Minnesota v. Noem: A Hearing Diary for Jan. 26

LM: ... swarming cars, slamming them to pavement [etc] vehicles left running in roadway, sometimes not evven in park. undetonated gas cannisters, pepper balls, even a magazine of live ammunition left in public streets and even near playgrounds. impactingh bus routes, places of worship, ... /17

LM: groceries, restaurants ... excessive force, unsupported detentions and arrests. DHS collecting license plates of observers. indiscriminate use of gas ... threw can under car with children in it ... when people dare to speak up, they are hit with I-9 retaliatory audits. /18

one witness had global entry status revoked. someone caught agent saying "registered owner of this car going to have hard time traveling again" standard of proof is very low here. fair showing of success. we've certainly made that showing. manner & [nature] of metro surge impacting pbulic .. /19

LM...health and education Brian Carter (also for MN) Judge: i have some quetions. your argument has 2 components. 10th amendment. plaintiffs have to expend money & time -- unable to serve other goals. violating anti-commandeering doctrine. but in reply brief you focus on different argument ... /20

J: you focus on attempt by govt to coerce MN away from sanctuary cities policy. first feels nebulous, 2d harder to prove. are these independent bases for me tostop the surge? BC: yes, independent. both involve violation of 10th Am in separate ways. J: let's talk about 1st idea: excessive use /21

J: of federal power violates their powers under 10th am. amounts to commandeering of their powers. Brian Carter: the difficulty with the case law on this situation is that this situation is unprecedented in the 250 yr history of our country. never had fed govt amass an army of masked, heavily /22

BC: ... armed agents and sent them to a state to stir the pot with pervasvie, widespread illegal conduct J: i appreciate that answer, kind of goes without saying we're in shockingly unusual times. i dont know that that gives me greater license to craft remedy in the 10th am. /23

J: i still have to have a legal doctrine BC: ... this policy is designed to have MN have to expend resources ... J: let's say this was 50 agents with same remit. A remit of causing chaos. causing difficulty to states. would that violate 10th Am? BC: hard counterfactual to answer /24

BC: i have hard time imagining 50 agents could as a factual matter cause so much havoc and could consume so many resources. if the 50 were engaged in even more savage conduct, i suppose it could. J: flipside: suppose same number of agents but no allegedly unlawful conduct. /25

J: suppose weren't engaging in retaliation, racial profiling, excessive force...only arresting people for whom they had lawful argtument for arrest. but 3000 boots on ground doing that. would that implicate 10th Am? BC: it could. again, that's a counterfactual that's difficult to address /26

BC: ... if you've got 3000 officers behaving like boy scouts, that first 10th Am argument is going to be much more difficult. based on strict commandeering theory. when you think about coercion theory, the analysis is starkly different. doesn't mean it can't arise to coercion. /27

BC: I'd point to the spending-condition cases J: those all deal with specific act of congress that makes clear what requirements are. If X then Y. you must use funds in this way. here we dont have that. dont have concrete expectation of what federal govt is trying to get state & cities to do /28

BC: if the condition is ambiguous-- J: [Judge is discussing Supreme Court cases] BC: i do think Dole was clear that when fed govt is ambiguous about what it's trying to get the state to do, that's problematic. leads me into 2d point. what we've seen is crystallization of efforts of adm ... /29

BC: i'd point to the pam bondi letter. it says you basically need to do these 3 things, and we'll pull our agents out. it's a shakedown letter. a ransom note. ... moving goal posts. that's what you expect from people trying to extort you. ... /30

[Bondi letter is below] Judge is now talking about what the purported illegal "commandeering" was in various supreme court cases. Illegal commandeering is when fed govt forces states to perform federal functions at their own expense. /31 storage.courtlistener.com

BC: the moving goal posts doesn't exhibit malice. it exhibits coercion. you're going to do what i want you to do. and you better pray i dont alter the bargain any more. have we ever seen that level of coercion before? of course not. that's while all these cases are--so far below the /32

outrageous conduct we're seeing here. so much worse than anything we3've seen, that 10th Am must prohibit it. J: one thing i'm grappling with--much of the conduct you're complaining about is susceptible to other forms of relief. one is before me ... 100s of habeas cases. ... you're asking me /33

J: ... e.g., in Tincher i issued class-wide relief for certain [alleged wrongs.] in case before Tostrud there's challenge to illegal stops and other matters. isn't that solution? to bring cases [like that] rather than say govt must leave state of MN? /34

BC: here, the touchstone of why state is being damaged -- look at coercion, extortion piece of it. look at demands relating to immigration policies. J: what they call 'sanctuary' policies? BC: yes in part. Bondi saying you got to repewal your sanctuary laws. they're commandeering legislative /35

