A Finger in the Constitutional Dyke: Due Process, ICE Detention and the American Habit of Forgetting

By Matthew Parish, Associate Editor

Wednesday 11 February 2026

Due process in the United States has never been a single doctrine so much as a habit of mind. It is the insistence that even where the state believes itself morally right, politically popular or administratively hurried, she must still explain herself in front of an independent judge. She must show her papers. She must accept limits.

Immigration enforcement has become one of the clearest theatres in which that habit is fraying. The law of immigration is famously technical, but the pressure points are plain enough for any lay reader: sudden arrests, long-distance transfers, detention that feels punitive even when it is labelled “civil”, hurried removals, restricted access to counsel, and the quiet assumption that because the subject is a non-citizen the Constitution somehow speaks more softly. The United States insists, rhetorically, that her courts are the guardians of liberty. Yet the administrative machine of Immigration and Customs Enforcement (ICE) has been permitted, across successive administrations, to treat custody as the default rather than the exception, and speed as a substitute for justification.

That is why the recent opinion and order of US District Judge Fred Biery dated 31 January 2026, releasing a five-year-old child and his father from ICE custody, landed with the force of a rebuke rather than the calm of a routine ruling. The decision is short—three pages—but it is structured like an alarm bell. It is a reminder that due process is not merely a checklist of agency forms. It is the older, more difficult principle that power must be answerable, especially when she is most confident she will not be made to answer. 

The modern immigration detention problem: civil detention with criminal consequences

American constitutional law has long lived with a contradiction. On the one hand the Supreme Court has repeatedly affirmed that non-citizens physically present in the United States enjoy core constitutional protections, including due process. On the other hand immigration detention is formally “civil”, which has made it easier for the executive to argue that safeguards associated with criminal arrest—probable cause determinations by a judge, robust bail hearings, strict limits on detention—need not apply in the same way.

In practice civil detention can be harsher than many criminal custodial experiences. Detainees may be moved across state lines overnight. Families may be separated by geography even when they are not separated legally. Hearings can be distant, delayed or conducted under constraints that make meaningful participation difficult. The “civil” label does not soften the reality that detention deprives a person of liberty—sometimes in ways that feel designed less to ensure attendance at proceedings than to create pressure to abandon a claim.

Judge Biery’s order is best read against this background of normalised coercion. The case—Conejo Arias v Noem—concerned an asylum seeker, Adrian Conejo Arias, and his five-year-old son. They petitioned for the writ of habeas corpus—“the Great Writ” of the common law permitting any person detained by the state to be brought before a court to seek an explanation of the legal basis for their detention—seeking release from detention in Dilley, Texas. 

The public attention around the case has been acute, in part because the child’s detention followed a highly visible arrest and transfer, and in part because it made vivid what is otherwise hidden behind the vocabulary of “processing” and “removal”. Major news outlets across the United States and the globe reported the judge’s order releasing the father and child after an ICE raid. 

Yet the legal heart of Judge Biery’s reasoning is not a catalogue of the Immigration and Nationality Act. He does not produce a long doctrinal map of statutory subsections. Instead he reaches for something older—and, in a sense, more embarrassing for a modern administrative state. He treats the matter as a due process failure in the most basic meaning of that phrase: the government has taken bodies and cannot adequately justify why she is holding them.

What Judge Biery actually did: habeas as a constitutional demand for an explanation

The opinion opens with a plain formulation: the petitioners seek “protection of the Great Writ of habeas corpus” and “nothing more than some modicum of due process and the rule of law”. That framing matters. Habeas corpus is not merely a procedure; it is the judicial instrument by which courts require the executive to show lawful cause for detention. It is, historically, the moment when administrative certainty must submit to legal scrutiny. 

Judge Biery then states what he regards as the real engine of the detention: “the ill-conceived and incompetently-implemented government pursuit of daily deportation quotas”—apparently even if it requires “traumatizing children”. Whatever one’s politics, this is a striking judicial choice of words. It treats the detention not as an unfortunate by-product of enforcement but as a foreseeable consequence of a managerial target. Due process, in such a setting, becomes the first casualty—because targets reward velocity, not justification. 

The court’s next move is even more telling. In a footnote, Judge Biery ties habeas to a lineage that predates the United States as we know it today and refers even to the laws of England that the US adopted before her independence: Ex parte Bollman (1807), Blackstone’s Commentaries (an eighteenth century definitive tract on constitutional law), and Magna Carta, Article 39, an ancient English bill of rights from the Middle Ages. This is not decoration. It is a deliberate assertion that liberty from arbitrary detention is not a modern bureaucratic courtesy. It is a constitutional inheritance—and, more sharply, a limit the executive does not get to reinterpret through internal guidance memoranda. 

