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

A Radical Reinterpretation of Immigration Law

This entire issue stems from a memo published on July 8, 2025, by ICE Acting Director Todd Lyons, who reinterpreted immigration law to treat anyone who entered the United States without inspection as an “applicant for admission,” regardless of how many years they have resided there. This reinterpretation had the effect of making hundreds of thousands of people ineligible for a bail hearing before an immigration judge—people who, under previous administrations, would have been able to seek release pending the outcome of their proceedings.

This reinterpretation was subsequently upheld by the Board of Immigration Appeals in September 2025—an administrative body under the Department of Justice—which solidified the new doctrine nationwide despite growing legal challenges.

Figures that illustrate the scale of the overreach

The number of court rulings rejecting this interpretation—more than 3,000, according to an analysis by Politico—gives an idea of the scale of litigation generated by this single administrative policy. This volume of litigation illustrates just how far the administration has pushed its interpretation of immigration law beyond what the majority of the federal judiciary—despite being composed of judges with a wide range of political views—was willing to tolerate.

When an immigration policy results in more than 3,000 adverse court rulings in just a few months, it is no longer a matter of taking a “firm” stance on immigration, but rather an administrative overreach that deliberately clogs the federal courts to the detriment of people who, in many cases, have been living in the United States for years without a criminal record.

A Legal Patchwork Across the Country

The current judicial landscape resembles a veritable patchwork depending on the region of the country. The Second Circuit in New York, the Sixth Circuit, and the Eleventh Circuit in Atlanta have rejected ICE’s broad interpretation, while the Fifth Circuit and the Eighth Circuit initially upheld the policy in 2-to-1 rulings. The Seventh Circuit in Chicago, for its part, found itself in a stalemate with no clear majority.

This divide among federal circuits—documented for several months by the legal press—makes intervention by the Supreme Court virtually inevitable to definitively resolve the issue nationwide, rather than allowing a situation to persist in which the rights of a detained migrant vary drastically depending on the state in which they are located.

The Supreme Court Has Already Taken Up the Case

On June 15, 2026, the Supreme Court agreed to hear the Trump administration’s appeal against a Second Circuit ruling that had held that immigration detention can become “unreasonably prolonged” and, at that stage, trigger the due process protections guaranteed by the Fifth Amendment. The outcome of this case will determine whether a national minimum standard for procedural protections will apply everywhere, or whether the administration will be able to continue restricting access to bond hearings in certain parts of the country.

The fact that this issue must now go all the way to the Supreme Court, following dozens of conflicting rulings across federal circuits, clearly illustrates the legal chaos this administration has sown by pushing such an aggressive interpretation of immigration law—a chaos that primarily affects detained human beings, not mere procedural statistics.

Lives Hanging on a Court Schedule

Behind every circuit court decision and every statistic on “denied applications” are real people, sometimes detained for months without the opportunity to challenge their detention before a judge. A Human Rights Watch report published in late June 2026 documented an alarming rise in deaths in custody within an expanding immigration system—a stark reminder that these procedural debates have real, and sometimes deadly, consequences.

Individual cases reported by several rights organizations—such as that of a long-term resident detained for eight months before finally obtaining a bail hearing in the Tenth Circuit in late June 2026—illustrate the human dimension of this litigation, which goes far beyond mere legal mechanics.

The Disproportionate Burden on Established Families

A significant portion of the people targeted by this expanded detention policy are not recent arrivals intercepted at the border, but long-term residents—some of whom have been here for decades—with American families, children who are U.S. citizens, and no criminal history. Treating these individuals the same way as a migrant intercepted at the very moment of crossing the border is a deliberate political choice, not a mere mechanical application of the law.

This deliberate conflation of a resident who has been established for twenty years with someone who arrived at the border that very day is not an innocent legal misinterpretation—it is a choice deliberately aimed at maximizing the number of people who can be detained, even if it means sacrificing entire families in the process.

The Department of Homeland Security’s Position

The Department of Homeland Security has repeatedly defended its policy by citing a previous decision by the Board of Immigration Appeals upholding the broad interpretation of mandatory detention. In statements provided to the press, the administration asserts that it is applying immigration law “as it was actually written” to, in its own words, protect U.S. national security.

This line of defense largely ignores the fact that this interpretation represents a radical departure from nearly three decades of prior administrative practice—a point explicitly highlighted by several courts that have rejected the government’s position, notably in a Sixth Circuit decision that cited “nearly three decades” of contrary practice.

An Administration Testing the Limits of Executive Power

This immigration detention case is not an isolated incident. It is part of a broader series of judicial decisions that have limited, restricted, or outright blocked the Trump administration’s initiatives on the domestic front, whether involving immigration policies, contested administrative restructuring, or open conflicts with certain independent federal agencies.