BC: ... process. them trying to force us to repeal ... other part is straight-up trying to commandeer state resources. forcing state officials, our law enforcement to help them in enforcing fed regulatory scheme. ... /36

J: the scope of changes they want exceeds the provisions of Section 1373 [I'm sorry, i'm not sure which statute they're talking about.] BC: oh, yes. they're trying to force us to do same thing they sued us over. they've lost all of these cases. this admin is not content with rule of law. /37

BC: instead they put violence into state of MN to get same thing [they coudln't get in court]. J: let's talk about parameters. fed govt says Constitution, statutes, support significant fed power around immigration. no question fed govt can use fed law enforcement to enforce it's own laws. /38

J: how do i decide when particular enforcement crosses the line into 10th Am violation? Smaller surge that was more violent--would it cross? Huges surge that's lawful--would it cross line? BC: when we look at case law, it's when pressure turns into compulsion. ... factual question. /39

Brian Carter ("BC") saying its a fact-sensitive question. BC: we've got 2 factual predicates for our 10th AM claim. both basically uncontested by govt. they chose not to contest facts. here are the 2: 3000-4000 masked federal agents engaged in pervasive illegal violewnt behavior /40

BC: ... second factual predicate: variety of improper motives. teh bondi letter--trying to coerce state to legislate in way they want. trying to get us to turn over voter roles--what's that got to do-- J: that's subject of a different suit. BC: right. ... this admin says we dont care. ... /41

BC: ... this kind of coercion has to violate 10th am. it has to, it's beyond debate. J: you say motivation of OMS is to coerce cooperation with fed law enforcement that states dont want to do. imagine situation where a state legalized all drugs & drug trafficking. ... /42

J: suppose govt says: because you're not enforcing drug laws, we need to bring more fed troops in to make up the difference. and we'll send in more troops than into neighboring state, because it enforces drug laws. that doesn't violate anti-commandeering rule, right? BC: i think that's correct /43

J: in the 10th am context you're mostly raising anti-commandeering doctrine right? BC: i think that's right. hazy to distinguish between anti-commandeering and undue coercion. at its heart, fed govt is attempting to bend state's will to its own. that's not allowed under Constitution /44

J: in my hypo, motivation is not to force state to change back, but to compensate for what fed govt believes would be negative consequences of state's policy. is that teh big distinction? BC: that is a big distinction. what we have here is illegal means and an illegal end. what you're driving at /45

BC: is you're taking out the illegal end piece of it. these hypos -- we're so far beyond that, it's not necessary to draw the line. ... so far beyond the pale of legality. such an affront on the sovereignty of the state. think about gun laws. we hae open carry laws. suppose there was /46

BC: ... we had a anti-gun federal admin deploy 3-4000 fed agents to putatively fight gun crimes ... and say, well if youj'll just get rid of your open carry laws, we'll withdraw. that would be same thing. Judge is saying she's concerned about it seeming like she's deciding policy outcomes ... /47

J: am i supposed to look at their stated reasons for OMS and red line the extent to which they are and aren't pursuing those goals? the state has one set of values around immigration; fed govt has different set of values. we're at risk of asking me to decide whose right here? /48

BC: we're absolutely not asking you to do that. this suit does not challenge the INA. when they say they're doing it to get worst of the worst off street--they're plainly not doing that. it's a pretext. that's important. what there's saying they're doing can't be true. it's pretext. /49

BC: ask court to apply 10th Am to coerce state ... J: i want to talk about equal sovereignty argument. ... can't govt treat differently situated states differently? BC: lack of precedent isn't becaue it's a quesationable legal theory. it's because conduct is so outrageously unlawful we've /50

BC: ... never see it before. J: we've seen fed govt take robust responses to states that aren't yielding to federal policy. saw that in civil rights era BC: yes, but that was [pursuant] to rule of law J: fed govt doesn't ahve to treat states same. they have different problems, issues. ... /51

J: what distinguishes this situation BC: no matter what, if you're treating states differently, it is strong medicine, so it has to be justified by soething. here, what is justification? it's personal animosity. it's retribution. literally POTUS saying in middle of this chaos & violence ... /52

BC: ... he literally said, "MN, your day of retribution is here." that's crazy. if this isn't stopped, what's going to happen with next administration. Justice Kavanaugh just saying (in lisa cook case) where does this stop? i dont see how anybody seriously looking at this problem ... /53

BC: can have much faith in how our republic is going to go. Judge now wants to talk about whether plaintiff is asking for a TRO or a preliminary injunction. Plaintiffs prefer a TRO. J: is it your position that TRO entered at this point would not be appealable? [she thinks it would be]. /54

