Despite the lopsided result in district courts, Sauer described an “untenable divide” at the appeals court level. Five appellate circuits have ruled on the issue, breaking 3-2 against the administration. A divide among appeals courts typically makes the Supreme Court more likely to intervene.
The matter is still pending in another six circuits and could result in additional rulings at any moment. The Trump administration is appealing a ruling of the 6th Circuit Court of Appeals, which rejected the administration’s approach last month and also found people subject to the administration’s new view of mandatory detention have a constitutional due process right to a bond hearing.
“Especially given the volume of cases involved, this Court should grant review and resolve this case as swiftly as practicable,” Sauer wrote in a brief urging the court to take up the issue.
The result of the administration’s new policy, adopted on July 8, 2025, has been a tsunami of emergency lawsuits filed by people swept up by the new policy. Those cases have inundated courts in every corner of the country, straining the judiciary, inflaming tensions between judges and the Justice Department, and exposing ruptures between DOJ lawyers and their counterparts at ICE. The cases have spiked amid enforcement crackdowns like Operation Metro Surge in Minnesota and Operation Midway Blitz in Chicago, which have coincided with broader, sometimes violent encounters between anti-ICE demonstrators and law enforcement.
Since Congress updated immigration laws 30 years ago, the modern system has required detention primarily for people apprehended crossing the border or soon after. Those with established roots in the country — often with spouses and children who are U.S. citizens — have been afforded bond hearings in immigration court, a chance to prove they can live safely in their communities while their deportation proceedings pend for months or years.
But the Trump administration adopted an unprecedented reinterpretation of the law, treating people apprehended anywhere in the country — no matter how long they’ve lived here — as though they had just crossed the border, subjecting them to mandatory detention without bond.