We see here a pattern that has been repeating itself since the start of this second term: an administration that systematically pushes the interpretation of its powers to the limit—if not beyond—and relies on the slowness of the judicial system to gain months, or even years, of effective implementation before a court finally steps in to put a stop to it.

A Judiciary That Stands Its Ground, Despite Everything

Despite widespread criticism of the growing politicization of the U.S. federal judicial system, this decision by the Fifth Circuit—which is nonetheless considered one of the most favorable to the administration—demonstrates that the courts retain a real ability to rein in the executive branch when a policy clearly exceeds acceptable constitutional limits, even if only partially.

This observation must, however, be qualified by the fact that this same ruling upholds the bulk of the contested policy, correcting only a specific procedural aspect rather than challenging the very foundation of the government’s approach.

The Key Role of the Supreme Court Ahead

The decision to be rendered by the Supreme Court—likely during the next judicial year—will be decisive in determining whether minimum procedural protections will apply uniformly across the entire United States, or whether the administration will be able to continue exploiting regional differences between circuits to maximize the enforcement of its detention policy.

I am observing this case with a sense of caution: I cannot predict how the Supreme Court—whose current composition leans sharply to the right—will rule on this issue, but the outcome of this case will determine the fate of hundreds of thousands of people for years to come.

An Already Heated Electoral Battleground

This legal battle over immigration detention is taking place amid a political climate that is already extremely polarized over the Trump administration’s immigration policy, one year after the massive ICE raids in Los Angeles that had already sparked intense national controversy, as reported by several media outlets in June 2026.

Civil rights organizations, including the ACLU and the American Immigration Council, hailed the July 2 decision as a welcome check on what they describe as an authoritarian drift in immigration policy, while hard-line immigration advocates continue to defend the need for strict and swift enforcement of deportation measures.

The Ripple Effect on the Upcoming Midterm Elections

This legal case, as technical as it may seem on the surface, directly fuels the political debates looming over the midterm elections, as immigration policy remains one of the most divisive issues on this administration’s domestic agenda, alongside public health concerns and the numerous ongoing conflicts with the Department of Justice.

Let’s not kid ourselves: this court decision, as significant as it may be in terms of individual rights, will not put an end to the fierce political debate surrounding immigration in the United States—it merely shifts the balance temporarily, pending the Supreme Court’s final ruling.

A Mounting Number of Controversial Cases

This litigation over immigration detention adds to an already long list of domestic controversies involving this administration—ranging from tensions with certain intelligence officials targeted by investigations deemed politically motivated, to battles over transparency regarding certain sensitive legal cases, to repeated criticism of its handling of public health.

This accumulation of cases—each distinct but all marked by a tendency to push the limits of executive power—paints a picture of an administration that systematically tests how far it can go before a countervailing power, judicial or otherwise, stops it.

Democratic vigilance remains essential

In the face of this dynamic, the vigilance of the courts, the press, and human rights organizations remains an essential—albeit imperfect—bulwark against abuses that, without this kind of countervailing power, could spread even further on the domestic front.

It is precisely on this domestic front—far from issues of defense and international posture, where I readily give credit to certain choices made by this administration—that I remain most critical: the domestic abuses documented here do not stem from legitimate firmness, but from a use of power that deserves to be denounced without leniency.

What the Supreme Court Might Decide

Several scenarios remain possible before the Supreme Court: a full affirmation of the Second Circuit’s approach would establish a national floor of procedural protections for all detained migrants, while a reversal of that decision could, conversely, reduce—or even eliminate—access to bail hearings in cases of prolonged detention across the country.

Between these two extremes, a more nuanced decision could maintain certain protections while leaving the administration significant discretion regarding the specific criteria for assessing the risk of flight or danger to the public.

The wait for clarification could take years

If the case proceeds through the Supreme Court’s regular docket rather than its emergency docket, a final decision may not come until June 2027, according to several legal observers cited by specialized media outlets. This institutional slowness means that tens of thousands of people will continue to live under an uncertain and fragmented legal regime for many more months to come.

This prolonged wait for a definitive ruling from the Supreme Court is, in my view, a form of injustice in itself—while legal scholars debate procedural subtleties, real people remain detained in a state of uncertainty, sometimes for years, without a clear answer regarding their fundamental rights.

Three Decades of Administrative Practice Overturned by a Single Memo

For nearly three decades, successive U.S. administrations—both Republican and Democratic—maintained a clear distinction between individuals apprehended directly at the border and those arrested within the country after years of residence. This distinction, enshrined in the Immigration and Nationality Act, guaranteed the latter group access to a bond hearing before an immigration judge.

The July 2025 memo erased this distinction with the stroke of an administrative pen, without going through Congress or a formal regulatory process—which largely explains why so many federal courts have ruled this reinterpretation incompatible with the text, structure, and history of U.S. immigration law.

