(CN) — Questioning the “practical effects” California’s ban on privately run immigration detention facilities would have on the federal government’s immigration authority, several Ninth Circuit judges wondered Tuesday whether other states would enact copycat legislation to slow federal government operations.
“You’re talking about a private business that has no other business other than supporting the federal government — they don’t do anything else. The whole purpose of these private companies is to take over a government responsibility,” Circuit Judge Ryan Nelson, a Donald Trump appointee, said.
“I don’t think that’s a distinction that matters here,” California Deputy Attorney General Aimee Feinberg responded. “The question is whether the state regulation is operating as to the private business, as opposed to the federal government itself. That’s because with respect to intergovernmental immunity, the state doesn’t have the authority to regulate the federal government, as such, but it has plenary authority to regulate private businesses operating within its borders.”
California was back at the Ninth Circuit again Tuesday, just a little over a year after it previously defended Assembly Bill 32, signed into law in 2019, banning the operation of private detention facilities.
Last year in a split Ninth Circuit panel, a duo of Trump-appointed circuit judges found California’s private prison ban was unconstitutional and issued a preliminary injunction blocking the law from going into effect.
California appealed, requesting an en banc re-hearing by a larger panel of 10 circuit judges.
Such an injunction, Circuit Judge Milan Smith Jr. pointed out when questioning a Department of Justice attorney Tuesday, is usually issued an emergency basis.
“Usually when people seek preliminary injunctions they’re concerned about an immediate harm. In this case, you’ve got a contract that, at the very least, goes through December 19, 2024, before it’s affected in any way,” Smith said.
The judge also noted he was “struggling with” being asked to issue such an injunction in light of an executive order signed by President Joe Biden last year eliminating the use of privately operated criminal detention facilities.
Justice Department attorney Mark Stern emphasized Biden’s executive order applied only to criminal detention facilities, noting Immigration and Customs Enforcement “plans to continue to use privately operated detention facilities.”
He said although the contract will run through 2024, “When you’re talking about on operation on this scale, I think everyone has recognized what would need to be done if the United States really couldn’t operate these facilities in California.”
Stern also said the subject contract between ICE and private prison operator GEO Group was subject to renewal through 2034.
Nelson suggested California’s private prison ban didn’t infringe on the federal government’s interest in detaining immigrants, however, noting ICE has “chosen” to detain them in private facilities and could comply with California’s law by building and operating its own detention facilities or purchasing the ones run by GEO Group.
“That’s not the test for preemption,” Stern said, “The question is, does it pose a burden?”
Nelson disagreed.
“I don’t think the test is does it impose a burden, it’s whether you can achieve the objective,” Nelson said. “I think the test is if it substantially interferes with federal operations. But you’re trying to define federal operations as being able to use private contractors.”
Attorney Michael Kirk, representing GEO Group, said California’s law undermined Congress’ intent in granting the secretary of Homeland Security “broad discretion” necessary to carry out their duties.
He noted Homeland Security appropriations contains explicit language authorizing ICE use funds to contract with privately run immigration detention facilities.
“These provisions clearly and unmistakably convey Congress’ intention to grant the secretary, acting through ICE, the discretion to use privately contracted facilities to the extent that he determines that is appropriate,” Kirk said.
But Feinberg doubled down on the state’s position its law regulates private companies, not the federal government.
“We don’t deny that there can be indirect burdens on the federal government, but when the regulation is regulating a private entity and not the federal government there is no direct regulation,” Feinberg said.
Judge Kenneth Kiyual Lee, a Trump appointee who authored the Ninth Circuit’s opinion last year freezing California’s private prison ban, said that position undermines the broad authority given to Congress regarding immigration detention.
“It seems like the congressional intent is clear unless you’re asking for certain magic words it has to explicitly say in the statue,” Lee said responding to Feinberg’s position California’s law could only be “preempted by a clear and manifest intent by Congress to foreclose state law trying to regulate these private businesses.”
Under California’s position, every state could preclude the use of private detention centers, pressed Circuit Judge Sandra Segal Ikuta, a George W. Bush appointee.
“The 50 states could preclude the use of private detention facilities,” Feinberg confirmed. “But what is always available to the federal government if states are acting in ways that preclude or interfere with important policy objectives, Congress undeniably has the power to preempt state regulation of private businesses.”
Michael Kaufman also argued on behalf of amici curiae, the American Civil Liberties Union and National Immigrant Justice Center.
The matter was taken under submission.
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