Fifth Circuit Looks Like It’s Ready To Roll Back Its Decision Recognizing Due Process Rights For Migrants
from the fix-is-in dept
Well, it was fun while it lasted. And even while it still (theoretically) lasts, it’s really nothing more than the Fifth Circuit saying rights can violated, but only for 90 days at a time.
Earlier this month, the Fifth Circuit managed to deliver a very un-Fifth Circuit decision, finding in favor of rights and against the Trump administration’s war on migrants. As almost every court has recognized for decades, people residing in the United States — even illegally — have constitutional rights. The Fifth Circuit has long been one of the exceptions to this rule.
The administration chose to ignore this because doing would slow its horrific roll towards an eventual evacuation of everyone who wasn’t white enough for this administration to recognize as Americans. To justify ignoring long-held constitutional rights, the administration first invoked the Alien Enemies Act (best known for our atrocities against Japanese migrants and residents during World War II). Then it pretended that anyone who had been in the country for weeks, years, or decades should be treated the same as anyone apprehended while illegally crossing the border.
The Fifth Circuit couldn’t bring itself to rule that migrants arrested long after they’ve crossed the border have access to their due process rights on day one of their apprehension. Instead, it decided (without really explaining why) these rights don’t actually kick in until someone has been in custody for more than 90 days.
That meant nothing would really change. People arrested by ICE and other DHS components all over the nation would be hastily relocated to the Fifth Circuit (Texas, Louisiana, Mississippi) ASAP to prevent them from challenging their detention for 90 days. Presumably, the administration hoped to have most of these detainees deported long before they were allowed to invoke their constitutional rights.
Apparently, 90 days of denying rights isn’t long enough. It looks as though enough judges in the Fifth Circuit think these rights should never be available to migrants. Less than a month after handing down its decision, the Fifth Circuit has declared it will be taking another pass at this.
A majority of the circuit judges in regular active service and not disqualified having voted in favor, on the Court’s own motion, to rehear this case en banc,
IT IS ORDERED that this cause shall be reheard by the court en banc with oral argument on a date hereafter to be fixed. The Clerk will specify a briefing schedule for the filing of supplemental briefs. Pursuant to 5th Circuit Rule 41.3, the panel opinion in this case dated July 02, 2026, is VACATED.
So, we’re now back to the Fifth Circuit status quo. The government can ignore constitutional rights on day one and continue ignoring them until they’ve ejected migrants into whatever war-torn human rights hellhole will have them.
Sure, there’s a very slim (I’d say “nonexistent”) chance the petitioners for rehearing think the Fifth Circuit screwed up by giving the administration a 90-day head start on ignoring constitutional rights. But come on. We’re talking about the Fifth Circuit here.
The most likely reason for this rehearing action is that a lot of Fifth Circuit judges think the Trump administration shouldn’t have to recognize the rights of migrants ever, which is why they want to take another stab at setting precedent that would cover some of the DHS’s largest detention facilities.
The best case scenario would appear to be the circuit upholding its previous ruling, with its (unconstitutional) 90-day 14th Amendment snooze button. The worst case scenario is the entire panel agrees with this hideous, racist administration and says anyone in the country without documentation should be treated like someone caught in the act of crossing the border illegally. I’m not holding my breath for a positive outcome. I need that breath for stuff that’s actually feasible and foreseeable.
Filed Under: 14th amendment, 5th circuit, dhs, due process, ice, mass deportation, trump administration
Comments on “Fifth Circuit Looks Like It’s Ready To Roll Back Its Decision Recognizing Due Process Rights For Migrants”
Atrocities seems a bit strong. The Americans of Japanese descent were held in camps, not beaten and executed, supposedly so invasion forces could be quickly identified if Japan managed to invade the west coast and to reduce espionage. It was still wrong because they didn’t do anything worthy of being locked up in a camp but it was more like a civil rights abuse than an atrocity.
Of course the actual Japanese and other foreign nationals from the axis powers were also held somewhere.
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Land and property of Japanese Americans was also stolen or confiscated and never returned.
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Just to be clear: You think the internment of citizens by the U.S. government based only and specifically on race/ethnic heritage of those citizens is wrong, but you don’t consider that to be an atrocity in the context of the World War II internment of Japanese-Americans because the victims of that specific internment weren’t physically tortured or outright murdered?
What in the actual fuck.
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Democrats did that, btw.
But he’s right, it in no way an “atrocity”. These people are just being detained until they can be deported. That’s it.
