Gonna Get Worse Before It Gets Better

The big weekend news came late Friday when a three-judge panel of the 5th Circuit Court of Appeals upheld a key element of the Trump administration’s policy of mass detention of migrants.

While the ruling from the uber-conservative appeals court wasn’t unexpected and is surely headed to the Supreme Court for final resolution, I wanted to take this opportunity to briefly explain why the particular unilateral policy change at issue has been so important in driving the misconduct we’ve seen since last summer.

Without getting lost in the weeds, this is the change the Trump administration made: Despite 30 years of government practice, it re-interpreted a 1996 law to allow it to detain migrants anywhere in the country without a bond hearing. Previous administrations had only applied one section of the law in that way at the immediate border. Everywhere else, under a different section of the law, undocumented immigrants were allowed to be released and were entitled to a bond hearing before deportation.

Federal judges around the country — faced with a resultant wave of habeas petitions — have widely rejected the Trump administration’s interpretation of the law. The 5th Circuit accepted the administration’s new interpretation and its decision applies within Texas, Louisiana, and Mississippi to “every undocumented immigrant who originally entered across the border, no matter how many decades in the past,” notes one expert.

“The ruling is nonsensical and wrong, but it is also particularly horrifying in this moment. The consequences are all the more alarming, building, as it would, on the Supreme Court’s shadow docket order that unleashed Kavanaugh stops, ultimately, across the nation,” Chris Geidner wrote in reaction to the ruling.

For a deeper dive on how the 5th Circuit came to have this case that it ruled on so quickly and on where this goes from here, Georgetown law professor Steve Vladeck has a very granular analysis.

A few broader points:

• The administration was never going to hit its deportation targets if everyone in the interior got a bond hearing, so it dispensed with the bond hearings.
• The ability to detain anyone without a bond hearing not only accelerated detentions, but it effectively allowed the administration to give up on targeted operations and detain anyone based on skin color, accent, and other blunt and outright racist outward indicia of being an immigrant.
• U.S. citizens have been increasingly swept up in the indiscriminate raids, traffic stops, and detain-first-ask-questions-later operations we’ve seen most recently in Minnesota, but not just there.

Despite its repeated losses in court, the Trump administration has not reigned in its operations but rather continued to force judges to overrule them over and over again. The 5th Circuit decision is going to buttress the administration’s legal approach and fuel even more of the growing chaos of the past several weeks.

U.S. Public Health Service Confronts Migrant Detention

• Nearly 400 officers in the uniformed U.S. Public Health Service have done monthlong tours helping to provide basic medical care to detainees at hastily constructed ICE detention centers nationwide, NPR reports. It spoke with six Public Health Service officers who said they planned to leave or had already tendered their resignations due largely to recent or impending deployment to ICE facilities.
• In particular, some U.S. Public Health Service officers are quitting over assignments to the ICE detention center at Guantánamo, Wired reports.

Trump DOJ Watch

• NYT: Prosecutors Began Investigating Renee Good’s Killing. Washington Told Them to Stop.
• Reuters: DOJ unit on police misconduct sees staffing plunge and probes scaled back
• NYT: Demanding Support for Trump, Justice Dept. Struggles to Recruit Prosecutors

Citizenship Question Is Baaaack

NPR’s Hansi Lo Wang explains how the census citizenship question that was vanquished in Trump I has snuck back into the conversation in Trump II.

Midterm Election Interference Watch

• TPM’s Hunter Walker: A Conspiracy Fueled Report Preceded ‘Black Pill’ Tulsi Gabbard’s Fulton County Election Raid
• U.S. District Judge J.P. Boulee ordered unsealed most of the legal case in which Fulton County is challenging the seizure of its 2020 voting records and gave the Trump DOJ a Tuesday deadline to file the affidavit it used in support of the search warrant.
• The Trump DOJ has removed an important manual — Federal Prosecution of Election Offenses — from the website of its Election Crimes Branch, former Obama White House Counsel Bob Bauer notes.

