A new Politico analysis highlighted the more than 10,000 rulings that federal judges nationwide, appointed by Republican and Democratic presidents alike, have issued against the Trump administration’s unprecedented mass immigrant detention policy.
As the policy makes its way inevitably to the Supreme Court, one might imagine the sheer quantity of the administration’s losses to date could lead the justices to the same result.
Of course, the high court may well vindicate the overwhelming majority view of the mass detention scheme’s illegality.
But to get a sense of where the court might land, it’s also important to focus on a much smaller subset of cases: the ones issued by federal appellate circuit courts, which have split on the legal issue presented by the policy. As the Politico analysis notes, two circuits have sided with the administration, while three have gone the other way and another deadlocked.
The legal issue stems from how to interpret federal law that requires detaining immigrant “applicants for admission” who are “seeking admission” to the country. Contrary to prior administrations, the current one says the law requires detention not only of people apprehended at the border, but also those who have been in the country for years.
The split among appellate circuits over how to interpret the law heightens the likelihood the Supreme Court will step in to resolve it. The split also shows the justices that appellate judges, who review district court rulings and sharpen legal issues that ultimately come to the high court, have established different views on the matter, even if the overall scorecard throughout the judiciary is deeply lopsided.
Also important are the dissenting opinions that have accompanied some of the rulings against the administration. Dissents from like-minded judges can signal to the Supreme Court’s Republican-appointed majority that a lower court got an issue wrong, regardless of how many judges disagree with the dissenting view.
An example came earlier this week, when Trump-appointed 6th Circuit Judge Eric Murphy dissented from a panel ruling that said immigrants “should have a forum to explain that their backgrounds and connections to their communities justify release on bond while they undergo their removal proceedings.” The panel majority said that holding otherwise “would subject long-term law-abiding residents in the United States … to the hardship of mandatory detention without due process.”
Murphy read the law to require detention. He noted the “harsh policy consequences” but said “that policy concern should not affect the judiciary’s neutral interpretation under fundamental separation-of-powers principles.” He said he was following the law “where it leads.”
That sounds like something that could come from the Supreme Court, or at least from some of the GOP-appointed justices.
Another example came last week, when Trump-appointed 11th Circuit Judge Barbara Lagoa dissented from a panel ruling that said the law didn’t provide “unfettered authority to detain, without the possibility of bond, every unadmitted alien present in the country.” Lagoa, who has been considered as a Trump Supreme Court pick, said the majority “rejects the text’s ordinary meaning.”
To be sure, Trump-appointed appellate judges haven’t uniformly backed the administration. One of the rulings that approved the detention policy split two Trump appointees on that three-judge panel, with 8th Circuit Judge Ralph Erickson writing that the majority’s “novel interpretation” was “atextual” and had “eluded the courts and five previous presidential administrations.”
Though we don’t know how the Supreme Court will resolve this crucial issue when it ultimately gets to Washington, we can expect to see the administration highlight the minority opinions in its favor, in the hopes of turning them into a high court majority opinion.
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