Thread by @KlasfeldReports

A hearing is scheduled to begin at 9 a.m. CT (10 a.m. ET) on the state of Minnesota's request to halt the ICE surge in the Twin Cities.

I'm covering the proceedings remotely.

From the state's memo:

buff.ly/ub2bHso

From lawyers for the state and the Twin Cities.

"We need the Court to act to stop this Surge before yet another resident dies because of Operation Metro Surge." storage.courtlistener.com/recap/gov.usco…

"All rise."

Judge Katherine M Menendez presiding.

The lawyers enter their appearances.

Judge Menendez notes that the proceedings will delve into the legal questions more than the evidentiary record.

The state asks the judge to deliver relief TODAY.

Pam Bondi sent a "ransom note" to the state, the lawyer says.

Lindsey Middlecamp argues for the state:

“Another person has been shot dead in broad daylight by DHS agents.”

Middlecamp:

The ICE surge shouldn't last “another month, another week, or another single day."

Middlecamp:

"Can we keep our people safe if people won't report crimes in their own community?"

Middlecamp reports a threat to public health from "prenatal care foregone."

She reports "one preventable amputation" disclosed by doctor who was "courageous" enough to step forward.

Middlecamp:

The reluctance to speak on the record is "profoundly high" in a climate of "retribution," she says.

Middlecamp says school attendance fell below 50%.

Events are cancelled in a way likened to the COVID pandemic, she says.

Middlecamp describes how a whistleblower disclosed the background of the "warrantless entries" seen in the Twin Cities area.

“That’s not a mistake. That’s by design.”

Middlecamp describes the "indiscriminate use" of chemical spray leading to the need for "emergency aid" for a "6-month-old."

Her colleague Brian Scott Carter fields judge's questions on the legal arguments.

Judge Menendez asks Carter's best argument.

She says the first one feels "nebulous."

Menendez summarizes the first argument this way:

An excessive use of federal law enforcement is causing the state and cities to expend so many resources that it violates the 10th Amendment by essentially commandeering.

When the judge asks for a citation for that principle, Carter responds that unprecedented nature of the government amassing "what is essentially an army" to "essentially stir the pot with conduct that is pervasive and includes illegal violent conduct."

Judge:

"I appreciate that answer, Mr. Carter. I think it goes without saying that we’re in shockingly unusual times."

She questions whether that allows her to craft a remedy.

Carter:

"The lawlessness we’ve seen, your honor, is jaw-dropping."

Judge:

You understand that the federal government has a lot of power in this area, so I'm asking you what legal principle you wants me to apply.

Menendez asks whether she would have the power to halt the ICE surge if the 3,000 officers obeyed the law.

Carter says, even if all 3,000 agents acted like "Boy Scouts," that it doesn't mean that it couldn't arise to coercion.

Carter says of Pam Bondi's letter to the state: "It’s a shakedown letter. It’s a ransom note."

He says that Bondi demanded three things to end the surge.

"Is the administration moving the field goal, moving the goal posts? Yes, they are. That’s what you expect from someone who is extorting you."

Carter: "The conduct we're seeing here is so much worse that the 10th Amendment must prohibit it."

Menendez note that the conduct here is the subject of other litigation:

"Isn't the answer to the flood of illegality to fight each illegal act?"

Arguments continue to circle around the anti-commandeering doctrine.

Carter notes that one of Bondi's demands was repealing sanctuary jurisdiction laws.

Carter:

"This administration is not content with the Rule of Law."

The government put "violence on the streets" with "3,000 masked heavily armed agents" engaged in "violent illegal conduct."

"That has to violate the 10th Amendment."

Carter calls the surge and violence another method of trying to strong-arm the state to give up voter data, a fight they've lost in the courts. There's a pending fight in MN.

"I'm fairly confident that they will lose. They have lost all of these cases."

Carter: "When does pressure become compulsion?"

He says that's a fact question.

Carter says there is "open violation of the state's criminal laws," from anti-masking laws and reckless driving to "worse."

Carter turns to the voter roll demand, which they lost in the courts.

Per Carter, the government responds: "We don't care. We're going to put violence and chaos in the streets and we're going to force it with illegal conduct."

"If THAT doesn't violate the 10th Amendment...."

Carter floats a hypothetical of an anti-gun admin deploying 3,000-4,000 masked federal agents engaging in pervasive, illegal conduct.

Under the crime-fighting banner, the gov't says: "If you just legislate, get rid of your carry statute, we'll go away."

"It's the same thing."

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Carter:

"It is personal animosity. It is retribution. Literally, the President of the United States" said in the middle of this "chaos": "Minnesota, you day of retribution is here."

"That's CRAZY. How can that NOT violate the 10th Amendment?"

Carter:

"If this is not stopped right here, right now, I don't think that anybody seriously looking at this problem can have much faith in how our Republic is going to go in the future."