(Normally temporary restraining orders [TROs] are not appealable.) But judge thinks an appellate court would treat any TRO she issued at this point--with large fact record--as a preliminary injunction anyway. (PIs are appealable.) BC urges not to enter PI because she hasn't heard live testimony /55

BC: the concern is quite frankly durability. i think without a stipulated fact situation on appeal -- facts can kind of get morphed a little bit. we moved for a TRO on just the 10th Am claims. J: & you would've moved for PI on other claims. do you want to do so now? /56

BC: our priority is immediate relief. situation on the street is deadly. ... immediate relief is the primary goal here. but thru a TRO. i dont think, for example the APA claims--it will take some time. [Administrative Procedure Acts]. we just had a leaked memo about warrantless entries. ... /57

J: that's an important legal question that isn't before me. BC: it is in our APA claims. biggest problem for APA claims is establishing final agency action. now we've got that memo. that's our final agency action. we've established standing. those claims are in a different ballpark now. so much /58

BC: stronger. J: i'm going to ask couple more questions. you're asking me for tro. what does it say? not being flip here. what exactly do you think these 10th am claims let me order BC: easiest: end this operation metro surge & go to status quo before suffering this harm to sovereign authority /59

BC: whole thing is an illegal means to an illegal end. J: suppose govt said okay. we'll leave behiind 15 agents. BC: as a practical matter: go back to things to where they were before it started. J: tell them how many agents? grapple with this 4th Am arguemnt? tell them whether to wear masks? /60

BC wants to let colleague address those questions. BC: if court did a PI right now, risk we're cogniscent of, district court would lose jurisdiction and we wouldn't be able to pursue the APA claims and build factual record. such an important situation. the facts are so important. need public to /61

BC: see how the facts [unfold] J: not to debate appellate procedure. i'd lose j.d. over injunction. i wouldn't necessarily lose j.d. over the rest of the case. [she thinks discovery could proceed.] BC: certainly we'd pursue everything we could. we remain concerned that would not be way ... /62

J: i'm loath to take action to evade appellate review. BC: that's not what we're proposing in any way. trying to develop record to make relief more durable and pursue are other claims, like APA claims. if we'd had that memo, i'm sure we'd have moved on APA claims. not in slightest about /63

BC: ... evading appellate review. J: what if i deny the TRO today and set this for additional development of PI record. BC: to be clear, that would be worst option for us. situation on street is so dire. national guard activated. another person killed. local resources exhausted. /64

BC: relief is appropriate now . J: we're going to take a recess. then i'll hear from opposing counsel. then depending how much time remains, i'll allow other counsel to speak. /65

While we're on break, let me clarify: So far we've heard from two lawyers. LM was Lindsey Middlecamp, special counsel for MN. BC was Brian Carter, also special counsel for MN. After break, we'll hear from govt--probably Brantley Mayers, "counselor to the assistant attorney general." ... /66

We may also hear from attys for plaintiff cities--Minneapolis & St. Paul. Also, while on break, please consider donating to @lawfaremedia.org to make these live-blogs possible. Thanks! /67 givebutter.com

We're now resuming with the second half. Judge Menendez now asking DOJ atty Brantley Mayers. J: you agree exec action alone could answer anti-commandeering principle. BM: in theory ... J: so it doesn't only limit congressional action? BM: agree /68

J: is it your position that no law enforcmeent position could ever implicate the anti-commandeering principle? [i don't think he goes that far] J: you're not saying coercion can't implicate anti-commandeering principle? /69

BM: i dont see huge doctrinal difference between terms anti-commandeering & coercion. J: have any courts held that making a grant contingent on changing sanctuary policies doesn't run afoul of 10th Am? BM: i believe 2d Cir rejected facial challenge to 8 USC 1373. J: but you're going beyond /70

J: the goal of the surge is not to get MN to change policy? BM: goal is to enforce federal law. ... we've extended invitations to MN and [cities] to assist. they've made decision not to. we've made decision J: if tomorrow, cities changed the policies your expressing frustration with-- BM: /71

BM: i can't commit -- J: but it would change the federal reaction? if they change policy, one of goals of surge would be accomplished? BM: not one of goals. the goal is to enforce federal law. J: i have this letter from AG Bondi saying: you need to do these 3 things if you want this to stop. /72

J: how are those not demonstrating that purpose is to effect those 3 changes or a t a minimum the 2d of teh demands in the letter? ... you're saying the record before me does not establish rthat if the states change their policies that will affect the surge? BM: greater law enforcement need here /73

