The Supreme Court may bless the Trump administration's lawlessness
By Nikhil Raghavan · Reporting from San Francisco ·
The Trump administration is attempting a semantic patch on the 1996 immigration law, and it is a catastrophic piece of engineering. By deciding that anyone residing in the U.S.
The Trump administration reinterpreted a 1996 immigration statute to classify anyone living in the United States without legal status as "seeking admission." That change subjects more than six million people to mandatory detention without bond hearings. American detention centers and county jails lack the beds to hold a population larger than the city of Los Angeles.
Six Million Under Mandatory Detention
Federal trial courts swiftly halted the policy. Politico reported that more than 460 federal district judges have ruled against mandatory detention without bond across 20,000 individual cases. Nine of 11 regional federal appeals courts also rejected the government's position, dealing Immigration and Customs Enforcement one of its sharpest legal defeats.
Under the government's theory, an immigrant who has lived in Chicago for a decade stands in the exact legal posture of someone arriving at a border crossing. That interpretation would render recent enforcement statutes, including the Laken Riley Act, redundant, said Amit Jain of the MacArthur Justice Center. If immigration officers can already jail anyone without bond, tailored detention mandates serve no legal purpose.
The administration followed a similar playbook during the Muslim Ban and the rollout of the CBP One app. In each case, agency officials altered administrative definitions to narrow access to hearings.
Can Homeland Security Outsource Deportations?
While fighting over domestic detention beds, the Department of Homeland Security opened a second front: sending asylum seekers to third-party countries. The Washington Post and dw.com reported that the government has flown more than 25,000 migrants to roughly 30 nations, including South Sudan, Uganda, and Equatorial Guinea.
The U.S. Court of Appeals for the First Circuit struck down the program as unlawful. The court held that immigration officers must give migrants advance notice and an opportunity to raise safety fears before putting them on planes. In Equatorial Guinea, guards held two deported men at gunpoint and beat them inside a converted hotel.
James Percival, the department's general counsel, said on X that the flights will continue while the government appeals the order. "If you claim fear in your home country, DHS has the right to send you elsewhere," Percival wrote. The strategy removes deportees from the reach of federal judges. During the Remain in Mexico initiative, officials similarly shifted asylum seekers across the southern border to avoid domestic court oversight.
Echoes of Korematsu
The dispute now heads to the Supreme Court. Steve Vladeck of Georgetown University Law Center said the justices routinely resolve close statutory questions in favor of the executive branch.
That dynamic mirrors Korematsu v. United States. In 1944, the Supreme Court upheld the mass internment of Japanese Americans on national security grounds, setting aside lower-court findings and an absence of evidence. Today, the administration relies on that same broad appeal to executive necessity over statutory text.
Justice Department lawyers are betting the conservative majority will favor executive flexibility over statutory limits. If the justices uphold the detention policy and the third-country flights, the executive branch will gain the power to rewrite immigration mandates by decree. That decision would turn statutory rights into administrative options, cementing mass detention into federal law.