Circuit Split Deepens on Trump Mandatory Detention Policy — Three Circuits Strike It Down, Two Uphold It; Supreme Court Review Now Likely for Policy That Could Affect Millions

A Stateline analysis published May 16, 2026 documented the growing circuit split over the Trump administration's mandatory detention policy — the July 2025 DHS memo that would allow ICE to detain all individuals who crossed the southern border irregularly without a bond hearing, regardless of how long ago they entered. As of May 16, three federal circuits had struck down the policy: the 2nd Circuit (April 29, finding the policy unconstitutional and requiring bond hearings for detainees in New York, Connecticut, and Vermont); the 11th Circuit (May 6, ruling Congress never granted 'unfettered authority' to detain all undocumented immigrants without bond — covering Florida, Georgia, and Alabama, including the Stewart Detention Center in Lumpkin, GA, site of multiple FY2026 deaths); and the 6th Circuit (May 11, also holding the policy violates the Constitution — covering Michigan, Ohio, Kentucky, and Tennessee, including the North Lake Processing Center in Baldwin, MI). The 5th and 8th Circuits had upheld the policy. The three-to-two circuit split creates a patchwork of rights: individuals detained by ICE in New York, Florida, or Michigan receive bond hearings; identical individuals detained in Texas or Missouri do not. Legal experts cited in the Stateline analysis said the deep circuit split makes Supreme Court intervention highly likely, potentially resulting in a landmark ruling on the constitutional limits of executive immigration detention authority. The mandatory detention policy, if fully upheld, could affect millions of people as ICE detention expands toward its 100,000-bed target.