California’s immigrants’ rights movement suffered a big blow this week when a federal appellate court declared the state’s ban on private prisons likely unconstitutional. Assembly Bill 32, signed by Governor Gavin Newsom in 2019, took aim at the Immigration and Customs Enforcement agency’s massive prison network by undercutting the federal government’s private prison partners. AB 32 bars private detention sites anywhere in California. A different statute that wasn’t part of this lawsuit bars local governments from entering into new agreements to detain migrants. Combined, these two laws represent the most innovative state legislation of recent years aimed at ICE’s prison practices.
AB 32’s bar on private prisons isn’t slated to kick in until 2024 at the earliest. Despite that, the country’s second largest private prison operator, The GEO Group, and the federal government teamed up to challenge the state law’s legality. Though they lost at the federal district court, the two had more luck before the U.S. Court of Appeals for the Ninth Circuit. In an earlier decision, a three-judge panel sided with ICE and its prison partner. California then asked the court to hear the case en banc; the court agreed. Typically, an appellate court sitting en banc means that all the judges on the court take part, but the Ninth Circuit’s unusually large size means that only 11 of the court’s judges weighed in. This week’s decision, GEO Group v. Newsom, No. 20-56172, slip op. (9th Cir. September 26, 2022), nonetheless replaces that earlier ruling.
Sitting en banc, a majority of the U.S. Court of Appeals for the Ninth Circuit declared AB 32 unconstitutional. The law likely violates the Supremacy Clause of the U.S. Constitution, the court announced. That constitutional provision gives priority to federal laws whenever there is a conflict with state laws. It also bars states from interfering with the federal government’s activities. Both features of the Supremacy Clause led to AB 32’s demise, the majority of the en banc court concluded on its way to granting GEO and the federal government a preliminary injunction.
The federal government relies almost exclusively on private prison companies to detain migrants. That’s true in California as elsewhere. Though the Ninth Circuit was sure to acknowledge that states are empowered to enact regulations that “merely increase the federal government’s costs,” they can’t enact laws that “would control its operations.”
AB 32 makes it next to impossible for ICE to continue business as usual. To comply with AB 32 and yet continue to detain roughly as many people as it currently does, ICE would have to build its own facilities in California or contract for space outside of the state. Both are bad options as far as the court is concerned. “Constructing a new facility would not only be expensive and time-consuming, but it would also run up against Congress’s preference to use existing facilities…and it would undercut ICE’s desire for flexibility to meet fluctuating demand for detention capacity,” the court declared. Separately, it explained, “While ICE could house detainees outside California, that transition would not be easy.”
By banning private prisons from operating in California, AB 32 unquestionably interferes with ICE’s ability to detain migrants as it sees fit. In fact, that was the goal. Over the years, I’ve described this as a cost-raising strategy. Forcing ICE to shift its operations outside of California would be difficult, as the Ninth Circuit notes. But it wouldn’t end ICE’s operations. Only a full-scale nationwide series of legislative victories like what led to AB 32’s enactment would do that, and no one thinks that’s likely anytime soon.
This is too close to controlling ICE’s operations for the Ninth Circuit. “Interfering with the federal government’s hiring decision goes too far—regardless of whether the decision is to hire an employee or a private contractor,” the court concluded. If ICE thinks that contracting with private prisons inside California is most “appropriate,” as Congress has directed it to do, then California can’t interfere. This is the kind of direct regulation of the federal government that the Supremacy Clause bars. A legal doctrine called “intergovernmental immunity” that stems from the Supremacy Clause says the state can’t do that.
At first blush, the court’s characterization of intergovernmental immunity is sweeping. “AB 32 prohibits ICE from exercising its discretion to arrange for immigration detention in the privately run facilities it has deemed appropriate,” the court wrote. When I initially read this description, I wondered whether the court meant to imply that ICE could arrange for detention at any location under any conditions so long as it deemed those conditions “appropriate.” That would box out the state’s traditional power to oversee health and safety within its boundaries. A page later, under a separate subheading, the court seems to back away. States can ensure the health and safety of inmates held within its boundaries, the court acknowledged. What they can’t do is decide whether a person will be detained, nor can they actively frustrate the federal government’s efforts to “discharge its operations.” AB 32 does all that and more, the court declared.
