Circuit reverses ruling on private prisons law

A conservative-dominated 9th U.S. Circuit Court of Appeals panel ruled Tuesday that a California law phasing out all private prisons throughout the state is preempted by federal law.

Reversing a decision by U.S. District Judge Janis L. Sammartino of San Diego, the panel ruled that AB 32, signed into law by Gov. Gavin Newsom in 2019, improperly interferes with the objectives of Congress to allow immigration detention facilities.

"Immigration -- in particular, the detention of undocumented immigrants and those slated for removal -- falls within the core of exclusive federal powers," wrote 9th Circuit Judge Kenneth K. Lee, an appointee of President Donald Trump.

"And Congress has given the U.S. Department of Homeland Security (DHS) Secretary the statutory authority to contract with private detention facilities," he added. "AB 32, however, intrudes into the federal sphere of authority by barring the secretary from exercising his or her statutory power."

Lee reversed Sammartino's denial of a motion for a preliminary injunction by the U.S. Department of Justice and The Geo Group Inc., a for-profit prison company, and remanded the case.

9th Circuit Judge Bridget S. Bade, another Trump appointee, concurred with the opinion.

The ruling drew a dissent from 9th Circuit Judge Mary H. Murguia, an appointee of President Barack Obama.

"The district court acted within its discretion in denying a preliminary injunction because the United States and GEO are not likely to succeed on their conflict-preemption and intergovernmental-immunity claims," she wrote.

Murguia added that AB 32 "is entitled to the presumption against preemption as a regulation of health and safety within the state's historic police powers, and that Congress did not express any 'clear and manifest' intent to overcome that presumption with respect to the ICE facilities at issue in this case."

California Attorney General Rob Bonta, in a statement, did not directly address whether he would seek en banc review of the ruling but said the case was ongoing.

It is widely expected the state will appeal with three-judge panel ruling, especially because its majority consisted of Trump appointees. The full 9th Circuit has a slim majority of judges appointed by Democratic presidents.

Before Newsom appointed him as attorney general earlier this year, Bonta wrote the bill as a state legislator.

"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," Bonta wrote. "We will continue the fight to ensure the dignities and rights of everyone in California are protected."

Michael W. Kirk, a partner with Cooper & Kirk PLLC who represents The Geo Group, applauded the panel's ruling in a statement.

"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," he wrote.

During oral arguments in June, Kirk and U.S. Department of Justice attorney Mark B. Stern argued a state cannot regulate the federal government under the doctrine of intergovernmental immunity.

"This is as big an obstacle as it gets," Stern told the panel.

Danielle Blevins, a spokeswoman with the U.S. Department of Justice, said in an email the agency would not comment on the decision.

During last year's campaign, President Joe Biden said he wanted to end ICE's use of private detention centers. But a January executive order didn't mention ICE, and the Justice Department did not -- as it has in other cases it inherited from the Trump administration -- drop out of the case or reverse its position.

Jordan Wells, an attorney with the ACLU of Southern California who argued in the case on the state's behalf, said immigrant rights groups continue to advocate that the administration stop ICE from using private detention facilities.