Constitutional Law

California’s ban on private prisons unconstitutionally interferes with immigration enforcement, 9th Circuit rules

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A federal appeals court has ruled that a ban on private prisons in California unconstitutionally restricts the federal government’s authority to operate private detention facilities in the state.

The 9th U.S. Circuit Court of Appeals at San Francisco ruled Tuesday that the measure violates the supremacy clause and discriminates against the federal government.

Politico, Courthouse News Service and Law360 have coverage.

The appeals court said the measure, known as California Assembly Bill 32, unconstitutionally interferes with the authority of U.S. Immigration and Customs Enforcement, which uses only private detention centers in California.

“California is not simply exercising its traditional police powers but rather impeding federal immigration policy,” said the panel majority in an opinion by Judge Kenneth Lee.

The 2-1 decision also held that the law discriminates against the federal government because it grants more exemptions and a longer phaseout period to the state’s operation of private prisons.

The 9th Circuit ruled in a suit by a private prison operator, the GEO Group Inc., and by the U.S. Department of Justice. Only the immigration facilities were at issue in the appeal, according to a dissent arguing that AB 32 was not preempted by federal law. The case is The Geo Group Inc. v. Newsom.

According to Politico, the decision “could be of some use” to the federal government in its lawsuit seeking to block the Texas abortion law. In that case, the DOJ is arguing that the Texas law impedes federal constitutional duties.

The ABA House of Delegates passed a resolution in August that opposes private prisons and juvenile detention centers.

A report submitted to the House argues that “private prison corporations are driven by perverse and immoral incentives whereby an increase in crime and an increase in the number of human beings placed into America’s prisons is good business news for that industry.”

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