Bonus 239: The Fifth Circuit's "Precedential Stay" in Sosnava Rodriguez
The New Orleans-based court of appeals once again did the Trump administration's bidding on immigration detention—this time through an unexplained procedural move that ... I've never seen before.
The October 2025 Term of the Supreme Court will end up as the third term in a row in which the most-reversed lower court (by total number of cases, anyway) was the U.S. Court of Appeals for the Fifth Circuit. Of the 11 appeals from the Fifth Circuit that the Court resolved through plenary review, it vacated or reversed in eight of them. And one recurring theme of the disconnect between the Fifth Circuit and the Supreme Court is the former’s procedural behavior, especially when it comes to emergency applications (see, e.g., the Supreme Court’s stays earlier this term in the Louisiana mifepristone litigation).
That behavior was on display again late Tuesday, when the en banc Fifth Circuit granted the Trump administration’s unprecedented request for a “precedential stay” of three consolidated district court decisions in the latest dispute over the government’s novel and controversial immigration detention policies. Even though the full court of appeals had already agreed (without even being asked) to rehear a panel decision that had recognized constitutional limits on how long the government can detain certain noncitizens pending their removal before providing them with a bond hearing, it apparently concluded that further intervention was warranted.
As a result, in its unsigned, unexplained order, the Fifth Circuit acted in a way that seems at least outwardly intended to deter district courts in cases other than the three under full court review from providing bond hearings to any of the tens of thousands of other noncitizens currently in immigration detention in Louisiana, Mississippi, and Texas. To get there, the court of appeals had to turn the entire concept of an emergency application on its head—and accept, without any analysis, the Trump administration’s deeply disingenuous arguments about what the district courts in these specific cases had actually done. And the Justice Department is already claiming (wrongly) that this unexplained order somehow resolves the constitutional question at issue—perhaps in an effort to distract from what the Fifth Circuit actually said (i.e., nothing):
All of this may seem hypertechnical, but as I explain below the fold, it comes at an enormous cost. A bond hearing is not—as Brett Shumate asserted—“a constitutional right to roam free”; it allows a noncitizen to demonstrate that they should be released pending their (potentially years-long) removal process—based upon an individualized judicial determination that they pose no threat to themselves or others, and no risk of flight. Without even being eligible for bond hearings, everyone from children to the elderly would be forced to remain in indefinite immigration detention for the duration of their removal proceedings (and pending their removal), even those who have never committed a crime—in conditions that, according to a growing number of reputable accounts (including DHS’s own Inspector General), are increasingly inhumane. That’s problematic enough in the abstract; it’s even more galling when it comes through unexplained and undefended procedural chicanery.
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