Publication Date

3-2026

Journal

The Yale Law Journal

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 presumptions—liberty, innocence, prosecutorial discretion, and bail—that undergird other pretrial-detention regimes.

Although mandatory immigration detention conflicts with fundamental constraints on analogous detention regimes, the Supreme Court has treated it as exceptional and distinct. On this account, pretrial detention—detention pending proceedings to determine if a person is deportable—has been a “constitutionally valid aspect” of the deportation process for “more than a century” and was well accepted from a constitutional standpoint before any opportunity for release came along. Yet jurisprudence invoking this narrative tells us almost nothing about how detention actually operated at the time and, consequently, what type of detention or process early history and precedent may have enshrined. This Article takes on that task. It draws on critical sources of administrative law—early agency rules, binding interpretations, policy, and case files mined from the archives—to recover the lost history of pretrial-detention power and process during the deportation system’s founding and formative years. This examination reveals that, in fact, the opportunity for release was virtually always part of deportation’s early pretrial-detention scheme; any pretrial detention deemed constitutionally valid during that period came with the possibility of release. And it offers insight on why, showing that the agency’s power to release was understood to be critical for a constitutionally permissible regime. Ultimately, this Article illuminates aspects of the early pretrial system that bear on pressing questions about detention and release in the contemporary scheme, and, as mandatory detention hurtles toward massive expansion, provides historical support for arguments to resurrect release.

Volume

135

Issue

5

First Page

1533

Last Page

1618

Publisher

The Yale Law Journal Company, Inc.

Disciplines

Immigration Law | Law | Legal History

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