kafkaeque exercise in absurdity. He is holding contempt hearings against those who left the barn door open while the horses are now all long gone.
Bankruptcy Court judges have nationwide jurisdiction. But not so Federal Disttict Court judges. And the Supreme Court in that case ruled that habeas corpus cases must be brought in the jurisdiction where the body is found, or might we say, is being hidden, rather than the jurisdiction in which he was (wrongfully as will be alleged in the petition) arrested. Not where he lived. Not where his legal residence was and where he rightfully should be.
Federal District Court judges have no long arm jurisdiction in such cases. And this of course opened the barn door wide to allow ICE officials and agents to engage in the very sorts of forum shopping shell games, wrongful detentions and concealment that have given to these great case load and procedural problems facing district court judges at over the country and the territories. It is not even clear at least to me at this time, that a judge can retain jurisdiction over a case already underway in which the body is transported out of it afterwards. If so, then what constitutes the point at which jurisdiction attaches ? When the petition is stamped in by the clerk ? When process is served ? When it is returned ? When the first hearing is scheduled ? When ?
And what bloody difference does it make if the person is truly disposed of, as in gone.....from the United States ? This was basically the "Sorry Charlie" argument offered right up to the Supreme Court, by the DOJ, after the 300 or so Venezuelans were flown off El Salvadore to be held indefinitely in a terrible prison, at Emile Bove's direction, after the writ had issued. "Fuck the judge" he is reported to have said. Now he is one. And the ever companionable John Sauer got up in front of the Supreme's and said "I know it was wrong your honor. But what do you all expect us to do about it now ? They are out of our hands and beyond our jurisdiction". Plus, "Judge Boasberg never had jurisdiction in the first place, since by the time his clerk called the case the bodies were in Texas".
Thus do the lawless, dishonest, and violent bear it away by making fools of judges. But in so far as the narrow problem brought to our attention by the author is concerned, of course, it should be noted that there are many ways in which the disabilities associated with having entered the country illegally can be CURED. To wit by:
1. Pardon.
2. Amnesty.
3. Grant of asylum.
4. Retroactive issuance of a visa.
5. Issuance of a Green Card
6. Award of Citizenship.
7. Or plain old arbitrary and capricious exercise of discretion by some nameless bureaucrat or the turning of a blind eye, rather like in the case of Elon Musk, I should think.
And this of course would make spicilege of the "Governments" position in this 5th Citcuit case that ICE has blanket authority to arrest and deny due process to all who can be found to have entered the country allegedly illegally at some point in the past.
Here is a hypo for the law profs:
Some future (socialist?) government comes to power asserting that tax evasion is an existential threat to the US the way Trumpists claim illegal immigration is. They massively find the IRS and access all sorts of data to track down tax evasion at all levels (especially small business, and self-employed). They claim tax evasion is closely tied with organized crime and violent drug gangs, and foreign dictatorships using the US as a tax haven/laundromat, operations to corrupt US politicians, and manipulate markets. IRS sees a massive increase in funding and employees, IRS-CI are also massively increased in number and fitted out just like ICE. They start surging in massive numbers in states like Texas and Florida using the same tactics as ICE. There is no distinction drawn in practice between massive tax evasion operations and petty tax reporting infringements by individuals. Those arrested are kept for long periods awaiting trial in special purpose built detention camps to deal with the large numbers.
Question: Would the fifth circuit be happy with its precedents? (keep in mind most tax cases are civil not criminal - just like immigration).
Judge Jones has deployed dishonest and strategic statutory interpretation in a results-oriented way. She has intentionally created a 5th Circuit safe space for a DHS policy that is very hard to square with the statutory text after application of the most standard and commonly used rules of statutory interpretation. I doubt SCOTUS will use its shadow docket to overturn this. This disingenuous opinion will fester for at least one year, and likely longer. DHS will spirit detained non-citizens into the 5th Circuit before detainees' families can find a lawyer to file a habeas petition.
Great piece. On your footnote 4, does that mean that if ICE were to nab Liam Conejo Ramos and his father again and rush them down Texas before a habeas petition could be filed such that they would have to file their habeas petition in Texas, the federal district court in Texas would be bound to follow this ruling just issued by this Fifth Circuit panel.
Yup. :-(
Thanks to the Federalist Society, and to the dixie irredentists and Trump bootlickers in the Senate, the American judicial system is now perfectly equipped to dispense equal injustice under law to all except those who are fat, white, male, obscenely wealthy, and/or speak with a southern accent.
When I briefly practiced immigration law back in 2011 I tried and failed to get my client released on bail. When I tried to find out what happened, I learned that an illegal alien out on bail had killed a nun in Illinois. It took about three months for the furor to die down. Then the immigration courts started granting bail again. My client eventually got deported despite my best efforts. This was prior to 2014 when the grounds for applying for asylum were expanded to include fear of gang violence or domestic violence. Unfortunately my client admitted that he had come to the U.S. just to seek a better life.