Activist Judges Invent ‘Squatter’s Rights’ for Illegal Aliens

A fresh legal clash is unfolding in Texas after federal district judges signaled resistance to a landmark ruling from the United States Court of Appeals for the Fifth Circuit that upheld the mass immigration detention policy advanced by Donald J. Trump. The developing conflict could ignite one of the most consequential legal battles of the President’s second term, testing the boundaries between judicial discretion and federal immigration authority.

Last Friday, a three-judge panel on the Fifth Circuit delivered a 2-1 decision affirming the administration’s sweeping detention powers, ruling that federal law grants the government broad authority to hold immigrants facing deportation — including individuals without criminal records who have lived in the United States for decades. The decision represented a decisive endorsement of the administration’s enforcement-first immigration strategy and its commitment to mandatory custody for individuals under removal orders.

However, within days, two federal district judges in Texas signaled they would continue granting certain release petitions despite the appellate ruling. Rather than relying strictly on statutory interpretation, both judges advanced constitutional arguments centered on due process protections under the Fifth Amendment.

Kathleen Cardone, an appointee of George W. Bush based in El Paso, ruled late Monday in at least five cases that the appellate court’s decision “has no bearing on this Court’s determination of whether [the petitioner] is being detained in violation of his constitutional right to procedural due process.” Her stance suggests a willingness to carve out case-by-case constitutional exceptions to blanket detention authority.

Similarly, David Briones — an appointee of Bill Clinton — argued that immigrants with long-term ties to the United States may possess a “liberty interest in being free from government detention without due process of law.” Both judges emphasized that individuals with deep roots in the country should receive individualized hearings before prolonged detention continues.

Critics within the administration warn that such rulings undermine the binding authority of the Fifth Circuit and threaten to create inconsistent enforcement outcomes. Because Texas hosts numerous federal detention facilities operated by the Department of Homeland Security and Immigration and Customs Enforcement, these courts play an outsized role in handling habeas petitions challenging custody decisions.

A Justice Department official, speaking anonymously to Politico, sharply criticized the district court decisions as the work of “rogue judges” issuing “results-oriented decisions to suit their personal policy preferences.” The administration argues that allowing lower courts to circumvent appellate precedent risks eroding national immigration enforcement standards.

Not all district judges have taken the same approach. Fernando Rodriguez Jr., a Trump appointee in Brownsville, has paused several pending cases to evaluate the appellate ruling’s full implications and requested additional legal briefings from both sides — an approach some legal observers say reflects judicial restraint and respect for higher court authority.

The Fifth Circuit’s decision followed months of escalating legal challenges to the administration’s renewed “mandatory custody” directive introduced in 2025. The policy eliminated broad release discretion used by previous administrations, requiring detention for nearly all noncitizens with final removal orders and contributing to record numbers of arrests and detentions nationwide.

Conservative legal analysts have blasted the Texas rulings, accusing the courts of inventing new constitutional protections for individuals who entered the country unlawfully. Center of the American Experiment fellow Bill Glahn described the decisions as creating “an invented squatter’s right to remain in America.”

“If you are in the United States without authorization, you are committing a federal crime,” Glahn wrote. “There is no exception in the law for successfully evading the law for decades.” He questioned how courts could define when a noncitizen’s “connection” to the country supersedes federal law, asking, “How does he decide when a connection has been established that overrides federal law? Is it de facto citizenship? Common law citizenship? Can these noncitizens now vote?”

Legal challenges to immigration detention continue to surge nationwide, with court data showing hundreds of new habeas petitions filed this year alone — including 862 cases in Minnesota, underscoring the growing legal pressure on federal enforcement efforts.

As the clash between district courts and appellate precedent intensifies, the dispute is poised to shape the future of immigration enforcement and constitutional interpretation. For supporters of President Trump’s policies, the fight underscores the stakes of maintaining consistent rule-of-law standards — and whether lower courts should be allowed to reinterpret federal authority in ways that could weaken national sovereignty and border security.