GEO Group, Inc., v. Newsom, No. 20-56172 (9th Cir. 2021)
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California AB 32 phases out private detention facilities within the state. Because of fluctuations in immigration, ICE relies exclusively on private detention centers in California. AB 32 carves out exceptions for the state’s private detention centers. The United States and GEO, which operates private immigration detention centers, sued. The district court ruled largely in favor of California.
The Ninth Circuit reversed. California is not simply exercising its traditional police powers, but rather impeding federal immigration policy. . Under the Supremacy Clause, state law must fall if it stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. The presumption against preemption does not apply to areas of exclusive federal regulation, such as the detention of immigrants. California did more than just exercise its traditional state police powers – it impeded the federal government’s immigration policy. Congress granted the Secretary of the Department of Homeland Security broad discretion over immigrant detention, including the right to contract with private companies to operate detention facilities. AB 32 also discriminated against the federal government in violation of the intergovernmental immunity doctrine by requiring the federal government to close all its detention facilities, while not requiring California to close any of its private detention facilities until 2028.
Court Description: Preemption / Intergovernmental Immunity The panel reversed the district court’s orders denying the motion of the United States and GEO Group, Inc., a company that operates two private immigration detention centers, for a preliminary injunction, and granting the State of California’s motions to dismiss and for judgment on the pleadings, in an action brought by the United States and GEO challenging California Assembly Bill 32 (“AB 32”), which phases out all private detention facilities within the state. The United States Immigration and Customs Enforcement (ICE) relies exclusively on private detention centers in California. The district court denied appellants United States’ and GEO’s request for preliminary injunctive relief based on its finding they were unlikely to succeed on the merits. The panel concluded that appellants were likely to succeed on the merits, and the other preliminary injunction factors tipped in their favor. As a preliminary matter, the panel held that appellants’ claims were justiciable. By the end of the decade, AB 32 will deprive the United States of the option to continue contracts with GEO and its other contractors. That result inevitably flows from the statutory language nullifying any 4 THE GEO GROUP V. NEWSOM contract renewals. The panel concluded that based on the United States’ standing alone, it had authority to hear the case. The panel held that AB 32 conflicted with federal law and could not stand. Under the Supremacy Clause, a state law must fall if it stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. Under the presumption against preemption, courts assume that federal law does not supersede the historic police powers of the states unless there is a clear and manifest congressional purpose. The panel held that the district court erred in finding that that the presumption against preemption applied, and that federal law did not preempt AB 32 under conflict preemption. The presumption does not apply to areas of exclusive federal regulation, such as detention of immigrants. California did more than just exercise its traditional state police powers – it impeded the federal government’s immigration policy. California has not historically regulated the conditions of detainees in federal custody, and in particular those housed in immigrant detention centers. In short, AB 32 did not regulate a field which the states had traditionally occupied. In addition, Congress unambiguously granted the Secretary of the Department of Homeland Security (“DHS”) broad discretion over immigrant detention, including the right to contract with private companies to operate detention facilities. The panel rejected California’s and the ACLU’s argument that Congress never gave the Secretary of DHS discretion to contract with private parties to operate detention facilities, even though the federal government has relied on private immigration detention centers for decades. The panel also rejected their arguments that 8 U.S.C. § 1231(g) implied a THE GEO GROUP V. NEWSOM 5 limit on the Secretary’s discretion, and 8 U.S.C. § 1103(a)(11) permitted the Secretary to contract out detention facilities to states only. Finally, AB 32 conflicted with the Secretary’s statutory power to contract with private detention facilities. AB 32 cannot stand because it conflicts with this federal power and discretion given to the Secretary in an area that remains in the exclusive realm of the federal government, and it bars the Secretary from doing what federal immigration law explicitly permits him or her to do. The panel held that AB 32 discriminated against the federal government in violation of the intergovernmental immunity doctrine. A State violates the discriminatory aspect of intergovernmental immunity when it treats the state more favorably than the federal government without justification. Discrimination exists where the net effects of a state law discriminate against the federal government. The panel held that under this net effect analysis, AB 32 discriminated against the federal government where AB 32 required the federal government to close all its detention facilities, including its ICE facilities, and will not require California to close any of its private detention facilities until 2028. The panel therefore held that the United States and GEO were likely to prevail on the merits of their motion for a preliminary injunction. The panel held further that the remaining injunction factors also tipped in appellants’ favor. Constitutional injuries are irreparable harm. Because AB 32 facially discriminated against the federal government, the United States suffered an irreparable harm. In addition, by establishing a likelihood that AB 32 violated the U.S. Constitution, appellants established that both the public interest and the balance of equities favored a preliminary injunction. 6 THE GEO GROUP V. NEWSOM The panel remanded for further proceedings. Dissenting, Judge Murguia would hold that the district court acted within its discretion in denying a preliminary injunction because the United States and GEO were unlikely to succeed on their conflict-preemption and intergovernmental-immunity claims. She would apply the presumption against preemption and would uphold the district court’s determination that the presumption had not been overcome by Congress’s clear and manifest intent with respect to the ICE facilities at issue in this case. She wrote that AB 32 said nothing about immigration, and it did not mention the federal government. Therefore, there was no justification for treating AB 32 as a regulation of immigration rather than one of health and safety. Although AB 32 applied to immigration detention facilities in California, it did not apply only to those facilities, rather, it applied to a variety of federal and state facilities. In addition, Congress has not expressed “clear and manifest” intent to overcome the presumption. AB 32 was not preempted, and the United States and GEO were not entitled to a preliminary injunction on the issue. Further, Judge Murguia would hold that AB 32 does not violate intergovernmental immunity where AB 32 does not discriminate against the federal government and does not directly regulate the federal government. In addition, Judge Murguia dissented from the majority’s choice to proceed with de novo review of the remaining preliminary injunction factors, which went far beyond the “limited and deferential” abuse-of-discretion review prescribed by case law. THE GEO GROUP V. NEWSOM 7
The court issued a subsequent related opinion or order on April 26, 2022.
The court issued a subsequent related opinion or order on September 26, 2022.
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