Editors’ Note: On April 26, 2022, in an order from Judge Mary H. Murguia, the Ninth Circuit vacated this panel decision and agreed to rehear this case en banc.
Over the past thirty-five years, the United States has developed the world’s largest immigration detention machine.1 These detention facilities are notorious for their horrific conditions, which have flashed across TV screens around the country.2 While these inhumane conditions span all types of immigration detention facilities, they are particularly egregious in those that are privately run.3 California sought to address this issue by passing AB 32,4 which prohibits the use of private detention facilities in the state.5 Recently, however, in GEO Group, Inc. v. Newsom,6 the Ninth Circuit held that AB 32, as applied to federal immigration facilities, was obstacle preempted and violated the doctrine of intergovernmental immunity.7 The Ninth Circuit’s preemption analysis in this case disregarded the state’s interests in protecting the health and safety of immigrants and was inconsistent with the Supreme Court’s most recent immigration preemption decision. This method of analysis could lead to a one-way ratchet, placing more scrutiny on laws protecting the health and safety of immigrants than those imposing additional burdens on immigrants.
In 2019, the California legislature enacted AB 32, which implemented two amendments to the California Penal Code.8 The first regulates the California Department of Corrections and Rehabilitation, stating that “the department shall not enter into a contract with a private, for-profit prison facility located in or outside of the state to provide housing for state prison inmates.”9 The second prohibits any person or entity from operating a private “detention facility” in California pursuant to a contract with a governmental entity.10 It includes those contracting with state, local, or federal government entities, and applies to criminal and immigration detention.11 One effect of the second provision is to prevent the federal government from using private immigration detention centers in California.12
The law was challenged by the United States and the GEO Group, a private prison company operating two immigration and two criminal detention centers in California.13 The challengers sought a preliminary injunction respecting U.S. Immigration and Customs Enforcement (ICE), U.S. Marshals Service (USMS), and Bureau of Prisons (BOP) facilities.14 They argued that AB 32 was preempted because it undermined the congressionally authorized operations of federal agencies and also violated intergovernmental immunity by directly regulating and discriminating against the federal government.15
The District Court for the Southern District of California granted in part and denied in part the plaintiffs’ motion for a preliminary injunction.16 It held the law was preempted as to USMS contracts because federal criminal law explicitly authorized private USMS detention facilities.17 But it dismissed all other claims.18 Beginning its preemption analysis, the district court noted that a state law is invalid when “it stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’’19 The court also noted that it must apply a presumption against preemption when states regulate in traditional areas of state power.20 The district court found that this presumption applied because AB 32 primarily regulates health and safety, which are concerns of the states.21 The court then looked to whether Congress had expressed a “clear and manifest purpose” sufficient to override this presumption.22 Analyzing the federal laws authorizing immigration detention,23 the court found that they did not reveal sufficiently “clear and manifest” congressional intent to use private detention facilities, as they do not explicitly discuss private detention, nor do they require private detention to carry out their objectives.24 The plaintiffs appealed the district court’s decision as to ICE facilities to the Ninth Circuit.
The Ninth Circuit reversed the district court’s denial of a preliminary injunction and remanded.25 Writing for the panel, Judge Lee26 held that AB 32 was obstacle preempted and violated the doctrine of intergovernmental immunity.27 The court first held that the presumption against preemption did not apply, because detention of immigrants is an area of “exclusive federal regulation,” not of state police powers.28 The panel then looked to federal immigration law, emphasizing statutory language allowing the Department of Homeland Security (DHS) to arrange for “appropriate” detention facilities for those in removal proceedings and to enter into contracts to the extent “necessary and proper” to carry out the agency’s responsibilities.29 The court concluded that this broad language revealed Congress’s “clear and manifest” intent to allow DHS vast discretion in arranging immigration detention.30 AB 32 was therefore preempted because it cabined this discretion.31 The court held that the statute was also barred by the doctrine of intergovernmental immunity because it facially discriminated against the federal government.32
Then-Judge Murguia dissented, arguing that AB 32 was not obstacle preempted and did not violate intergovernmental immunity.33 She first noted that the presumption against preemption may still apply even when a statute affects immigration.34 She argued that the majority was primarily concerned with the law’s potential effects on immigration detention and the “nagging suspicion that California was targeting the federal government’s immigration detention facilities, . . . neither of [which] is relevant to the presumption against preemption.”35 She then argued that Congress had not expressed clear and manifest intent to preempt AB 32, as federal immigration statutes do not mention private detention.36 She also challenged the majority’s argument that the statute conflicts with Congress’s intent to provide wide discretion to DHS, as this reasoning has only ever applied when federal law created a comprehensive scheme with which a state interfered.37
The majority’s analysis in GEO Group failed to take seriously the state’s interests in protecting the health and safety of immigrants within its borders. This disregard for the state’s interests led the court to conduct a cursory preemption analysis, which relied heavily on the federal government’s plenary power and little other evidence. This analysis is so sweeping that its logical conclusion would be that all state laws having implications for federal immigration law are preempted, and it is inconsistent with the Supreme Court’s most recent immigration preemption decision. This method of analysis risks creating a one-way ratchet, in which laws seeking to protect immigrants are more likely to be preempted than those seeking to criminalize immigrants.
