Ninth Circuit freezes California ban on private prisons

(CN) — Siding with the for-profit prison industry, a divided Ninth Circuit panel ruled Tuesday that California’s ban on private prisons is unconstitutional as it undercuts the federal government’s ability to execute immigration policy.  

In a 2-1 decision, the panel said a federal judge erred by dismissing lawsuits filed jointly by a major private prison company and the Trump administration one year ago. The panel ruled California’s law, which would force the closure of private detention centers used by the U.S. Immigration and Customs Enforcement (ICE) by the end of the decade, “intrudes into the federal sphere.”

“In short, Assembly Bill 32 does not regulate a field which the states have traditionally occupied. To the contrary, it tries to regulate an area—detention of immigrants—that belongs exclusively in the realm of the federal government,” U.S. Circuit Judge Kenneth Lee wrote for the majority.

At issue is a contentious piece of state legislation that was proposed and enacted amid the uproar surrounding former President Donald Trump’s immigration polices at the U.S.-Mexico border.

Driven by the federal government’s policy of placing migrant children in cages, California lawmakers approved a bill baring the renewal of state contracts with companies like the Geo Group. Furthermore, AB 32 covers private immigration detention centers that contract with the federal government.

Governor Gavin Newsom signed the bill in 2019, agreeing with state Democrats that “for-profit prisons do not reflect our values.” Like several other immigration-related bills signed by Newsom and his predecessor Jerry Brown, AB 32 drew the ire of the Trump administration.

The feds and GEO Group countered with lawsuits, arguing AB 32 was preempted by federal law. The Trump administration said the ban would cause it to relocate thousands of immigrant detainees to neighboring states amid the border crisis while GEO Group claimed it would lose $250 million annually.

“California, of course, is free to decide that it will no longer use private detention facilities for its state prisoners and detainees. But it cannot dictate that choice for the federal government,” the feds argued in court.

Unswayed by the parties’ arguments, U.S. District Judge Janis Sammartino gave the first round to the state in October 2020. The George W. Bush appointee said the U.S. government didn’t establish that the Bureau of Prisons is likely to suffer a concrete injury due to the shuttering of private prisons and mostly ruled in favor of the state.

The plaintiffs quickly appealed Sammartino’s decision and warned the Ninth Circuit that allowing AB 32 to stand would clear the way for other states to try and impede federal immigration operations.  

During oral arguments, the state claimed the ban is intended to protect the health of immigrant detainees and was crafted to comply with federal law.

Nearly four months later, the panel now says AB 32 can’t be enforced as it prevents the secretary of the Department of Homeland Security from doing the job Congress sanctioned it to do.

“Fortune may favor the bold, but not so if it flies against the statutory text and structure as well as historical tradition,” wrote Judge Lee. “Contrary to California’s assertions, Congress gave the secretary broad discretion to arrange for appropriate detention facilities, including contracting with private companies to operate them.”

Lee was joined by fellow Trump appointee U.S. Circuit Judge Bridget Bade, while U.S. Circuit Judge Mary Murguia dissented.

Murguia, a Barack Obama appointee, said AB 32 wasn’t preempted by federal law and that it should be treated as a matter of health and public safety, not immigration. In her dissent, Murguia noted Illinois, Nevada, New York and Washington state have all passed legislation intended to regulate the operation of private prisons within their borders.

“Nobody meaningfully disputes that the health, safety and welfare of detainees within a state is within the state’s historic police powers. There is no support in our case law for narrowing our view of AB 32 to its potential effects in the immigration context,” she wrote.

Murguia also disagreed with the panel’s decision to take a de novo review of Sammartino's ruling.

California Attorney General Rob Bonta said he will continue to “fight” for the rights of citizens and immigrants and signaled the state will appeal Tuesday’s decision.

“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.”

A spokesperson for Newsom’s office said it was reviewing the decision and reiterated that “for-profit prisons do not reflect California’s values and lead to over-incarceration.”

Bonta wrote AB 32 in 2019, when he was in the state Assembly. The Democrat, who had a similar proposal vetoed by then-Governor Jerry Brown in 2017, made it clear the bill was inspired by the Trump administration.

“These companies are not only facilitating the Trump administration’s political agenda, but profiting from the cruel, zero tolerance immigration policies that have torn innocent children from their families,” Bonta said in 2019.

After seeing the ACLU-sponsored bill signed into law, Bonta has since been tasked with defending it in court after Newsom appointed him as attorney general this year.

In the Ninth Circuit, Bonta’s office and the ACLU questioned whether Congress gave the Department of Homeland Security authority to contract with private parties to operate detention facilities.

But the panel dashed the appellee’s argument, calling it “audacious” and highlighted the fact the federal government has been detaining undocumented immigrants in private centers since the 1980s. It ultimately called the state’s argument a “classic case of conflict preemption.”

“Shorn of its creative but ultimately unconvincing arguments, California’s case against preemption withers,” Lee concluded.

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