DOJ's Inconsistent Litigation Strategy Violates Equal Protection in Immigration Detention Cases
Source: Alexander Urbelis. "The crazy loophole DOJ is exploiting to keep my immigrant clients imprisoned.." April 28, 2026. slate.com
The Gist
A lawyer argues that the Justice Department is cheating the system by changing their legal arguments about immigration detention depending on which judge they get. This means some people get released quickly while others with identical cases stay locked up for months, which violates the basic principle that everyone should be treated equally under the law.
Conclusion
The Department of Justice is violating fundamental constitutional principles by taking different legal positions on identical immigration detention cases depending on which judge is assigned, creating a lottery system that undermines equal protection and due process
Premises
- The DOJ concedes that detention is unlawful before judges who have ruled against them, but fights the same legal question before judges who haven't ruled yet
- Identical cases with the same legal question result in vastly different outcomes (4 days vs 11+ weeks) based solely on random judge assignment
- The government does not have a single consistent position on whether these detentions are legal, but selects different arguments based on the assigned judge
- This inconsistency violates the foundational principle that rules apply equally to everyone under the Constitution
- The DOJ's obligation is to seek justice, not to optimize for wins like a private law firm
- Most detained immigrants never get legal representation to assert their rights, leaving them unaware that the law may be on their side
Assumptions
- Equal treatment under law is a fundamental constitutional requirement
- Government lawyers have an ethical obligation to seek justice rather than maximize wins
- The same legal question should receive consistent treatment regardless of which judge hears it
- Constitutional rights should not depend on random case assignment
- The DOJ has the power to issue internal guidance that would resolve this inconsistency