Carter: "We just had a leaked memo that rather shockingly suggests that ICE agents can conduct warrantless entries" into people's homes.

Judge: "I'm not being flip here... but where's the lawsuit on that?"

Judge:

You're asking me for a TRO. What does it say? I'm not being flip here. What exactly do you think these 10th Amendment claims let me order?

Carter:

The easiest thing would be to end this Operation Metro Surge.

Carter:

This Operation Metro Surge is an illegal means to an illegal end. So just end it.

Judge:

"I can detail the number of agents. I can pick and choose about who to arrest[...] I can tell them to take off masks and wear bodycams. I can do all that?!"

Judge Menendez asks what if she denies a TRO now and develops the record more before the preliminary injunction question.

Carter responds that the state needs relief now.

10-15 minute recess

Analysis:

Judge Menendez appears skeptical of her power to order immediate relief in this unprecedented situation.

But her comments about developing an evidentiary record suggest she COULD BE receptive to the argument that the federal government seeking to strong-arm policy aims via the surge could arise to an anti-commandeering issue.

Judge Menendez questions Brantley Mayers, who's arguing for the Justice Dept.

Judge: The goal of the surge is not to get [the state and cities] to change their policies?

Mayers: No, your honor, the goal is to enforce federal laws.

The judge presses DOJ about Bondi's letter making three demands:

How are those not demonstrating that the purpose of the surge is to effect those changes?

Judge: "What am I supposed to do with the reality that a substantial amount of the activity has nothing to do with 'let us into your jails'?"

Judge: "You're asking me to believe that the surge has nothing to do with coercing the Plaintiffs into changing their policies."

The judge asks: "What if AG Bondi signed her letter, 'If you changed your policies, the surge ends today?"

Would that arise to an anti-commandeering issue?

Q: Do you think it's true that the motivation matters?

Mayers effectively answers that it doesn't.

Judge: "Let's say that Attorney General Bondi said, 'We are here until you change your policies.'"

Doesn't that change the anti-commandeering considerations?

Judge Menendez asks about Trump's quote: "Your day of retribution is here." She asks what she's supposed to do with that.

Mayers says he hasn't seen that Truth Social post.

Mayers: There’s no cognizable theory as to when Operation Metro Surge became a 10th Amendment violation in the first place.

Judge:

Would 10K federal agents in the Twin Cities cross the line? Are there no limits?

JUDGE: “It concerns me that Attorney General Bondi’s letter cites three things that are the subject of pending litigation before this court,” referring to the District of Minnesota.

"Is the executive trying to achieve a goal through force that it can't achieve through the Courts?"

JUDGE: "Your position is that it doesn’t matter how clear that the quid pro quo is."

She asks whether the government claims it "cannot involve anti-commandeering" if it’s in the law enforcement arena.

Judge: "I have all of these quotes in the record. You're telling me that I'm reading them wrong."

That the surge isn't to coerce a change in the policies.

"What do I have in the record to show that the surge is to make up for the harms caused by the policies?"

Judge: Explain to me exactly which policies are causing the harms that the surge is meant to fix.

Mayers cites detainers.

Judge: What else?

Judge:

There's a lot of cases that focus on the exact effort of this administration to get cities and states to change their policies with respect to immigration laws.

There's Medicare funds, SNAP funds, this case.

Have any of those cases found that it doesn't involve the 10th Amendment?

Judge asks about the standard required for the state to get injunctive relief.

"You say that it's a heightened standard. Why?"

Judge: They're challenging one law enforcement operation. They're not challenging the Writ Large enforcement of immigration law.

Judge:

Do you think that if I issued a TRO promptly that it would be unappealable?

Mayers replies that given recent precedents, if it has the hallmarks of a preliminary injunction present, it would be considered a P.I.

"We think your honor appropriately converted it to a preliminary injunction."

Judge Menendez:

If I find the goal of the surge was to force a change of policy, what relief am I empowered to grant?

Mayers:

Your honor would have to find and draw some line.

Judge:

"What if the line was enjoin Operation Metro Surge while this case is moving forward? You all named it. You all declared it. [...] Since you created it, you understand its scope. Not you personally."

Judge:

We are going to be here for 20 more minutes. I'll leave it to you all how to divide that time.

Attorney Sara Lathrop for Minneapolis:

"The relief we need needs to be ordered now to take down the temperature."

The judge says that something she's struggling with is not every situation can be fixed through a district court injunction, which will inevitably go up to the 8th Circuit.

Lathrop: "You're absolutely right, your honor. You're not the only solution to this problem."

The Courts also have judicial review.

"That doesn't mine you shouldn't act, and you can't act."

With that, Judge Menendez adjourns and says a ruling might take time, not because it's unimportant.

"It's because it's extremely important that I'm going to do everything in my power to get it right."

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