Dissenting federal appeals judges accused colleagues mostly appointed by President Donald Trump of issuing an immigration ruling that “detonates the core of the Due Process Clause” based on what one called a “sham history” cobbled together by the president’s Justice Department.
The full 5th U.S. Circuit Court of Appeals ruled 10-7 on Friday that immigrants who entered the country illegally can be jailed for as long as their deportation cases last, without a hearing on whether they are dangerous or likely to flee.
Judge Cory Wilson, a Trump appointee, wrote the majority opinion. Five of the nine judges who sided with him were also Trump appointees.
The case involves three men from Mexico and Honduras who have lived in the United States for at least 14 years, according to the opinion. Each was detained after a traffic stop, and two have children who are U.S. citizens. Lower courts had ordered the men released, but Friday’s ruling reversed those orders.
The men were held under a federal law that requires detaining any immigrant “seeking admission” who is not “clearly and beyond a doubt entitled to be admitted,” the opinion said.
The majority acknowledged the men have due process rights under the Constitution but ruled those rights do not guarantee them a bond hearing.
“Following the Government’s lead, the majority opinion detonates the core of the Due Process Clause based on a case about whether sex offenders may be required to publicly register their names under state law (of course they can),” Judge Dana Douglas wrote in a dissent joined by four other judges. “Fortunately, constitutional law does not work on such rough analogies.”
“[T]he Government proposes a seismic change in how this country’s immigration law functions,” Douglas continued. “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.”
“One of my esteemed colleagues says today’s decision rests on ‘sham history,’” Judge Andrew Oldham, another Trump appointee, wrote in a concurring opinion. “So let’s get the history straight.”
“A country where a roaming police force must seek out millions of noncitizens for mandatory detention without meaningful process or recourse to even a rudimentary hearing is a less decent place for people like Petitioners [the three men] who have led law-abiding lives, committed no crimes, and raised United States citizens,” Douglas said at the close of her dissent.
“It is also a less lawful place for those of us who prefer to travel the interior of this country without having to be prepared to show that we are ‘clearly and beyond a doubt entitled to be admitted’ at any time, as if we were crossing the border every time we walk down the street,” she added.
Judge Leslie Southwick, an appointee of President George W. Bush, concluded in the main dissent that “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 Constitution does not permit the Government to hold an alien for as long as that decision [on removal] takes, with no obligation ever to justify continuing confinement,” Southwick observed.
Writing for the majority, Wilson argued that “the Constitution entrusts broad authority to delineate immigration policy, and to design proceedings to effectuate those policy choices, to Congress—not courts.”
“Neither we nor the district courts are free to ignore that bedrock principle and rewrite the immigration policy Congress has enacted,” Wilson wrote.
Southwick countered that the court’s reading of the detention law is “the minority position” among federal appeals courts. The Supreme Court agreed Oct. 1 to take up that question in a case from the 2nd Circuit, where judges rejected the administration’s no-bond policy.
“Unchecked, executive authority to arrest and detain, indefinitely, echoes fearfully from history,” Judge Stephen Higginson wrote in a separate dissent.
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