BM: ... because of the policies. J: "if you want less officwers on street, let us in the jail." doesn't that say ... we'll take officers out of street if you change your policy? BM: if you work with us, less need J: how do i interpret AG Bondi letter: if state does 3 things ... /74

J: ... then this will end BM: i read it as saying, the need for greater law enforcement presence is these policies. not a commandeering problem. J: what am i supposed to do with reality that a substantial amount of the enforcement activity is completely unrelated to 'let us into your jails'? /75

J: you're asking me surge is not attempting to coerce plaintiffs; simply compensating. but what am i supposed to with the fact that so many parts of the surge that have nothing to do with the consequences of these policies. plaintiff says real motive is coercion /76

BM: still dont see how that creates 10th am problem J: what if AG Bondi said; if you change policies, surge ends today? would that support coercion argument? BM: i dont think so. because of these policies, greater law enforcement need in these areas. J: not as if you could fix over night. /77

J: do you think it's true that motivation matters? BM: i dont see that in the cases. J: when we have congressional action, no question waht commandeering is. if you do X, you can take advantage of Y provision. if you want highway funds, you must change drinking age. no gray area. /78

J: here we have exec action that isn't on paper. it's in the street. but that can't put it beyond the reach of consideration. imagine it was very clear. imagine AG Bondi said: we are here till we change your policies. wouldn't that violate anti-commandeering principle BM: not necessarily. /79

BM: if change in policy results in less need for federal involvement J: what about "minnesota, you're day of retribution is here." BM: i haven't seen that on Truth Social lately. i dont think that would negate fact that there is legitimate law enforcement activity going on in MN ... /80

BM: that fed has authority to do. J: [suppose you have vastly more troops than you had in chicago, tho population and need much smaller.] is there a point at which it can no longer be reasonable defended as rational law enforcement response. BM: article II assigns conclusive & preclusive /81

BM: authority to exec ... dont see how a court could sit there and say okay this many officers is the right number, this is too many. dont see how it could be administered. J: would 10K officers cross the line? are there no limits? BM: i think there are limits. being litigated in other cases /82

J: concerns me that AG Bondi involves 3 goals. all 3 under litigation. if for example, 8 USC 1373 preemption case. if court decides 1373 doesn't preempt or violates 10th Am, --that case was filed in september. is exec trying to achieve goal thru force it can't achieve in courts? BM: no. /83

J: " if you want less officers on the street than let us in the jail." quote from Mr. Homan. BM: if you want less fed officers enforcing marijuana laws, recriminalize drug trafficking. state can't use 10th Am as shield--we're not going to help you--and then turn around & say 10th am prevents /84

BM: ... you from comign to enforce laws, too. J: there's an opinion in this district for counties to hold people in custody to effectuate immigration detainers. ... your point is it doesn't matter how clear the statement of quid pro quo is, can never implicate anti-commandeering as long as its /85

J: ... in the law enforcement realm BM: [sorry, i missed it] J: what if conduct of surge undermines suggestion that it is focused on fixing, compensating for sanctuary cities policy? ... If surge is not even 50% focused on sanctuary cities, doesn't other 50% become suspect? /86

BM: we are here to address the law enforcement vaccuum. while they're here, they address other problems. doesn't create 10th Am problem. doesn't suggest motivation of operation is constitutionally problematic. J: stopping a person who's never been thru criminal justice system & asking for papers /87

J: ... does nothing to address teh enforcement gap, right? BM: dont see how that could be shoe-horned into 10th Am. J: your defense is : purpose of surge is fix holes left by cities' and state's policy. but what if stated purpose is to arrest people who never would have been affected by those /88

J: policies. BM: no. ... as long as other issues we're addressing come within enforcement authority of statute, fact we're doing additional things we're allowed to do would negate another piece of same operation that also comes within our authority. /89

J: you're saying purpose of surge is not to change policies but to make up for problems created by policies. and if i [find that's not true] ... the surge is not even rationally related to serving that goal then i dont have to credit that that's the goal, agree? BM: /90

BM: [repeats point he made before.] J: you're saying surge is designed to make up for harms caused by plaintiffs policies. what do i have in record that shows that that's true. BM: Olson declaration. He details the policies. J: any quantum about how many of arrested fit definition of /91

J: ... people affected by policies? BM: [hard to quantify. such percentages wouldn't be decisive] J: you're asking me to find that teh surge is in response to these policies. which policy necessitated the 4000 people? the detainer policy? parking lots? /92

J: how much of the surge is necessitated by the parking lot issue? BM: staging operations typically occur in parking lots. J: how many officers do we have on ground now? BM: in Olson dec: 2000 ICE and i don't know in CBP. at least 1000 (?). dont have specific number. at least over 2000 /93

