LINCOLN — Gov. Jim Pillen announced Thursday that U.S. Immigration and Customs Enforcement inspectors have certified a Nebraska state prison to begin receiving federal detainees as it becomes a migrant detention facility.

Pillen said ICE inspectors completed a final walkthrough of the former McCook Work Ethic Camp this week, and the timeline for the first detainees to come to Nebraska is still being coordinated. Pillen said getting the final pieces together had been “a moving target” with the federal shutdown now on day 23.

“Given the many tasks that had to be completed, including the transfer of remaining inmates, building modifications, training of staff and other components, we have made significant progress,” Pillen said in a statement.

Final security upgrades will continue in McCook “over the next day or so,” Pillen said, and additional modifications will allow the facility to house up to 300 detainees, from a maximum of about 200.

Pillen’s update comes less than 24 hours before a Red Willow County District Court judge will hear arguments on a lawsuit seeking to temporarily stop the Nebraska-ICE partnership. The lawsuit is from 13 McCook residents and former State Sen. DiAnna Schimek of Lincoln. It argues the Nebraska-ICE contract is unconstitutional without legislative approval because of language they say delegates management of the state’s prisons to the Legislature.

The lawsuit also argues that lawmakers had specified and funded the purpose of the McCook facility in law. The detention center remains state-owned and operated.

Pillen and Rob Jeffreys, director of the Nebraska Department of Correctional Services, are named in the lawsuit.

Attorney General’s Office arguments

The Nebraska Attorney General’s Office, on behalf of Pillen and Jeffreys in court filings this week, asked for the lawsuit to be dismissed and all but said the train has left the station. 

“Should the court void the state’s contract with the federal government, that would release the federal government from its obligations to compensate the state for this work. Taxpayers would therefore suffer a greater injury from preliminary relief than without it,” the brief states. “Not to mention the damage that preliminary relief would do to the state’s relationship with the federal government.”

Under the contract, ICE plans to pay Nebraska around $2.5 million monthly. Pillen’s office estimates the deal could net Nebraska $14.25 million annually. The contract was not publicly available until Oct. 17. It was signed Sept. 30. Pillen announced the initial plan Aug. 19. The lawsuit was filed Oct. 15.

The AG’s Office said the Legislature “broadly” delegated the day-to-day operations of state facilities to the executive branch and said the contract doesn’t change McCook’s “overarching purpose” as a detention center, so “any change is one of degree, not kind.”

State attorneys said the McCook residents and Schimek are not best-suited to challenge the facility, suggesting a more proper lawsuit could come instead from the Legislature, state inmates transferred from the Work Ethic Camp to other state facilities or federal detainees. The AG’s Office said a better “check” on separation of powers concerns is the Legislature and the political process, not by going through the courts or by “random taxpayers.”

“Taxpayers who object to the defendants’ actions have the same remedy as any other Nebraskan: the ballot box,” the AG’s Office wrote.

‘Every state is a border state’

Nick Grandgenett, an attorney for the McCook residents and Schimek, framed the case last week as “not about immigration” but “our constitutional republican form of government.”

The AG’s Office criticized the lawsuit for not including all “indispensable parties” — the U.S. government, as well as a fencing company contracted to build a razor wire around the facility.

“Plaintiffs cannot use purportedly illegal expenditures related to the McCook facility — costs that the federal government will reimburse — as a bootstrap to obtain the standing necessary to present their real challenge, which is aimed at the entire cooperative agreements and federal immigration enforcement activity,” the state’s attorneys wrote.

Jeffreys, in a Thursday statement, said his department’s “attention to detail” at the Work Ethic Camp and a strong partnership and cooperation with ICE and the U.S. Department of Homeland Security made certification possible.

“Passing these inspections is a testament to our team’s commitment to safety, security and professionalism,” Jeffreys said. He signed the initial two-year Nebraska-ICE contract Sept. 30 for the state.

Pillen said that once operational, the rebranded “Cornhusker Clink” will regionally support ICE officials “who are working tirelessly to identify illegal criminals and get them off our streets.”

“Every state is a border state,” Pillen said. “Nebraska is going to do its part to make sure that our nation and Nebraskans are safe and secure.”