Laken Riley Act signed into law

On 29 January 2025 President Donald J. Trump signed the Laken Riley Act, Pub. L. 119-1, the first legislation of his second term.¹ The act amends § 236(c)(1) of the Immigration and Nationality Act, codified at 8 U.S.C. § 1226(c)(1), by adding a new subparagraph (E) requiring the Secretary of Homeland Security to detain any noncitizen who is inadmissible under INA § 212(a)(6)(A), (6)(C) or (7) and who is “charged with, is arrested for, is convicted of, admits having committed, or admits committing acts which constitute the essential elements of any burglary, theft, larceny, or shoplifting offense, or of assault of a law enforcement officer, or any crime that results in death or serious bodily injury to another person.”²³ Section 4 of the act authorises state attorneys general to sue the federal government in four categories — release of a detained alien, failure to detain, failure to remove, and a duty on the Secretary of State to “discontinue granting visas” to nationals of recalcitrant countries — for declaratory and injunctive relief, with a minimum-injury threshold of “more than $100 in financial harm” and an expedited-disposition requirement.⁴ The House passed its own vehicle, H.R. 29, 264-159 on 7 January 2025 (Roll Call 6, with 48 House Democrats joining all voting Republicans); the Senate invoked cloture on the substitute S. 5 by 61-35 on 17 January 2025 (with 12 Senate Democrats joining the Republican caucus); the Senate passed S. 5 on final passage 64-35 on 20 January 2025 (Roll Call Vote 7); the House cleared the Senate-amended S. 5 by 263-156 on 22 January 2025 (Roll Call 23, with 46 House Democrats joining the Republican caucus).⁵⁶⁷⁸ At the same signing ceremony, President Trump signed a presidential memorandum directing the Secretaries of Defense and Homeland Security to “expand the Migrant Operations Center at Naval Station Guantanamo Bay” with an announced capacity for up to 30,000 detainees.⁹

1. ICE detention capacity is funded by appropriations: FY2024 appropriations established an average daily floor of approximately 41,500 detention beds, a floor rather than a ceiling.¹⁰ The new mandatory-detention class under § 1226(c)(1)(E) enters that pool; the Supreme Court has upheld § 236(c) mandatory detention against pre-removal due-process challenge in Demore v. Kim, 538 U.S. 510 (2003), and has held in Zadvydas v. Davis, 533 U.S. 678 (2001), that post-removal-order detention “is presumptively reasonable” for six months and that habeas review is available thereafter.¹¹¹²

2. Section 4 creates statutory standing for state attorneys general; whether the section satisfies Article III injury and traceability is a separate question. In United States v. Texas, 599 U.S. 670, 680 (2023), the Supreme Court held that States “lack Article III standing to challenge the Federal Government’s arrest and prosecution policies” because the Executive Branch’s “decision not to arrest and prosecute” “does not exercise coercive power over an individual’s liberty or property.”¹³ Section 4’s $100 minimum-injury threshold is the statute’s attempt to anchor injury-in-fact; whether it suffices remains a live question for the courts.

3. Mandatory detention under § 1226(c)(1)(E) attaches at the point of charge (or arrest), not conviction. Pretrial release decisions in state criminal courts no longer determine federal custody status for the noncitizens covered.³