A panel of 11 judges in the 9th U.S. Circuit Court of Appeals ruled 8-3 on Monday that California’s state law that bans for-profit private prisons is to be blocked due to coming into conflict with federal law.
The legal fight over California’s for-profit prison ban has been ongoing since 2019 when the state passed AB 32, a law to phase out all for-profit private prisons by 2028 . While lawmakers, most notably Attorney General Rob Bonta, had hoped that the law would disrupt ICE and other immigration-related agencies from detaining a large number of immigrants in California, it was immediately challenged in the courts by the GEO Group, a large private prison company that runs two for-profit prisons in the golden state, as well as the United States Government.
“The ban was enacted to protect the health and welfare of Californians and recognized the federal government’s own documented concerns with for-profit, private prisons and detention facilities,” said the Attorney General’s office on the ban.
Following a federal judge in San Diego upholding the state law in 2020, Geo Group appealed it to a 3-judge panel on 9th Circuit Court of Appeals in 2021. The decision was reversed due to it hindering federal government’s ability to uphold the law. Bonta almost immediately asked for a rehearing with a larger panel, leading to the 11 judge panel listening to the case again this year.
On Monday, the court agreed with GEO group and the U.S. once again in United States of America v. Newsom saying that the California law is preempted by the federal law, which is held under the U.S. Constitution’s supremacy clause. The ruling also noted that the U.S. Government relies on the facilities and that the state cannot interfere with their operations.
“AB 32 would prevent ICE’s contractors from continuing to run detention facilities, requiring ICE to entirely transform its approach to detention in the state or else abandon its California facilities,” said Appellate Judge Jacqueline Nguyen writing for the majority. “California cannot exert this level of control over the federal government’s detention operations.”
Another blow against Bonta’s attempt to end for-profit prisons in California by 2028
In the 3 member minority opinion, Chief Judge Mary Murguia noted that California’s law is still legal “because it neither directly regulates nor discriminates against the federal government.”
Legal experts added that the ruling makes it even harder now for California to get the ban back in place.
“An appellate court had to tell them twice now to knock it off,” explained Chuck Rabe, a lawyer who has been a part of for-profit prison cases in the past, to the Globe on Tuesday. “They can still try the Supreme Court, but with the court makeup there right now being more conservative, and a clear Constitutional reason for blocking California’s law, it would not be a very easy thing to do. I think those in California who are for this know that it is pretty much game over at this point but they aren’t letting it go.”
In a statement, AG Bonta, who originally authored AB 32 while still an Assemblyman, expressed disappointment with the ruling.
“We are reviewing the decision but are deeply disappointed by the decision,” AG Bonta said in a statement. “The law was enacted to protect the health and welfare of Californians and recognized the federal government’s own documented concerns with for-profit, private prisons and detention facilities.”
As of Tuesday afternoon, it is currently unknown if Bonta’s office will pursue taking the case to the U.S. Supreme Court.
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