Trump and his supporters clearly believe migrants have no constitutional rights. But that’s simply not true. They have the same rights as citizens for one truly obvious reason: a government could choose to declare certain people non-citizens in order to strip them of their rights. That would be highly problematic in a nation that’s almost entirely the result of immigration, which is why courts have routinely held that non-citizens have the same rights as citizens while on US soil.

That’s still the case, for the most part. The Fifth Circuit — fulfilling its role as the preferred US Supreme Court understudy — has chosen to ignore literally hundreds of rulings in favor of due process rights for immigrants to decide those no longer exist in the states most migrants detained by the government get sent to before being removed from the country.

Last November, the Trump administration’s efforts to eliminate due process rights had been rejected by more than 100 judges in more than 200 cases. A few months later — and with a full-press surge happening in Minneapolis, Minnesota — the number of rejections has spiked:

A POLITICO review of thousands of ICE detention cases found that at least 360 judges rejected the expanded detention strategy — in more than 3,000 cases — while just 27 backed it in about 130 cases.

While most of the mass deportation action is currently happening far north of the Fifth Circuit (which covers Louisiana, Mississippi, and Texas), arrested immigrants are often sent almost immediately to detention facilities closer to the southern US border. Texas is, by far, the most popular destination for ICE detainee flights.

The Fifth Circuit waited around until late Friday night to release this decision [PDF], presumably in hopes of seeing the backlash subside a bit before the judges were due back at the office. Steve Vladeck covers all the angles in his post on this abhorrent ruling, starting with how this is an insane conclusion to reach given that 3,000 cases around the country have upheld the same rights the Fifth Circuit has chosen to deny to any migrant with the misfortune of finding themselves in its jurisdiction.

Well, late Friday night, in a ruling handed down just two days after oral argument, a divided panel of the U.S. Court of Appeals for the Fifth Circuit adopted the extreme minority view—holding that, yes, the government can indefinitely detain without bond millions of non-citizens who have been here for generations; who have never committed a crime; and who pose neither a risk of flight nor any threat to public safety. The Fifth Circuit’s opinion was written by Judge Edith Jones and joined in full by Judge Kyle Duncan—two of the most reactionary, right-wing federal appellate judges in the country…

The obvious upshot of this decision is that ICE et al will be rushing detainees to Texas ASAFP to take advantage of this ruling.

As Aaron Reichlin-Melnick from the American Immigration Council noted last night, the Fifth Circuit’s decision will “fuel ICE’s push to transfer people to Texas immediately,” and it will put “even more pressure on plaintiffs and district courts outside the 5th Circuit. Unless the habeas is filed before a person is transferred to the 5th Circuit, a person may remain locked in appalling conditions, never even allowed to ask for bond.” All of that can be traced to another procedural technicality—the principle that a district court gains jurisdiction over a habeas petition if, but only if, it is filed while the petitioner is physically in that court’s jurisdiction. In other words, to avoid being subject to the Fifth Circuit’s decision (while it remains on the books), detainees arrested elsewhere would have to have someone file on their behalf before they’re physically transferred into the Fifth Circuit.

There’s still a chance that people arrested in, say, Minneapolis, Minnesota might be able to avoid the Fifth Circuit’s refusal to recognize their due process rights. But the denial of due process rights begins immediately in most cases, with ICE officers refusing to allow detainees to contact family members, much less seek legal representation. If ICE can get them on a plane headed south before anything is filed in local courts, the Fifth Circuit’s ruling will override whatever rights migrants might have still had access to in the states they were removed from.

An appeal of this decision is already in process. And while it’s concerning that this particular iteration of the Supreme Court will be handling it, it’s not a foregone conclusion that it will convert the Fifth’s ruling into nationwide precedent. Even at its worst, the Supreme Court has rejected a handful of Fifth Circuit rulings that cross the line into an open embrace of violent fascism. On the other hand, this version of the Supreme Court is far more prone to deliver wordless rubber stamps of appellate decisions it likes, so some caution is warranted.

This decision requires the most MAGA-coded judges in the Fifth to buy everything the Trump administration is selling. And what it’s selling is a brand new interpretation of the phrase “seeking admission.” Rather than limiting it to people crossing the border illegally, it applies this definition to any migrant who doesn’t have the proper paperwork, even if they arrived in this country decades ago.

The dissent, written by Judge Dana Douglas, makes it clear that this administration will do anything and everything that serves its racist desire to eject non-whites from the United States.

The Congress that passed IIRIRA (Illegal Immigration Reform and Immigrant Responsibility Act [1996]) would be surprised to learn it had also required the detention without bond of two million people. For almost thirty years there was no sign anyone thought it had done so, and nothing in the congressional record or the history of the statute’s enforcement suggests that it did. Nonetheless, the government today asserts the authority and mandate to detain millions of noncitizens in the interior, some of them present here for decades, on the same terms as if they were apprehended at the border.

Do you want to be this shitty, Judge Douglas asks the judges who pretended this sort of thing is OK as long as it’s Trump doing it.

