Under multiple presidential administrations, ICE has long operated a large detention network. But since Trump returned to the White House in January 2025, the agency’s detention operation has grown dramatically. Instead of holding approximately 40,000 people on average each day, as it did in January 2025, ICE’s latest publicly available data, from July 2026, indicates that it held 65,634 people daily. Only 1 in 10 of those individuals was arrested by Customs and Border Protection, the Department of Homeland Security unit responsible for enforcing immigration law at the nation’s borders. The rest – almost 59,000 – were arrested by ICE. In addition to operating the federal government’s migrant detention network, ICE enforces immigration law in areas that are not near the nation’s borders.

Congress has authorized CBP and ICE to detain people who immigration agents believe are in the United States in violation of immigration law. One section of the Immigration and Nationality Act requires immigration agents – typically CBP officers staffing ports-of-entry or their Border Patrol colleagues deployed between ports-of-entry – to treat as an “applicant for admission” any migrant “present in the United States who has not been admitted” and detain them. Another section allows agents to detain other migrants, but it gives migrants the option of requesting release on bond from DHS or an immigration judge. Since 1996, when these provisions were added to federal law, immigration officials have applied the first detention provision to people who arrive at a port-of-entry or who Border Patrol officers encounter away from an official border crossing point. By contrast, officials have applied the second provision to people apprehended in cities and towns throughout the United States that are not near the border. In effect, this has meant that ICE can detain tens of millions of people who are living in the United States possibly in violation of immigration law, but these individuals can ask an immigration judge to release them, after paying a bond, if they can show that they are unlikely to fail to show up for court dates or endanger the public.

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The decades-old practice changed suddenly last summer. In July, ICE announced that it would detain every migrant found anywhere in the United States who agents believed had not been granted permission to enter. None of these migrants would be allowed to request release, on bond, from an immigration judge, the new policy instructed. Two months later, the Justice Department’s Board of Immigration Appeals – the highest immigration appellate body in the executive branch – agreed, making the Trump administration’s policy binding on immigration judges nationwide.

Since last summer, federal circuit courts have issued a slew of decisions on the legality of ICE’s new mandatory detention policy. Of those circuits to have decided the matter, most – the U.S. Courts of Appeals for the 1st, 2nd, 6th, 7th, 9th, 10th, and 11th Circuits – have found the administration’s policy illegal. They take the view that the mandatory detention provision applies to people who are at or near the border, but people who are within the United States can request that an immigration judge release them. The U.S. Court of Appeals for the 6th Circuit added that the government’s broad application of detention without the possibility of release on bond violates the Fifth Amendment’s due process clause. Only two circuits – the U.S. Courts of Appeals for the 5th and 8th Circuits – have sided with the Trump administration. They take the view that federal immigration law requires immigration agents to detain anyone who is present in the United States without having been admitted no matter where that person is located or how long they have been living in the country.

Two of these cases are now waiting action by the Supreme Court. In Raycraft v. Lopez-Campos, the solicitor general, who represents the federal government before the Supreme Court, asked the justices to overturn the 6th Circuit’s decision. The government argues that letting migrants who have not been granted permission to live in the United States request release on bond is “perverse.” Led by the ACLU, advocates for migrants asked the justices to add the 5th Circuit’s decision in Buenrostro-Mendez v. Bondi, which deals with the same issue, to its calendar. They argue that the Trump administration’s position reflects a “radical, new, and countertextual interpretation” of immigration law.

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The court is likely to agree to weigh in on one or both cases. Even without considering the Trump administration’s emphasis on expanding ICE’s detention operations, the existing disagreement among the circuit courts is a strong reason for the court to become involved because only it can announce a single interpretation that applies nationwide.

Moreover, the circuit split is growing. Since the solicitor general and ACLU asked the justices to intervene, the U.S. Courts of Appeals for the 7th and 9th Circuits issued their decisions, both disagreeing with the government’s view. Another came 10 days after the solicitor general filed its petition for writ of certiorari in Raycraft and on the very day that the ACLU filed its petition in Buenrostro-Mendez. Acknowledging that a three-judge panel of the 5th Circuit sided with the government’s view of the INA in Buenrostro-Mendez, a different three-judge panel of the 5th Circuit determined that ICE’s policy violates the due process clause. Eight days later, the full 5th Circuit vacated the panel’s decision and announced that it will rehear the case.

Whether the justices add Raycraft or Buenrostro-Mendez to their calendar will likely depend on whether they want to focus solely on the laws enacted by Congress or instead delve into constitutional law. The 5th Circuit did not address the constitutionality of ICE’s mandatory detention policy in Buenrostro-Mendez, while the 6th Circuit did in Raycraft. The ACLU and solicitor general each claim that difference is why the justices should agree to hear their preferred case. Raycraft is “the best vehicle” to resolve the “untenable divide” among the circuits because “its due-process holding effectively invalidated a federal statute,” the solicitor general wrote to the justices. With only one circuit having decided whether ICE’s policy is constitutional, “there is no split on that question,” making the 5th Circuit’s Buenrostro-Mendez decision “a superior vehicle,” according to the ACLU.

Aside from the 6th Circuit’s constitutional law analysis in Raycraft, two other circuits have noted that detaining people apprehended in the nation’s interior to mandatory detention could violate the due process clause. The 2nd Circuit explained that ICE’s position raises “grave constitutional concerns” and the 7th Circuit later added that the “government’s interpretation poses grave due-process concerns.” That said, neither the solicitor general nor the ACLU urge the justices to treat these discussions as central to the circuit courts’ decisions. And even if the justices were to give more weight to the circuit courts’ constitutional law discussions than either the ACLU or solicitor general suggest they do, neither would create a circuit split on the constitutional question since both suggest that they agree with the 6th Circuit.

Whatever course comes next for ICE’s mandatory detention policy, it is likely to lead to the Supreme Court. Once there, the justices will again have to decide just how much power the executive branch has to enforce immigration law, even if that involves shifting policy positions at a moment’s notice. Either way, the court will have to grapple with the Trump administration’s desire to adopt aggressive enforcement tactics in pursuit of the president’s immigration goals.

This article was first published at SCOTUSblog on August 19, 2026 as part of the Immigration Matters column.

GEO Group, which is one of the two largest private prison operators in the United States, owns and operates a 1,500-bed facility in Aurora, a Denver suburb. Officially called the Denver Contract Detention Facility, most local advocates know it simply as GEO. Though the company operates more than two dozen prisons around the country, including approximately twenty under contract with ICE, Colorado’s site gets equated with the company’s name because it’s been around for so long. The prison’s history goes back to the middle of the 1980s, almost two decades before Congress created ICE. It’s been in the same industrial quarter of Colorado’s third-largest city since.

Health officials confirmed that a person held at the Aurora facility in June had an active case of TB. Despite efforts by county and state public health agencies, as well as the state’s governor, GEO officials have shared almost no additional information. The prison company refused to allow public health officials to examine the infected individual, allowing officials to speak with the individual by phone once only, according to the Colorado Department of Public Health and Environment. GEO says that there are no other active cases of TB at the Aurora facility but refuses to provide any evidence.

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Meanwhile, public health authorities have repeatedly demanded access to the facility and information about the health status of people there, including the 409 people who work there. On June 25 – four days after the state health department learned of the TB case – the Adams County Health Department ordered GEO to comply with state laws regulating TB investigations. GEO refused. The prison ignored the county’s demand. Approximately three weeks later – on July 14 – state’s top public health officer, Jill Hunsaker Ryan, executive director of the Colorado Department of Public Health and Environment, asked GEO to share key information about the TB case. Shortly after that, the governor’s office did too. Despite the high-level requests, GEO hasn’t shared anything of substance with state or county officials. Its lawyers have said that there are no confirmed cases of TB at the Aurora prison but refused to substantiate that claim.

Stymied by GEO’s refusal to cooperate, the state public health department issued a formal order on August 13 demanded that prison officials cooperate in its investigation. A state law clearly requires compliance with the department’s order. But now that the prison company has refused to follow the health department’s order, the state attorney general has gone to court. In a lawsuit filed on Wednesday, the state claims that, “because of the GEO Group’s persistent stonewalling, CDPHE has yet to identify the scope of disease and the risk to Colorado’s public health.” The state is asking a state court judge to order the prison to comply with its August 13 directive.

GEO Group hasn’t yet responded to the state’s lawsuit, but I expect it to attempt to take cover by pointing to its contract with ICE. It’s likely to argue that the state can’t regulate its operations because it is running the prison on behalf of the federal government. The company is already arguing, in a separate lawsuit, that a different state law, enacted this year, requiring regular inspections of the Aurora facility by public health officials, violates the U.S. Constitution. “The state claims the authority to exercise state regulatory power over an area that is exclusively the province of the United States Government,” the company argues. “GEO, as the federal contractor responsible for providing secure detention services…in Colorado, is imminently threatened,” the lawsuit adds.

Presumably the company will take a similar approach, arguing that what it does is the business of the federal government and the state has no say. That’s an uphill battle given that states have long been responsible for exactly the type of incident that Colorado is focused on now – the possibility of contagious disease spreading. There’s far more to this story to come.

The court’s decision in Mullin v. Doe turned back challenges to the Trump administration’s attempts to terminate Temporary Protected Status for Haitian and Syrian citizens. This was for two primary reasons. First, according to the majority, the Immigration and Nationality Act prevented courts from reviewing then-Secretary of Homeland Security Kristi Noem’s decision to end TPS for Syrians and Haitians.

The Haitians also raised a separate constitutional claim that Noem’s decision was tainted by racial animus in violation of the Fifth Amendment’s guarantee of equal protection. “The true reason for the termination … is the President’s racial animus towards non-white immigrants and bare dislike of Haitians in particular,” their lead lawyer, Geoffrey M. Pipoly, told the justices during oral argument in April. He reminded the justices that Trump referred to Haiti as a “shithole country” and claimed Haitians in Ohio were “eating the dogs and eating the cats of Americans.” In his brief, Pipoly added that Trump has accused many migrants, including Haitians, of “poisoning the blood” of the nation. For her part, Noem described Haitians as “leeches”, “entitlement junkies”, and “foreign invaders,” Pipoly wrote.

Although no one denied that Trump and Noem made the comments that the Haitian TPS recipients complained of, the majority of justices disagreed with Pipoly’s characterization of these comments as evidence of racism. Writing on behalf of six members of the court, Justice Samuel Alito explained that none of the comments “was overtly racial.” Instead, considering the comments in the “immigration context”, Alito wrote that “all expressed policy views that could rest on race-neutral justifications.” A person might favor restricting immigration “for economic or other reasons that have nothing to do with race,” he posited. And it’s possible for “a person without racial bias” to “provide a harshly unfavorable description of living conditions” in a country, he added.

In its search for a permissible reason to explain Trump and Noem’s comments about Haitians and Haiti, the majority altered the court’s existing equal-protection doctrine. As Justice Elena Kagan explained, in a dissenting opinion joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, equal protection law “is not in the nature of an ‘either/or’ inquiry. It does not ask a court to identify which is the single cause, or even the primary cause, of an official action.” Instead, it bars governmental decisions in which racial discrimination” has been “a motivating factor,” as the court explained in its 1977 decision Village of Arlington Heights v. Metropolitan Housing Development Corporation. The majority claimed to apply Arlington Heights, but under the court’s motivating factor test what actually matters is whether government policy is motivated by racial discrimination, not, as the majority suggests, whether a policy that’s motivated by racial discrimination can also be justified on a non-discriminatory basis.

