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By Majorie Cohn / Consortium News
U.S. District Judge Katherine Menendez last Saturday found evidence that ICE and border patrol agents in Minneapolis “have engaged in racial profiling, excessive use of force, and other harmful actions.”
Nevertheless, she refused to issue a preliminary injunction temporarily halting “Operation Metro Surge.”
The state of Minnesota and the cities of Minneapolis and St. Paul sued Homeland Security Secretary Kristi Noem and other immigration officials five days after ICE (Immigration and Customs Enforcement) agents murdered Renee Good and 12 days before the public execution of Alex Pretti by border patrol agents in the streets of Minneapolis.
Plaintiffs asked the federal court to declare the unprecedented surge unconstitutional and issue an injunction halting it.
In their complaint, plaintiffs argue that deployment of 3,000 immigration agents to Minnesota amounts to an illegal “occupation.” They allege that it violates the 10th Amendment to the Constitution, which says that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Control over local and state government personnel is reserved to the states under the 10th Amendment. Minneapolis, like other “sanctuary” jurisdictions, has determined that its resources are better used to help its residents rather than to assist in deporting immigrants.
The surge, plaintiffs write, constitutes “an unlawful attempt to commandeer state and local law enforcement to assist federal agents in carrying out federal immigration laws.” The “aggressive and militarized surge,” they assert, “interferes with the ability of state and local law enforcement to address crime and protect residents’ health, welfare and safety,” as well as the right to a public education and the running of public schools.
Plaintiffs contend that the largest U.S. immigration operation ever undertaken violates state sovereignty because Minnesota is being singled out to punish its elected officials and residents for their perceived political leanings, “to target so-called ‘sanctuary’ jurisdictions, to create false political narratives of lawlessness in Minnesota, and to incite flashpoints between Minnesota residents and immigration agents.”
‘Heartbreaking Consequences’
In her 30-page decision, Menendez wrote that
“Plaintiffs have made a strong showing that Operation Metro Surge has had, and will likely continue to have, profound and even heartbreaking, consequences on the State of Minnesota, the Twin Cities, and Minnesotans.”
She noted that the costs and consequences of the surge alleged by plaintiffs had not been contested by defendants. The defendants instead highlighted the importance of immigration enforcement, the number of arrests of undocumented people, including some with serious criminal histories, and they asserted that immigrant agents had been met with resistance by protestors, sometimes with threats and violence.
Menendez recited the plaintiffs’ contentions that
“Defendants’ indiscriminate, arbitrary, and unlawfully forceful methods of carrying out their stated law enforcement objectives and responding to anti-ICE observers and protesters have resulted in widespread fear across the state.”
Plaintiffs provided examples of many incidents, including the shootings of Good and Pretti, as well as “DHS agents ramming vehicles; agents throwing explosive cannisters of chemical irritants under family vehicles; and leaving undetonated chemical munitions and live ammunition behind on the scene of enforcement efforts.”
Scant Legal Precedent
But Menendez refused to find the surge unlawful at this point in the lawsuit, determining instead that the plaintiffs had not met their burden of showing that a preliminary injunction was warranted.
Since there is scant legal precedent for a state to challenge federal law enforcement under the 10th Amendment, she decided to play it safe, declining to venture into essentially uncharted territory.
Menendez noted that the Supreme Court has found “the Tenth Amendment embodies an ‘anticommandeering principle’ that prevents the federal government from infringing on the sovereignty of a state.”
Haiyun Damon-Feng, a constitutional scholar and assistant professor of law at Cardozo School of Law, told The Guardian, “The anti-commandeering doctrine is basically an anti-coercion doctrine that preserves state sovereignty within our federal constitutional structure.”
He added: “The 10th amendment is generally understood to be a structural protection to guard states and people against federal tyranny, and that is what Minnesota is invoking here.”
Existing 10th Amendment case law involves explicit federal requirements, such as compelling state officers to conduct background checks for gun sales. In this case, plaintiffs argue that the anti-commandeering doctrine also applies when federal presence and actions withdraw resources from critical state functions.
