How Trump Made One of the Most Controversial Post-9/11 Policies the New Normal

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Earlier this month, Immigration and Customs Enforcement reportedly declared in an internal memo that all noncitizens who had entered the country illegally—millions of immigrants, including many who have been here for decades —were no longer eligible for bond release from immigration detention. The revelation might have been confusing; can the administration just do that?

There will probably be some litigation, but broadly the answer may be yes. The administration has been helped along by a series of Supreme Court decisions over the last several years chipping away at noncitizens' right and ability to seek bond or release from detention, as well as the fact that immigration is almost entirely contained within the executive branch.

Once, open-ended detention without clear resolution was the subject of heated debate and widespread political condemnation, most famously in the post-9/11 War on Terror context. Now, flying somewhat under the radar of Donald Trump's and Stephen Miller's immigration obsession is a slow creep toward making indefinite detention—that is to say, with no end dates and no clear mechanisms to get out of it—a norm throughout the country.

The Sixth Amendment protects a “right to a speedy and public trial.” There is no such protection in immigration detention because these are not “trials” in a criminal sense; they're civil administrative removal proceedings, and the process has to be neither speedy nor particularly public. Most hearings are presumptively open to the public, but observers still routinely have access blocked, and unlike other court processes, there's no public docket to view documents or the respondents, the immigration equivalent of defendants.

In Florida, it's unclear who even is being held at Gov. Ron DeSantis' so-called Alligator Alcatraz camp, built by the state effectively on behalf of the federal government. The Miami Herald and Tampa Bay Times obtained a leaked list a couple of weeks ago , but that's now likely outdated. It's of course ludicrous that there'd be a detention camp in the United States without acknowledged detainees. Attorneys have reported being told that there's no immigration court with jurisdiction over the clients that they're also frequently barred from speaking to, meaning the administration is not acknowledging any specific authority that would have the power to order these clients' release.

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While that facility seems set up to facilitate due-process-free deportations as fast as possible, it's also possible and even likely that people might be languishing there for long periods with no active hearings, no conceivable release date, and no real way to petition for release. There have been reported cases of people continuing to be detained at the facility after already accepting deportation, for reasons that aren't clear and with no one to escalate the issue to. There are now significant political—and, with the passage of Trump's MAGA budget bill, financial— incentives to franchise this model in other states, with GOP officials lining up to set up camps in their own jurisdictions.

Even for “regular” immigration detention, the administration's position now is fundamentally that detention is permanent up until a person is removed from the country, or sometimes afterward. As I wrote in April , the administration had never laid out a statutory basis for the detentions at the CECOT megaprison in El Salvador—which does not have release dates—often claiming that the Salvadoran government was the one with custody. In the interim, El Salvador acknowledged to the United Nations that the US had “jurisdiction and legal responsibility” over the detainees, who were subsequently released in a prisoner exchange between the US and Venezuela and have gone on to describe hellish conditions . Despite their release, the administration has not acknowledged any wrongdoing with the detention and certainly never indicated it would not do it again.

Domestically, an immense ramp-up in removal cases to fulfill Stephen Miller's reported quotas means many more cases are going before long-overwhelmed immigration courts, with proceedings further slowed by how many respondents don't have attorneys and the administration's efforts to mass-fire immigration judges not perceived to be toeing the ideological line. It wasn't uncommon even before this Trump term for cases to take years, and now the administration is adding up to thousands of additional cases per day while maintaining that most people should be detained during this process—which has historically been far from the norm —and have no real way to get out, at any point, however long it takes.

Even within the laxer environment of immigration, where the rules of criminal detention don't necessarily apply, there have long been additional limitations on the detention of children. Many are rooted in a three-decade-old court agreement known as the Flores Settlement, which among other things put unaccompanied minors in the custody of the Department of Health and Human Services, which is supposed to keep them in shelters, and generally prohibits detention of children for longer than 20 days. Now, ICE is not only detaining more children overall but reportedly holding them in prison-like settings while it moves to overturn key provisions of Flores in court.

Altogether, this sets us up for a situation where a whole lot of people, not just adults but minors, could be detained for indefinite periods on US soil and on behalf of the US government abroad, which is obviously an anomalous situation with some dire implications for civil liberties and due process. Look at the case of Mahmoud Khalil; many legal observers and other experts like myself see the underlying removal charges as incredibly weak and unlikely to succeed. Yet the man still spent three months in detention, missing the birth of his first child, only getting out at the order of a federal judge after a good amount of public outrage and the administration's frankly brazen legal arguments.

Thousands of other people are going to get put into detention of indeterminate length with far less recourse, which could stretch years even if they are not eligible for removal or might win their cases . This is a tactic that has been used to great effect in authoritarian regimes and by other antidemocratic actors around the world, because detention is by itself life-altering, demoralizing, and hobbles legal pushback. The White House seems to have gotten the memo.