Two Judges Just Authorized Mass Incarceration—Congress Must Stop It

Late Friday night, a divided panel of the U.S. Court of Appeals for the Fifth Circuit handed the Trump administration exactly what it has been seeking for months: a legal pretext to detain vast numbers of immigrants indefinitely, without bond, and without individualized hearings. In a rushed decision issued just three days after oral argument, two judges adopted an extreme interpretation of a 1996 immigration statute that more than 150 federal judges—across ideological lines and across the country—have already rejected. That interpretation redefines millions of people who have long lived in the United States as if they were newly “arriving” at the border, stripping them of the right to a bond hearing and subjecting them to mandatory detention for the entire duration of removal proceedings. This ruling does not merely expand immigration enforcement. It transforms it. What was once framed as a deportation policy now becomes a system of preventive detention—mass incarceration without trial. The danger is immediate. Because habeas petitions must be filed in the jurisdiction where a person is physically detained, ICE now has a powerful incentive to rush detainees into Texas, Louisiana, or Mississippi—states covered by the Fifth Circuit—before lawyers can even file on their behalf. Once transferred, a person may never get the chance to ask for release on bond, regardless of family ties, length of residence, or lack of criminal history. This is not hypothetical. DHS is already purchasing enormous warehouse facilities to convert into detention centers, some capable of holding thousands of people at a time. One such facility is already located inside the Fifth Circuit. Combined with this ruling, these purchases point to a deliberate strategy: detain first, sort out legality later—if ever. The ruling also dangerously amplifies unconstitutional policing. After the Supreme Court’s recent greenlighting of so-called “Kavanaugh stops,” ICE officers already face incentives to detain people based on racial profiling. Now, if such a stop “gets lucky,” detention becomes effectively permanent. That is a perverse reward structure that invites abuse. Congress never intended this outcome. When lawmakers debated mandatory detention provisions in 1996, they explicitly worried that detaining even 45,000 people would overwhelm the system. The claim that Congress secretly mandated the detention of millions—without bond and without hearings—defies statutory text, legislative history, and decades of settled practice. While this ruling may yet be reversed on appeal, the damage it enables is happening now. Congress cannot wait for the courts to clean up the mess. With DHS funding on the line, lawmakers have both the authority and the obligation to act. I urge you to condition DHS funding on compliance with constitutional norms, restore access to bond hearings, prohibit mass transfers designed to evade judicial review, and reassert Congress’s role in setting humane, lawful immigration policy. This is not about partisan politics. It is about whether the United States will tolerate mass incarceration without due process. Congress must draw that line now.