J: do we not know? BM: happy to provide a number [later] J: specific percentage necessitated by parking lot issue? what other state and city actions necessitated surge? detainers. parking lots. what else? BM: city ordinances that prohibit inquiring [about immigration or taking into custody?] /94

J: lot of cases focus on administration's attempt to get cities and states to cooperate with immigration laws. conditioning of grants. have any of those cases found it doesn't implicate 10th Am to force city or state to change policy in that way? other than that 2d Cir case? BM: not off top of /95

BM: head ... J: there's a debate about what showing plaintiffs have to make at this stage. you say it's heightened standard. BM: the Rounds case. To get an injunction against a statute. J: but this isn't a statute. BM: Richland-Wilkin case. ... /96

J: the surge of 4000 troops to MN has not been vetted in any democratic forge. 8th Circuit talked about a statute adopted thru democratic process. BM: agree that is a difference. but what animates Rounds is setting aside legislative action is weighty decision. J: they're challenging single /97

J: ... deployment of law enforcement. not a programmatic [policy]. BM: pretty staggering remedy as [proposed]. given that, higher standard of likelihood of success should be required. But even with lesser standard--fair chance of prevailing--we dont think that's met. /98

J: if i entered TRO, do you think it would be appealable? BM: we think the hallmarks of a preliminary injunction are present ... adversarial hearing ... so a TRO with those hallmarks would be considered a preliminary injunction. other reason plaintiffs offer—that they can't proceed with other /99

BM: claims--we'd be happy to address that in a brief. BM: as to "equal sovereignty" argument. this is not comparable to the voting rights act. ... also scope of relief goes far beyond what 10th Am violation would permit J: what would be the relief i'd grant. /100

BM: plaintiffs would have to indicate when exactly OMS became a 10th Am violation. It began in [november or december?] ... they'd have to identify when it crossed line. can't escape the line-drawing problem. J: what if line was : end OMS while this case is moving forward? You all declared it. /101

J: presumably bercause you created it, you understand it's scope. BM: that would be very difficult to implement. J: does that mean i can do nothing? BM: if you did find 10th Am violation, incumbent on plaintiffs J: say they do bad job-- BM: incumbent on you. no dispute there can be some number /102

BM: of federal agents without violating 10th Am. J: what did your clients mean when they said we're beginning OMS in MN? what is the scope of the surge? BM: my clients can address teh number here because of search. problem is plaintiffs dont explain when OMS became a 10th am problem /103

BM: administrability problem. suppose we identify a need for 5 new agents to come, it would create difficult separation of powers problem. supervision of executive branch's enforcement function. J: OK. we're going to be hear from 20 more minutes. i'll leave it to you (plaintiffs) how to divide. /104

Sara Lathrop, asst city atty for Minneapolis: she's arguing to go back to where we stood before surge began. SL: scope, scale, character of surge so unprecedented, so intense, created such an environment of fear. what's needed: move parties back to where things stood on Nov. 30. /105

SL: the intense situation on the ground, and how that's impacting plaintiffs right to perform its functions, court can say we're pausing. you can act now. you don't have to draw line now. Just because it's a novel scheme doesn't mean the principle doesn't apply. /106

SL: also want to address the question about other lawsuits. Constellation of problems is grinding life to a halt. How would court write the order? Go back to position you were in Nov. 30. OMS paused for now. 4000 people roaming around, asking people about citizenship or assaulting them. /107

SL: the shelby county case asks, is differential treatment of states proportionate to [the stated basis for the differential treatment] SL: this weekend demonstrated in terrifying way that current situation is untenable. Relief needed now. /108

J: not all crises have a fix from a district court injunction. there are other things that are supposed to rein in this sort of conduct. all branches of govt supposed to weigh in. it must be work is being done elsewhere. not counting on single district court order which will go to 8th circuit /109

J: very quickly. SL: absolutely right. but you have judicial review. we've [met our burden]. court has ability to issue an injunction. J: anythiing else? Brian Carter (of MN): state of MN comes here today to protect its sovereignty. stop harm to its sovereign rights under Constitution. /110

BC: if we can't come to this couret to vindicate those rights, where else does the state go? J: Thank you. if i had a burner, this would be on front burner. [but she implies she needs to think and can't get something out instantly.] With that, we are in recess. ... /111

Well, my reaction, FWIW: Given how little precedent there is for this sort of thing—because its an unprecedented situation—I think it went well for the plaintiffs. it sounded to me like she may well try to order some sort of relief. How long that would last is another question. ... /112

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