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Okay, and…so what? You think that’s supposed to make me drop to my knees and wail in agony or some shit? Let me make this abundantly clear for you:
The internment of Japanese Americans during World War II was an unquestionable atrocity regardless of the political party to which the leaders of our nation at that time belonged.
I could also get into the alignment switch of the parties again, but since you think Democrats have always been woke even going back to the time of slavery, there’s no use getting into that discussion with you. By the by: Wouldn’t freeing the slaves be woke as fuck, and if Democrats have always been woke, why was it a Republican who did The Ultimate Woke?
The fact that you can’t even be bothered to go full-on racist lunatic is kind of sad, man. Like, we all know you’re thinking that shit. So why don’t you have the balls to say it? I mean, it’s not like Mike would stop you from posting here any more than he did after you started using ableist slurs regularly. And nobody knows your name, so it’s not like it could even get back to you unless you doxxed yourself. Stop being a nutless coward and just say you want to see ICE mass-murder brown people on Trump’s orders.
Then have the balls to say you want me dead because I’m a faggot. I know you’re thinking that one.
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really? not so bad, eh? okay, you give it a shot. go ahead and step up for internment if it just an inconvenience, a lark, a spree.
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Por que no los dos? First, yeah, it’s definitely an atrocity. But second, civil rights abuses can also be atrocities. Human rights abuses can also be civil rights abuses. Did you know the UN definition of genocide doesn’t require mass murder? Just kidnapping and re-educating the children of an ethnic group qualifies.
This is “you can’t call them Nazis if they’re not from Germany in the 1930s/40s” sparkling fascist bullshit.
This also just indicates that you haven’t studied history thoroughly enough because it wasn’t just civil rights abuses. Families were broken up. Businesses and property were lost. Living conditions were awful and medical care insufficient. At least 1862 people fucking died!
Do you think the Trail of Tears was just a fun road trip for Native Americans?
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Also makes me think of people who talk about “the good slaveowners”. Like, okay, some slavers didn’t beat the people they treated like property, and that’s…fine, I guess? But enslaving people and treating them like property is a fucking atrocity no matter how well those enslaved people were treated.
Umm, one question...
Since citizenship status isn’t physically obvious to law enforcement, shouldn’t the assumption be that any person they engage is a Citizen and is afforded the Constitutional protections of a Citizen?
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Yeah, but that would actually require them giving a flying fuck.
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That’s the entire point of all of this. If illegal immigrants don’t have due process, the government can take away ANYONE’S due process rights simply by claiming that they’re an illegal immigrant.
It’s not a bug, it’s a feature.
Hey judges, killing and torturing people is violence. If you don’t want it happening to you, don’t do it to others.
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They LITERALLY have no due process rights. It’s a civil action. Illegals have ZERO right to be here. This is clear by law and by precedent.
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By that logic, the government has no business treating illegal immigration as a criminal action. That means ICE has no legal basis to go around doing its bullshit.
Then again, if civil actions deserve to be treated as criminal matters, Donald Trump should be put in jail as soon as he’s out of office. After all, a jury found him liable for the rape of E. Jean Carroll in her civil suit against him.
You can’t have this one both ways without splitting a hair so thin that it may as well be invisible. So which option is it?
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You may want to do some reading on the 14th amendment of the US constitution.
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If non-citizens don’t have due process, all anyone has to do to get rid of you is say you’re not a citizen, and without due process you have no chance of proving you are before you get sent to one of your vaunted “shithole countries”.
For the sake of self-preservation, you should support due process for everyone, including non-citizens. But you won’t, because you put hurting others above self-preservation in your list of priorities.
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“No PERSON shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any PERSON be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
We get that you don’t consider an immigrant to be a person, but you only deprive yourself of your own humanity when you try to dehumanize others. The VERY FUCKING CLEAR language of the GODDAMN CONSTITUTION says you and your fascist idols are VERY FUCKING WRONG.
IANAL but i don’t see (checks notes) any mention of a “90 day” reprieve of rights in the Constitution, the Bill of Rights or any of the other amendments.
where did they get the 90 day window from?
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It’s long enough to make the question moot, while also providing a fig leaf to separate these judges from the “bad ones” who made it indefinite, just in case the fascists lose too quickly and someone needs to take the fall.
People need to understand that once the fascists are done getting rid of all the people who don’t look the way they do, they’re going to start in on those who don’t THINK the way they do. Rights belong to all or they belong to none, because in the end we are all connected. We only really have one responsibility- to preserve the only place in the known universe we can be SURE that we can survive. Those who seek to divide us only hasten our doom…and THEIRS, as well.