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En banc Ninth Circuit guts California ban on for-profit detention facilities

The 11-judge en banc panel affirmed a three-judge panel's ruling, which said the state's ban on private detention facilities would force the feds to dramatically change its business of handling immigrants.

(CN) — An en banc Ninth Circuit declared California's ban on private immigration detention facilities unconstitutional Monday, finding it violates the supremacy clause which prohibits states from "interfering with or controlling the operations of the federal government.”

"California cannot exert this level of control over the federal government’s detention operations," U.S. Circui judge Jacqueline Nguyen, a Barack Obama appointee, wrote for the panel.

"Virtually all of ICE’s detention capacity in California is in privately owned and operated facilities, " Nguyen wrote. "To comply with California 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."

Three of the 11 judges on the panel dissented, arguing California's private prison ban was only an "indirect" regulation of the federal government.

Assembly Bill 32 was written by former Assemblyman Rob Bonta, who's now the state's attorney general, and whose office argued the case before the Ninth Circuit. Signed into law by Governor Gavin Newsom in 2019, the law banned private, for-profit prisons and immigration detention facilities.

Both the federal government and the GEO Group, a Florida-based company which operates two detention centers in California, sued to block the law. A federal judge upheld the private prison ban, but in a 2-1 split decision, a three-judge Ninth Circuit panel overruled the lower court and blocked the law.

"In short, Assembly Bill 32 does not regulate a field which the states have traditionally occupied," the two Ninth Circuit judges, both Donald Trump appointees, wrote in their decision. "To the contrary, it tries to regulate an area — detention of immigrants — that belongs exclusively in the realm of the federal government.” An Obama appointee dissented.

California requested an en banc review of the case, which was granted, allowing the state a rehearing before 11 Ninth Circuit judges. Six of the 11 on the panel were appointed by Democratic presidents; three of those signed off on the majority opinion, joining the five Republican appointees.

The state's lawyers argued AB 32 would have regulated a private business rather than the federal government; any imposition on the federal government, they said, was "indirect." The three dissenting judges adopted that argument, but not the other eight, who ruled that AB 32 would place ICE, which itself holds just 220 detention beds in the state, in an undue bind.

"Constructing a new facility would not only be expensive and time-consuming, but it would also run up against Congress’ preference to use existing facilities," Nguyen wrote, adding "it would undercut ICE’s desire for flexibility to meet fluctuating demand for detention capacity."

The decision relied heavily on a 1956 U.S. Supreme Court decision, Leslie Miller, Inc. v. Arkansas, in which the high court ruled a state law requiring that all building contractors be licensed could not apply to contractors working on federal projects, because that would violate the supremacy clause.

"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," Nguyen wrote.

In a written statement, Bonta's office expressed disappointment over the ruling. "Assembly Bill 32 was enacted to protect the health and welfare of Californians and recognized the federal government's own documented concerns with for-profit, private prisons and detention facilities."

Bonta's office did not say if they would be appealing the decision to the Supreme Court.

Attorneys for the GEO Group and the federal government did not return phone calls and emails requesting a comment by press time.

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