Minnesota v. Noem
Judge Katherine Menendez denied a request for a temporary restraining order on Saturday. That's not the end of the story.
On Saturday, January 31, Judge Katherine Menendez denied Saint Paul, Minneapolis, and Minnesota’s request for a temporary restraining order to halt “Operation Metro Surge.”
It wasn’t the outcome I wanted to see. It wasn’t the outcome my neighbors wanted to see. But the reality has always been that the courts alone aren’t going to save us from the authoritarianism we’re living under—only the people can do that.
In Judge Menendez’s words, “the outcome in this case depends more on the relevant law than the granular facts.” The specific facts, greatly relevant to the immigrants (and, in some instances, U.S.-born citizens) being persecuted by ICE even if not to the outcome of this case, aren’t meaningfully disputed. The judge acknowledges that there are approximately 38 times more federal officers in Minnesota than there normally are (3,000 vs. 80). She writes that, “The presence of so many agents and the methods by which they have carried out Operation Metro Surge has profoundly impacted the education system in the State and in the Twin Cities, disrupted the healthcare industry, caused religious observers to forego attending services and other programming at houses of worship, and affected local business communities.”
Stories coming out on a near-daily basis from Minnesota describe how children are being used as bait to detain their parents, babies are being left in cars after their parents are disappeared by the government, and citizens are being ripped apart from their families for hours or days without cause. The entire region is living in a state of occupation, something that Judge Menendez seems to understand. In her words,
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. Since Operation Metro Surge began, there have been multiple shootings of Minnesota residents by federal immigration enforcement agents. Additionally, there is evidence that ICE and CBP agents have engaged in racial profiling, excessive use of force, and other harmful actions. And Defendants do nothing to refute the negative impacts described by Plaintiffs in almost every arena of daily life, from the expenditure of vast resources in police overtime to a plummeting of students’ attendance in schools, from a delay in responding to emergency calls to extreme hardship for small businesses. It would be difficult to overstate the effect this operation is having on the citizens of Minnesota, and the Court must acknowledge that reality here.
Unfortunately, the federal government inflicting widespread destruction on the people of Minnesota under the color of law is a hard thing to sue over, as Saturday’s decision shows. The real disagreement here isn’t over the facts, as the horrors Minnesotans are experiencing is hard to deny. Instead, it’s about whether a district court judge can stop what’s happening.
It’s always been difficult to imagine that the judiciary would be the entity to end this nightmare. At the end of the day, courts give the Executive Branch wide latitude to enforce federal laws. As Judge Menendez writes, “there is no clear way for the Court to determine at what point Defendants’ alleged unlawful actions (e.g., racial profiling, excessive force, deployment of chemical irritants, wearing face coverings, switching license plates, overusing city parking lots, among others) becomes so problematic that they amount to unconstitutional coercion and an infringement on Minnesota’s state sovereignty.”
No matter how bad things might be here on the ground—and they’re far worse than nearly anybody could have imagined even just a few months ago—federal courts are inclined to defer to the Executive Branch. The result is that we have even a Joe Biden-appointee deciding against granting the Twin Cities and the state of Minnesota the relief we so desperately need.
This lawsuit was always an uphill climb for Saint Paul, Minneapolis, and Minnesota. What the Trump Administration is doing in Minnesota is illegal and unconstitutional, but our judiciary isn’t currently built to address that.
The biggest challenge here is that judges are bound by precedent. A district court judge can’t look at the current situation and the constitutional implications in a vacuum, as much as we might want them too. Judge Menendez is bound to look to the guidance provided by the ultra-conservative Supreme Court and Eighth Circuit, both of which are binding on District of Minnesota judges. She said as much in reaching her conclusion, writing of the Eighth Circuit’s decision that it was too much to ask ICE agents to stop pepper spraying and arresting peaceful protestors, “If that injunction went too far, then the one at issue here—halting the entire operation—certainly would.” What we’re seeing now in Minnesota is unlike anything we’ve seen before, as Attorney General Keith Ellison said on Sunday. There is no case directly on point for Judge Menendez to look to, but the overwhelming message from both the Supreme Court and the Eighth Circuit is that Republican presidents get to do virtually whatever they want as long as they claim it’s in service of enforcing immigration laws.
The state and our two largest cities will certainly continue to fight this in the courts with everything they have—and that has immense value for the people being harmed by Operation Metro Surge, even if immediate relief is out of reach.
Filing a lawsuit is an attempt to add one more tool to our cities’ toolboxes in a crisis—but it is not the only way to challenge the legality or the wisdom of the federal government’s actions. In bringing a broad legal challenge against the federal government, Minnesotans have said loudly that what is happening is illegal and unconstitutional. Attorney General Ellison and City Attorneys Irene Kao of Saint Paul and Kristyn Anderson of Minneapolis took oaths to uphold the Constitution of the United States, just as federal judges do. These brilliant lawyers and the many others working on this case are just as capable of interpreting the Constitution as judges are—and so are the people of Minnesota.
The courts are not the sole entity capable of handing down interpretations of constitutional law. Throughout American history, the idea of letting judges be the final word on the constitutionality of governmental action has been soundly rejected. Thomas Jefferson wrote that the idea of “judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.” Abraham Lincoln argued that if we let judges make the most important decisions about what our Constitution requires, it would mean “the people will have ceased to be their own rulers.” Our country’s history shows that constitutional meaning is made by ordinary people on the streets, in church basements, at the ballot box, and in so many places that go so far beyond the courtroom. We are making it again in the Twin Cities, one mutual aid group, one school patrol, one vigil, and one peaceful protest at a time.
I desperately hope that, eventually, this case or another like it will succeed. If it does, I believe deeply that the organizing happening on the ground in Minnesota and across the country will deserve much of the credit, as history is replete with examples of people building so much power that courts eventually have to listen. But we don’t need to wait for a judge—or five justices—to tell us what Minnesotans already know. What is happening in our state and to our people is immoral, illegal, and unconstitutional. It must end, and we will continue to fight every day to build the power we need to make that happen.