On December 30, 2019, private detention facility provider The GEO Group, Inc. (GEO) filed a complaint in the U.S. District Court for the Southern District of California against California Governor Gavin Newsom and state Attorney General Xavier Becerra (in their official capacities), seeking an injunction of the state's enforcement of California Assembly Bill 32 (AB-32). It is an interesting turn of events for a state that is usually the plaintiff, not the defendant, in cases involving immigration enforcement.
The complaint relies heavily upon a 200-year-old Supreme Court decision that most law students must read early in their constitutional law class: McCulloch v. Maryland, in which the state of Maryland attempted to tax the Second Bank of the United States. In that decision, Chief Justice Marshall held famously that "the constitution and the laws made in pursuance thereof are supreme; that they control the constitution and laws of the respective states, and cannot be controlled by them." He continued:
From this, which may be almost termed an axiom, other propositions are deduced as corollaries, on the truth or error of which, and on their application to this case, the cause has been supposed to depend. These are, 1st. That a power to create implies a power to preserve: 2d. That a power to destroy, if wielded by a different hand, is hostile to, and incompatible with these powers to create and to preserve: 3d. That where this repugnancy exists, that authority which is supreme must control, not yield to that over which it is supreme. [Emphasis added.]
In other words, when the federal government is acting pursuant to a constitutional authority, states lack the ability to impede that action. And, of course: "The Supreme Court has determined that inherent principles of sovereignty give Congress 'plenary power' to regulate immigration."
Back to the suit. GEO is filing the complaint with respect to the facilities that it operates on behalf of U.S. Immigration and Customs Enforcement (ICE) and the U.S. Marshals Service (USMS).
The primary operative provision at issue in that bill is section 2, which adds section 9501 to the California Penal Code. It states: "Except as otherwise provided in this title, a person shall not operate a private detention facility within the state."
Lest you think that California was simply eliminating all private detention facilities within the Golden State, other provisions of that bill (and in particular new Cal. Penal Code §§ 9502 and 9505(b)), as explained in the complaint, "exempt[] essentially all private detention facilities under contract with the state." (Emphasis added.)
As the Los Angeles Times reported after the bill was signed:
[T]he new law doesn't fully shut for-profit prison companies out of California. Private companies manage federal prisons and city jails, as well as substance abuse treatment centers, transitional housing and parole services. CoreCivic also owns the 2,300-bed California City Correctional Facility in Kern County, which isn't affected by AB 32 because the state manages the prison itself.
Instead, that bill appears to be primarily focused on immigration detention (USMS detention appears to be simply collateral damage), as is apparent from the text of the Senate floor analysis of AB-32 of September 9, 2019:
Since AB 32 regulates private for-profit companies that run facilities that detain people who are held against their will under criminal and civil law, including immigrants, this anti-immigrant President's Administration will likely sue California to enjoin this bill's enactment under various theories. [Emphasis added.]
There is a "safe harbor" provision within AB-32, new section 9505(a), which provides that section 9501 does not apply to any "private detention facility that is operating pursuant to a valid contract with a governmental entity that was in effect before January 1, 2020, for the duration of that contract, not to include any extensions made to or authorized by that contract."
This is an important provision, because, according to the complaint, GEO entered into 15-year contracts with ICE for use of the company's facilities at Adelanto ICE Processing Center, Central Valley Modified Community Correctional Facility (MCCF), Desert View MCCF, Golden State MCCF, and Mesa Verde ICE Processing Center, with periods of performance from December 20, 2019 through December 19, 2034, meaning that AB 32 should not affect operation of those facilities until that later date. Central Valley MCCF and Golden State MCCF (annexes to the Mesa Verde center) and Desert View MCCF (an annex to Adelanto), are under contract to be converted to ICE detention facilities.
There are also two other privately run ICE detention facilities in the state, Imperial Regional Detention Facility (operated by MTC) and Otay Mesa Detention Center (operated by CoreCivic). Those facilities also have contracts that run through December 19, 2034.
In addition, the complaint explains, there are two USMS detention facilities that are run by GEO, Western Region Detention Facility (which is leased from San Diego County) and El Centro Service Processing Center. El Centro is owned by ICE, which has authorized USMS to use the facility for its detainees, but is operated by GEO. Otay Mesa also houses USMS detainees.