Bollman is a sensible choice of precedent for this rhetorical architecture. It is an early US Supreme Court case that confirms federal courts’ authority to issue habeas in appropriate circumstances, and it is part of the American tradition of treating habeas as central rather than peripheral. By naming Blackstone and Magna Carta, Judge Biery is reminding the reader that habeas is the legal descendant of a political demand: no imprisonment without lawful judgement.

One sees the same strategy in the opinion’s discussion of the Declaration of Independence. Judge Biery quotes grievances attributed to Thomas Jefferson—complaints about “Swarms of Officers”, “quartering large Bodies of Armed Troops”, and standing armies in peacetime—and remarks that “We the people” are hearing “echos” of that history. This, too, is more than flourish. It situates modern immigration enforcement within an older fear: that an executive branch, armed and confident, can begin to treat certain categories of people as unworthy of ordinary constraint. 

The Fourth Amendment point: administrative warrants and the “fox guarding the henhouse”

The most concrete legal reasoning in the opinion comes in the Fourth Amendment passage. Judge Biery reproduces the amendment’s core language—security against unreasonable searches and seizures, warrants only upon probable cause—and then delivers what he calls a “civics lesson”:

Administrative warrants issued by the executive branch to itself do not pass probable cause muster. That is called the fox guarding the henhouse. The Constitution requires an independent judicial officer. 

This is the crux. It is also where the decline of due process becomes so sharply visible. A culture of due process is one in which the executive accepts that she cannot authorise her own intrusions into liberty and call them “warrants” in any meaningful constitutional sense. The word “warrant” is not magical ink. It is supposed to represent independent judgement from an impartial member of the judicial branch of government.

Immigration enforcement has long relied on administrative paperwork—often styled as warrants in the ordinary language of enforcement—rather than judicial warrants issued by a neutral magistrate. Judge Biery is saying that, at least on the facts before him, this habit cannot be allowed to do the work of probable cause. In plainer terms: a government cannot credibly claim she has satisfied constitutional restraint when she has only obtained permission from herself.

He then states his holding in unambiguous form: “the Constitution of these United States trumps this administration’s detention” of the father and child. “The Great Writ and release from detention are GRANTED.” 

This is unusual language for an immigration detention order because it refuses to treat immigration as a constitutional backwater. It insists that the immigration context does not dilute the normal structure of American legality—executive action reviewed by the judiciary, not sanctified by internal process.

The precedents Judge Biery relied upon—and what his choices imply

Because the opinion is brief, the list of explicit legal authorities is short but revealing:

It is worth pausing on what is not cited. The opinion does not lean on the modern Supreme Court cases that dominate academic discussion of immigration detention. Nor does it dwell on the statutory architecture of detention authority. One can read this as a tactical choice: in emergency habeas matters, particularly those involving a child, the court may aim for the simplest ground that speaks directly to lawful custody.

But the omissions also communicate something about the moment. When a judge feels compelled to reach back to Magna Carta, it is rarely because the modern statutory scheme is persuasive. It is because the modern scheme—at least as applied—has begun to feel like a machine whose internal logic is detached from the foundational question: by what right are you holding this person?

That is precisely how due process declines in democracies. It does not collapse overnight. It is gradually re-described as inefficiency—then re-described as a loophole—then re-described as a luxury reserved for those deemed socially deserving. By the time the machinery is mature, the executive can look surprised when asked to justify herself at all.

What this episode tells us about the United States now

Judge Biery’s order ends with an almost weary concession: the petitioners may ultimately be removed—voluntarily or otherwise—because “of the arcane United States immigration system”. But he adds the essential point: that outcome should occur “through a more orderly and humane policy than currently in place”. 

That sentence captures the distinction between enforcement and lawfulness. A state may enforce her borders. But enforcement is not a licence to abandon the culture of justification. If the executive can seize a father and a five-year-old, move them across a continent and detain them through self-authored paperwork without a Judge even taking a look at the matter—then due process is no longer a constitutional guarantee but an administrative mood.

There is of course an irony here. The United States presents herself globally as a rule-of-law power. She criticises arbitrary detention in authoritarian states. She funds rule-of-law projects abroad. Yet at home, in the immigration sphere, she has tolerated practices that look—to outsiders—like a parallel system: one with fewer rights, thinner oversight, and a routine reliance on custody as a lever.

Judge Biery’s opinion is therefore important not because it is long or doctrinally intricate, but because it is a refusal. It refuses the notion that the immigration context is exempt from the American constitutional story. It refuses the idea that children can be collateral to quotas. It refuses the executive’s temptation to become, in effect, her own judge.

The question that lingers is whether this is a single finger in a dike that holds for a moment, or the beginning of a broader judicial insistence that due process—real due process—must again be made ordinary in immigration enforcement. The United States has the institutions to correct herself. What she requires is the political and administrative willingness to accept correction.

In the meantime, one small case has reminded the public of a basic truth: the rule of law is not proved by the government’s capacity to detain. It is proved by her willingness to explain—to an independent court—why she thinks she may.