The majority is certainly free to deviate from the half-century old legal standard announced in Arlington Heights, but in its effort to sanitize Trump and Noem’s comments it also took leave from standard English. Alito did not claim that Trump and Noem’s comments were not racist. He instead denied that their comments were “overtly racial.” While the noun “racist” describes a person or thing that promotes an ideology of racial superiority, “racial” is an adjective that simply refers to categorizations by race. Racial diversity, for example, describes variation among racial groups, just as racial discrimination means discrimination based on race. For Alito to write that Trump and Noem’s statements were not “overtly racial” is to claim that they didn’t openly describe racial groups.

But, to dismiss the racial overtones of Trump and Noem’s comments, the majority had to strip their words of key historical context that matters just as much as the immigration policy context that the justices incorporated. Accusations of blood poisoning have a long history in racist discourse. Most notoriously, Hitler wrote that a Jew “poisons the others’ blood, but preserves his own.” Hitler also described Jews as “the perpetual leech” and a “veritable leech.” Even assuming that Trump and Noem were entirely unaware of such language (Trump said in 2023 that he had never read Mein Kampf), concluding that their words don’t even describe race also requires ignoring how race and racism are commonly understood across the world today.

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Just two weeks after the court issued its decision in Mullin, a global scandal illustrated that Alito’s peculiar assessment of which words openly describe racial groups is out of step with contemporary conceptions of race and racism. On July 4, Paraguayan Senator Celeste Amarilla described soccer superstar Kylian Mbappé, a French citizen who plays for France’s national team, as “ugly” and a “colonized Cameroonian, trying hard to be French.” Displeased that Mbappé had led France’s team to victory against Paraguay in the World Cup, Amarilla described him as a “brute who didn’t even learn to write, who sucked on coconuts instead of drinking mother’s milk, and whose most educated instructors were chimpanzees.”

As a Black man whose father is from Cameroon and mother from Algeria, Mbappé has previously been the target of racial abuse. But coming in the midst of the most popular sporting event on the planet, Amarilla’s barbs received a lot of attention. Had anyone been looking for a plausible explanation that strips her words of their racist baggage, it wouldn’t be hard to imagine various options. To say someone looks ugly could be interpreted as nothing more than an “unfavorable description” – to borrow Alito’s words – of a person’s physical appearance. Crude perhaps, but the ordinary result of individualized subjective preferences. Likewise, Amarilla might have used “colonized Cameroonian” to refer to the historical fact that Cameroon was once colonized by France and Britain. This was an “unquestionably difficult” moment in history, but it can be explained away as having “nothing to do with race” – to again borrow from Alito.

Similarly, Amarilla might be accused of pretending to know more than she does about the newborn Mbappé’s diet, but plenty of people enjoy coconuts regardless of their race. “Many Americans of all races would surely find” feeding coconuts to newborns “intolerable. But poverty and deprivation” – which Alito says “could” concern Trump and Noem, just like dietary choices concern Amarilla – “are no reflection on character,” as Alito wrote to explain away the racialized valence of Trump and Noem’s comments.

Despite the existence of possible “race-neutral justifications” for Amarilla’s comments about Mbappé, no one suggested that her words were not racial. On the contrary, most commentators described them as more than that. Mbappé declared Amarilla’s comments to be an example of “racisme décomplexé”, unashamed racism. The conservative French newspaper Le Figaro and the French soccer association agreed that her comments were racist. Siding with Mbappé, French President Emmanuel Macron described Mbappé’s response as a goal “[a]gainst racism.” Paraguay’s Senate adopted a formal declaration rejecting Amarilla’s “discriminatory and racist expressions.” The Canadian Broadcasting Corporation preceded stories about this event with cautionary bolded text that leaves clear its characterization of Amarilla’s comments: “Warning: This story contains racist and graphic language.” In the United States, the Washington Post described Amarilla’s “racist comments” as a form of racial abuse.

This stands in stark contrast to the majority’s understanding of Trump and Noem’s comments. Having declared that these comments were not openly racial, the majority was able to avoid grappling with the constitutional question that the Haitian challengers raised – that these statements proved that the Trump administration terminated TPS for Haitians because of racial discrimination. If a comment doesn’t describe race, it can’t be said to serve as the necessary precursor to illegally discriminating on the basis of race.

Alito’s decision to focus on whether Trump and Noem’s comments can be described as “racial” thus immunizes the administration here. But it does so at the expense of the court’s waning public perception. Rather than appearing to grapple with complicated legal questions, the majority opinion creates the appearance of a court willing to bend ordinary language and close its eyes to common conceptions of what weight words carry in the world today.

This article was first published at SCOTUSblog on August 4, 2026 as part of the Immigration Matters column.

In one order, Trump instructed the State Department and Department of Homeland Security to bar people from entering the United States if they are participating in “birth tourism.” The president’s directive defines birth tourism as entering the United States on a temporary visa – called nonimmigrant status in immigration law – “for the purpose of giving birth” in the country or facilitating someone else’s entry on a nonimmigrant visa to give birth here.

Despite being a favorite topic of Republican attacks on citizenship, there is no data supporting the claim that birth tourism is widespread. It is unclear how government officials would decide when someone traveled solely for the purpose of giving birth in the United States. The order instructs the State Department and DHS to issue more guidance. They have not yet done so.

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The second order that Trump signed yesterday builds off the Supreme Court’s decision in late June rejecting the president’s prior attempt to limit birthright citizenship. In that decision, Trump v. Barbara, the court reiterated its 125-year tradition of protecting broad access to U.S. citizenship. The Fourteenth Amendment, added to the U.S. Constitution in 1868, treats almost everyone born in the United States as a citizen from birth. According to the majority opinion in Barbara, the constitutional provision does not grant citizenship to “the children of foreign ministers and members of 19th-century Indian tribes.” The justices also noted that the amendment adopted the British legal practice of not granting citizenship to children born “in discrete areas within his kingdom that were temporarily outside his control,” referring to the British king.

Yesterday’s order does much more than repeat the exclusions that the Supreme Court has long recognized. In addition to excluding from citizenship children born to people who engage in birthright tourism, Trump would also like to deny citizenship to children born in the United States to two parents who are not U.S. citizen as long as one parent:

• · Pays a surrogate based in the United States;

• · Is an employee of the United Nations, Organization of American States, or other international organization that, by law, receives immunity in the United States;

• · Works for a foreign embassy if the parent is themselves a citizen of that country;

• · Officially represents a foreign government; or

• · Is a member of a designated terrorist organization, which currently includes Antifa, Tren de Aragua, and dozens more groups.

For most of these categories, the court’s decision in Barbara makes Trump’s latest attempt to narrow access to birthright citizenship legally dubious. Yesterday’s order makes much of the fact that the Supreme Court explained that traditionally the United States had extended citizenship to “any child for whom no extraterritorial fiction applied.”

But the court’s opinion in Barbara, which is legally grounded in the Constitution’s Fourteenth Amendment, rather than the common law that existed before its enactment, recognizes a broader form of citizenship access. In most instances, the citizenship or immigration status of a child’s parents is irrelevant, the court explained. The Fourteenth Amendment doesn’t reference a child’s parents “For a simple reason: they did not matter,” Chief Justice John Roberts, who wrote the majority opinion in Barbara, announced. This would seem to include children born to surrogates, though the court had no reason to mention surrogacy in its decision. Likewise, children born to “parents unlawfully or temporarily present in the United States…are citizens at birth,” the court explained. The court did not hint at an exclusion for children born to people who hold politically disfavored views or engage in crime. Though the court did repeat the exclusion for children born to territory that is not in the control of the U.S. government, none of the organizations currently designated as a foreign terrorist group do. At best, the administration may find some leeway to bar children born to a larger group of foreign-government employees than is currently the practice in the United States.

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On a practical level, it’s hard to imagine how the Trump administration will apply the president’s directive to children born to terrorist groups. Instead, the most likely legal challenges to Trump’s directives are likely to come from children whose parents are based in the United States while they work for the U.N. or a similar international organization or children born to surrogates. Given Barbara, the response from courts should be straightforward: what the parents do for a living does not matter because, as Roberts wrote just this summer, the parents don’t matter.

Created by Congress in 1990, TPS is designed to allow people from extraordinarily dangerous countries to live and work in the United States. Every presidential administration over the last thirty-six years has granted or renewed TPS, including Donald Trump during his first term. Since returning to the White House, DHS has announced plans to end TPS for thirteen countries. In June, the Supreme Court allowed DHS to move forward with terminating TPS for Syrians and Haitians. Despite the obvious security risks present in those countries, the court’s rightwing majority announced in Mullin v. Doe that Congress did not leave any room for courts to review the administration’s decision to terminate TPS. Though that case involved Syrians and Haitians only, the court’s reasoning applies to any decision to end TPS putting everyone who currently has TPS on notice.

Within weeks, advocates adopted a new and creative tactic to stop Trump’s team from ending TPS. Instead of renewing attacks on the process by which DHS is trying to strip people of their legal permission to live and work in the United States, advocates are now arguing that Congress gave this power to the Attorney General rather than the secretary of Homeland Security. Through motions filed in several ongoing cases, advocates argue that the 1990 law through which Congress created TPS tasked the Attorney General, as head of the Justice Department, with responsibility for designating countries for TPS and determining when to end it. Indeed, the law clearly states that “the Attorney General…may grant the alien temporary protected status” if other conditions are met. At the time, the Immigration and Naturalization Service – the country’s immigration law enforcement unit – and the immigration court system were housed within the Justice Department.

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That all changed in 2002 when Congress created the Department of Homeland Security. The Homeland Security Act of 2002 transferred many immigration-related responsibilities from the Justice Department to DHS. Attorneys for TPS recipients now argue that the 2002 law did not transfer responsibility over TPS. They point to a section of the Immigration and Nationality Act – the federal law that governs immigration – that explicitly states that “laws relating to the immigration and naturalization of [migrants]” are transferred to the secretary of Homeland Security “except insofar as…such laws relate to the powers, functions, and duties conferred upon the President, Attorney General,” or a small number of other officials. “The power to terminate a TPS designation falls squarely within the ‘except’ clause,” attorneys for Burmese TPS recipients argue. Attorneys in other legal challenges to the administration’s attempts to end TPS have made similar claims in recent weeks, according to Bloomberg reporter Andrew Kreighbaum.

Even though these cases are ongoing, federal judges are likely to take these claims seriously. The rules that govern how federal courts operate in federal civil lawsuits instruct judges to “freely give leave” to amend complaints. Even though the rules leave final discretion with judges overseeing these cases, I expect most to allow lawyers to add this new legal argument. Judges don’t like to do pointless work. If the plaintiffs are correct, then any effort by former Secretary of Homeland Security Kristi Noem to strip citizens of Burma, or any other country, of TPS are necessarily invalid. And any effort by the administration to strip people of their legal permission to live and work in the United States based off an announcement made by someone without the authority to end TPS would plainly be illegal. From the perspective of judges overseeing these cases, there is little point in dismissing a legal challenge because Mullin constrained their role in reviewing termination decisions only to later conclude that the termination was illegal in the first place.

There is reason to think that the lawyers may be onto something. DHS was created in the political frenzy that erupted after the attacks of September 11, 2001. Creating a gargantuan new department by carving pieces out of work already being done in other parts of the Executive Branch was enormously complicated. It was made more difficult by the quick pace that the administration of President George W. Bush chose. Bush’s team wanted Congress to move decisively and quickly. In the process, they took convoluted immigration laws enacted over decades and made them more labyrinthine. Today, immigration lawyers are used to reading references to the Attorney General in immigration law and mentally replacing those words with secretary of Homeland Security. That’s a convenient rule of thumb that’s fertile ground for errors.

