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(CN) — A Nebraska judge will soon decide if he has the jurisdiction to temporarily halt the the creation of a new Immigration and Customs Enforcement (ICE) center.
Judge Patrick Heng heard arguments Friday in Red Willow County District Court in McCook, Nebraska, over plans to convert the Nebraska Work Ethic Camp, a minimum-custody correctional operation, into one of President Donald Trump’s new immigration detention centers.
U.S. Homeland Security Secretary Kristi Noem announced in August that the site would be repurposed and dubbed the “Cornhusker Clink.”
However, a former state senator and 13 other plaintiffs sued Oct. 15, arguing the plan violates the Nebraska Constitution.
Former State Senator DiAnna Schimek and 13 other plaintiffs argue the plan violates Nebraska’s separation of powers, saying only the Legislature can authorize changes to penal institutions.
They note the Work Ethic Camp is a minimum-custody correctional facility owned by the state, while immigration detention is a federal civil matter. Repurposing the site, they contend, requires legislative approval and funding.
Schimek lives in Lincoln, while the other plaintiffs are residents of Red Willow County, where McCook serves as the county seat.
Pillen and Nebraska Department of Correctional Services Director Rob Jeffreys are named as defendants.
Friday’s hearing focused on two issues: the plaintiffs’ request for a temporary injunction and the state’s motion to dismiss. Heng said he must first rule on whether the case is properly before the court before considering an injunction.
Heng indicated he was on a quick timetable. Pillen has said the planned facility has passed a final walkthrough inspection by Homeland Security and ICE, with much of the site being complete.
Pillen added that the timing for detainees’ arrival remains uncertain, delayed in part by the federal government shutdown.
In a brief accompanying a motion to dismiss filed Monday, defendants argued that the court lacks jurisdiction in the matter and that plaintiffs lacked standing because they could not identify how they were harmed.
State attorneys argued Pillen and Jeffreys acted within their authority in designating the McCook site as a “detention and processing hub” under a federal contract.
They said key parties, including the federal government, which signed the contract, and the contractor, paid $750,000 for fencing and razor wire, were not joined in the case, leaving the court without jurisdiction.
Assistant Solicitor General Lincoln Korell countered the plaintiffs’ constitutional claims by citing the same article of the state constitution, which says management of penal institutions “shall be vested as determined by the Legislature.” Korell emphasized the word “vested” as central to the state’s argument.
“The Legislature does not have the power to run the day to day operations of the state institutions,” he argued. “What they have the power to do is vest that power, in other words, decide who has that power. Here, they have done exactly that … They have vested that authority in the Department of Corrections.”
Korell also argued that the plaintiffs had not suffered direct harm because the camp was converted into an ICE facility. Former Work Ethic Camp inmates or immigration detainees would be better suited to bring such a suit.
“At the end of the day, the department has the authority to do exactly what it is doing," he said. If plaintiffs didn’t like how Pillen was using his discretion, “they have the remedy of the ballot box. They can go and make their voices heard.”
He also said that the federal government is reimbursing Nebraska for its expenditures.
In their arguments, plaintiffs said there is no evidence that the contract executed with Homeland Security is valid because too much has been redacted from it. And that any money spent by the state is still an expenditure, even if the federal government is reimbursing.
“There is no evidence before the court there is a validly executed contract," said Robert McEwen of the Nebraska Appleseed Center for the Law in the Public Interest, representing the plaintiffs. “We contend everyone who is needed to be here in court is here today … The state must first spend money and be paid back that money. That is an expenditure.”
And the Work Ethic Camp inmates incarcerated elsewhere and immigration detainees were not exactly in a good position to bring suit, he said.
Plaintiffs argued the Work Ethic Camp cannot be repurposed without legislative approval because it was established in 1997 for specific correctional purposes. “Immigration is a civil process,” said Nicholas Grandgenett of the Appleseed Center. “It’s regulatory, not punitive or rehabilitative, and different in kind from our criminal justice system.”
Pillen has said the facility’s location near a regional airport makes it suitable for immigration detention and that at least 20 Nebraska National Guard soldiers will provide logistical support, according to the Associated Press. McCook, a city of about 7,200, sits roughly halfway between Omaha and Denver.
Pillen has said those already incarcerated at the Work Ethic Camp have been moved to other facilities commensurate with their custody level.
Last Friday, Pillen published the contract with Homeland Security to use the camp as an immigration detention center.
Former Nebraska Governor Pete Ricketts appointed Heng to his position in 2021. Ricketts and Pillen are both Republicans.
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