Will Democrats on Capitol Hill force another shutdown on Friday at the Department of Homeland Security? Chuck Schumer and Hakeem Jeffries want significant concessions on immigration enforcement in exchange for passing the final part of the FY2026 appropriation for DHS.
As of now, Democrats have two major problems: first, ICE and Border Patrol have a $75 billion fund that will allow them to continue operations for the next three years even without normal congressional appropriations. Second and related, that means that Democrats will have to shut down FEMA, the Coast Guard, and TSA to get what they want, the latter of which allows commercial airline travel to take place.
What do they want in exchange for funding DHS? They already won one 'concession,' requiring body cams for all immigration enforcement personnel. Secretary Kristi Noem enthusiastically accepted that demand. Democrats also want limits on large-scale operations and more training, which may be subjects for reasonable negotiation. One demand in particular is a non-starter with Republicans, however: requiring judicial rather than administrative warrants for illegal aliens, particularly those who have remained in the US for a substantial length of time. That would hamstring immigration enforcement to the point of paralysis, which is precisely what Democrats want.
On Friday, Republicans and the White House got a major, if indirect, boost from the Fifth Circuit in pushing back against treating immigration enforcement identically to regular law enforcement. The court issued a 2-1 ruling that illegal aliens had no right to bond out of detention, no matter how long they had lived in the US. Immigration enforcement does not require the same processes as normal law enforcement, even if previous administrations adopted those practices as policy:
President Donald Trump’s administration can continue to detain immigrants without bond, marking a major legal victory for the federal immigration agenda and countering a slew of recent lower court decisions across the country that argued the practice is illegal.
A panel of judges on the 5th Circuit Court of Appeals ruled on Friday evening that the Department of Homeland Security’s decision to deny bond hearings to immigrants arrested across the country is consistent with the constitution and federal immigration law.
Specifically, circuit judge Edith H. Jones wrote in the 2-1 majority opinion that the government correctly interpreted the Immigration and Nationality Act by asserting that “unadmitted aliens apprehended anywhere in the United States are ineligible for release on bond, regardless of how long they have resided inside the United States.”
The petitioners in this case attempted to argue that the longstanding policy in enforcing the statutes should be enforced. Had ICE detained them in 2024 rather than 2025, they argued, they would have received bond hearings. The Fifth Circuit ruling acknowledges that, but rejects the idea that policies become statutory requirements merely out of repetition:
Finding no persuasive support either from the text of § 1225 or Jennings, the petitioners turn to the government’s longstanding practice. They point out that the government has, for twenty-nine years, allowed illegal resident aliens, those present without having been admitted, to seek release on bond under § 1226(a) instead of detaining them pursuant to § 1225(b)(2)(A). While that is true, the government’s past practice has little to do with the statute’s text. The text says what it says, regardless of the decisions of prior Administrations. Years of consistent practice cannot vindicate an interpretation that is inconsistent with a statute’s plain text. ...
In any event, that prior Administrations decided to use less than their full enforcement authority under § 1225(b)(2)(A) does not mean they lacked the authority to do more. Indeed, the Federal Register suggests that past Administrations recognized that IIRIRA conferred more authority upon them than they chose to exercise.
