At issue throughout these cases is ICE’s revised July 2025 interpretation of federal immigration law. The administration maintains that immigrants who entered without inspection remain “applicants for admission” who are “seeking admission,” even when arrested years later inside the country. Under that reading, federal law requires their detention without bond while removal proceedings continue.

John Shu, a court watcher and constitutional law expert who served in both Bush administrations, cautioned against treating the volume of defeats against the administration as a measure of the strength of its legal position.

“It’s really not that relevant how many circuits are on one side and how many circuits are on another, or how many district courts are on one side,” Shu told the Washington Examiner. “The Supreme Court can decide whatever they want.”

The administration has now lost in the 2nd, 6th, 7th, 9th, 10th, and 11th circuits. The 5th and 8th circuits upheld their interpretation of federal law.

Two of those losses followed a nearly identical alignment. Clinton-appointed judges Eric Clay and Guy Cole formed the 6th Circuit majority, with Trump-appointed Judge Eric Murphy dissenting. In the 11th Circuit, Clinton-appointed Judge Stanley Marcus and Obama-appointed Judge Robin Rosenbaum prevailed over a dissent by Trump-appointed Judge Barbara Lagoa.

The latest ruling on the policy came from the 7th Circuit last week from Biden-appointed judges Joshua Kolar and Candace Jackson-Akiwumi. George W. Bush-appointed Judge Diane Sykes dissented.

Liberal-leaning panels hand down defeats

Federal appellate cases are generally decided by three judges selected from a circuit’s broader membership. The ideological composition of one panel can differ substantially from that of the full court — and can determine which side initially establishes binding precedent.

The administration’s two victories in the 5th and 8th Circuit courts illustrate the other side of that dynamic. Reagan-appointed Judge Edith Jones and Trump-appointed Judge Stuart Kyle Duncan formed the 5th Circuit majority, over a dissent by Biden-appointed Judge Dana Douglas. In the 8th Circuit, Bush-appointed Judge Bobby Shepherd and Trump-appointed Judge Steven Grasz formed the majority, while Trump-appointed Judge Ralph Erickson dissented.

The pattern of wins and losses is not entirely partisan, either. For example, President Donald Trump‘s appointee Judge Daniel Bress wrote the 9th Circuit’s decision rejecting the administration’s policy. Clinton-appointed Judge M. Margaret McKeown joined him, while Bush-appointed Judge Carlos Bea dissented.

“Not only did he vote against the administration, he also wrote the opinion,” Shu said of Bress. “I don’t think it’s quite accurate to say, ‘Well, a Clinton appointee or a Trump appointee, or Reagan or Obama appointee,’ because you never know what’s going to happen.”

The 2nd Circuit also ruled unanimously against the administration on a panel that included Trump-appointed Judge Joseph Bianco. A unanimous 10th Circuit panel included Reagan-appointed Judge David Ebel alongside Obama-appointed Judge Robert Bacharach and Biden-appointed Judge Richard Federico.

Hans von Spakovsky, a constitutional law expert and senior legal fellow at Advancing American Freedom, told the Washington Examiner that courts rejecting the administration have misread the government’s detention powers.

“I would point you to 8 U.S.C. § 1226, which specifically gives the government the power to detain aliens,” von Spakovsky said. “There is no requirement that they be released. All of the courts ruling against detention are misreading federal immigration law and interfering with the authority of the federal government to detain aliens until they can be removed from the country.”

He predicted the justices would ultimately vindicate the administration’s position. “I believe there is a good chance that the Supreme Court will finally explain fully that there is no requirement that illegal aliens be released,” von Spakovsky said.

The 5th Circuit’s position remains more complicated than a simple victory for the administration. A separate panel ruled July 2 that prolonged mandatory detention without an opportunity to challenge confinement violated due process. The full 5th Circuit vacated that ruling when it agreed to rehear the case, leaving intact its earlier statutory endorsement of the policy in favor of the Trump administration.

The growing circuit split has generated multiple requests for Supreme Court intervention. The justices will not count lower-court decisions as votes, however. Their focus will be on the statutory language, history, and constitutional implications underlying the competing interpretations of the mandatory detention policy at the lower court level.

NINTH CIRCUIT DEEPENS SPLIT AMONG APPEALS COURTS OVER TRUMP’S MANDATORY DETENTION POLICY

Sykes, the Bush-appointed judge who dissented from her colleagues on the 7th Circuit, acknowledged as much in her dissent last week.

“My colleagues and I could debate until we’re blue in the face,” she wrote. “At this point, only the Supreme Court can bring uniformity and settle this question once and for all. I anticipate that it will do so soon.”