The Supreme Court’s legal justification for 'mandatory' no-bail immigration detention is based on a false historical narrative that ignores a century of administrative releases.
April 1, 2026
Original Paper
Resurrecting Immigration Releases
SSRN · 6501818
The Takeaway
Current laws allow the government to jail tens of thousands of suspected noncitizens without any chance for bail, based on the idea that this has been standard practice for 'more than a century.' This paper uses archived agency files to prove that early immigration law actually prioritized liberty and release, making the modern 'mandatory' system a radical departure rather than a tradition.
From the abstract
The nation's "mandatory" immigration-detention laws sustain its largest civil-imprisonment system-and just radically expanded in scope and breadth. These laws consign broad swaths of suspected noncitizens to no-bail pretrial detention, denying tens of thousands of people facing civil regulatory charges any chance to prove they need not be detained. These laws turn split-second arrest decisions into jail sentences. They force people to give up meritorious claims. And they confound the historic pr