The Weight of Ignored Judicial Precedents

Several federal circuit court decisions, including that of the Sixth Circuit, have explicitly pointed out that the administration is disregarding well-established judicial precedents, preferring a creative reading of the law that maximizes the number of people who can be detained rather than an interpretation faithful to Congress’s original intent when these provisions were enacted in the 1990s.

Ignoring three decades of consistent administrative practice—validated by courts under presidents from both parties—is not merely a legal update; it is a deliberate political choice to cast the net of detention as wide as possible, even at the cost of causing the judicial chaos we are seeing today.

A Large-Scale Legal Campaign

In response to this policy, organizations such as the ACLU and the American Immigration Council have waged an intensive legal campaign, filing numerous lawsuits in federal courts across the country. This decentralized litigation strategy, pursued state by state and circuit by circuit, partly explains why the current judicial landscape appears so fragmented.

These organizations have also documented specific individual cases, such as that of a long-time Colorado resident who was detained for eight months before winning his case in the Tenth Circuit in late June 2026, putting a human face on what might otherwise remain a purely technical and abstract battle.

A Strategy That Is Bearing Fruit, But Slowly

This sustained legal mobilization has produced tangible results, with victories in the Second, Sixth, Tenth, and Eleventh Circuits, even though these victories remain regionally limited until the Supreme Court definitively resolves the issue on a national scale.

This slowness of the U.S. judicial system—even when it ultimately rules in favor of those wrongfully detained—illustrates a structural limitation of American democracy today: the justice system may eventually correct an excess, but rarely in time to prevent months, or even years, of concrete harm to those affected.

Different Standards Among European Allies

Several U.S. allies, including Canada and most members of the European Union, maintain systems for systematic and expedited judicial review of all immigration-related administrative detentions, often within timeframes much shorter than the 90 days now mandated by the U.S. Fifth Circuit.

This international comparison neither excuses nor condemns U.S. policy on its own, but it places the debate in a broader context: even among Western democracies most committed to a firm immigration policy, the near-total absence of prompt judicial review remains a notable exception rather than the norm.

What this says about the current U.S. trajectory

This growing divergence from the practices of several allied democracies fuels criticism from international observers who believe that current U.S. immigration policy is gradually drifting away from the standards of due process generally associated with mature Western democracies.

As a columnist who advocates that the West must remain a moral benchmark in the face of authoritarian regimes, I find it particularly troubling to see the United States, on this specific issue, drifting away from the standards of due process normally associated with mature democracies—this weakens the moral argument against China or Russia on human rights issues.

A legislative silence that leaves the field open to the executive branch

Faced with this protracted legal battle, the U.S. Congress has remained largely silent, with no significant legislative initiative to explicitly clarify immigration law and end the ambiguity that the administration has exploited to justify its reinterpretation. This congressional inaction leaves it up to the courts, rather than elected officials, to decide an issue that should normally fall under the purview of the legislative branch.

Some Democratic lawmakers have proposed bills aimed at clarifying the right to a bond hearing, but these initiatives have so far failed to garner enough Republican support to move forward in a Congress deeply divided on the issue of immigration.

Legislative gridlock that benefits the executive branch’s status quo

This legislative gridlock is not neutral: it objectively benefits the current administration, which can continue to apply its broad interpretation of the law as long as no clear legislative clarification explicitly limits its power of administrative interpretation.

This silence from Congress particularly exasperates me: on an issue that directly affects the fundamental rights of hundreds of thousands of people, legislative inaction is not neutrality; it is an abdication of responsibility that leaves the judiciary alone to face an executive branch determined to push its prerogatives to the limit.

What the July 2 Decision Really Achieves

The Fifth Circuit’s decision represents a real—though limited—check on the expansion of immigration detention carried out by ICE under the Trump administration. It imposes a valuable procedural safeguard—the 90-day deadline for a bail hearing—without, however, calling into question the broader principle of an expanded mandatory detention policy, which remains, in substance, deeply contested by the majority of federal judges who have addressed the issue.

The real substantive test will take place before the Supreme Court, whose decision will determine whether this partial procedural victory will lead to a genuine rebalancing of detainees’ rights, or whether it will remain merely a limited interlude in a broader trend toward the tightening of U.S. immigration policy.

A case to watch closely in the coming months

For now, this ruling offers partial relief to tens of thousands of detainees across the country, while leaving the fundamental question of the policy’s overall legality unresolved—an issue that will continue to dominate the courts, the press, and the American political debate in the coming months.

In my view, this issue will remain one of the most revealing tests of the health of U.S. institutions under this administration: the judiciary’s ability to correct—even partially and even slowly—an abuse of executive power demonstrates that the separation of powers still holds, but only by a narrow margin.

By Maxime Marquette, columnist