Lawyers for TPS recipients may have found an important example. To this day, the law granting TPS decision-making power to the Attorney General, enacted in 1990, hasn’t changed. It references the Attorney General repeatedly without once mentioning the secretary of Homeland Security, a position that wouldn’t exist for another twelve years.

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On top of that, the exception that TPS lawyers have flagged has been part of immigration law since at least 1952. As part of a comprehensive restructuring of immigration law that led to creation of the INA, Congress charged the Attorney General with “administration and enforcement” of federal immigration laws “except insofar as this Act or such laws relate to the powers, functions, and duties conferred upon the President, the Secretary of State,” and other officials. Fifty years later, when Congress created DHS and tasked it with overseeing immigration law, it added the Attorney General to the list of officers whose role was unaffected. But in true congressional fashion, the Homeland Security Act isn’t easy to make sense of. The law’s text merely requires “inserting ‘Attorney General,’ after ‘President’” in subsection (a) of 8 U.S.C. § 1103, the section of federal law that had given administration and enforcement responsibilities to the Attorney General since 1952.

Here things get even worse. The Homeland Security Act didn’t hand power over administration and enforcement of the INA to the head of the newly created department. Everyone understood that it meant to, but the text of the new law didn’t say this. In effect, the 2002 law created an exemption for the Attorney General without altering the rule, meaning that the Attorney General continued having responsibility over administration and enforcement of immigration laws, as it had since 1952, while also being granted an exception.

This was an obvious error that Congress would fix the following year. A law titled – mundanely enough – the Homeland Security Act of 2002 Amendments, transferred administration and enforcement responsibilities to the secretary of Homeland Security. Except, of course, if those responsibilities were previously held by the president or Attorney General.

This is a statutory nightmare created by the mishmash nature of hurried congressional processes fueled by periodic episodes of anti-migrant political fervor. It’s exactly the kind of wild history that won’t surprise immigration lawyers used to illogical and inefficient requirements and procedures. And it may just be the legs that lawyers for TPS recipients are hoping for as they try to keep challenging the Trump administration’s attempts to delegalize more than 1 million people.

If they are correct, this would mean that Noem didn’t have the legal authority to terminate TPS. Neither would her successor, current secretary of Homeland Security Markwayne Mullin. It would mean that only the Attorney General could end TPS. Todd Blanche, who is currently serving as Acting Attorney General while his confirmation sits in the Senate, would certainly be willing to follow Noem’s lead, but he would have to begin the termination process from scratch, buying time for people who are living and working in communities around the country.

A federal judge in Illinois heard arguments about these issues in the Burmese TPS case, Doe v. Noem, on Tuesday. Lawyers for the Burmese citizens have asked the judge to postpone termination of their TPS, currently set for August 7. A decision is likely on or before then.

This article has been updated to note that Markwayne Mullin succeeded, rather than preceded, Kristi Noem as secretary of Homeland Security.

Pérez Vásquez, who arrived in the United States in 2022, had been living in Illinois as he waited for government officials to process his asylum request. Almost four years later, he got caught walking out of a Florida grocery store with unpaid bananas. He claims to have asked for help with the self-checkout, but, regardless, he wound up in court facing criminal charges. A state judge granted him bond, but immediately after his release, ICE detained him.

Despite being convicted of the most minor misdemeanor that exists under Florida law, ICE kept Pérez Vásquez locked up for approximately seven months, including at the notorious Alligator Alcatraz. During that time, an immigration judge granted him withholding of removal, a difficult to obtain form of legal protection for people who are likely to be persecuted if removed.

That hasn’t stopped the Trump administration from wanting to keep him locked up even longer. ICE claims that it will eventually force Pérez Vásquez to go somewhere, but it has no plans and can’t even point to evidence that it’s making plans to remove him.

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Last month, a federal judge in California, where he was transferred after Alligator Alcatraz, ordered the government to release Pérez Vásquez after concluding that continuing to detain him, without any realistic prospect of removing him, likely violates the 5th Amendment’s Due Process Clause. The court explained that months of continued detention without adequate procedural protections could not be justified. The court rejected the government’s claim that, under federal immigration law, it had no choice but to detain Pérez Vásquez because he was arrested for a theft-related crime. The mandatory detention law applies to people currently charged with or arrested of certain crimes, the judge explained. But prosecutors aren’t actively pursuing charges against Pérez Vásquez, having instead deferred his prosecution if he complies with a judge’s instructions for twelve months.

The government also argued that Pérez Vásquez’s later removal order meant that a different detention statute now governed his custody, rendering his constitutional claims moot. Again, the court disagreed. It stressed that constitutional rights do not disappear simply because the statutory basis for detention changes. A new source of detention authority, the judge explained, does not erase an existing 5th Amendment claim or eliminate the government’s obligation to satisfy constitutional requirements before continuing to deprive someone of liberty.

The heart of the opinion is the court’s application of the familiar balancing test from Mathews v. Eldridge to determine what process the 5th Amendment required. Under that framework, courts must weigh the private interest at stake, the “risk of erroneous deprivation” by using the challenged process, and the government’s interest in using the challenged process.

The court had little trouble concluding that Pérez Vásquez had a substantial liberty interest in challenging his continued confinement. Having lived in Illinois for years, worked legally, and built meaningful ties, he had far more at stake than someone newly arriving at the border. The court found that the lengthy period during which the government had permitted him to remain free underscored the seriousness of taking that liberty away.

The second factor — the risk of erroneous deprivation — also weighed heavily in Pérez Vásquez’s favor. The court noted that civil immigration detention is not meant to punish people. For that reason, ICE can’t incarcerate a person just to make life more unpleasant or send a message that they did something wrong. Immigration detention is permissible only as a means of forcibly removing someone from the United States. Where removal is unlikely to occur soon, the government has little justification for detaining someone who is neither dangerous nor a flight risk without first determining whether detention is necessary. Here, the government did nothing more than suggest that removal to a third country might eventually occur. It never offered evidence that removal was reasonably foreseeable.

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The third factor also favored Pérez Vásquez because the government’s burden would have been minimal. The court emphasized that custody and bond hearings are routine procedures within the immigration system. While recognizing the government’s legitimate interest in enforcing the immigration laws, the judge concluded that those interests could be pursued while still providing basic procedural safeguards. It could, for example, give him a hearing at which it showed that he was either dangerous or a flight risk. Instead, the government failed to identify any legitimate reason for denying Pérez Vásquez a hearing before an immigration judge.

Having already detained Pérez Vásquez for almost seven months without giving him the constitutionally required process, the court ordered his release. It also barred immigration authorities from re-arresting or re-detaining him unless they first provide notice and a hearing before a neutral immigration judge, at which the government must demonstrate either that removal has become reasonably foreseeable or, by clear and convincing evidence, that detention is necessary because of public safety or flight concerns.

In a case that began with allegations involving unpaid bananas and wound up with a stint at Alligator Alcatraz, the court ultimately held that the Constitution — not the underlying misdemeanor allegations — controlled the outcome.

(Thanks to Robert Kahn of Courthouse News for letting me know about this decision.)

The court’s long-awaited decision in Trump v. Barbara blocked the federal government from enforcing Trump’s executive order. Five justices found that it violates the 14th Amendment’s citizenship clause. Justice Brett Kavanaugh was not convinced that Trump’s order was unconstitutional, but he did conclude that it violates a federal law enacted by Congress.

By contrast, Thomas and Gorsuch were more troubled by the majority opinion than the president’s directive. (Justice Samuel Alito filed a separate dissent.) Describing the majority opinion, written by Chief Justice John Roberts, as an “alternative theory” that is “difficult to square with the text” of the 14th Amendment, Thomas – who wrote the 91-page dissenting opinion – claimed that it “devalues” the citizenship conveyed by the Constitution. Thomas accused the majority of adding to the 14th Amendment’s “sad history,” lumping it alongside decisions permitting racial segregation on public transit, busing students to desegregate public schools, and affirmative action in university admissions’ processes.

In their view, the court should have focused on the legal concept of domicile and the constitutional phrase “subjection to the jurisdiction.” Mining statutes, judicial decisions, and legislative debates, Thomas parses these terms at length, concluding that they support Trump’s view of the 14th Amendment. “Domicile meant legal home,” he writes. This is important to a proper understanding of the citizenship clause, he contends, because domicile “made a person subject to the jurisdiction of the government of his domicile.” Without domicile in the United States, a person’s child should not be treated as a U.S. citizen even if born here, Thomas argues.

Tucked into pages of legal analysis and a lengthy account of the history of citizenship law in the United States (that historians have disputed), Thomas also set out to define what it means to be American and explain how it affects his view of the 14th Amendment. Writing about the 19th century – shortly before and after the Civil War – Thomas claims, “Blacks were entitled to citizenship because they were Americans.” This was true of “slaves and freedmen alike,” he writes.

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Common though it is, the word American doesn’t appear anywhere in the Constitution or the laws that Congress has enacted to convey U.S. citizenship to some people and not others. In law, some people are U.S. citizens, but no one is American.

Thomas sets out to define this term. Black people who were alive when the 14th Amendment was ratified were American because “[t]hey had no other homeland, owed no allegiance to any foreign power, and were subject to no other authority,” he writes. (It’s unclear whether Thomas would define as American a specific set of U.S. citizens: those Black people, or their children, who had lived in Mexican territory before the United States took it by force 20 years before the 14th Amendment was ratified, creating the possibility that they had another homeland and allegiance. Under the terms of the treaty that ended the war, residents of the enormous swath of territory that switched flags could elect to retain Mexican citizenship or become U.S. citizens. While some people relocated south, it appears that few who stayed chose to keep Mexican citizenship. Some, like Pío Pico, the last Mexican governor of California, hadn’t just represented another government in high office; they had led troops in its defense against U.S. invasion.)

Thomas ties his vision of citizenship to military service. And here, as throughout his dissent, he invokes Frederick Douglass. “As Frederick Douglass saw it, citizenship belonged to those who ‘fought and bled in the same battles,’ and ‘gained and gloried in the same victories,” Thomas writes, quoting from a letter that Douglass signed, along with four other 19th century abolitionists. Building off Douglass, Thomas suggests that the 14th Amendment grants U.S. citizenship to Americans only and Americans are people willing to fight and die for the place they call home: the United States.

Douglass certainly believed that the sacrifices Black people had made, and indignities they had suffered, were sufficient to qualify them as Americans. There can likewise be no doubt that he thought Black people were, and had every right to remain, rooted in the United States. “We ask that in our native land, we shall not be treated as strangers, and worse than strangers,” he said in 1853. Yet in the very same letter that Thomas cites, Douglass also explained that one of the bases “upon which we found our claim to be American citizens” was “we have been born and reared on the same soil.”

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Indeed, for Douglass to have broadened what it means to be American and lay claim to citizenship makes sense given his primary public role. He was a political activist unapologetically engaged in an ideological project meant to revolutionize the United States. Rhetoric was an important tool in Douglass’ political arsenal. In the years leading up to the Civil War, for example, he regularly claimed citizenship while calling out the hypocrisy of the nation’s continued permissiveness of slavery. Describing the United States’ conduct as “equally hideous and revolting,” he famously asked, in July 1852, “What, to the American slave, is your 4th of July?” A day in which “mere bombast, fraud, deception, impiety, and hypocrisy” are used “to cover up crimes which would disgrace a nation of savages,” he answered. Using fiery language was key to the ideological project to which Douglass was committed: to stamp out slavery and “vindicate[] our right to be regarded and treated as American citizens,” as he explained in the letter that Thomas quotes.