Quote of the Day

“The presumption of regularity that has been previously extended to [the government]
that it could be taken at its word—with little doubt about its intentions and stated purposes—no longer holds.”—U.S. District Judge Mustafa T. Kasubhai of Oregon, in a sweeping rebuke of the Trump DOJ’s nationwide push to seize state voter rolls

The Gabbard Whistleblower Complaint

A series of news reports Saturday began to flesh out some of the details of the whistleblower complaint that DNI Tulsi Gabbard has been sitting on for months:

• The Guardian: The National Security Agency last spring “flagged an unusual phone call between two members of foreign intelligence” discussing an as-yet-unidentified person “close” to President Trump. The NSA’s intelligence report was brought to Gabbard, who “took a paper copy of the intelligence” to White House chief of staff Susie Wiles and instructed the NSA not to publish it. The person close to Trump is neither an administration official or a special government employee, reported The Guardian, which walked back an earlier version of its story that said the phone call was directly between a person associated with foreign intelligence and a person close to Trump, after the whistleblower’s lawyer said he misspoke.
• NYT: The intercepted conversation between the two foreign nationals involved Iran.
• WSJ: In a followup story, the WSJ also confirmed that in the phone call between “individuals linked to a foreign government” they had a conversation that “at least in part, concerned issues related to Iran.” The WSJ also confirmed that Gabbard met with Wiles “to discuss the matter.” After that meeting, Gabbard “worked to limit the sharing of the intelligence concerning the call,” the whistleblower complaint says, according to the WSJ.

Known Death Toll in U.S. Boat Strikes: 119

A U.S. attack Thursday on an alleged drug smuggling boat in the eastern Pacific killed two people, according to US Southern Command, bringing the death toll in the lawless months-long campaign to at least 119.

Pretty Big Deal

The Energy Department violated the Federal Advisory Committee Act of 1972 when Secretary Chris Wright handpicked five researchers who reject the scientific consensus on climate change to work in secret on a sweeping government report on global warming,
U.S. District Judge William Young of Boston ruled on Friday.

As Lisa Friedman reports, EPA administrator Lee Zeldin cited the bogus Energy Department report to justify a plan to repeal his agency’s landmark scientific determination — the endangerment finding — that greenhouse gases endanger public health, which serves as the legal foundation for federal regulation of climate pollution.

Freak of the Day

RFK Jr on what he'll eat during the Super Bowl: "I am on a carnivore diet so I just eat meat and ferments, and I'm very happy with that. So I'm probably going to have yogurt."

— Aaron Rupar (@atrupar.com) 2026-02-08T16:23:28.785Z

Palate Cleanser

You’ve probably seen clips of Ian McKellan performing “The Strangers’ Case” speech from the Shakespeare-inflected play “Sir Thomas More” on Colbert last week, but the setup for the monologue is worth a watch, too. It begins at the 20:00 mark:

Hot tips? Juicy scuttlebutt? Keen insights? Let me know. For sensitive information, use the encrypted methods here.

What About the Renee Good Shooting?

The Star Tribune’s Jeff Day broke the news last night that the Minnesota Bureau of Criminal Apprehension and FBI are set to announce a joint investigation into the killing of Alex Pretti, citing two anonymous sources.

No date or time has been set for any announcement as of this morning, so this appears to be still a tentative, if not contingent, agreement. But the prospect of state investigators being included after being shut out for the past two weeks would mark a breakthrough that offers a glimmer of potential for an independent investigation and some accountability.

It remains unclear, according to Day, whether the agreement on the Pretti shooting probe would include a joint investigation of the fatal ICE shooting of Renee Good or otherwise make available to state investigators the evidence collected by the feds in the earlier shooting.

As Day reports:

One of the most startling aspects of the tension between the state and federal government was the decision by the Justice Department to not allow the BCA Force Investigations Unit to have access to crime scene or investigative materials that were gathered by federal agents at both crime scenes — a decision that ruptured the longstanding cooperative relationship between the two agencies.

The prospect of a joint federal-state investigation comes after CBP commander Gregory Bovino was removed from Minnesota and replaced by White House border czar Tom Homan, who despite his own bellicose track record has toned down in recent days the harshest rhetoric coming from the administration.

A federal civil rights investigation into the Pretti shooting was reluctantly announced last week by Deputy Attorney General Todd Blanche after days of public outrage and slippage amongst some elected Republicans in their previous unambiguous support for the administration’s brutal and lawless mass deportation operation.

