YES!! COURT ORDERS DHS TO STOP PREVENTING MEMBERS OF CONGRESS FROM ENTERING ICE FACILITIES!
This is already so sweet, yet as if it isn’t sweet enough, this lawsuit was not only brought by, among others, a member of Congress from Colorado (my adopted home state!) as the lead plaintiff, but by *MY* representative! So take a virtual bow, Congressman Joe Neguse! In addition to Representative Neguse, the other named plaintiffs are Adriano Espaillat, Bennie G. Thompson, Jamie Raskin, Robert Garcia, J. Luis Correa, Rep. Jason Crow, Veronica Escobar, Daniel S. Goldman. Jimmy Gomez, Raul Ruiz, and Norma Torres.
Along with the Opinion (73 pages) and the Order (1 page), I’m including the Complaint (67 pages) for Notes from the Front members.
Unfortunately I can’t go into a great deal of detail here because we’re in the middle of these windstorms and the power keeps going off and on (plus it’s hella distracting).
But here’s the bottom line:
Judge Jia Cobb starts out explaining that “Every year since 2020, Congress has passed and the President has signed an appropriations bill that prohibits the Department of Homeland Security (DHS) from using appropriated funds “to prevent” Members of Congress “from entering, for the purpose of conducting oversight,” any DHS facility “used to detain or otherwise house aliens.”
This is included in an act known as “Further Consolidated Appropriations Act, 2024”, in Section 2, Title V of the act at § 527(a), or “527” for short.
As you almost certainly know by now, the Department of Homeland Security, (we don’t play n)ICE division, has been *refusing* to allow representatives in to see *their own constituents*.
The Court goes on to explain that “This appropriations rider, colloquially referred to in its current form as Section 527, also prohibits DHS from using funds provided through the appropriations process to “make any temporary modification at any such facility that in any way alters what is observed by a visiting Member of Congress” or their staffs, “compared to what would be observed in the absence of such modification.”
With respect to any notice that a Congressperson must give in advance of arriving at a facility, the Court notes that while congressional *staffers* must give 24-hours notice, Congressmen and Congresswomen themselves, and here I quote the Court quoting 527, “However, with respect to the Members of Congress themselves, the rider states that “[n]othing in this section may be construed to require a Member of Congress to provide prior notice of the intent to enter a facility . . . for the purpose of conducting oversight.”
Got that?
NOTHING in that section may be construed to require a member of Congress to provide prior notice of the intent to enter a detention facility.
Now, again, words matter, especially in the law. And “nothing may be construed” means exactly what it says: nothing in the entire universe can be construed as requiring prior notice for a member of Congress to walk into a detention facility. Period. End of story.
But guess what?
ICE first tried to play sneaky by claiming that certain ICE facilities weren’t detention facilities at all, but were “processing facilities”. In fact for a while they had something posted on their website to that effect, which then mysteriously was taken down again.
But second, and more directly in violation of §527, they started *requiring* 7 days advance notice for members of Congress to gain access to detention facilities.
And the notice of *that* requirement *is* still on their website as of the time of this writing. It says:
“Please note the Department requires requests be made a minimum of seven (7) calendar days in advance to schedule visits to DHS detention facilities. Any requests to shorten that time must be approved by the DHS Secretary.”
Now sure, you may think “but maybe it doesn’t mean Congresspeople”, but look at the next paragraph and, in particular, look at the email address to which to submit access requests:
“Visit requests should be submitted during normal business hours to OCR at CongressToICE@ice.dhs.gov. Visit requests are not considered actionable until OCR acknowledges receipt of the request to the requestor. Requests received after hours or on weekends/holidays will be confirmed on the next business day. OCR will work with the appropriate ICE Field Office to coordinate the visit request and will confirm details as soon as practicable.
Visit requests should include the date of the proposed visit, the visit location, the duration of the visit, and the names and titles of all participants. Only Members and congressional staff scheduled and confirmed for the visit will be allowed to participate.”
(“Participate”??)
What’s more, DHS doesn’t even dispute that they mean Congresspeople. Instead they argue, well, not much, really. There is a milquetoast effort to say that this action isn’t using appropriated funds, but even they concede that appropriated funds were used at least in part.
The Court succinctly deals with the entire ridiculousness by concluding that:
“For the foregoing reasons, Plaintiffs’ motion for a stay of agency action is GRANTED. The challenged Oversight Visit Policies are STAYED pending conclusion of these review proceedings.”
“Agency action” means what DHS did in requiring advance notice before a Congressperson could gain access to a facility, other words, that action – requiring the advanced notice – is stayed (blocked).
The reason it’s until “conclusion of these review proceedings” is because the Plaintiffs have invoked and triggered judicial review of this whole thing under the Administrative Procedures Act (APA) and so the Court is going to do a thorough review of this matter; in the meantime DHS is stayed (stopped) from having in place any notice requirement in order for Congresspeople to visit ICE detention facilities.
Notes from the Front members: the Complaint, Opinion, and Order are in your inbox.
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https://annepmitchell.substack.com/p/yes-court-orders-dhs-to-stop-preventing
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