Despite Thomas’ use of Douglass’ rhetoric, while Douglass tried to expand who should be considered a rightful member of the political community, Thomas would like to limit who can be treated as a citizen. As Trump’s executive order would have done, Thomas believes the 14th Amendment excludes from U.S. citizenship children born to fathers who are neither U.S. citizens nor permanent residents and mothers who are in the United States without the federal government’s permission or with the government’s permission to be here temporarily.

Children born to parents with the citizenship or immigration status Trump describes lack the attachment to the United States required for citizenship, Thomas claims. “Americans, consistent with their settler ethos, believed that citizens were the people who called a place home,” he writes. As a description of U.S. law, that is incorrect. In 1790, when Congress enacted the first citizenship law in the nation’s history, children born abroad to some U.S. citizens were themselves recognized as citizens without regard to what place they, or their parents, call home. That remains true today.

Thomas’ invocation of Douglas’ vision of American citizenship is thus incomplete. Unlike Thomas, Douglass had a broad vision of Americanness. Thomas’ interpretation of the 14th Amendment, on the other hand, first defines American narrowly and based on a dubious account of U.S. history and then writes out of birthright citizenship everyone who doesn’t meet his definition. What is more, Thomas isn’t a self-avowed political activist openly attempting to radically and permanently alter the United States. As a justice of the Supreme Court, his obligation is to interpret laws, not reimagine contested, ever shifting, and poorly defined concepts that are popular in politics but nowhere to be found in law. Ultimately, his dissent in Barbara isn’t just an inversion of Douglass’ vision of belonging; it’s an attempt to masquerade ideological contestation as legal analysis.

This article was first published at SCOTUSblog on July 17, 2026 as part of the Immigration Matters column.

ICE agents shot and killed Salgado Araujo, a longtime Houston resident, and Guerrero, who lived in Biddeford, Maine, while they drove through their home communities. Salgado Araujo, who lacked the federal government’s permission to live in the United, was on his way to work with three other men. Fewer details are available about Guerrero, but it appears that he had lived in Biddeford, on Maine’s southern coast, for a few years with his wife and young daughter. A local immigrant rights group claims Guerrero had a federal work permit. Based on publicly available facts, it is clear that Salgado Araujo was violating immigration law, and had been for many years, when agents fatally shot through the window of the work van he was driving. It’s possible that Guerrero was also violating immigration law. ICE said in a statement that an agent shot him when he “attempted to flee the scene.”

Even assuming that Salgado Araujo and Guerrero were violating immigration law, including trying to escape from immigration officers, ICE agents can’t go around shooting at them. As a legal matter, their immigration status is irrelevant. Most violations of immigration law aren’t crimes. They are instead civil infractions closer to breaking a contract. No matter how much money is at stake, no one is allowed to enforce a contract at gunpoint.

Even those immigration law violations that are crimes – entering the United States without the federal government’s permission, a misdemeanor, or doing that after having previously been deported, a felony – don’t justify a shoot first, ask questions later policing strategy. The reason is simple: proportionality.

At its most basic, proportionality aims to find a consequence suitable to the severity of a legal violation. In his Sermon on the Mount, Jesus famously recalled, “Ye have heard that it hath been said, ‘An eye for an eye, and a tooth for a tooth’.” But just as Jesus cautioned against crude retribution – “whosoever shall smite thee on thy right cheek, turn to him the other also”, Jesus goes on – philosophers have developed a more nuanced appreciation of law’s role in handing out punishments. Jeremy Bentham thought punishment should be balanced. Just as punishment is meant to remedy a harm, we have to acknowledge that it harms the person to be punished as well as others close to that person (for example, spouses and children). To Bentham and others who adopt his utilitarian theory, punishment can only be justified if its overall benefit, including its potential to deter more lawbreaking by others, outweighs its cost. By contrast, Immanuel Kant rejected the argument that punishment could be meted out “to promote some other good.” Instead, he argued that retribution was the best justification for punishment.

Whatever the moral foundation for proportionality, it’s baked into the U.S. legal system through the Eighth Amendment that bars “cruel and unusual punishments” for crimes. As the Supreme Court explained in 1910, “it will be regarded as a precept of justice that punishment for crime should be graduated and proportioned to the offense.” But because most immigration law violations aren’t crimes, the Eighth Amendment is irrelevant. Even if it wasn’t, courts have turned the amendment’s prohibition into something just short of meaningless.

“Proportionality is scarce in immigration law,” legal scholar Juliet Stumpf wrote in an academic article several years. She’s correct, but just because something isn’t required by law doesn’t mean it’s not a good idea as a matter of policy.

ICE and its partners at the Border Patrol are proving unwilling to enforce immigration law in way that matches the infraction. Armed with high-powered weapons and cheered on from the highest echelons of the administration, they barrel through cities with guns at the ready. To the Trump team, every migrant is dangerous. Many citizens are migrants in hiding and others – people like Renee Good and Alex Pretti – are willing accomplices. Without fail, every death is their fault. Time and again, the facts show otherwise. Cell phone videos and doorbell camera recordings, emails between government officials and on-the-record testimony.

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Migrants and their allies are outgunned and out financed – literally – but they are not without legal tools to push back. Family members of the two people killed during the last week could go after ICE for financial compensation. As I wrote in January shortly after Border Patrol agents shot and killed Good in Minneapolis:

Separately, Salgado Araujo and Guerrero’s relatives could work with local prosecutors to investigate and potentially prosecute the agents for any crimes they might have committed. In February, after immigration officers killed Pretti, I explained the legal options available to prosecutors.

Only a public prosecutor can bring criminal charges in the United States. Relatives might want it, the Mexican government might ask for it, but, with limited exceptions, only state and local prosecutors are empowered to launch a criminal prosecution. That’s what happened in Minneapolis when the local prosecutor charged Border Patrol agent Christian Castro with assault and filing a false police report for having claimed that two migrants attacked him with a shovel.

Neither civil nor criminal pathway to accountability is easy. Both are filled with steep requirements and broad exceptions. Castro, for example, is still in Texas, even though prosecutors want him sent to Minneapolis. None of the agents involved in actually killing anyone have been prosecuted. There’s little chance that a state prosecutor in Texas will pursue criminal charges against the agents involved in killing Salgado Araujo. The state’s top elected officials, all Republicans, have been noticeably silent since he was killed. It’s too early to know what officials in Maine are likely to do.

As the facts unfold, one thing is clear: ICE has killed two more people in the last week. Unless something changes quickly, these are unlikely to be the last two.

The court’s decision in Mullin v. Al Otro Lado addresses facets of the Immigration and Nationality Act, the federal law governing migration, that apply when a person arrives at a U.S. land border crossing. Government officials staffing the border crossing interview everyone who arrives and, after a brief conversation and search of government databases, allow most people to proceed into the United States.

But when border crossing officers believe that someone lacks a legal basis for staying in the United States, they have multiple options available. Migrants can be detained at the border briefly and then released into the United States using a legal authority called parole. Alternatively, border officers can transfer migrants into the custody of the Immigration and Customs Enforcement agency, which can then release them or transfer them to one of its hundreds of immigration detention facilities. These options have one thing in common: the migrant is in the United States while the immigration legal process, including an opportunity for a hearing before an immigration judge, winds its course. Since 1996, border officers have had a third option available: quickly remove some migrants – except anyone who expresses fear for their safety – from the United States without involving the immigration courts. Anyone removed under the fast-track procedure, called expedited removal, is barred from returning for at least five years.

Writing for his colleagues in Al Otro Lado, Justice Samuel Alito inverted the basic legal structure that governs border-processing decisions. Instead of most people remaining in the United States, either in ICE’s custody or released on parole, while awaiting a court date, Alito suggested, incorrectly, that border officers quickly force most people out of the country. A border officer first decides whether a migrant is barred from entering the United States “on grounds related to, among other things, national security, foreign-policy concerns, and the alien’s health or criminal activity,” Alito explained. Anyone deemed inadmissible “must generally” be removed “without further hearing” through expedited removal, he wrote.

Alito is wrong. Expedited removal does not apply to everyone who is inadmissible. Despite his claim, people who border officers believe to be inadmissible for the reasons he listed are not, in fact, subject to expedited removal. Fast-track removal applies only to people who are excludable from the United States for two reasons: because they misrepresented an important fact to try to get into the United States or because they showed up at the border without a valid passport or visa. Indeed, Congress specified as much in the first half of the sentence that Alito quoted. But by ignoring the half of the sentence that limits expedited removal’s reach, the majority suggests that Congress gave border officers much more power than it did.

Congress did not create a legal system in which immigration judges only hear asylum claims by people who border officers suspect of inadmissibility. Instead, immigration law makes the immigration courts a central stop in the legal process for people who officers believe have violated most provisions of immigration law. There is good reason for this. For all their flaws, immigration judges are expected to act as neutral decision makers. Rather than demand that officials staffing busy border-crossing offices make complicated, high-stakes legal assessments on the spot while a queue forms ahead of them – increasing the risk of error – Congress put immigration judges in that role. As one federal appellate court explained, it’s the job of immigration judges “to fully develop the record.” And if a migrant or the federal government doesn’t like the immigration judge’s decision, they can do what migrants who are quickly expelled can’t: appeal.

“Justice Alito’s statement would take away from people seeking to enter the country — and some people already in it — their only opportunity to have their case heard by a neutral adjudicator,” Jonathan Weinberg, Distinguished Professor of Law at Wayne State University told me. “Instead, it would allow border officials to eject anyone seeking to enter the country, and impose a five-year bar on their returning, on the basis of their own mere say-so untethered in law,” he added.

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By suggesting that border officers are empowered to perform quick legal reviews and subject to summary removal people deemed inadmissible for most reasons, the court might lead ordinary people to believe that immigration courts are the exception rather than the rule. It might also entice executive branch officials to push immigration courts to the fringe of legal decision-making. Either should be an unwelcome outcome that the majority can correct by revising its opinion.

Indeed, the majority’s misunderstanding of this basic feature of immigration legal processes may have paved the way for its decision. As described by Alito, border officers are the central figures in border-area legal decisions and immigration judges are only bit players. Handing border officers the authority to stop migrants at the border and, consequently, block them from starting the asylum application process extends the broad power that the majority wrongly thinks they possess. But if the majority had understood border processing correctly, it might have been more reluctant to give border officers the power to make on-the-spot, life-or-death decisions, instead leaving that role to immigration judges who hear from lawyers, review evidence, and are required to make neutral decisions that can then be appealed.

This article was first published at SCOTUSblog on July 2, 2026 as part of the Immigration Matters column.

Twenty-five-year-old Balogun, who plays for AS Monaco in France’s top division, has been a standout performer for the USMNT during the World Cup. With three goals to his name during the tournament, he’s currently the team’s leading scorer. Missing today’s match thanks to the red card he received in last week’s game against Bosnia and Herzegovina weakened the USMNT. Any player who receives a red card is immediately removed from that match and the team is not allowed to substitute. The red card recipient is also automatically barred from at least the following match.

Yesterday, the soccer world was stunned to learn that Balogun would be allowed to play against Belgium. Following a phone call from Trump to FIFA President Gianni Infantino, FIFA made the shocking announcement that it had paused Balogun’s one-game suspension for one year.