The complaint alleges four claims. First, plaintiffs argue that AB-32 "substantially interferes with Federal Government operations" due to its prohibition on privately owned federal detention facilities, and therefore violates the Supremacy Clause, Article VI, paragraph 2 of the U.S. Constitution, provision fundamental to the decision in McCulloch. That paragraph states:
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding. [Emphasis added.]
In Mayo v. U.S., which heavily relied on McCulloch, the Supreme Court held:
Since the United States is a government of delegated powers, none of which may be exercised throughout the Nation by any one state, it is necessary for uniformity that the laws of the United States be dominant over those of any state. Such dominancy is required also to avoid a breakdown of administration through possible conflicts arising from inconsistent requirements. The supremacy clause of the Constitution states this essential principle. Article VI. A corollary to this principle is that the activities of the Federal Government are free from regulation by any state. [Emphasis added.]
GEO cites the last sentence above (which itself references McCulloch in a footnote) in support of its first claim.
Second, plaintiff alleges that because it "effectively target[s] only federal private detention facilities, AB-32" unconstitutionally discriminates against the federal government. In support of this claim, plaintiffs cite to U.S. v. City of Detroit, a tax case, where the Supreme Court held: "It still remains true, as it has from the beginning, that a tax may be invalid even though it does not fall directly on the United States if it operates so as to discriminate against the Government or those with whom it deals." (Emphasis added.) The principle of that decision would appear to be valid in this case, even though AB-32 does not deal with taxation.
Third, plaintiffs allege that AB-32 is preempted by federal law. Specifically, they cite to section 241(g) of the Immigration and Nationality Act (INA), which states:
Places of detention
(1) In general.
The Attorney General shall arrange for appropriate places of detention for aliens detained pending removal or a decision on removal. When United States Government facilities are unavailable or facilities adapted or suitably located for detention are unavailable for rental, the Attorney General may expend from the appropriation "Immigration and Naturalization Service-Salaries and Expenses", without regard to section 6101 of title 41, amounts necessary to acquire land and to acquire, build, remodel, repair, and operate facilities (including living quarters for immigration officers if not otherwise available) necessary for detention.
(2) Detention facilities of the Immigration and Naturalization Service.
Prior to initiating any project for the construction of any new detention facility for the Service, the Commissioner shall consider the availability for purchase or lease of any existing prison, jail, detention center, or other comparable facility suitable for such use. [Emphasis added.]
GEO Group notes that in Comm. of Cent. Am. Refugees v. INS (a case brought by aliens who had been transported out of San Francisco, and who were seeking to be returned to that jurisdiction), the Ninth Circuit, citing to the predecessor to paragraph 241(g)(1) of the INA (subsection 242(c) of the INA (1986)), held: "Congress has placed the responsibility of determining where aliens are detained within the discretion of the Attorney General." The court there also noted that the attorney general's discretion to choose the place of detention of aliens in a footnote is "broad".
Plaintiff argues that because it "effectively prohibits the Attorney General from using private detention facilities," AB-32 "dramatically reduces his discretion in locating federal immigration detainees and prisoners throughout the District and the State and prohibits a means of federal detention that Congress clearly authorized," and that the law "impermissibly second-guesses the Federal Government's determination of what detention facilities are 'appropriate.'"
Plaintiff's fourth claim is that, because of the "safe harbor" provision in AB-32, and the fact that there are contracts in effect for each of GEO's California facilities, the law does not apply to any of those facilities through the period of those contracts.
GEO seeks an order and judgment that AB-32 is unconstitutional as applied to it "in its operation of detention facilities for USMS and ICE", as well as an injunction in the enforcement of the law against GEO in its operation of those facilities, a declaration that its contracts on those facilities are valid through their duration, and attorney's fees.
AB-32 is short-sighted, even if the courts eventually dismiss GEO's complaint, as ICE spokesman Bryan Cox explained shortly after AB-32 was signed:
ICE would simply have to transfer individuals a greater distance from their arrest location. ... The greatest impact would be felt by California residents, who would be forced to travel longer distances to visit friends and family in detention.
This is a point that I have made more than once before.
Becerra and California have been active in suing the Trump administration over its immigration proposals, including the public charge rule, the Flores regulations, the president's national emergency declaration for barrier construction along the Southwest border, and numerous others. What goes around comes around, as they say.