Fifth Circuit panel authorizes mass incarcerations

February 9, 2026

A decision by a three-judge panel of the Fifth Circuit Court of Appeals endorsed Trump’s dystopian contention that any immigrant subject to deportation must be held without bond until final disposition of their case. The decision was a surprise outcome that flies in the face of hundreds of contrary holdings over three decades. Although the precise number of US immigrants subject to detention under the ruling is difficult to quantify, it almost certainly numbers in the hundreds of thousands. Depending on how the Trump administration chooses to implement the ruling, it puts millions of US immigrants at risk of immediate and permanent detention (as explained below).

In short, the decision changes Trump’s mass deportation policy from the “worst of the worst” to “everyone.”

Trump’s mass deportation policy is historically unpopular. Sixty-three (63%) of Americans already disapprove of how ICE is enforcing immigration laws, while only 34% approve—a drop of about 10% over the last six months. See Quinnipiac University (2/4/26).

The decision by the Fifth Circuit panel will supercharge ICE detentions and deny release bonds to everyone who entered the country illegally.

At the moment, the ruling applies only in states included in the Fifth Circuit, i.e., Louisiana, Mississippi, and Texas. That fact will increase the likelihood that the administration will immediately transfer detainees to detention facilities in those states. If the Trump administration adopts that strategy, an immigrant who entered the US illegally would be transferred to Louisiana, Texas, and Mississippi, and held in permanent detention.

The decision is at odds with hundreds of rulings by other federal judges over the last two decades. See this excellent analysis by Chris Geidner in Law Dork, Two judges on the Fifth Circuit gave Trump exactly what he wants to enact mass detentions.

As explained by Geidner,

As Law Dork covered, district court judges across the board have rejected the Trump administration’s interpretation — more than “160 different judges sitting in about fifty different courts spread across the United States,“ per a count from U.S. District Judge Lewis Kaplan in a November 2025 decision that has been cited across the country in the months since. Only in a dozen of 362 cases identified did the district court judges side with the Trump administration, Kaplan, a Clinton appointee found.

As Geidner notes, the ruling is nonsensical. If the interpretation adopted by the Fifth Circuit panel were correct, Congress would have noted that the law mandated the detention of millions of immigrants at the time it passed the law in 1996. There was no such discussion at the time the law was passed—a seismic result that surely would have been noted. In short, the Trump- and Reagan-appointed judges on the panel are just making things up—a form of jurisprudence to which MAGA judges are partial.

The decision is so bad that it presents a rare case in which the entire Fifth Circuit, or the US Supreme Court, might rule against Trump on a MAGA policy.

In the meantime, the “on-the-ground” implications are dramatic and alarming. ICE has every incentive to increase its “Kavanaugh stops”—unconstitutional detentions based on racial profiling. If ICE “gets lucky” in detaining people based on race and finds someone who entered the US illegally, that person will remain in custody indefinitely. The number of detentions will skyrocket, turning the US “mass deportation” policy into a “mass incarceration” policy.

Americans are resisting ICE’s efforts to “warehouse” humans in commercial buildings being converted into jails. Citizens are showing up by the hundreds and thousands at city council and county board meetings, pressuring elected officials to tell ICE, “Not in our house!” See NYTimes, As American Views of ICE Dim, Warehouses Become a Symbol of Resistance. (Gift article, accessible to all.)

Per the NYTimes,

A year into the Trump administration’s immigration crackdown, communities across the United States are opposing plans to convert warehouses into detention centers. The warehouses have become a potent symbol for critics who have painted them as inhumane places with grim accommodations. [¶]

A broad majority of voters — 63 percent — disapprove of the way ICE is handling its job after a year in which Mr. Trump deployed thousands of federal officers to cities led by Democrats, creating wide-scale protests and scenes of chaos on the streets. Sixty-one percent of voters said that ICE had “gone too far,” including nearly one in five Republicans.

Unfortunately, the decision will embolden Trump and his architect of mass deportations, Steven Miller. ICE will likely act more aggressively and lawlessly, and the number of those in detention will increase dramatically. Although the ruling may not stand, it will increase fear among the immigrant community and their families as it is challenged on appeal.