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Trump said that he asked FIFA to review the referee’s decision. “He’s our best player, or one of our best players. And he gave him a red card. I didn’t know what that meant ... yes, I asked for a review by FIFA. [Balogun] didn’t do anything wrong, and he’s our best player or one of our best players,” Trump said about his conversation with Infantino. In a White House meeting, Trump’s ally, Ted Cruz, the Republican Senator from Texas, thanked Trump for “getting rid of that ridiculous red card.”

If Trump had been able to redefine the U.S. Constitution’s birthright citizenship guarantee, as he attempted, Balogun would not be a U.S. citizen. The Constitution’s 14th Amendment provides citizenship to “All persons born or naturalized in the United States, and subject to the jurisdiction thereof….” On his return to the presidency last year, Trump issued an executive order denying citizenship to any child born in the United States to a father who was neither a U.S. citizen nor permanent resident and a mother who was in the United States without the government’s permission or here with temporary permission only. Last week, the Supreme Court rejected Trump’s interpretation of the 14th Amendment.

Balogun has long described his family’s limited ties to the United States. He was born in Brooklyn in July 2001 while his mother was visiting her sister. Balogun’s mother, Florence Balogun, was born in Nigeria, but was living in England by the time she became pregnant with Folarin. When she tried to return to England, airline staff wouldn’t let her board a flight to London, explaining that she was too pregnant to fly safely. “She came to the U.S. to visit her sister, and she had her return ticket, but then they said that she was too pregnant. So, I was born in New York, but grew up in London,” Balogun explained in an interview. Less than two months later, Florence returned to England with newborn Folarin where she and Folarin’s father, Ben, continue living.

Had Trump gotten his way, Balogun would not be a U.S. citizen. There is little information publicly available about Ben or Florence’s U.S. immigration status, but neither appears to have strong ties to the country of their star child’s birth. All public accounts suggest Florence’s trip to New York was just a typical vacation to see her sister until the airline’s staff forced her to prolong her stay. Given that she flew to and from the United States, she was almost certainly in the United States with the federal government’s permission to be here temporarily. Like Florence, Ben was reportedly born in Nigeria and living in England at the time of Folarin’s birth. But it’s not clear that he has ever stepped foot in the United States. Unlike Florence, no news report suggests he was even in the United States on that fateful trip in 2001 when Folarin was born. With a mother who was in the United States temporarily and a father who appears not to have been, in July 2001, a U.S. citizen or permanent resident, the Trump administration would have liked to deny Balogun’s claim to U.S. citizenship.

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Ted Cruz would have gone even further. An amicus brief signed by nine Republican U.S. Senators, including Cruz, urged the Supreme Court to conclude that the 14th Amendment bars dual citizenship no matter the citizenship or immigration status of a child’s parents. “No one can have two countries,” Cruz and his colleagues argued. A similar amicus brief signed by eighteen Republican members of the House of Representatives made the same point. Given that Balogun is also a citizen of the U.K and Nigeria – given him three citizenships and three national team options – Cruz would have the federal government deny his claim to U.S. citizenship. Were it up to Cruz and the other Republican legislators who argued the court to deny dual citizenship, Balogun would be playing for England or Nigeria.

Neither Trump nor Cruz have explained the irony of attempting to strip Balogun of U.S. citizenship while celebrating the president’s intervention into the most important sporting event on the planet.

Today’s decision in Trump v. Barbara came after a years-long campaign by Trump to reinterpret the 14th Amendment. Added to the Constitution in 1868, in the aftermath of the Civil War, the amendment provides, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”

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In an executive order signed on his first day back in the White House last year, Trump instructed executive branch agencies to adopt a narrow interpretation of the 14th Amendment. According to Trump, government agencies would need to verify the citizenship and immigration status of the parents of children born in the United States before determining whether to treat them as citizens. A child would not be considered a citizen if their father was not a U.S. citizen or permanent resident and the mother was in the United States without the federal government’s permission or with the government’s permission under any of dozens of temporary visas.

Trump’s directive clashes with more than a century of court cases and government practice. Until today, the Supreme Court’s leading decision on birthright citizenship was the 1898 case of United States v. Wong Kim Ark, involving the child of Chinese migrants who was born in San Francisco. Wong’s parents lived in the United States lawfully – though they returned to China when their son was about twenty years old. At the time, federal law barred most Chinese people from entering the United States or becoming naturalized citizens. Despite those laws, the Supreme Court announced that Wong Kim Ark was born a U.S. citizen under the 14th Amendment. The court explained that there were only three exceptions to the Constitution’s citizenship guarantee: children born to invading military forces, foreign ambassadors, and Native Americans.

Today, the court announced that Trump’s executive order violates the 14th Amendment. The constitutional text has “broad reach and narrow exceptions,” Roberts wrote, before repeating the long-established exceptions for children born to foreign ambassadors and Native Americans. By contrast, “children born of parents unlawfully or temporarily present in the United States” are not exempted from citizenship. “Under the Constitution, they are citizens at birth,” Roberts announced. The citizenship or immigration status of their parents, he added, don’t appear in the 14th amendment “for a simple reason: they did not matter.”

The decision to reject Trump’s view was expected. Except for a procedural victory when this issue reached the Supreme Court last summer, the Justice Department had lost every stage of every lawsuit against the president’s citizenship order. Several justices expressed skepticism during oral arguments in April. Even Trump predicted he would lose.

While the outcome wasn’t surprising, the vote was. Only five justices – Roberts, Amy Coney Barrett, Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson – concluded that Trump’s order violates the 14th Amendment. Another justice, Brett Kavanaugh, found that it violates a federal law enacted by Congress, but not the 14th Amendment. If Congress were to change that law, as it is entitled to do, Kavanaugh would allow federal officials to implement Trump’s order.

By rejecting Trump’s view, the court left citizenship law intact. As has been true for more than 125 years, children born in the United States will continue to receive U.S. citizenship at birth regardless the citizenship or immigration status of their parents.

ICE, which operates a network of approximately 200 immigration detention facilities, is using an infusion of funding to detain tens of thousands of migrants daily. The One Big Beautiful Bill Act, which President Donald Trump signed on July 4, 2025, gives ICE almost $30 billion to hire enforcement officers and support staff, plus another $45 billion to pay for immigration detention facilities, through the end of September 2029. Relying on this funding, the agency has increased the number of people it detains. In January 2025, President Joe Biden’s last month in office, ICE held approximately 40,000, on average, each day. ICE now regularly detains more than 60,000 people per day, a drop from almost 72,000 individuals who were detained, on average, in January.

As ICE has detained more people, advocates for migrants have turned to federal courts to obtain their clients’ release. Attorneys have filed more than 52,000 petitions for writs of habeas corpus, which allows people who are detained to challenge the legal basis for their confinement, in federal district courts around the country.

In the midst of this, the Supreme Court announced yesterday that it will decide whether attorneys who challenge the Department of Homeland Security’s decision to detain a migrant can recover fees from the government. The Equal Access to Justice Act makes attorneys’ fees available to parties that successfully bring “any civil action (other than cases sounding in tort)” against the federal government unless the government’s position was “substantially justified.” Two courts of appeals – the U.S. Courts of Appeals for the 4th and 5th Circuits – have concluded that habeas challenges to immigration detention aren’t civil cases covered by EAJA. In their view, habeas is instead a “hybrid” action. Three circuits disagree. Relying on a long history of courts describing habeas as a “civil” action, the U.S. Courts of Appeals for the 2nd, 3rd, and 4th Circuits consider habeas a type of civil lawsuit that falls within EAJA’s broad attorneys’ fees language (although the 2nd Circuit determined the government’s position to be “substantially justified” in that case).

During the term that begins in early October, the justices will hear arguments in a case challenging the 4th Circuit’s position. In April, Kevin Isaac Montoya Palacios asked the court to intervene on his behalf. A citizen of El Salvador, Montoya Palacios received withholding from removal, a form of humanitarian protection from deportation, in September 2023. He then lived in the United States and states that he met regularly with ICE officials for more than two years, until December 2025, when ICE agents arrested him during a routine appointment. With the assistance of counsel, Montoya Palacios quickly filed a habeas petition, which U.S. District Judge George Russell granted. Despite having won, Russell denied Montoya Palacios’s request for attorneys’ fees under EAJA, citing the 4th Circuit’s position that habeas claims related to immigration detention are not a “civil action.”

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Last month, the U.S. Solicitor General, representing the federal government, also asked the justices to get involved. Like Montoya Palacios, the solicitor general acknowledges that the federal courts of appeals are divided on whether EAJA permits attorneys to recover fees in cases challenging the legality of a migrants’ confinement. Both parties also agree that there is little chance that the lower courts will settle on a single interpretation of EAJA’s attorneys’ fees provision that is applicable nationwide.

The court has not announced a date for oral arguments.

The existing disagreement among the circuits creates a split-screen effect. In some parts of the country, attorneys can request fees when they take on habeas immigration cases, whereas attorneys in other parts of the country can’t. Since federal district courts have jurisdiction over habeas claims based on the physical location in which a person is detained, attorneys whose clients are held in the 4th and 5th Circuits can’t hope to recover fees no matter how flagrant the government’s conduct.

The inability to recover fees from the federal government when ICE illegally detains someone in the those circuits matters because almost half of detained migrants are detained there. Housing more than 500 people, Virginia’s Farmville Detention Center is the largest of five facilities in the 4th Circuit, although it’s small in comparison to facilities in the 5th Circuit. Louisiana, Mississippi, and Texas – the three states within the 5th Circuit – are home to several of the largest prisons in ICE’s network. Of the 40 facilities that the agency uses in these three states, 11 held at least 1,000 people as of early April, the last date for which ICE has released data. Two housed more than 2,000 people: the Adams County Correctional Center in Mississippi and the East Montana Camp near El Paso, Texas. Combined, ICE held almost 47 percent of its total detained population – 28,180 of 60,311 – in 5th Circuit facilities in April.

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The court’s decision Montoya Palacios — whatever it is and whenever it comes — is likely to have a substantial impact on ICE’s detention operations. Without the ability to recover attorneys’ fees, it will be much more difficult for migrants to find attorneys willing to bring lawsuits challenging the legal basis of their detention. And if lawyers do not challenge ICE in court, then judges will be unable to oversee the massive incarceration operation that the agency has built up.

This article was first published at SCOTUSblog on June 17, 2026 as part of the Immigration Matters column.

Federal law guarantees that anyone who is “physically present in” or “arrives in” the United States can apply for asylum. No one who is outside the United States can request asylum. For that reason, location is a key starting point in the asylum process. Traditionally, migrants could request asylum by speaking with an officer staffing an immigration checkpoint at a border crossing. Because checkpoints are always located at a short distance from the actual international boundary, even if by just a few feet, there was never any question that migrants could request asylum.

But beginning in 2016, while Barack Obama was president, Customs and Border Protection – the DHS unit that polices the nation’s external borders – sent officers to the physical boundary between the United States and Mexico. There they would prevent most migrants hoping to request asylum from stepping foot in the United States, allowing only a small number to cross each day, through a process called “metering.” Everyone who was blocked had to wait, sometimes for months, in dangerous border cities that the U.S. government warns people from visiting. With little money and nowhere to go, migrants became easy prey. Robberies were common. Rape and murder weren’t unusual.

In a lawsuit filed by Al Otro Lado, an immigration legal advocacy group, the Supreme Court blessed the government’s metering practice. Even though courts typically interpret different words to mean different things, the six members of the court’s rightwing majority decided that “arrives in” means “physically present in.” Congress may simply have wanted “to make an important point as clear as possible,” Justice Samuel Alito wrote for the majority in Mullin v. Al Otro Lado. “A person arrives in the United States, then, only when he enters it,” he added. Stopped from entering the United States, migrants lack a legal right to request asylum.

