Both of the judges in the majority were appointed by former President Donald Trump, while the sole Democratic appointee on the panel, Judge Mary Murguia, dissented. She argued that preventing the federal government from using private detention facilities did not amount to an unconstitutional infringement of the federal government’s authority to enforce immigration policy.
“Nothing in AB 32 prevents the federal government from apprehending and detaining noncitizens who are present in the country unlawfully,” wrote Murguia, an appointee of President Barack Obama. She argued that California’s move fell within the state’s established powers to regulate the health and safety of those within its borders.
Murguia also faulted the majority for painting the California law as one targeting immigration detention, when it also covers criminal and pretrial detention facilities that the Justice Department contracted with before the Obama administration chose to stop using private jails for that population.
“Nobody meaningfully disputes that the health, safety, and welfare of detainees within a state is within the state’s historic police powers,” she wrote. “There is no support in our case law for narrowing our view of AB 32 to its potential effects in the immigration context.”
The appeals court’s majority also ruled that the California law unconstitutionally discriminates against the federal government because it could continue using private detention facilities only under contracts in place in 2019 and likely to expire in 2024 — while the state could keep using private detention facilities to meet court-ordered prison caps through the end of 2027. (California has already stopped using those facilities for state prisoners, but Lee said the state could reverse itself and still comply with the law.)
The appeal that was ruled on Tuesday followed suits brought by the private prison operator, the GEO Group, and by the Justice Department after passage of the California law. Last October, San Diego-based Judge Janis Sammartino, a George W. Bush appointee, turned down their requests for a preliminary injunction against the statute. The Justice Department maintained its stance against the law, even after appointees of President Joe Biden took leadership in the department.
“This case is not about the wisdom of the federal government’s decisions, but about preserving its discretion to make decisions,” Justice Department attorneys wrote in a March brief.
A Justice Department spokesperson declined to comment on the ruling, but the decision on the California private prison law could be of some use to federal government lawyers in their pending case against Texas’ law seeking to rein in abortions by offering bounties to private citizens to sue abortion providers and those who aid people seeking abortions.
DOJ attorneys are arguing in that case that the law impedes federal government operations, even though it has no language explicitly discussing the federal government. A federal judge in Austin is currently considering the Justice Department’s motion to enjoin the Texas statute.
California Attorney General Rob Bonta said on Tuesday that he planned to keep up the legal fight to defend the California law.
“California is committed to protecting the health and safety of all people, irrespective of whether they are in custody or civil detention,” Bonta said in a statement. “When we passed AB 32, we sent a clear message that putting an end to for-profit detention centers is key to achieving that goal. Prisons and detention centers shouldn’t be places of profit. We will continue the fight to ensure the dignities and rights of everyone in California are protected. … While the road ahead may feel a little longer today, our work continues and we will keep pushing forward.”
An attorney for GEO Group, Chuck Cooper, hailed the ruling.
“The court of appeals decision today confirms that the United States Constitution places immigration policy within the exclusive domain of the federal government and that California’s law prohibiting the federal government from contracting with private companies for the detention of illegal immigrants is therefore unconstitutional,“ Cooper said in an email to POLITICO. “We hope and trust that California will now cease its efforts to frustrate the activities of the federal immigration agencies and their private contractors.”
9th Circuit blocks California law limiting private jails