The Trump administration has scored this legal victory:

:A decision on Friday by the Fifth Circuit Court of Appeals, if sustained by the Supreme Court, will allow the Trump Administration to detain pending removal as many illegal aliens arrested by DHS as it has the physical capacity to hold. Currently that capacity is only around 65,000. But DHS is building more detention facilities, and the expectation is to increase that number to 200,000 by the end of 2026.

Until Friday evening, the effort by the Trump administration to engage in “mass removals” of illegal aliens — a Trump campaign promise — has suffered from two primary hampering factors: 1 ) limited bed space in detention facilities that created a bottleneck; and 2) a practice in place for nearly 30 years that illegal aliens arrested in the interior of the country were almost always released back to their lives while being given a Notice to Appear to initiate removal proceedings against them at some time in the future.

A General Accounting Office Report in December 2024 — at the end of the Biden Administration and based on data from the Biden DOJ’s “Executive Office for Immigration Review” (EOIR) — disclosed that 34% of all removal proceedings ended with an “in absentia” removal orders from 2016 to 2023, meaning the illegal alien failed to appear. This meant to carry out the removal, the illegal alien had to be located and arrested a second time.

Further, as of July 2024, there was a backlog of 3.5 million removal cases pending before immigration judges — almost entirely as a result of more than three years of “Open Border” policies during the Biden Administration.

Now the Fifth Circuit has said it’s not a requirement to send them back to the community while waiting deportation. The decision was 2-1.

If you’re interested in the court’s reasoning, please see the opinion.

Basically, the idea is that the government has the authority to do this under statute, even if many previous governments declined to do it. The dissenting judge noted that, “some of the people detained are ‘the spouses, mothers, fathers, and grandparents of American citizens.'” For a substantial portion of that group, that would almost certainly be because their American-citizen children and grandchildren were born here after the parents or grandparents had entered illegally. If Congress wants to exempt the older generations and grandfather (literally) them in to citizenship or amnesty, all Congress has to do is pass a law to that effect.

I assume this ruling will ultimately be appealed to SCOTUS.