Calif. wanted to ban private prisons. Court says “not so fast.”

A law to ban private prisons in the Golden State, effectively shuttering ICE operations, was drawn up by California’s current Attorney General. It just got gutted by an 11-judge panel.

An en banc Ninth Circuit declared California’s ban on private immigration detention facilities unconstitutional Monday, finding it violates the supremacy clause which prohibits states from “interfering with or controlling the operations of the federal government.”

“California cannot exert this level of control over the federal government’s detention operations,” U.S. Circuit judge Jacqueline Nguyen, a Barack Obama appointee, wrote for the panel.


“Virtually all of ICE’s detention capacity in California is in privately owned and operated facilities, ” Nguyen wrote. “To comply with California law, ICE would have to cease its ongoing immigration detention operations in California and adopt an entirely new approach in the state. This foundational limit on state power cannot be squared with the dramatic changes that AB 32 would require ICE to make.”

Three of the 11 judges on the panel dissented, arguing California’s private prison ban was only an “indirect” regulation of the federal government.

Assembly Bill 32 was written by former Assemblyman Rob Bonta, who’s now the state’s attorney general, and whose office argued the case before the Ninth Circuit. Signed into law by Governor Gavin Newsom in 2019, the law banned private, for-profit prisons and immigration detention facilities.

Both the federal government and the GEO Group, a Florida-based company which operates two detention centers in California, sued to block the law. A federal judge upheld the private prison ban, but in a 2-1 split decision, a three-judge Ninth Circuit panel overruled the lower court and blocked the law.

“In short, Assembly Bill 32 does not regulate a field which the states have traditionally occupied,” the two Ninth Circuit judges, both Donald Trump appointees, wrote in their decision. “To the contrary, it tries to regulate an area — detention of immigrants — that belongs exclusively in the realm of the federal government.” An Obama appointee dissented.

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