“The administration’s current actions are more egregious than those struck down in previous anti-commandeering rulings,” Ilya Somin argued at Lawfare. “Here, there is no congressional authorization for federal coercion of states; the president is acting on his own. And the direct use of force is even more blatantly coercive than illegally withholding federal grants. If the federal government cannot coerce states by enacting commandeering laws and imposing grant conditions, surely it cannot do so at the literal point of a gun.”
But Menendez refused to extend the 10th Amendment to the brutal surge, writing:
“Insofar as Plaintiffs’ Tenth Amendment claims do not challenge the constitutionality of any federal statute, Defendants’ challenged conduct does not fit neatly into the clearly defined prohibitions on the exercise of federal authority. Instead, Plaintiffs ask the Court to extend existing precedent to a new context where its application is less direct—namely, to an unprecedented deployment of armed federal immigration officers to aggressively enforce immigration statutes. None of the cases on which they rely have even come close. While the novelty of Plaintiffs’ claims does not necessarily preclude their ultimate success on the merits, it weighs against the propriety of preliminary injunctive relief.”
“Plaintiffs have provided no metric by which to determine when lawful law enforcement becomes unlawful commandeering, simply arguing that the excesses of Operation Metro Surge are so extreme that the surge exceeds whatever line must exist,” Menendez went on. “A proclamation that Operation Metro Surge has simply gone ‘so far on the other side of the line’ is a thin reed on which to base a preliminary injunction.”
Bondi Admits Surge Is Being Used to Extort Voter Rolls
The Jan. 26 hearing in Menendez’s court on plaintiffs’ request for an injunction reportedly focused largely on a letter from Attorney General Pam Bondi to Minnesota Governor Tim Walz that made ending the surge contingent on Justice Department access to Minnesota voter rolls and welfare program data, and repeal of sanctuary policies, none of which is related to immigration enforcement.
In her decision, Menendez wrote,
“’Using a surge of executive force against a ‘sanctuary’ jurisdiction to accomplish the same ends is arguably no less coercive than withholding funds, and the Court does not dismiss Plaintiffs’ position as ‘legally frivolous,’ as Defendants suggest it should.’”
But Menendez refused to find that plaintiffs would likely succeed on the merits of their claims when they are ultimately adjudicated. She hesitated to identify a single motivation for the surge, fearing that it “would venture into a uniquely controversial political question” (matters reserved to the executive and legislative branches, not the judiciary).
In addition, Menendez noted that the 8th Circuit Court of Appeals — which binds Minnesota federal district courts — recently vacated a narrower injunction that limited the way immigration officers treat protestors and observers. In that case, the appellate court overturned a ruling by Menendez that had blocked federal officers from retaliating against peaceful demonstrators or using pepper spray and “similar nonlethal munitions and crowd dispersal tools” against them.
The denial of an injunction is not a ruling on the merits. Plaintiffs have vowed to appeal Menendez’s January 31 decision to the 8th Circuit, which is likely to affirm her ruling. But that does not end the case. After full briefing and hearings, there will be a decision on the merits, which could then be appealed.
“This decision doesn’t change what people here have lived through — fear, disruption, and harm caused by a federal operation that never belonged in Minneapolis in the first place,” Mayor Jacob Frey wrote in a statement. “This operation has not brought public safety. It’s brought the opposite and has detracted from the order we need for a working city. It’s an invasion, and it needs to stop.”
He added, “Today’s decision is just one step in this lawsuit. The City will continue to pursue the lawsuit to hold the Trump administration to account.”
Meanwhile, massive numbers of people continue to take to the streets of Minneapolis and other cities around the country to protest the vicious actions of federal immigration agents.
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Marjorie Cohn
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, dean of the People’s Academy of International Law, and past president of the National Lawyers Guild. She sits on the national advisory boards of Veterans For Peace and Assange Defense, and is a member of the bureau of the International Association of Democratic Lawyers and the U.S. representative to the continental advisory council of the Association of American Jurists. Her books include Drones and Targeted Killing: Legal, Moral and Geopolitical Issues.