Not only does previous practice not make law, the controlling opinion openly challenges the previous practice. Congress wrote the law to end confusion from the previous statute that appeared to give preferential treatment to those entering the US illegally, and the previous practice on which the plaintiffs' argument relies could be interpreted as defiance of Congress' statutory intent:
Finally, we observe that the government’s interpretation better honors predominant goal in the enactment of IIRIRA. By eliminating the exclusion/deportation dichotomy, IIRIRA put aliens seeking admission lawfully on equal footing with those who entered without inspection. It seems strange to suggest that Congress would have preserved bond hearings exclusively for unlawful entrants. See H.R. Rep. No. 104-469, pt. 1, at 225; Torres, 976 F.3d at 928 (noting that IIRIRA “did away with th[e] ‘entry doctrine . . . anomaly” under which “immigrants who were attempting to lawfully enter the United States were in a worse position than persons who had crossed the border unlawfully”).15 Preserving this distinction is especially odd where the Department of Justice Inspector General found in 1997 that “when aliens are released from custody, nearly 90 percent abscond and are not removed from the United States.” 62 Fed. Reg. at 10323. That situation exists today on a much larger scale. The petitioners’ fears about potential abuse of detention pending removal proceedings under Section 1225b2A are wholly speculative. In any event, Zadvydas v Davis, 533 U.S. 678, 678, 121 S. Ct. 2491, 2492, (2001), has no direct application to aliens who are detained and being given due process during removal proceedings. Ultimately, because Congress’s purpose matters far less than what it wrote, this argument merely confirms what the statutory text already makes clear.
In other words, Congress clearly had the intent to deny bond to illegal entrants to the US. Previous administrations declined to enforce the statute as written, leading to catch-and-release policies that only intermittently got reversed. The Fifth Circuit suggests that this administration is actually more faithful in following congressional intent as well as the letter of the law by using its current policies.
This has major impacts, both direct and indirect. Immediately, this will end any efforts by federal judges in the Fifth Circuit to require bond hearings and habeas actions, which the court notes have exploded over the past year. It also sets up a potential circuit conflict that will force the Supreme Court to adjudicate the matter sooner rather than later, given the acute nature of immigration enforcement.
This will also have an impact on the Democrats' demands for judicial warrants, especially once it gets to the Supreme Court. The Fifth Circuit does not directly address this issue, but its ruling recognizes immigration enforcement as an administrative function rather than a strict law-enforcement function. It has elements of both – immigration enforcement officials are LEOs for practical and legal purposes – but regulating the border and enforcing violations of it is an administrative task, for which Congress provided administrative functions. Introducing judicial warrants as a requirement would entirely undo that structure.
Shipwreckedcrew wrote Friday about the impact such a change would have:
If there are 10-20 million illegal aliens in the country, and the Trump Administration has a “goal” of putting somewhere in the neighborhood of 1 million through involuntary removal proceedings per year, what the Democrats want is hurdle in that systemt that requires a million visits to federal judges to have the above document signed before they can take an illegal alien into custody either to begin the deportation process or to complete it by starting the illegal on his final trip leading to exiting the country. ...
What the Democrats and anti-deportation advocates want is a requirement that replaces the Administrative Warrant with a “judicial” arrest warrant like the image above. They want DHS Officers with a Final Order of Removal in hand to be required to go to a federal courthouse where criminal prosecutions take place, and present that Final Order of Removal to a federal magistrate or judge, and then come away with the signature of that magistrate or judge on the document above. They want this to happen a million times a year — or more.
There are approximately 1250 authorized positions in the federal judiciary for district judges and magistrates — combined. That means every judge at the district court level would have to sign and average of 800 such warrants each year. If — as is the case in most districts with criminal judicial warrants in federal cases — the task was given to only magistrates, each would have to sign approximately 1750 such warrants each year.
This is precisely why Congress made immigration enforcement an administrative function, now within DHS. Its immigration judges are set up to facilitate the administrative warrants required for detaining and processing illegal aliens so that Article III courts are not overwhelmed with this business. Since immigration enforcement is primarily an administrative task involving those with no legal status in the US, administrative courts are sufficient for reviewing cases for removal. Transferring these functions to Article III federal courts would not just prevent the government from effective enforcement of immigration law, it would paralyze Article III courts as well from performing their constitutional tasks.
This decision by the Fifth Circuit will strengthen Republicans' stand in the DHS funding negotiations, and hopefully their spines as well. Democrats want to lead the US into an open-borders policy through funding tactics, but they don't have the time or the law on their side. Let's hope that the Supreme Court addresses this more directly in the immediate future as well.
