COMMENT: An appeals court finally puts the brakes on ICE’s endless detention machine

COMMENT: An appeals court finally puts the brakes on ICE’s endless detention machine
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The Ruling of July 2

The Fifth Circuit panel concluded that the U.S. Constitution does not allow the government to detain non-citizens for “indefinite and prolonged” periods without a judge reviewing their situation on a case-by-case basis. In practice, anyone detained under the expanded mandatory detention policy must now be granted a bail hearing within 90 days of arrest, at which the government must provide individualized justification for continuing the detention.

However, the court did not specify the exact format or standards of proof that will govern these hearings, leaving the Trump administration itself significant leeway regarding the criteria of dangerousness or flight risk that would justify continued detention.

A partial victory, not a total victory

We must be honest about the limitations of this decision. The court did not declare ICE’s expanded mandatory detention policy illegal in principle. It merely imposed a procedural safeguard—the 90-day deadline—without challenging the administration’s broader authority to detain migrants en masse without the option of immediate release.

It is precisely this kind of half-victory that should be cause for concern: the very principle of mass detention without an initial hearing remains intact; only a time limit has been imposed, which leaves the administration complete latitude to continue a fundamentally problematic policy as long as the procedural 90-day box is checked.

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