At the same time, the inability of the Trump administration to understand that it is sowing the seeds of its own destruction gives us reason to hope. Americans did not vote for mass deportations, a policy that is literally traumatizing America. ICE has become the personification of cruelty for the Trump administration.

Against this backdrop, Republicans have the opportunity to negotiate restraints on the illegal tactics routinely used by ICE. But only a week to go until DHS runs out of funding, Republicans have not responded to Democratic proposals for reining in ICE. See The Hill, GOP, Democrats expect DHS shutdown after talks fizzle.

It appears that Republicans will adopt their usual negotiating posture: They will offer nothing. Democrats have the upper hand, having asked for reforms that would bring ICE into compliance with the Constitution and practices followed by law enforcement organizations across the nation.

The decision by the Fifth Circuit panel and the upcoming showdown over DHS funding are unsettling, but these are necessary fights. We must endure a period of instability and uncertainty, even as we have seized the momentum. Any rational administration would recalibrate a policy detested by a strong majority of Americans. But Trump and Steven Miller will double down on their evil policies because they are unable to do otherwise.

American citizens continue to rally to the defense of their neighbors, friends, co-workers, and community members. The worst of Trump’s policies have brought out the best in Americans. The fight is not over, but we are winning the most important battle of all—for the hearts and minds of the voters. In the end, that victory will matter most.

Tulsi Gabbard gives inconsistent explanations for the months-long delay

Tulsi Gabbard failed to transmit to Congress a whistleblower report alleging an “urgent” national security concern. An inspector general for the intelligence community said that “the intelligence report from which the complaint was derived is the most sensitive to-date received by” the inspector general’s office.

Tulsi Gabbard sat on the complaint for more than six months. Her “explanation” is that a lawyer appointed by her failed to advise her to refer the matter to Congress. Of course, as the chief intelligence officer in the US, Gabbard should understand her reporting requirements to Congress without prodding from others. Her excuse is pathetic—and contradicted by other lawyers in the inspector general’s office, who claim that Gabbard was notified nearly nine months ago. See The New Republic, Tulsi Gabbard’s Whistleblower Case Just Got a Whole Lot Worse for Her.

We do not know the subject of the whistleblower complaint, although Gabbard has publicly defended herself as if the complaint concerns her actions. The Times of Israel reports that two foreign nationals were intercepted discussing Iran and “someone close to Trump.” The conversation took place shortly before the US bombed Iran’s nuclear facilities. See Times of Israel, Report: US whistleblower complaint involves call discussing Iran and someone close to Trump.

Gabbard has long been at odds with Trump over his stance on Iran.

Again, we do not know the substance of the whistleblower complaint, but none of this looks good for Gabbard.

Developments in the Epstein matter.

Ghislaine Maxwell will appear before the House Oversight Committee on Monday. She will invoke her Fifth Amendment right against self-incrimination. The Fifth Amendment protects all Americans, even those accused of heinous crimes. Still, Maxwell’s invocation will be particularly shameful; she spoke at length to Deputy Attorney General Todd Blanche under an agreement that allowed her to speak with immunity, so long as she spoke truthfully. Some commentators suggest that Maxwell lied to Blanche, see Forbes Breaking News, Do The Newest Epstein Emails Show Ghislaine Maxwell Lied To Todd Blanche? Epstein Reporter Weighs In. If true, she should be prosecuted for lying to a federal officer and held to have waived her Fifth Amendment rights.

Over the weekend, a report began circulating that is getting significant traction and deserves comment. Recall that Maurene Comey was a respected assistant US Attorney in the Southern District of New York. She was fired by Attorney General Pam Bondi in the days leading up to the passage of the Epstein Files Transparency Act. She was fired, in part, because she was a seasoned prosecutor who knew the facts of the Epstein investigation.

The AP and other outlets are reporting on emails from Maurene Comey to supervisors that say the FBI did not find evidence implicating criminal activity by anyone other than Epstein and Maxwell. See AP News, Inside the FBI’s investigation of Jeffrey Epstein | AP News.

The essential details from the AP story are here:

Investigators seized a multitude of videos and photos from Epstein’s electronic devices and homes in New York, Florida and the U.S. Virgin Islands. They found CDs, hard copy photographs and at least one videotape containing nude images of females, some of whom seemed as if they might be minors. One device contained 15 to 20 images depicting commercial child sex abuse material — pictures investigators said Epstein obtained on the internet.

