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Feds, For-Profit Prison Group Ask Ninth Circuit to Block California Private Prison Ban

Governor Gavin Newsom signed Assembly Bill 32 into law in 2019, banning private prisons in the Golden State.

(CN) --- Attorneys for the federal government and private prison operator GEO Group told a Ninth Circuit panel Monday if it upholds California’s ban on private prisons and immigration facilities, it may give the green light to federal operations being undermined by state laws.

“If we picture various states throughout the country deciding for various public policy reasons that they’re going to --- maybe not even as extreme as this but --- make it difficult or impossible for the federal government to contract to perform its operations, the full extent of that would be extraordinary,” Justice Department attorney Mark Stern said.

He added: “This is pretty extraordinary in and of itself. California offers no instance in which anything like this has ever been sustained.”

At issue is Assembly Bill 32, signed into law by Governor Gavin Newsom in 2019, which prohibits the operation of private detention facilities within the state. The law also prohibits contracts between the federal government and private prisons to house detained immigrants within state lines.

Private prison company GEO Group sued the state, claiming the law is unconstitutional due to the federal government’s intergovernmental immunity, and preempted by federal law. The federal government filed its own lawsuit against California seeking injunctive relief from the first-in-the-nation private prison ban.

U.S. District Judge Janis Sammartino largely upheld the ban last fall after the state argued Congress only intended for private contractors to physically build and construct detention facilities -- not run or operate them on behalf of the federal government.

During Monday’s virtual court hearing, GEO Group attorney Michael Kirk of Cooper & Kirk said under Ninth Circuit and Supreme Court precedent, state laws which obstruct or burden a “federal function” by regulating performance of a contract are unconstitutional, regardless of whether the statute is discriminatory against the federal government or not.

But U.S. Circuit Judge Mary H. Murguia, a Barack Obama appointee, pushed back against that assertion, claiming AB 32 is “something rather different.”

“The state seems to be doing it under their inherent police power to control the health and safety in their state,” Murguia said.

But Kirk argued “there’s no stopping point to the state’s theory” in support of its private prison ban.

“Under California’s theory, the state could block immigration detention altogether by prohibiting persons who live in the state from working at an immigration detention facility,” Kirk said. “Any federal policy the state disagrees with can be effectively blocked under California’s theory by prohibiting persons who live in the state from facilitating it.”

Kirk compared California’s ban on private prisons to Texas Governor Greg Abbott’s order last week requiring the state to pull the licenses of child care facilities which house immigrant kids.

“The Constitution does not permit this kind of obstruction of federal operations by states,” Kirk said.

California Deputy Attorney General Gabrielle Boutin said because AB 32 “is an exercise of historic police power” of the state regarding the health and safety of detainees, it is not preempted by federal law.

“These facilities create threats to the health and welfare of detainees --- there is a well-documented record on that. That was the purpose of this law,” Boutin said.

She confirmed California has closed its private prisons and has ensured detention facilities in the state comply with the population cap laid out by AB 32.

But U.S. Circuit Judge Bridget S. Bade, a Donald Trump appointee, asked “what guideposts there are” given the state’s argument AB 32 was enacted to regulate health and safety of historically overcrowded private detention facilities and the federal government’s contention the law was created to regulate its ability to control immigration detention.

“If California is concerned about the safety and welfare of persons detained within its borders, why did it essentially exempt all of its own private detention facilities?” Bade asked Boutin. “They have no concern for the people detained in private facilities when California has the contract but they do when the federal government has the contract?”

Boutin responded: “I don’t think that’s exactly what the law does.”

She noted “California does limit itself as well” and that exempted private facilities under the law are not similarly situated to private immigration detention facilities, but involve school detention or other dissimilar scenarios.

Attorney Jordan Wells also argued in favor of AB 32 on behalf of the American Civil Liberties Union and the National Justice Center.

U.S. Circuit Judge Kenneth K. Lee, also a Trump appointee, rounded out the panel, which took the matter under submission.

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Categories / Appeals, Business, Government

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