The decision, passed 10-7, 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 Friday, accusing them of issuing a ruling that “blasts the heart” of the Constitution’s due process clause.
In a scathing dissent from a ruling upholding the Trump administration’s policy of detaining some undocumented immigrants without a bond hearing while their immigration cases are pending, Justice Dana Douglas, joined by four of her colleagues, wrote that the court relied on a “phony history” to support the Trump administration’s policy.
“The government is proposing a seismic shift in the way this country’s immigration law works,” she said. “It can happen, but it can’t be wrapped in the mantle of history. Nor should judges do it the favor of wrapping it in the mantle of phony history cobbled together by the government.”
The 5th Circuit Court of Appeals heard the case and ruled 10-7 against three non-citizens who had been detained while their immigration cases were pending.
Each of the three men, originally from Mexico and Honduras, has lived in the United States for at least 14 years. They were arrested after a traffic stop and two of them have children who are U.S. citizens.
Immigration and Customs Enforcement officers outside the Ventura County Government Center in Ventura, California on July 27, 2026.
Lower courts ordered the men’s release, but Friday’s ruling overturned those decisions. The Supreme Court will also consider the broader legal question.
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Justice Cory Wilson, a Trump appointee, wrote the majority opinion. Five of the other nine judges who sided with him were also appointed by Trump.
Even Justice Leslie Southwick, a George W. Bush appointee, disagreed, warning that by upholding the administration’s detention policy, “this court has built an impenetrable wall between the Constitution and these longtime residents, a wall that was not designed, recognized, or even suggested by the Supreme Court.”
The other four – Chief Justice Jennifer Elrod, Priscilla Richman, Edith Jones and Jerry Smith – were appointed by Republican Presidents George W. Bush and Ronald Reagan.
The heart of the case is whether the Trump administration can detain undocumented immigrants without giving them the opportunity to seek bail.
Although 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 are pending.
“The practice (challenged here) of searching the interior of the country for persons illegally present in this country and subjecting them to detention without meaningful proceedings or the possibility of bail – that is, under what has long been understood to be the status applicable to ports of entry, rather than the status of inland detention – is a recent invention of the Department of Homeland Security over the past year, at odds with its nearly three-decade-old practice,” wrote Judge Douglas, a Biden appointee.
Judge Dana Douglas, the first black woman appointed to the Fifth Circuit Court of Appeals, based in New Orleans.
Rudy Bierhuizen/www.laed.uscourts.gov
The majority opinion acknowledged that the men have due process rights under the Constitution, but held that those rights do not guarantee them a hearing to seek bail while their case is tried.
The Trump administration has continued a ruthless immigration agenda, sending ICE agents into major cities and taking people off the streets, out of their homes and out of their cars. Federal immigration agents have also shot people during enforcement operations, including U.S. citizens.
“Historically, and for obvious reasons, the courts have jealously guarded against attempts by the executive branch to assert sweeping detention warrants that, among other things, could make sudden and unannounced arrests and detentions a part of ordinary life inside this country,” Douglas said.
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