Posted originally on CTH on February 11, 2026 | Sundance

This is one step further than simple Lawfare, this story is about lower court judges openly strategizing ways to stop the enforcement of laws they are supposed to uphold.

Last week the Fifth Circuit Cout of Appeals ruled that detaining illegal aliens during the deportation proceedings is entirely following current immigration law [SEE HERE]. Now, according to Politico, federal judges in Texas are openly strategizing ways to work around that higher court ruling and keep giving bond releases to illegal aliens under the guise of “liberty interest.”

POLITICO – […] two federal district court judges in Texas, who are bound by the New Orleans-based 5th Circuit’s ruling, said the 2-1 decision left an opening for them to continue granting immigrants’ release on other grounds, primarily constitutional arguments against detaining people who have established roots in the U.S. without due process. Those roots amount, in legal parlance, to a “liberty interest” that the Constitution says cannot be taken away without at least a hearing before a neutral judge.

“This conclusion is not changed by the Fifth Circuit’s recent decision,” Judge Kathleen Cardone, an El Paso based appointee of George W. Bush, ruled late Monday in at least five cases, concluding that the circuit’s decision “has no bearing on this Court’s determination of whether [the petitioner] is being detained in violation of his constitutional right to procedural due process.”

Judge David Briones, an El Paso-based Clinton appointee, reached a similar conclusion.

“The Court reiterates its original holding that noncitizens who have ‘established connections’ in the United States by virtue of living in the country for a substantial period acquire a liberty interest in being free from government detention without due process of law,” Briones wrote.

The decisions from the Texas-based judges are notable in part because the administration has often rushed detainees there after their arrests in other states such as Minnesota.

A spokesperson for the Department of Homeland Security did not immediately respond to a request for comment.

A Justice Department official, granted anonymity to speak candidly, said the rulings were in keeping with the view that there are rogue judges who continue to make results-oriented decisions to suit their personal policy preferences.

The 5th Circuit’s ruling has yet to percolate through federal courts across Texas and Louisiana, where detained immigrants have been filing so-called “habeas” petitions in extraordinary numbers to seek freedom from what they say is illegal detention without the opportunity for bond. The losing parties in Friday’s ruling may still appeal the decision to the full bench of the 5th Circuit or the Supreme Court. (more)

Lower courts trying to circumvent higher court rulings, even before any plaintiff brings them a case or argument.

This is judicial activism in the extremes.