President Donald Trump’s mandatory detention policy earned another key court victory on Thursday, sending a legal war that has played out in various federal courts closer to the Supreme Court.
The full U.S. Court of Appeals for the 5th Circuit declined to review a February ruling from a three-judge panel on the appeals court that had upheld the Trump administration’s policy of keeping illegal immigrants in detention during their deportation proceedings. The order means Trump maintains two wins across federal appeals courts and no losses among the circuits on the issue, despite hundreds of losses among lower federal district courts.
The 5th Circuit’s 2-1 ruling earlier this year found that just because previous administrations did not use their power under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 to detain illegal immigrants indefinitely, rather than allow them to seek release on bond, that does not mean presidents do not have that power. In March, a three-judge panel on the 8th Circuit also concluded that the president’s mandatory detention policy was lawful.
The Supreme Court is the next place where lawyers for the illegal immigrant challenging the policy can go now that the full 5th Circuit declined to review the panel’s ruling. In the 8th Circuit case, the full appeals court could still decide to review that panel’s ruling, or the appeal could be taken directly to the justices.
It is unclear if the Supreme Court would take up the case from the 5th Circuit for review, but if the justices were to do so, the earliest it would likely be heard is during the high court’s next term, which begins in October.
Andrew Arthur, the Center for Immigration’s resident fellow in law and policy, previously told the Washington Examiner he believes the Supreme Court will take up the case sometime in the near future.
“This is one of those things the Supreme Court needs to resolve sooner rather than later, because this is sapping the vital energy out of the district courts and out of DOJ because there are just so many of these cases,” Arthur said. “You can have boilerplate briefs all you want. Judges still have to rule on them. Attorneys still have to show up in court to argue.”
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Part of the Trump administration’s immigration policy will be before the Supreme Court later this month, when the justices weigh the president’s bids to end temporary protected status for Haiti and Syria. The consolidated TPS cases before the Supreme Court later this month come as nearly every effort by the administration to end TPS has been met with a lawsuit, despite the fact that federal law specifically precludes judicial review of the administration’s decision to end TPS to different countries.
The Supreme Court is expected to issue a decision in the TPS case by the end of June, weeks after the scheduled April 29 arguments.