Judge lets ICE turn Nebraska prison into 'Cornhusker Clink'

(CN) — A Nebraska judge ruled Monday that a new Immigration and Customs Enforcement center can open as planned despite a constitutional challenge from a retired politician who insists the move requires legislative approval.

Judge Patrick Heng refused a temporary injunction to block the state’s plans to convert the Nebraska Work Ethic Camp, a minimum-security prison, into one of President Donald Trump’s immigration detention centers.

Heng ruled that Nebraska Governor Jim Pillen was within his authority to enter into a contract with the federal government to convert the Work Ethic Camp into an ICE facility dubbed the “Cornhusker Clink” — following in the footsteps of Florida’s “Alligator Alcatraz” and Indiana’s “Speedway Slammer.”

He also found that there was no separation of powers violation, and that Pillen and Nebraska Department of Correctional Services Director Rob Jeffreys have the authority to incarcerate ICE detainees at the Work Ethic Camp facility under state law, writing that the Legislature did not limit who can be committed.

“As set forth above, when the Legislature delegates authority, it may place such restrictions and limitations on that authority it chooses. It has not done so here,” the judge said.

“It is clear that the current situation with the Department and ICE detainees was never contemplated when the statutes were created, but the language utilized by the Legislature is broad enough to allow the defendants to take the action they have chosen.”

However, Heng denied the state’s motion to dismiss, ruling that the plaintiffs have standing and the litigation can continue.

“The plaintiffs have established that this litigation does raise matters of great public concern given the potential violation of the constitutional separation of powers issue in which executive action may go unchallenged unless the plaintiffs have the right to bring this action,” he said.

An attorney for the plaintiffs told Courthouse News that while they were disappointed that the court did not block the plan, they were pleased the case was not dismissed.

“The case will carry forward from here, and we will continue to represent the interests of our clients in halting the activities of the defendants as they relate to the large-scale detainment camp in McCook,” said Robert McEwen of the Nebraska Appleseed Center for the Law in the Public Interest.

In contrast, Pillen praised the court’s expedited decision and noted the contract with ICE will bring Nebraska an estimated $14 million annually.

“The agreement we have with DHS is good for Nebraska’s taxpayers and it ensures we are doing all that we can to keep criminal, illegal aliens off our streets,” he said in a statement.

Former state Senator DiAnna Schimek and 13 other plaintiffs filed a lawsuit on Oct. 15 to stop the “Cornhusker Clink” plans from moving forward, arguing they violate the Nebraska Constitution.

The plaintiffs claim 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-security correctional facility owned by the state, while immigration detention is a federal civil matter. Repurposing the site, they contend, requires legislative approval and funding.

The defendants argue that Pillen and Jeffreys acted within their authority in designating the McCook site as a “detention and processing hub” under a federal contract.

In a hearing Friday at Red Willow County District Court in McCook, Nebraska, the 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.

They also argued that the Work Ethic Camp could be repurposed without legislative approval because it was established in 1997 for specific correctional purposes.

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.

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, he added.

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