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Ninth Circuit:
State Ban on Private Prisons Violates Supremacy Clause
Court Holds, in En Banc Ruling, That Enforcing AB 32 Would Hamper ICE
By a MetNews Staff Writer
California’s ban on private prisons unconstitutionally hampers the federal government in detaining persons who are in the United States illegally, the Ninth U.S. Circuit Court of Appeals, sitting en banc, declared yesterday, holding, as a majority of a three-judge panel had earlier, that the statute conflicts with the Supremacy Clause.
District Court Judge Janis L. Sammartino of the Southern District of California erred in denying a preliminary injunction sought by the United States and The Geo Group, Inc., which runs two private prisons in the state that serve as detention centers for the Immigration and Customs Enforcement (“ICE”), the majority held. It virtually invalidated AB 32, enacted in 2019, which provides, in Penal Code §9501, that “a person shall not operate a private detention facility within the state,” while only actually deciding, in light of the procedural posture, that the plaintiffs were likely to prevail.
The bill was authored by then-Assembly member (now state Attorney General) Rob Bonta.
Supremacy Clause
Judge Jacqueline H. Nguyen authored the majority opinion, which sets forth:
“AB 32 would override the federal government’s decision, pursuant to discretion conferred by Congress, to use private contractors to run its immigration detention facilities….Whether analyzed under intergovernmental immunity or preemption. California cannot exert this level of control over the federal government’s detention operations. AB 32 therefore violates the Supremacy Clause.”
Judges Sandra S. Ikuta, John B. Owens, Ryan D. Nelson, Kenneth K. Lee and Danielle J. Forrest concurred, in full, and Judges Milan D. Smith Jr. and Paul J. Watford concurred, except as to the pronouncement that AB 32 is preempted by federal law.
Chief Judge Mary H. Murguia dissented and was joined by Judges Johnnie B. Rawlinson and Jennifer Sung.
Murguia also dissented from the Oct. 5, 2021 decision of a three-judge panel countermanding Sammartino. The majority opinion was written by Lee and Judge Bridget S. Bade signed the opinion.
In yesterday’s dissent, Murguia said:
“[AB] 32 is valid under the intergovernmental immunity doctrine because it neither directly regulates nor discriminates against the federal government. The majority errs by extending intergovernmental immunity to nondiscriminatory, indirect regulation of the government. Nor is AB 32 preempted. Because AB 32 is entitled to a presumption against preemption, and Congress has not expressed “clear and manifest” intent to overcome that presumption, the law is not preempted. The majority errs by failing to apply the presumption against preemption.”
Supreme Court Precedent
Nguyen pointed to the U.S. Supreme Court’s 1956 decision in Leslie Miller, Inc. v. Arkansas in which it was held that, under the Supremacy Clause, a state could not require that contractors working on federal projects hold a state license. She wrote:
“If California had passed a licensing scheme requiring private detention operators in California to obtain a state license, there is no doubt that it would be struck down under Leslie Miller. But AB 32 goes much further. It is an outright ban on hiring any private contractor. If California could not prohibit ICE from hiring a particular private detention operator by imposing licensing requirements, it surely cannot regulate private detention operators out of existence through a direct ban.”
She continued:
“Simply put. AB 32 would breach the core promise of the law. ICE would have to cease its ongoing immigration detention operations in California and adopt an entirely new approach in the state….This foundational limit on state power cannot be squared with the dramatic changes that AB 32 would require ICE to make.”
Moving Detainees
For various reasons, ICE relies almost entirely on private facilities to house detainees. Nguyen observed that while detainees could be moved to other states, ICE would have to effect the relocation as early as 2024, if AB 32 were to be upheld, and it would “not be easy” to formulate new contracts and beef up its transportation capacity and staff power by then.
AB 32 does not apply to contracts entered into before 2020, as ICE’s contracts were, and the initial term of the contracts ends in 2024.
California argued that the constitutionality of AB 32 is not presently justiciable because any injury is merely speculative given that the government might not see fit to extend its current contracts. Nguyen responded:
“Appellants’ future injuries are not conjectural or hypothetical. Virtually all of ICE’s detention capacity in California is in privately owned and operated facilities. The United States represents that ICE intends to continue to rely on private detention facilities. ICE has explained that it contracts out detention responsibilities to give it flexibility in meeting fluctuating demand, and there is no reason to think demand will cease to fluctuate in the future. ICE expects profound disruptions to its California operations from AB 32 precisely because it plans to continue relying on private facilities. Because ICE’s plans are in the near future and would plainly violate AB 32, appellants’ injuries are also sufficiently imminent even though they will not occur for at least two years.”
Presumption Against Preemption
In the portion of the opinion in which Smith and Watford did not concur, Nguyen said that “we highly doubt that the presumption against preemption,” cited by California, “applies in this case,” noting that the Supreme Court in 2001 “indicated that the presumption does not apply when a state law would interfere with inherently federal relationships.” The jurist declared that “the contractual relationship between a federal agency and its contractor” comes under that rule.
While the case was remanded for a fresh decision on whether to issue a preliminary injunction, in light of factors not previously addressed, the broad wording of Nguyen’s opinion leaves little room for exercising discretion.
The case is The Geo Group v. Newsom, 20-56172.
Bonta commented yesterday”
“California is committed to protecting the health and safety of all people, irrespective of whether they are in custody or civil detention. When we passed AB 32, we sent a clear message that putting an end to for-profit detention centers is key to achieving that goal. Prisons and detention centers shouldn’t be places of profit. We will continue the fight to ensure the dignities and rights of everyone in California are protected. As a Filipino American who was brought to this country as an infant, this fight is personal to me. While the road ahead may feel a little longer today, our work continues and we will keep pushing forward.”
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