The court also put at risk migrants who have undisputably entered the United States and obtained Temporary Protected Status, a type of humanitarian legal protection created in 1990 that permits citizens of unsafe countries to live and work in the United States. Citizens of seventeen countries were eligible for TPS when Trump returned to the White House in January 2025. Since then, his former secretary of Homeland Security, Kristi Noem, sought to terminate TPS for citizens of thirteen of those countries.

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In Mullin v. Doe, the court’s rightwing majority sided with the administration in challenges to Noem’s termination of TPS for Syrian and Haitian citizens. The law creating TPS bars courts from reviewing both the decision to grant or terminate TPS as well as the process by which the secretary of Homeland Security reaches that decision, the majority announced. The law’s “text is clear, and its plain meaning is very broad,” the majority concluded in another opinion written by Alito. “The TPS statute plainly bars consideration of respondents’ non-constitutional claims,” referring to the Syrian and Haitian citizens challenging Noem’s decision to end TPS.

By concluding that Congress barred courts from second-guessing anything related to TPS, the majority was able to avoid grappling with the Syrian and Haitian challengers’ arguments that Noem didn’t follow the process that Congress requires. That law instructs the secretary of Homeland Security to consult with other government agencies about conditions in a given country. The Syrians claimed that Noem didn’t meet the consultation requirement because, through an aide, she merely asked the State Department whether it had any foreign policy concerns about terminating TPS. For their part, the Haitians claimed that Noem didn’t meet this requirement because she never heard anything from the State Department prior to terminating TPS for Haiti.

The majority also rejected the Haitians’ claim that Noem’s decision to end TPS for Haiti was motivated, in part at least, by anti-Black racism. Quoting some of Trump’s many offensive comments about Haitians – including, for example, his claim that they are “poisoning the blood” of the United States, “probably have AIDS,” “eating the cats” and “eating the pets”, and his description of Haiti as a “shithole country” – they argued that Noem violated the Fifth Amendment’s guarantee of equal treatment by the federal government. According to the court’s leading equal-protection case, the 1977 decision Arlington Heights v. Metropolitan Housing Development Corporation, a government policy is unconstitutional if racial discrimination “has been a motivating factor.” Applying that standard, the majority concluded, “None of the cited statements by either the President or the Secretary was overtly racial, and in substance all expressed policy views that could rest on race-neutral justifications.” In particular, the majority noted that “one may oppose TPS” out of concerns about migrants’ economic impact.

What the majority didn’t do, however, was grapple with the specific comments Trump made. Indeed, it refused even to quote those comments, instead referring to them, three times, solely as the “cited statements.” Writing in dissent, Justice Elena Kagan called out the majority for this sleight of hand. Racism was so obvious in the president’s comments that “the majority (and for that matter, his own lawyers) cannot even bear to repeat” them, Kagan wrote in a dissenting opinion joined by Justices Sonia Sotomayor and Ketanji Brown Jackson.

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Today’s decisions are likely to increase immigration law violations. By allowing federal officers to stop migrants from beginning the asylum request process by blocking them at the border, the court is incentivizing clandestine entry into the United States. Al Otro Lado made this point to the justices, but the majority diminished its importance. Instead of trusting people who work with migrants daily (or academic researchers), the rightwing justices declared that metering “merely delays the date when some may enter.” After explaining the legal consequences of sneaking into the United States, the justices added that anyone “delayed due to metering would need a powerful reason to apply for asylum immediately for it to be preferable to run all the risks of illegal entry.”

That is true. No one prefers to wade across the treacherous Río Grande River or trek through the deadly Sonora Desert. But people do it when it’s better than waiting in violent Mexican border cities for an unknown number of weeks or months wondering how long it will be before violence, perhaps in the form or rape or death, arrives. As one migrant told sociologist Bertha Alicia Bermúdez as they both hid from cartel members, “Look at the floor, don’t look them in the eye; they do not want to be seen.”

Similarly, the TPS decision paves the way for the largest mass de-legalization initiative in the history of the United States. The court’s decision to allow DHS to strip Haitians and Syrians of TPS will immediately de-legalize approximately 330,000 Haitians and 3,900 Syrians. Soon the administration will likely move forward with plans to strip another 1 million people of their legal permission to live and work in the United States – citizens of Afghanistan, Burma, Cameroon, Ethiopia, Honduras, Nepal, Nicaragua, Somalia, South Sudan, Venezuela, and Yemen.

The humanitarian consequences of today’s Supreme Court decisions are astounding. In two decisions, the justices expanded the executive branch’s power and molded immigration law more clearly as just another tool in the president’s political toolbox.

Chinese citizen Muk Choi Lau became a permanent resident in 2007. In May 2012, prosecutors in New Jersey charged with him trademark counterfeiting. It turns out he was selling knock-off Coogi shorts. When he returned to the United States the following month, after a short trip to China, an immigration officer at JFK airport noticed the criminal charges in a government database. Lau hadn’t been convicted – and wouldn’t be for another year – but the immigration problems started immediately.

Federal law gives permanent residents, like Lau, easy access to the United States after routine trips abroad. Instead of treating permanent residents as if they were any other migrant, they are treated as if they had never left the United States. In a 1950 decision involving a permanent resident who immigration officers claimed threated the nation’s security, the Supreme Court explained that the Fifth Amendment’s Due Process Clause requires courts to “assimilate petitioner’s status to that of an alien continuously residing and physically present in the United States.”

To meet that constitutional requirement, immigration officers at the border (and airports with arriving international flights) treat returning permanent residents better than other migrants. According to federal law, a returning permanent resident “shall not be regarded as seeking an admission into the United States” unless one of six exceptions apply. The immigration officer who was working at JFK when Lau arrived in 2012 claimed that one of those exceptions applied. Based on the database indicating Lau had been charged with a crime, the officer decided that Lau “has committed” a crime involving moral turpitude. Lau was then treated as if he was seeking admission into the United States. His green card was taken away, and he was let into the United States under an alternative – and much more fragile – legal basis: parole.

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Almost a year later, in 2013, Lau pleaded guilty to the counterfeiting charges. A year after that, DHS started removal proceedings in immigration court, claiming that Lau’s conviction made him inadmissible from the United States. Lau challenged the government’s immigration case, arguing that he was wrongfully denied admission at JFK two years earlier. The immigration courts sided with the government, but a federal appeals court disagreed. To the U.S. Court of Appeals for the Second Circuit, a returning permanent resident like Lau can only be treated as seeking admission if the immigration officer has “clear and convincing evidence” that he had committed the crime prior to landing at JFK, relying on a common evidentiary standard used in immigration law.

Yesterday, the rightwing majority on the Supreme Court rejected the Second Circuit’s approach. To the court’s six rightwing justices, the Immigration and Nationality Act – the federal law governing immigration – doesn’t impose a clear and convincing evidence standard on immigration officers stationed at the border or an in-land ports-of-entry like JFK. The INA demands that an immigration officer determine if a returning permanent resident has committed a relevant crime but “it nowhere says that the Government has the burden to establish by clear and convincing evidence that the alien is an applicant for admission.”

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Having announced that immigration officers aren’t required to gather clear and convincing evidence about a returning permanent resident’s criminal activity, the majority doesn’t tell us how much evidence they are required to gather before stripping green-card holders of their preferential treatment.

The implications of the majority’s reasoning are staggering. Unlike permanent residents, who are authorized to work as they like, migrants who are allowed into the United States on parole must repeatedly request work authorization. And even though a returning permanent resident who is paroled into the United States technically remains a permanent resident while immigration proceedings are underway, that legal status is effectively useless if immigration officials take their physical proof: the green card itself. That’s exactly what happened to Lau fourteen years ago.

Worse, migrants who request admission can be detained indefinitely while their immigration cases are ongoing – a period that usually takes months but sometimes stretches for years. What this means is that permanent residents who leave the United States for a short trip, then return, can be thrown into an immigration prison based on evidence that they committed a crime – only the court didn’t bother to tell migrants or immigration officers how much evidence is required. Trusting immigration officials to not abuse their newfound power to drag permanent residents into an immigration crevice on an unknown quantum of evidence is “cold comfort,” as Nancy Morawetz writes.

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Under the Trump administration, DHS has shown extraordinary willingness to imprison as many migrants as possible. Meanwhile, Congress has provided it with generous funding to expand and maintain its detention regime. After yesterday’s decision, we may be on the verge of a massive uptick in the number of permanent residents who find themselves on the inside of an immigration prison.

Along with another case, Mullin v. Doe, which challenges former Secretary of Homeland Security Kristi Noem’s decision to terminate TPS for Syrians, Miot asks the justices to weigh in on the process that Congress requires DHS to follow before ending TPS. The law, enacted in 1990, clearly demands “consultation” between the DHS secretary and “appropriate agencies” of the federal government. Traditionally, DHS has sought and received information from the State Department regarding conditions in the designated country before reaching a decision.

The Justice Department has claimed that Noem asked for the State Department’s views and received them prior to deciding. “DHS solicited and received the State Department’s views on Syria’s and Haiti’s designations. The Secretary considered those views, along with country-conditions reports from U.S. Citizenship and Immigration Services (USCIS), before terminating the designations,” the Justice Department wrote to the justices in April.

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The newly disclosed emails show that’s not true. DHS requested the State Department’s view but didn’t hear back before Noem made her decision. Despite DHS efforts to hear from the State Department, Homeland Security failed to receive any input. “State recommendation for Haiti TPS has not come in despite many outreach,” a high-level DHS official wrote at 2:25 pm on June 2, 2025. Eleven days later, at 12:31 pm on June 13, Noem still hadn’t heard anything from her counterparts at the State Department, leading a senior DHS official to wonder, by email, whether Noem could do anything but extend Haiti’s existing TPS designation. Approximately 45 minutes later, at 1:12 pm, another DHS official responded that the decision had been made. “I can share that S1 recently elected to terminate Haiti without country conditions from DOS,” an official at DHS wrote, referencing Noem as S1.

Does it matter what happened? The Haitians challenging Noem’s decision argue it does. Consultation requires asking for and receiving input, they claim.

The Justice Department unsurprisingly disagrees. Indeed, they had already previewed this position. At oral arguments in April, the U.S. Solicitor General, D. John Sauer, told the justices that not asking for input would not constitute consultation, but anything more than that would. “What would happen, General, if the original email had been sent out and no response came back,” Justice Elena Kagan asked Sauer. “Would that also be consultation,” she added. Sauer did not hesitate. “Absolutely, yes,” he said. Noem “can’t force the Secretary of…the State Department to respond, and so, for that that reason, yes, that would be appropriate consultation too,” he added. This is a “made-for-litigation theory of consultation,” lawyers for the Haitian challengers told the justices last week.

There’s something to be said for the fact that the Justice Department appears to have misled the justices. Candor to any court isn’t just a nice feature of judicial process. It’s required. On top of that, honesty by the federal government’s top lawyers in high-profile litigation before the nation’s highest court is needed if legal proceedings are to be legitimate. It’s possible that the Justice Department lawyers didn’t know that they told the justices something that wasn’t true. This may be another instance in which DHS sets up the lawyers in the Justice Department to look like fools, at best, or liars, at worst.

No matter what happened inside the government, the justices now must decide whether it matters. My suspicion is this won’t slow them down. The court has previously let the government get away with false claims in immigration cases. In 2002, for example, the Solicitor General sent the justices data about the length of time migrants were detained. The following year, the court relied on that data to permit ICE to deny bond to certain migrants. Finally, in 2016, the Solicitor General informed the court that its data was wrong. It had told the justices that migrants were detained for about one-third the time that they were actually locked up for. The justices never did anything about it.

