by Kevin Bliss

On October 5, 2021, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit struck down a California statute, Assembly Bill 32 (AB 32), barring private companies from entering new contracts with any government—including the federal government—to operate jails, prisons, or detention centers in the state after January 1, 2021, and setting a deadline of 2028 for all existing contracts to end. [See: PLN, Dec. 2020, p.30.]

The law was challenged in a pair of federal suits, the first filed by the Florida-based GEO Group on December 27, 2019, in which it said that closing the detention centers it operates in the state for federal Immigration and Customs Enforcement (ICE) and the U.S. Marshals Service (USMS) would cost the firm $4 billion in lost revenue. The following month, on January 24, 2020, the federal Department of Justice (DOJ)—which was then operating under the administration of former President Donald J. Trump (R), a vocal opponent of immigration—also sued to block the law, arguing that AB 32 violated the ‘Supremacy Clause’ in Article V of the U.S. Constitution, which maintains that federal laws “shall be the supreme Law of the Land.”

After the cases were consolidated in the U.S. District Court for the Southern District of California, Judge Janis Sammartino handed down a ruling on October 8, 2020, which stopped short of enjoining California from enforcing its law against USMS but which did side with the state and Gov. Gavin Newsom (D) to uphold AB 32 as it applies to private-prison operators for ICE. See: GEO Grp., Inc. v. Newsom, 493 F. Supp. 3d 905 (S.D. Cal. 2020).

GEO Group turned then to the Ninth Circuit. And though DOJ was soon under the administration of President Joseph R. Biden, Jr. (D), who campaigned on a promise to “modernize” the U.S. immigration system and “welcome immigrants into our communities,” the agency continued working to oppose the ban and urged the Court to strike it down as it applies to the federal government. In its ruling, the Court did just that, holding that state law could not override federal authority to enter into a contract.

“California is not simply exercising its traditional police powers, but rather impeding federal immigration policy,” ruled Judge Kenneth Lee for the Court’s majority.

In a lengthy dissent, Judge Mary H. Marguia countered that “[n]othing in AB 32 prevents the federal government from apprehending and detaining noncitizens who are present in the country unlawfully.” The Court’s “presumption against pre-emption” of the state government’s authority can always be overcome by “clear and manifest” congressional intent to displace state law, she said, but that was absent in this case.

“Even if Congress has not prevented private immigration detention, Congress certainly has not clearly authorized such detention either,” the judge noted.

Citing the U.S. Supreme Court’s decision in Chamber of Com. v. Whiting, 563 U.S. 582 (2011), she also warned that looking for an “[i]mplied preemption” in the instant case “does not justify a ‘freewheeling judicial inquiry into whether a state statute is in tension with federal objectives’” because that “‘would undercut the principle that it is Congress rather than the courts that pre-empts state law.’”

In addition to the office of state Attorney General Rob Bonta (D), one of the defendants who wrote AB 32 when he served in the State Assembly, the state and Gov. Newsom were represented by both the Northern California and Southern California chapters of the American Civil Liberties Union (ACLU), the National Immigrant Justice Center, the ACLU’s National Prison Project, as well as the ACLU of San Diego and Imperial Counties. See: GEO Grp., Inc. v. Newsom, 15 F.4th 919 (9^th Cir. 2021).

On November 17, 2021, Bonta asked the full Ninth Circuit to reconsider the ruling en banc, accusing private prison companies that hold ICE detainees of “treat[ing] people like commodities” and saying “they pose an unacceptable risk to the health and welfare of Californians” and “prioritize profits over rehabilitation—making us all less safe.” PLN will report updates on that petition as they become available. See: GEO Grp., Inc. v. Newsom, USCA (9^th Cir.), Case No. 20-56172 and Case No. 20-56304.  

Additional sources: AP News, JoeBiden.com, Witness LA

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