Immigration Detention Expansion by Stealth

A quiet but dramatic expansion of the government’s civil immigration detention power has taken place in recent years, beginning with the first Trump Administration but then taking further hold after President Trump left office at the end of his first term.  The stealthy change in detention has taken place through legal interpretations that sweep additional migrants, specifically certain asylum seekers, into a legal category of mandatory detention that allows for presumptive and non-reviewable detention.  The result is widespread deprivation of liberty without review of the justification for that loss of freedom.  This new detention landscape provides a permissive backdrop for the second Trump Administration’s explicit plans for mass detention of migrants.  The expanded immigration detention authority normalizes widespread immigration detention and provides a legal platform for even broader detention without review.  Taking advantage of that reality, the current Trump Administration has undertaken an effort to push existing boundaries of immigration detention even further, including by sending migrants to Guantanamo Bay, holding entire families in custody, and utilizing military bases as detention camps.  This Article highlights the dangers of expansive and expanding detention authority and urges a return to fundamental liberty principles in the immigration detention context.