Immigration Detention Expansion by Stealth

A quiet but dramatic expansion of the government’s immigration detention power has taken place in recent years. The stealthy change in detention has taken place through broad agency interpretations of dicta in the Supreme Court’s Jennings v. Rodriguez decision relating to immigration detention authority. The result is widespread loss of freedom without any established justification or review. The new detention authority has had direct negative impacts for asylum seekers at the border and now is expanding to affect many other migrants as well. This detention landscape has provided a permissive backdrop for the second Trump administration to engage in mass detention of migrants. This Article suggests approaches for addressing and counteracting the expansion of immigration detention power. It insists that reinterpretation of the statutory framework and the imposition of constitutional limits on detention are necessary to restore liberty as a central principle.