No videos or photos showed Epstein victims being sexually abused, none showed any males with any of the nude females, and none contained evidence implicating anyone other than Epstein and Maxwell, then-Assistant U.S. Attorney Maurene Comey wrote in an email for FBI officials last year.

To be clear, Maurene Comey’s comments relate to a specific set of documents reviewed by the FBI and the SDNY—which is not the total universe of the “Epstein files” in the possession of the DOJ, which contain information from other federal prosecutions, the Epstein estate, civil proceedings, and banking records. Moreover, the question of whether Trump “committed crimes” in his relationship with Epstein does not exonerate Trump. There is still much to be learned about Trump’s involvement with Epstein, and Maurene Comey’s internal communications about a specific set of documents is not the end of the inquiry.

Fulton County seeking return of ballots seized by FBI

Here is some encouraging news. Fulton County, Georgia, has filed a federal lawsuit seeking the return of the ballots seized from the registrar. See Politico, Fulton County argues FBI seizure of 2020 ballots shows ‘callous disregard’ for constitutional rights.

Fulton County is also seeking disclosure of the underlying affidavit relied upon by prosecutors that persuaded a magistrate judge in the US District Court for the Northern District of Georgia to issue a warrant authorizing the seizure of the entire set of voting records for Fulton County’s 2020 elections. The federal government has apparently agreed to the release of the underlying affidavit. See Order | 02/07/26.

Given that Trump’s conspiracy theories of election fraud were rejected nearly 60 times in 2020, it was a surprise that a federal magistrate found probable cause to grant the FBI’s request for a warrant to seize the ballots in Fulton County. It will be interesting, to say the least, to see what new evidence persuaded Magistrate Judge Catherine Salinas.

The affidavit will be disclosed on Tuesday. At that point, we will learn whether the Trump administration has new evidence or misled Judge Salinas about the underlying facts.

Concluding Thoughts

Trump and MAGA attempted to make the Super Bowl LX halftime show a divisive cultural event. Instead, Bad Bunny delivered an exuberant celebration of America—all of it, including the parts that speak Spanish. But you didn’t need to speak Spanish to enjoy the music and choreography—or to understand that in its very inclusiveness, Bad Bunny’s show was an act of resistance. See Time, Bad Bunny’s Halftime Show Was an Act of Resistance.

As noted in the review, Republicans demanded that Bad Bunny sing in English; instead, Lady Gaga showed up to sing in Spanish. In one of the more touching moments of the halftime show, Bad Bunny gave his recent Grammy award to a young boy who looked like Liam Conejo Ramos—the five-year-old who was abducted by ICE and transferred to Texas.

Trump’s grievance-based worldview could not admit the joy of the halftime show, calling the performance a “a slap in the face” to the US and saying, “Nobody understands a word this guy is saying.” That is news to the 50 million Americans who speak or understand Spanish. US Census.

Trump is missing the moment, badly. He squeaked out a victory in 2024, in part, because of support from the Latino community. He is now terrorizing them with mass deportation raids that indiscriminately stop citizens based on their Latino “appearance,” and he just insulted their language, culture, and music. And he wonders why JD Vance was booed in Italy when he appeared at the opening ceremony of the Olympics.

Bad Bunny is an American citizen and the world’s most popular musician (based on Spotify streams). That is something to celebrate; America should be proud to claim him as our own, an inspiration to hundreds of millions of people across the world, a joyful counterforce to the ugliness being spread by Trump.

Pro-democracy protest photos

Enfield, NH. Wind chill -12

Bethlehem NH - Feb 8, 2026 - NC Res Visibility Brigade

Peterborough NH weekly rally

US 101 Burlingame, CA overpass, RUTA (Rise Up Take Action) and friends

ICE Concentration Camp Protest Rally in Baldwin, Michigan.

Indivisible ICE OUT Delavan WI

Sunday morning protest Palm Springs

Protest photos from Wilmington Delaware

Day of Veterans Burlington, MA ICE Protest. (John Rae, photographer)

Apex, NC

Hyannis, Cape Code