Will Ninth Circuit Close Alien Detention Centers in California?

June 1, 2022

IRLI shows full court that state law is unconstitutional

WASHINGTON—Yesterday, the Immigration Reform Law Institute (IRLI) filed a friend-of-the-court brief before the full Ninth Circuit Court of Appeals, sitting en banc, in a case that puts federal immigration detention in the state of California in peril. A three-judge panel of the Ninth Circuit had struck down California’s statute outlawing private detention centers as it applied to immigration detention centers run by federal contractors, but the full Ninth Circuit vacated that decision and is rehearing the case en banc.

In its brief, IRLI shows that the California law is preempted under the Constitution’s Supremacy Clause because it intentionally interferes with the federal program of using contractors to house immigration detainees, and that no “presumption against preemption” applies because immigration is exclusively an area of federal concern.

IRLI also shows that the law discriminates against the federal government, in violation of the immunity doctrine, by making exceptions for privately-run facilities that serve state purposes but not for those that serve federal purposes.

“With this law, California has tried to cripple our nation’s immigration law enforcement, which relies so heavily on federal contractors to house detainees,” said Dale L. Wilcox, executive director and general counsel of IRLI. “As disturbing as it is that the full Ninth Circuit took up this case, in which the panel had reached the right result, we hope the full court will reach that same result for the reasons we provide, and acknowledge that this law flagrantly defies the Constitution.”

The case is The GEO Group, Inc., v. Newsom and United States v. Newsom, Nos. 20-56172, 20-56304 (Ninth Circuit) (en banc).