Since AB 32 violates intergovernmental immunity, the state law doesn’t benefit from the presumption against preemption that typically applies to state laws. Instead “When a state law implicates intergovernmental immunity, courts presume that Congress did not intend to allow the state law to be enforced.” With that presumption, the court had “little doubt” that AB 32 was preempted by federal law. While the court didn’t conclusively decide the law’s legality, it did conclude that GEO and the federal government were likely to show that AB 32 is unconstitutional. Accordingly, the court granted GEO and the federal government a preliminary injunction. The case will now return to the federal district court.
Read in the context of recent and ongoing immigration policy litigation it’s especially ironic to see the court make so much of the federal government’s discretion to carry out its operations. The Constitution guarantees the federal government’s “independence” from “any control by the respective States,” the court declared citing to a 2020 U.S. Supreme Court decision. The Supremacy Clause “exempt[s]” the federal government’s operations from “influence” by the states, the court added, citing to the vaunted McCulloch v. Maryland, 17 U.S. 316 (1819).
And yet the Fifth Circuit held not too long ago that a handful of Republican-led states could stop the Biden administration from ending the Remain in Mexico initiative. Though the Supreme Court ultimately reversed that position, Texas continues to lead efforts to stop the Biden administration from executing its immigration law enforcement priorities. The day before the Ninth Circuit released its opinion, Missouri and Texas filed a brief with the Fifth Circuit claiming that the Biden administration doesn’t get to stop construction of border walls. Any day now the Fifth Circuit is expected to hand down a decision about DACA, perhaps even declaring that the federal government can’t decide who to deprioritize for law enforcement targeting or grant employment authorization to as DACA does.
These are all separate legal cases. As such, it would be legally wrong and logically disingenuous to conflate them. But courts would be wise to think about how their reasoning resonates beyond a narrow audience of lawyers, fellow judges, and legal scholars. To ordinary people, these are all cases over immigration policy. They are all tied up in the same political battles. On the one hand, are states with clear anti-migrant politicians at the helm trying to force the federal government to keep the literal bulldozers pushing around dirt or to force DHS officers to block migrants at the border. On the other hand, there are migrant-friendly states trying to stop contracts between ICE and a private prison company from renewing. It isn’t easy to explain that letting contracts come to their natural end, but not letting them renew, impermissibly interferes with the federal government’s operations, but forcing DHS to pay its contracts to fire up their bulldozers doesn’t.
Couching a decision in sophisticated takes on the relationship between states and the federal government is defensible doctrinally, but it does nothing to maintain the legitimacy of the courts. Explaining the difference between two circuits might make the judges feel good about their role in the judiciary, but it does nothing to promote the idea that the courts are a neutral decision-maker. On the contrary, my concern is that—for non-specialists who keep tabs on immigration policy debates—this feeds the notion that courts are friendly to policies that hurt migrants and unfriendly to policies that help them.
Similarly, the Biden administration’s position is important. Under Biden, the Justice Department vigorously took the position that California’s law was illegal. To protect its interest in operating free of interference from California, it joined GEO’s efforts to subvert years of organizing, educating, and legislating in communities throughout the state. GEO’s self-interest is understandable. It’s a for-profit company that makes money from incarcerating migrants. The easier it is to incarcerate people, the easier it is to make money.
For its part, the Biden administration’s position is revealing. Faced with the task of siding either with California’s migrants’ rights community or the private prison company, it chose the GEO Group. The administration can explain its position as solely protecting separation of powers principles or protecting the federal executive branch as an institution, but at the end of the day the Biden administration stood shoulder-to-shoulder with the private prison company in successfully pushing back against years of work in California to protect migrants and make it more difficult for companies like GEO to profit from incarceration. As a lawyer committed to zealously defending clients, I can understand that. But to activists, migrants, and their families, I imagine that’s a tough claim to swallow.
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