In Miot, the justices are likely to move forward with a decision despite the newly discovered evidence. They might announce that courts have no role to consider what constitutes consultation, as the Justice Department urges, so it doesn’t matter what they were told about Noem’s interactions with the State Department. Or they might separate the lawsuit brought by Haitians from the claim brought by Syrians, dismiss the Haitian case, and rule on the Syrian case, Mullin v. Doe, as they planned.

Whichever option they choose, my suspicion is we’ll receive a decision soon – perhaps as early as today. The justices are scheduled to release opinions this morning along with another batch on Thursday.

The second Trump administration’s immigration agenda has frequently made headlines, particularly ICE’s aggressive, violent tactics across the country. Meanwhile, nearly one hundred immigration judges have been fired since Trump returned to the White House and many replaced by military judges with absolutely no experience in immigration law. Reports from immigration attorneys and advocates suggest that this administration, as part of its “mass deportation agenda,” aims to create and stoke an atmosphere of such terror that immigrants will choose to “self-deport” rather than remain in the United States.

Many people observing ICE’s constant human rights abuses may be inclined to suggest that immigration enforcement agencies should use existing and legitimate institutions, like immigration courts, to carry out immigration enforcement. As a student attorney in the Immigration Policy Division of the Access to Justice Clinic at George Washington University Law School, I watched hours of hearings at immigration courts across the Washington, D.C. area. My observations revealed that immigration court, as it has historically functioned and as it is functioning now, is a key part of the machinery behind the horrors we are seeing on the news every day—nothing less than the banality of evil at work.

From what I saw in immigration court from August to December 2025, the Trump administration’s pledge to go after the “worst of the worst” hasn’t played out. Most noncitizens sitting in immigration court do not have so much as a parking ticket. Many of them have been in the United States for decades, with stable jobs and families who love and need them.

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U.S. immigration law for years has emphasized family ties to U.S. citizens. Now, though, even when someone has a clear path to a form of immigration relief based on their family ties, ICE attorneys have seemingly been instructed to oppose everything a noncitizen says in court. If a noncitizen did not have any gang ties, criminal history, or any other aggravating factors, ICE attorneys nevertheless argued for deportation because the immigrant’s family in the U.S. would not be negatively impacted.

I also saw an ICE attorney argue for, and an immigration judge accept, the months-long detention of an immigrant who had done things “the right way”—he had gone through the legal channel of applying for permanent residency through his U.S. citizen spouse. But this man remained separated from his family for months, waiting in jail for the Department of Homeland Security to process his paperwork. He had no internet access in detention, and the ICE attorney refused to give any updates about his application. Rather than pressing the ICE attorney, who works at the agency processing this man’s application, to inquire about the process so that he could be released from detention and reunite with his spouse, the judge told the immigrant that it would probably be in his best interest to “self-deport.”

The proceedings I saw were grim for most noncitizen respondents in the court, but it became exponentially worse for those who did not have legal representation. In immigration court, noncitizens are not guaranteed a lawyer if they cannot obtain one themselves, and it was clear that immigration judges by and large gave unrepresented noncitizens’ cases less leeway and less consideration. Immigration judges, contrary to what their title implies, are not part of a politically neutral, impartial branch of the government. Rather, immigration judges are employees of the Department of Justice—which means they’re subject to the same political control as employees of other parts of the executive branch. The lack of care for unrepresented noncitizens is therefore a direct reflection of the current administration’s policies.

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When judges did attempt to explain context and consequences to unrepresented noncitizens, they usually sounded annoyed, like they found it inconvenient to make any effort to fulfill their duty of ensuring noncitizens’ due process rights. In one hearing in which the noncitizen had applied for voluntary departure, the judge asked the man whether he had enough money to pay for his own transportation. When he started to explain his answer, the judge yelled at him to stop talking and to just answer “yes” or “no.”

We often think of courtrooms as a place where judges hear both sides of a story and come to a balanced decision after evaluating the strengths and weaknesses of both arguments. But immigration courts, more so than most other courts, operate in the opposite way. In the hearings I saw, the immigration judges appeared to begin their evaluations of each noncitizen’s case with the presumption that they should be removed. And rather than giving noncitizens any meaningful opportunity to present their cases, I saw immigration judges refuse to engage patiently or respectfully with people whose rights are abused by the immigration enforcement scheme every day.

Regardless of whatever superficial “safeguards” the government implements in its attempt to legitimize immigration court procedures, these courts ultimately operate to reinforce its unfettered power to treat noncitizens however it wants. As they currently function, immigration courts are just a cog in the government’s anti-immigrant machine.

Aditi Kharod is a graduate of the George Washington University Law School and an aspiring immigration lawyer and advocate.

The court runs two calendars: the merits docket and the emergency docket. Through the merits docket, the court receives detailed written arguments from the parties, followed by in-depth oral arguments that can stretch over an hour with increasing frequency. The merits docket operates on an October to June schedule. The court begins hearing arguments on the first Monday in October and stops at the end of April. Meanwhile, by tradition, it releases the last of its opinions by the end of June. Since the end-of-June deadline is just a customary practice – it’s not mandated by law – in recent years the court has occasionally released merits-docket opinions in early July. By contrast, the court’s emergency docket operates year-round to accommodate disputes that can’t wait for the court’s usual process to unfold.

Typically, the court releases merits-docket opinions in loose correlation to the date on which the case was argued. The sooner a case was argued, the sooner the justices finalize and release the court’s decision.

That said, more contentious decisions tend to come later in the calendar because they take more time to write. The justices share drafts of their opinions with their colleagues, partly with the hope of winning each other over and partly so that they can respond to each other. The more disagreement that exists, the more time it takes to do this.

The three immigration cases that remain to be decided were heard relatively late on the court’s argument calendar. The court heard arguments in Mullin v. Al Otro Lado, about the federal government’s authority to block migrants at the country’s border to prevent them from applying for asylum, on March 24. It heard arguments over President Trump’s attempt to narrow access to birthright citizenship – in Trump v. Barbara – on April 1. Several weeks later, on April 29, it heard arguments in two cases that it combined into one matter, Mullin v. Doe and Trump v. Miot, that address the secretary of Homeland Security’s power to terminate Temporary Protected Status, humanitarian legal protection created by Congress in 1980. In addition, none of these cases are likely to be unanimous, so the justices need time to circulate draft opinions.

The court also hasn’t decided Blanche v. Lau, a case about the proper standard of proof required to strip a lawful permanent resident of their immigration status and then remove them from the United States.

At this point in the year, the court usually issues opinions on Thursdays. That can sometimes get jumbled by the last-minute rush to release opinions by the end of June, as well as holidays. Last year, for example, Juneteenth, a federal holiday, fell on the third Thursday in June. The court instead released opinions on Wednesday and Friday that week. It issued its final decisions on Thursday and Friday of the following week, the last full week in June.

As of today, the court has announced plans to release opinions on Thursday. It hasn’t said anything about releasing decisions past that, but it’s almost certain to do so. There are simply too many opinions left to be announced in one day. Count on the court also releasing opinions on Thursday, June 25 as well as two more days, possibly as late as Thursday, July 2.

The court does not announce in advance which decisions are going to be released on a given date. Determining which decisions it will announce is a guessing game informed by unsophisticated elimination: Since we know which cases were argued this term, we know which haven’t yet been decided. Beyond that, we just wait and see.

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While she was still secretary of Homeland Security, Kristi Noem announced last year that citizens of 13 countries, including Haiti and Syria, would lose TPS, a legal authority that allows certain migrants to live and work in the United States for humanitarian reasons. Geoffrey Pipoly, who represents Haitian TPS recipients, argued that the Trump administration’s choice to terminate TPS protections racially discriminated against migrants of color, showing a “bare dislike of Haitians in particular.”

Alito pushed Pipoly to clarify the boundaries of the racial classifications that he argued violate the due process clause of the U.S. Constitution. “Do you think that if you put Syrians, Turks, Greeks, and other people who live around the Mediterranean in a lineup, do you think you could say those people are … all non-white,” Alito asked. “How about southern Italians,” he added, in a reference to his own heritage. After Pipoly responded by saying that “our concept of these things evolves over time,” Alito added, “[y]ou have a really … broad definition of who’s white and who’s not white.”

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Alito’s main point was to express his distaste for racial line-drawing. “I don’t like dividing up the people of the world arbitrarily into three racial groups,” he told Pipoly. But by presenting Pipoly with a series of hypotheticals seemingly intended to highlight the ambiguous boundaries of racial categories, Alito thrust the court into familiar territory in defining race. On multiple occasions, the court has addressed racial categorization’s role in immigration law. In every instance, the court’s decisions categorize people based on race or allow immigration law enforcement officers to do so.

In a pair of cases decided roughly a century ago, the court created the judicial version of the lineup that Alito asked Pipoly to imagine. Takao Ozawa, a longtime resident of the United States, was not eligible for naturalization because, as “a person of the Japanese race,” he was not a “white person,” the court announced in 1922. Starting in 1790, federal law limited citizenship through naturalization to “free white persons,” adding people of African descent in 1870. Ozawa urged the justices to interpret the law’s text to exclude only Black people and Native Americans, as the legislators who voted on it would have. Instead, the court chose to rely on “numerous scientific authorities.” In a unanimous opinion in Ozawa v. United States, Justice George Sutherland wrote that “the words ‘white person’ were meant to indicate only a person of what is popularly known as the Caucasian race.”

Three months later, the court adopted the opposite approach to racial categorization, but with a similar result. Bhagat Singh Thind, who was born in northwestern India, was also not a “white person,” Sutherland again declared for a unanimous court. Having taken the position a year earlier, in Ozawa, that “the phrase ‘white persons’ and the word ‘Caucasian’ are synonymous,” Sutherland turned to the fact that India’s Punjab region, where Thind was born, was “classified by certain scientific authorities as of the Caucasian or Aryan race.” Staying true to the “scientific” approach used in Ozawa, the court would have concluded that Thind was white. But grouping an Indian alongside people “from the British Isles and Northwestern Europe,” or “immigrants from Eastern, Southern and Middle Europe, among them the Slavs and the dark-eyed, swarthy people of Alpine and Mediterranean stock,” would astonish “the average well informed white American,” Sutherland explained in United States v. Thind. Instead of surprising white people, the court pivoted away from the “scientific” approach it adopted in Ozawa in favor of interpreting “white” according to the “understanding of the common man.” Using this method, the court concluded that Thind was not white. He was therefore ineligible for U.S. citizenship.

Congress removed the last racial eligibility requirement from naturalization laws in 1952, but race-based assessments continue to have an important role in enforcing immigration law. In a pair of cases decided approximately 50 years ago, the court developed a legal doctrine for race-based policing of immigration law. In United States v. Brignoni-Ponce, decided in 1975, the court allowed immigration officers to consider a person’s “Mexican appearance” when deciding who to stop for questioning. When deciding who looks Mexican, officers can consider a person’s “mode of dress and haircut,” the court added. One year later, in United States v. Martinez-Fuerte, the court announced that immigration officers could subject a person to in-depth, time-consuming questioning “largely on the basis of apparent Mexican ancestry.” Classifications based on physical characteristics are a hallmark of racial profiling.