The majority opinion did not take seriously the state’s interests in protecting the health and safety of immigrants within its borders. In discussing the presumption against preemption, the court used language that suggests a suspicion of the state’s motives, writing that California “has placed federal immigration policy within its crosshairs.”38 At no point did the court acknowledge that the state may have real reasons to be concerned about the health and safety of people incarcerated in private detention facilities.39 In fact, the court claimed that the state had used the “mantra-like invocation of ‘state police powers’” as a “shield[]” against preemption analysis.40 The court did not appear to acknowledge that the purpose of the bill was to protect immigrants from documented health and safety concerns in private detention centers.41 This framing of the state’s interests led the court to conclude that the presumption against preemption did not apply.42
Because the majority minimized the state’s interests, it conducted a cursory preemption analysis, relying heavily on the federal government’s plenary power and marshaling little additional support.43 In finding clear and manifest intent, the panel repeatedly emphasized that the federal government has broad authority over immigration.44 While the majority also discussed the words “appropriate”45 and “necessary and proper,”46 these words added little to the analysis.47 Even if these words established congressional intent, they would not narrow the broad implications of the Ninth Circuit’s analysis. The word “appropriate” appears over 100 times in the Immigration and Nationality Act alone,48 and the words “necessary and proper” in 6 U.S.C. § 112(b)(2) apply to all of DHS’s contracts.49 Almost any immigration issue will involve statutory language using some of these terms, and the majority conducted no other analysis to support its conclusion.50 The fact that these few words, combined with the plenary power, produce preemption suggests that essentially all state statutes that have implications for immigration are preempted.
The sparsity of this analysis is particularly striking in comparison to the methodology used in the Supreme Court’s most recent immigration preemption decision. In Arizona v. United States,51 the Court upheld a provision of SB 1070, an Arizona law placing new requirements on local law enforcement to track down undocumented immigrants.52 In determining obstacle preemption, the Court engaged in a rigorous statutory analysis involving thorough investigation of federal statutory structure and legislative history. The Court found obstacle preempted section 5(C), which made it a state misdemeanor for an undocumented immigrant to work or attempt to work in the state, because Congress had considered such a law and rejected it.53 The Court also found preempted section 6, which gave state officers the power to arrest anyone without a warrant who they have probable cause to believe “has committed any public offense that makes [him] removable from the United States.”54 The Court found that the provision would give state officials more power to arrest undocumented immigrants than federal law gives trained federal immigration enforcement.55 Finally, the Court held that section 2(B), which required state officers to “make a ‘reasonable attempt . . . to determine the immigration status’ of any person” they stop or detain if they have reasonable suspicion that the person “is unlawfully present in the United States,” was not preempted.56
The majority’s preemption analysis in GEO Group bears little resemblance to the Court’s methodology in Arizona. Even when the Court in Arizona held that provisions of SB 1070 were preempted, it did so by engaging in a rigorous analysis of the federal statutory structure and legislative intent. This analysis is consistent with the idea that “the purpose of Congress is the ultimate touchstone in every preemption case.”57 The Ninth Circuit, by contrast, rested its analysis on its acontextual reading of two phrases, as well as the general plenary power.58 It referenced no legislative history, nor did it examine the larger statutory structure. While the Court’s decision in Arizona is certainly not friendly to state laws involving immigration,59 the Ninth Circuit’s decision is even less so, suggesting that any law with implications for immigration is preempted.
The court’s analysis in GEO Group runs the risk of creating a one-way ratchet in which state laws seeking to protect the health and safety of immigrants face higher burdens and therefore a higher likelihood of preemption than laws seeking to criminalize immigrants. The court’s skepticism of the state’s interests in protecting the health and safety of immigrants led to a sparse analysis that was quick to find preemption. If courts continue to follow this pattern, immigrants will face very real, negative consequences. In this case, California cannot fully eliminate private detention within its borders, despite legitimate concerns about health and safety. Unlike the federal government, which must balance cost-saving goals with other public policy concerns, private prisons, like other for-profit businesses, are incentivized to prioritize profit above all else.60 This profit motive leads them to cut costs in ways that sacrifice health and safety. Private detention centers often have “inadequately trained guards, low guard to detainee ratios, food shortages, and poor sanitation,” and have been accused of providing inadequate medical attention and inhumane living quarters.61 Certain private prisons are also notorious for putting transgender detainees at risk of assault and failing to sufficiently investigate sexual assault complaints.62 California recognized these dangers and sought to address them through AB 32.63 The Ninth Circuit, however, has tied the state’s hands. In doing so, this case will have real effects on the lives of thousands of people in California.64