CHICAGO — A federal appeals judge on Tuesday had blunt criticism for a lower court judge’s order to release hundreds of immigrants on bond whose arrests during “Operation Midway Blitz” are being challenged under a consent decree that limits so-called warrantless detention.

During arguments before a three-judge panel of the 7th Circuit U.S. Court of Appeals, Judge Thomas Kirsch II called out U.S. District Judge Jeffrey Cummings for failing to make a determination on who among the 450 or so detainees still locked up in the U.S. would qualify as a class member in the lawsuit.

“He just determined that they were a potential class member and released them,” said Hirsch, who was nominated to the 7th Circuit during the waning days of the first Trump administration. “And then he issued a 24-hour stay … I have no idea where that comes from in federal law do you?”

Hirsch also said he was “shocked” that Cummings' ruling to extend the consent decree by four months treats the agreement “as if it’s a contract between two private parties — it’s not.”

At several points during the arguments, Hirsch also wondered if Cummings’ order was to stand, what would prevent any current presidential administration from going around the country near the end of its term and entering into consent decrees to “entrench its policies on the next administration.”

In response, Keren Zwick, an attorney for the plaintiffs, told Kirsch his analysis seemed off-point. Besides, she said, the consent decree at issue was largely negotiated by lawyers for the first Trump administration.

“The hypothetical parade of horribles that you are envisioning is not what is going on in this case,” she said.

The arguments came three weeks after Cummings ordered the release of hundreds of detainees — the vast majority arrested during Operation Midway Blitz — on a $1,500 bond and some form of monitoring, including electronic ankle monitors, pending the outcome of their immigration proceedings.

The Trump administration, meanwhile, immediately asked for a stay from the 7th Circuit, arguing Cummings made a “bevy of legal errors” that put public safety at risk and “cripple” immigration enforcement.

At issue is a 2022 consent decree known as the Castañon Nava agreement, which bars agents from making warrantless immigration arrests unless they have probable cause to believe someone is in the U.S. unlawfully and that the person is a flight risk.

It was originally supposed to sunset in March. Instead, after the new Trump administration began ramping up immigration enforcement efforts in January, lawyers for the National Immigrant Justice Center and ACLU alleged dozens of violations, mostly involving “collateral arrests,” or the detaining of individuals who are not targets.

In his Oct. 7 order extending the consent decree until February, Cummings said ICE had improperly told its field offices over the summer that the consent decree had been canceled. He also called into question the recent immigration raid on an apartment building in South Shore, where agents in military gear burst through doors and zip-tied residents regardless of citizenship.

Cummings also took particular issue with a practice by ICE agents of carrying blank I-200 warrant forms with them on missions and filling them out at the scene.

Department of Justice attorney Benjamin Hayes said the government was seeking a stay on both the extension of the consent decree as well as Cummings’ release order pending a full appeal.

The 7th Circuit panel that heard arguments Tuesday included Hirsch, who previously served as U.S. attorney in Hammond, Indiana, as well as a pair of Democrat-nominated judges: John Lee, an Obama nominee, and Doris Pryor, who was nominated by President Joe Biden in 2022.

Lee said he found the Castañon Nava case unique because the Trump administration seemed to be arguing the district court should not enforce a consent decree that “the government entered into eyes wide open.”

“The court is not kind of making things up on its own,” Lee said.

Lee cited a PowerPoint presentation disclosed during the litigation showing agents were being instructed to “go out with blank I-200 (warrants) to get around the requirements of the consent decree.”

Where is the line between operating in good faith and trying to duck a court order? Lee asked.

“It seems to me odd that the government — whoever has the White House at the time — can just say, ‘Oh well, I think this sheet of paper is good enough,'” Lee said.

Toward the end of the 45-minute session, Hirsch asked Zwick, the plaintiffs’ attorney with the National Immigrant Justice Center, whether issuing a stay of the consent decree extension would automatically trigger a stay on the release order as well.

“I think you’re probably right,” Zwick acknowledged.

The panel took the case under advisement and an opinion is expected to be fast-tracked.

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