The court’s immigration-law racial profiling doctrine remains relevant today. Last summer, a federal district court judge temporarily barred immigration officers from considering a person’s “[a]pparent race or ethnicity” when deciding who to stop and question in California. After the U.S. Court of Appeals for the 9th Circuit declined the government’s request to stay the district court’s order, the Justice Department asked the Supreme Court to intervene. The government’s written request to the court relies heavily on Brignoni-Ponce, arguing that the case permits immigration officers to consider “a person’s appearance,” including “apparent race or ethnicity.”

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In a one paragraph order issued last September in Noem v. Vasquez Perdomo, a majority of the justices agreed with the government’s request to lift the district court’s order prohibiting immigration officers from relying on a person’s race or ethnicity. Though the majority did not provide its reasoning, Justice Brett Kavanaugh explained his position in a ten-page concurring opinion that cited to Brignoni-Ponce nine times. Considering a person’s apparent race or ethnicity (among other factors) when assessing potential violations of immigration law isn’t just legally permissible; it is “common sense,” Kavanaugh explained. In his view, Brignoni-Ponce isn’t limited to Mexicans. Instead, Brignoni-Ponce’s acceptance of “apparent ethnicity” allows officers to stop and question people who look like they “come from Mexico or Central America,” he wrote.

Eight months later, Alito seems to have forgotten what Kavanaugh knows well: the court has long permitted immigration officials to engage in racial profiling. And, every time, the result has hurt the interests of people who the court itself designates as not white. Instead of addressing whether the president’s derogatory remarks about Haitians constitute impermissible racial discrimination, Alito prodded Pipoly to clarify racial boundaries that the court’s own decisions have long treated as malleable and yet discernible.

This article was first published at SCOTUSblog on June 4, 2026 as part of the Immigration Matters column.

The administration’s World Cup point person, Andrew Giuliani, claims that only citizens of two competing nations, Iran and Haiti, will have difficulty entering the United States. Giuliani, who heads the White House Task Force on the FIFA World Cup 2026 and is the son of Trump loyalist Rudy Giuliani, said last week that only citizens of Iran and Haiti are being kept out of the United States, which hosts the sporting spectacle alongside Canada and México. Iranians can’t get a visa “for obvious reasons,” Giuliani explained. Haitians won’t get visas “until the overstay rate gets significantly lower – at 31 percent that is extremely high and unacceptable,” he added.

It’s unclear what obvious reason Giuliani had in mind. Trump’s war against Iran isn’t itself a legal basis for excluding Iranians. Perhaps the reason that the president hasn’t used the war as an excuse to ban Iranians is that they were already barred from entering. Last December, Trump banned all Iranian citizens from entering the United States. The ban also applies to Haitian citizens (along with some citizens of another forty countries). Importantly, the president exempted members of teams competing in the World Cup. Players on Iran’s team, which moved its training and lodging site from Tucson to Tijuana, have been granted visas, but some staff – including the team’s official photographer – have had their visas denied.

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Giuliani’s reason for excluding Haitians – the country’s overstay rate – likewise makes little sense. Overstaying a visa means that a person failed to leave the country after temporary permission to visit expires. It is a common form of immigration law violation. As with all immigration law violations in the United States, a person who overstays a visa can be detained and deported. Every year, hundreds of thousands of people overstay their visas in the United States. According to the Department of Homeland Security’s most recent annual estimate of overstays, migrants overstayed on 538,548 instances in the year ending September 2024. That’s a slight decrease from the previous year in which DHS estimates people overstayed on 565,166 occasions.

Aside from Iranians and Haitians, “everybody else has the opportunity for their B-1/B-2,” Giuliani told reporters, referencing common visas for short-term business or personal visits.

The government’s assessment of overstays doesn’t support Giuliani’s justification. First, Giuliani suggested that the legal basis for banning Iranians differs from the reason for excluding Haitians, but the same presidential directive, issued last December, affects citizens of the two countries identically.

Most importantly, Giuliani’s reference to the high overstay rate by Haitians overlooks a simple fact: it’s far from the only country with a lot of overstayers. The government’s most recent report indicates that Haitian citizens who entered the United States on a B-1 or B-2 visa overstayed on 15,981 instances during fiscal year 2024. That’s an overstay rate of 24.84 percent. The higher rate that Giuliani mentioned includes a broader category of visas that are not relevant to people hoping to visit the United States to attend World Cup matches.

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While Haiti’s overstay rate among people who receive a business or pleasure visa is higher than most, Giuliani’s emphasis on the percentage of violators among people who receive visas overlooks a smaller percentage of a bigger number of visitors can result in many more immigration law violations. That’s exactly what happens year after year. Several countries that are not subject to travel bans regularly see their citizens overstay more often. Citizens of Ecuador, for example, overstayed B-1 or B-2 visas on 16,472 instances. Their Columbian counterparts overstayed on 24,894 occasions and Brazilians on 21,340 occasions.

Western Europeans, who typically aren’t required to obtain a visa to enter the United States for a short period, also frequently violate immigration law by overstaying. French citizens who came for short-term business or pleasure failed to leave on 9,724 instances and Spaniards on 14,561 instances. Both countries are strong contenders to win this year’s World Cup. Neither is under any extraordinary restrictions. Indeed, visa-free travelers who overstayed during fiscal year 2024 could fill even the largest stadium hosting World Cup matches this year, the 94,000-seat venue in Dallas. According to DHS, there were 99,516 overstay instances from Europe, Japan, Australia, and the handful of other countries whose citizens can avoid visas.

Admittedly, none of these countries has an overstay rate anywhere near Haiti’s. Spain and Portugal’s overstay rates – 2.38 percent and 2.3 percent, respectively – are the highest among this group of countries, but, collectively, they account for 23,883 overstay instances – thousands more than Haiti.

The administration’s incoherent basis for banning some fans from visiting the United States may help explain why a Somali referee was barred from working the tournament. Omar Abdulkadir Artan, a citizen of Somalia who was named Africa’s top referee last year, was turned back at the Miami airport over the weekend. Somalia is among the dozens of countries on Trump’s travel ban. FIFA, which organizes the tournament, confirmed that Artan will not be able to officiate as planned.

If the goal is to punish countries where an unacceptably high percentage of a small number of its citizens overstay visas, then the Trump administration has chosen a good approach. But if the goal is to target citizens of countries whose citizens overstay in large numbers, then the administration’s approach is exactly backwards. Whatever the goal, the administration’s approach necessarily pushes the politics of immigration into the World Cup experience.

The Supreme Court is unusual in that it has almost complete control over which cases it considers. Unlike U.S district courts and circuit courts, which must decide the cases that are filed with them, the Supreme Court gets to pick which cases it hears out of the thousands of requests that it receives from lawyers, including the Justice Department. Every year, the justices hear arguments in approximately 75 cases through the part of its workload called the merits docket – the traditional process in which parties typically have several months to submit written briefs and present oral arguments, after which the justices take another few months to issue lengthy written opinions addressing the merits of the legal dispute. The justices also decide cases that reach it through a separate, fast-paced process, called the emergency docket (also known as the shadow docket or the interim docket).

Without doubt, one of the court’s principal functions is to resolve disagreements among lower courts. “Americans file about 50 million lawsuits a year, and you give us the 70 hardest ones, where lower court judges have disagreed about what the law means about a statute or a provision of the Constitution dictates in a particular case,” Gorsuch said in a televised interview earlier this month. Indeed, the short list of “compelling reasons” for the court to hear a case that appear in the court’s rules include two common types of disagreement. The court is more likely to add a case to its calendar when federal courts of appeals have issued conflicting decisions, referred to as a circuit split, or when decisions from the highest courts in two or more states interpret federal law differently.

A close look at the immigration cases that the court agreed to hear this term, which began last October, suggests that the court didn’t limit itself to resolving disagreements, however. The most high-profile immigration matter to appear on the court’s docket – the ongoing dispute over the legality of President Donald Trump’s executive order attempting to limit access to birthright citizenship – features remarkable agreement. Multiple courts deciding multiple lawsuits concluded that the president’s order is illegal. Whether a lawsuit was brought by private individuals, non-governmental organizations, or states, the parties challenging Trump’s birthright citizenship directive won at every stage of every lawsuit (except on the procedural question of whether district courts could issue nationwide bars of such executive actions). On April 1, the justices nevertheless heard argument on the issue in Trump v. Barbara.

The other well-publicized immigration policy matter that the court added to its merits docket this term concerns Temporary Protected Status. That litigation’s trajectory also shows immense agreement among lower courts. Indeed, the dispute before the court –

over the secretary of homeland security’s authority to terminate TPS for Syrians and Haitians, which was argued on April 29 – joined two cases, involving decisions from four courts, that came to the same conclusion. In Doe v. Noem, the U.S. District Court for the Southern District of New York explained that Kristi Noem, who served as secretary of homeland security when DHS announced that it would no longer provide TPS to Syrian citizens, violated federal law. A three-judge panel of the U.S. Court of Appeals for the 2nd Circuit unanimously denied the Trump administration’s request to stay the district court’s order while it appealed, noting, as the district court had, that the government was likely to lose. Similarly, in Miot v. Trump, the U.S. District Court for the District of Columbia found that Noem violated federal law by attempting to terminate TPS for citizens of Haiti. Two judges on the U.S. Court of Appeals for the District of Columbia agreed and denied the government’s request to stay the district court order pending appeal (although over a dissent).

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Litigation over the legal rights of asylum-seekers blocked at the U.S. border, also currently awaiting a decision by the justices, likewise didn’t arrive before them after lower court disagreement. In Al Otro Lado v. Mayorkas, the U.S. District Court for the Southern District of California stopped the Biden administration from refusing to consider asylum applications from people physically blocked at the border by DHS officers. The U.S. Court of Appeals for the 9th Circuit affirmed that part of the district court’s decision. When the government asked the full 9th Circuit to hear the case, the court declined over dissents by 12 judges. No other courts issued opinions in similar lawsuits, meaning that it would be impossible for a circuit split to exist.

That there is no conflict among lower courts in the legal challenges to immigration policies that have reached the court’s merits docket this term suggests that something else is going on. Despite Gorsuch’s comment, the court doesn’t only resolve disagreements among lower courts. It also weighs in on important questions of federal law. As the court’s rules note, it is more inclined to weigh in when a state court or federal court of appeals “has decided an important question of federal law that has not been, but should be, settled” by the Supreme Court or has decided it “in a way that conflicts” with the court’s prior decisions. The court can choose what it defines as important and, until the justices issue opinions, only they know whether the circuit court decisions in the TPS and asylum-access cases conflict with prior Supreme Court decisions. But Barbara, the challenge to the president’s birthright citizenship directive, doesn’t involve a court of appeals or state court decision. So that leads to one conclusion: the court considers these cases of “imperative public importance.”

From outside the court, it’s impossible to know why the justices added these three cases to the court’s calendar. Furthermore, assessing a case’s importance when filling the limited slots on the court’s merits docket doesn’t necessarily reflect anything inappropriate. But unlike instances in which the lower courts disagree, the alternative pathways to Supreme Court review require deliberate choices by the justices. The court didn’t have to become involved in these disputes; the justices wanted to. By doing so, the court has guaranteed itself a starring role in some of the president’s most prominent policies and in the political storm that swirls around them.

At his confirmation hearing before the Senate Judiciary Committee, Chief Justice John Roberts famously compared judges to baseball umpires. As a judge, “it’s my job to call balls and strikes, and not to pitch or bat,” Roberts said. In choosing cases where the lower courts all agree (or where disagreement is impossible because only one court has considered the issue), however, the justices do more than act like neutral umpires. The justices also pick the teams.

This article was first published at SCOTUSblog on May 20, 2026 as part of the Immigration Matters column.