Federal Appeals Court Overturns California’s Ban on Private Immigration Detention Centers

Judge Jacqueline Nguyen was part of the the U.S. Court of Appeals for the 9th Circuit that ruled Immigration and Customs Enforcement relies almost exclusively on privately operated detention facilities in California to maintain flexibility. File photo from 2015 in Los Angeles, California. John Moore/Getty Images

California’s ban on privately owned and operated immigration detention facilities is unconstitutional because it interferes with and gives the state a veto over federal government operations, the U.S. Court of Appeals for the 9th Circuit ruled on Sept. 26.

In an 8–3 vote, an 11-member en banc panel of the court declared that California law AB 32, which states that “a person shall not operate a private detention facility within the state,” violates the Supremacy Clause in Article VI of the U.S. Constitution.

Judge Jacqueline Nguyen, an Obama appointee, wrote in the majority opinion in The Geo Group v. Newsom that “California cannot exert this level of control over the federal government’s detention operations.”

The Geo Group, a plaintiff in the case, is a security company headquartered in Boca Raton, Florida. The other plaintiff is the United States.

“Due to significant fluctuations in the population of noncitizens who are detained, and other challenges unique to California, ICE [U.S. Immigration and Customs Enforcement] relies almost exclusively on privately operated detention facilities in the state to maintain flexibility,” Nguyen wrote.

“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.

“AB 32 would prevent ICE’s contractors from continuing to run detention facilities, requiring ICE to entirely transform its approach to detention in the state or else abandon its California facilities.”

AB 32 was spearheaded by California Attorney General Rob Bonta, a Democrat, when he was a member of the California State Assembly. Bonta’s office defended the law in court. California Gov. Gavin Newsom, a Democrat, signed it in 2019.

Among other things, the law prevented the California Department of Corrections and Rehabilitation from entering into or renewing contracts with a private prison company after Jan. 1, 2020, and prohibited the state from holding inmates in for-profit prison facilities beginning in 2028.

“During my inaugural address, I vowed to end private prisons because they contribute to over-incarceration, including those that incarcerate California inmates and those that detain immigrants and asylum seekers,” Newsom said when he signed the law. “These for-profit prisons do not reflect our values.”

The left has long opposed private prisons, claiming that they’re part of a “prison-industrial complex” that artificially boosts incarceration rates for poor people and minorities for profit.

Bonta’s office reacted to the court decision, saying in a statement, “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.”

It’s unclear if he'll appeal the ruling to the Supreme Court.

Chief Judge Mary Murguia, an Obama appointee, authored a dissenting opinion that two other circuit judges joined.

AB 32 is “valid” because “it neither directly regulates nor discriminates against the federal government,” she wrote.

The state law isn’t preempted by federal law, she wrote. AB 32 “is entitled to a presumption against preemption, and Congress has not expressed ‘clear and manifest’ intent to overcome that presumption, [so] the law is not preempted. The majority errs by failing to apply the presumption against preemption.”

Murguia’s twin sister, Janet Murguia, is president of left-wing open-borders group UnidosUS, formerly known as the National Council of La Raza. She was also previously a senior adviser in the Clinton White House.