The majority stakes the largest detention initiative in American history on the possibility that “seeking admission” is like being an “applicant for admission,” in a statute that has never been applied in this way, based on little more than an apparent conviction that Congress must have wanted these noncitizens detained—some of them the spouses, mothers, fathers, and grandparents of American citizens. Straining at a gnat, the majority swallows a camel. I dissent.

Hopefully this ruling will be reset by the Supreme Court or an en banc rehearing. But for now, the law of the land in three states that are willing to house ICE detainees says due process rights are only available in the 47 states the Fifth Circuit doesn’t control.

Way back in 2018, a series of events in Samoa brought about the country’s worst measles outbreak in years. It started in July of that year when two 1-year old children who were given a measles vaccine subsequently died. While anti-vaxxers around the world gleefully jumped into action to blame the vaccine for those deaths, it turns out that the vaccine didn’t kill the children at all. Instead, medical professionals had accidentally mixed the vaccine with a muscle relaxer solution instead of sterilized water like they were supposed to. Despite that fact, the anti-vaxxers sowed all kinds of fear and disinformation throughout the country, whipping up negativity around measles vaccines. As a result of that, the government put a 10 months ban in place on the vaccine.

In June of 2019, RFK Jr. visited Samoa. He met with anti-vaxxer crusaders and government officials. Despite that, he has said publicly and in testimony before Congress that his trip there had nothing to do with vaccines and was instead about a medical records and tracking system the country was interested in. You can see an example of that claim in his own confirmation hearing.

Lots of people questioned that claim. And rightly so. The people he was meeting with, the timing in conjunction with the vaccination ban, it all lined up to yet another anti-vaxxer visiting the country to push their anti-vaxxer message.

Two months later, Samoa experienced a massive measles outbreak.

An outbreak began in October 2019 and continued for four months. Before seeking proper medical treatment, some parents first took their children to ‘traditional healers’ who used machines purchased that claimed to produce “immune-protective” water.

As of 22 December, there were 79 deaths. This was 0.4 deaths per 1,000 people, based on a population of 200,874, an infection fatality rate of 1.43%. There were 5,520 cases, representing 2.75% of the population.61 of the first 70 deaths were aged four and under. All but seven of the deaths were from people aged under 15.

At least 20% of babies aged six to 11 months contracted measles. One in 150 babies died.

This past week, documents and emails obtained by The Guardian and The AP show that everyone on the Samoan government’s side of the house understood Kennedy’s visit to be explicitly about vaccines, contrary to his statements, including statements before Congress. He was sworn in for that confirmation hearing, to be clear.

Documents obtained by The Guardian and The Associated Press undermine that testimony. Emails sent by staffers at the U.S. Embassy and the United Nations provide, for the first time, an inside look at how Kennedy’s trip came about and include contemporaneous accounts suggesting his concerns about vaccine safety motivated the visit.

The documents have prompted concerns from at least one U.S. senator that the lawyer and activist now leading America’s health policy lied to Congress over the visit. Samoan officials later said Kennedy’s trip bolstered the credibility of anti-vaccine activists ahead of the measles outbreak, which sickened thousands of people and killed 83, mostly children under age 5.

The AP post has a ton of details further down the article, but here is an example of the content.

Embassy staffers got a tip about Harding’s involvement in the trip from Sheldon Yett, then the representative for Pacific island countries at UNICEF, the United Nations Children’s Fund.

“We now understand that the Prime Minister has invited Robert Kennedy and his team to come to Samoa to investigate the safety of the vaccine,” Yett wrote in a May 22, 2019, email to an embassy staffer based in New Zealand. “The staff member in question seems to have had a role in facilitating this.”

Two days later, a top embassy staff member in Apia wrote to Scott Brown, then the Republican U.S. president’s ambassador to New Zealand and Samoa, alerting him to Kennedy’s trip and Harding’s involvement.

“The real reason Kennedy is coming is to raise awareness about vaccinations, more specifically some of the health concerns associated with vaccinating (from his point of view),” the embassy official, Antone Greubel, wrote. “It turns out our very own Benjamin Harding played some role in a personal capacity to bring him here.” Greubel wrote that he told Harding to “cease and desist from any further involvement with this travel,” though the rest of the sentence is redacted.

Now, I have zero problem believing that Kennedy is lying about all of this. Lying is just what he does. And regularly. I also put the blood of all those dead children, and any long term health issues in the thousands of others, partially on Kennedy’s ledger. This is all simply common sense.

But the real travesty is something quite similar is happening right here, right now. The measles outbreak in America is speeding up, not slowing down. Kennedy, as with Samoa, is taking zero responsibility for it. If he’s taking any real concrete actions to combat it, I don’t know what those would be, nor would I understand why they’ve been hidden so completely from public visibility. Kennedy once opined that maybe it would be better if everyone just got measles.

If that is his real goal, it appears we’re on our way. But somebody besides a couple of press outlets should be investigating Kennedy for lying to Congress, at a minimum. And perhaps having a hand in the deaths of children, as well.