Whether the Trump DOJ’s Civil Rights Division and the FBI are conducting the belated investigation in accordance with past practices remains a big unknown. But it is abundantly clear that the Trump DOJ does not operate free of interference and direction from the Trump White House, which makes any federal investigation inherently suspect and the need for an independent state investigation with full access to the evidence critical.

Mass Deportation Watch: Minnesota Edition

• Immigrants apprehended in Operation Metro Surge are being sent to a massive detention center on Fort Bliss Army Base then released in El Paso to find their way home, the NYT reports.
• Star Tribune: Swapped, covered and removed: The license plate tactics ICE is using in Minnesota
• The announced withdrawal of hundreds of federal agents from Minnesota has had no discernible impact on the pace of deportation operations on the ground, the NYT reports.
• Politico: “U.S. Attorney Daniel Rosen, in a little-noticed filing last week with the 8th Circuit Court of Appeals, said his office is buckling under the crushing weight of hundreds of emergency lawsuits filed by immigrants arrested and detained by Immigration and Customs Enforcement in recent weeks.”

The Retribution: Abrego Garcia-Style

The Trump administration is retaliating against recently freed 5-year-old Liam Conejo Ramos and his family for becoming a poster boy for the brutality of Operation Metro Surge by seeking to end their asylum claims and expedite the deportation proceedings against them, MPR reports.

Mass Deportation Watch: Nationwide Edition

• Wired: ICE and CBP’s Face-Recognition App Can’t Actually Verify Who People Are
• Philadelphia Inquirer: “Federal judges in Philadelphia have been unusually outspoken in recent weeks about what they call the ‘illegal’ policy by ICE of mandating detention for nearly all undocumented immigrants — and have been sharply critical of the ‘unsound’ arguments by government attorneys seeking to justify the approach.”
• WSJ: “The Trump administration is attempting to eliminate most opportunities for immigrants with deportation orders to appeal their cases under a new policy, the latest step by the government to strip immigrants of due process rights so they can be deported more quickly.”

Why Schedule F Is Still a Big Problem

The original ambitions of the Trump’s first-term proposal for a Schedule F designation for senior government workers that makes them easier to fire seems almost quaint now, given the mass politicization of the federal workforce over the past year, but Don Moynihan explains why the Trump II version of the rule change still matters.

Sign Up for The Franchise!

With the midterms elections approaching, TPM is relaunching The Franchise, a weekly newsletter on voting rights and election administration by Khaya Himmelman. If you want to closely follow Trump’s threats to voting, free and fair elections, and election officials, you can sign for free right here.

RIP WaPo

This week’s carnage at Bezo’s WaPo has been dismaying on so many levels: as a D.C. resident, a journalist, a sports fan (Chelsea Janes and Jesse Dougherty were two of the smartest people in media, not just sports media), and a sentimental fool who appreciated its few surviving anachronisms from the mid-20th century heyday of major metro daily newspapers. The best of those survivors was Martin Weil, who started at the paper in 1965. Erik Wemple has a loving tribute to the 60-year newspaperman who was laid off this week, too.

Scenes From a Personalist Regime

President Trump, who for months has been holding hostage federal funding for a major rail tunnel project between New York and New Jersey, has a new ransom demand: If you want the money, rename NYC’s Penn Station and Washington-Dulles International Airport after me.

Trump Posts Racist Vid of Obamas as Apes

On the same day it was reported that the National Park Service is editing visitor brochures to no longer label the klansman who murdered Medgar Evers a “racist,” President Trump posted a 2020 Big Lie video on social media that portrays Barack and Michelle Obama as apes.

Amen

wow — with Trump standing behind him, a man (not sure who he is) offers this prayer: "We pray that he would be mindful of the poor and that he would be invested in the alleviation of suffering happening in the families preparing to bury their loved ones in Minneapolis."

— Aaron Rupar (@atrupar.com) 2026-02-05T15:24:09.276Z

Hot tips? Juicy scuttlebutt? Keen insights? Let me know. For sensitive information, use the encrypted methods here.