THEY OBJECT

Trump Judges Savaged by Colleagues Over ‘Sham History’

The 10–7 ruling sparked a furious dissent warning that the court had erected an “impenetrable wall” between immigrants and the Constitution.

Federal appeals court judges broke with their Republican-appointed colleagues on Friday, accusing them of issuing a ruling that “detonates the core” of the Constitution’s Due Process Clause.

In a scathing dissent from a ruling upholding the Trump administration’s policy of detaining certain undocumented immigrants without bond hearings while their immigration cases proceed, Judge Dana Douglas—joined by four colleagues—wrote that the court was relying on “sham history” to support the Trump administration’s policy.

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“The Government proposes a seismic change in how this country’s immigration law functions,” she said. “It may come, but it cannot come wrapped in the mantle of history. Nor should judges do it the favor of wrapping it in the mantle of a sham history cobbled together by the government.”

The full 5th Circuit Court of Appeals heard the case and ruled 10–7 against three noncitizens who had been detained while their immigration cases proceeded.

The three men, who are from Mexico and Honduras, have all lived in the United States for at least 14 years each. They were detained after traffic stops, and two have children who are U.S. citizens.

Lower courts ordered the men released, but Friday’s ruling reversed those decisions. The Supreme Court will also consider the broader legal question.

Judge Cory Wilson, a Trump appointee, wrote the majority opinion. Five of the other nine judges who sided with him were also appointed by Trump.

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Even Judge Leslie Southwick, a George W. Bush appointee, dissented, warning that by upholding the administration’s detention policy, “this court has constructed an impenetrable wall between the Constitution and these long-term residents, a wall not designed, recognized, or even suggested by the Supreme Court.”

The other four—Chief Judge Jennifer Elrod, Priscilla Richman, Edith Jones, and Jerry Smith—were appointed by Republican presidents George W. Bush and Ronald Reagan.

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The heart of the case is whether the Trump administration can detain undocumented immigrants without giving them an opportunity to seek release on bond.

While the majority acknowledged that the men have due process rights under the Fifth Amendment, it ruled that those protections do not entitle them to individual bond hearings while their immigration cases proceed.

“The practice (challenged here) of seeking out persons unlawfully present in this country in the interior and subjecting them to detention without meaningful process or the possibility of bail—that is, to what was long understood to be the statute applicable at ports of entry, rather than the interior detention statute—is a recent invention of the Department of Homeland Security in the last year or so contradicting its almost three decades old practice,” Judge Douglas, a Biden appointee, wrote.

The majority opinion acknowledged that the men have due process rights under the Constitution, but found that those rights do not guarantee them a hearing to seek release on bond while their cases are decided.

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The Trump administration has pursued a ruthless immigration agenda, sending ICE agents into major cities and pulling people from the streets, their homes, and their cars. Federal immigration agents have also fatally shot people during enforcement operations, including U.S. citizens.

“Historically, and for obvious reasons, courts have jealously guarded against executive attempts to claim sweeping detention mandates that, among other things, may make sudden, unannounced arrests and detentions a part of ordinary life in the interior of this country,” Douglas said.

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