Making Sense of the 9th Circuit’s AB 32 Decision

The AB 32 decision is out, and as expected the ruling follows purely political lines, with Trump-appointed Judges coming to the defense of for-profit prisons and ICE. The ruling is not only disappointing as a matter of law, but it includes some pretty stunning distortions of facts by the majority. Here are some worth checking out. 

(Our response to inaccuracies are included in bold.)

• “The United States Immigration and Customs Enforcement (ICE) relies exclusively on private detention centers in California.” (p. 1)

This is not true, ICE has an intergovernmental services agreement (IGSA) with Yuba County Jail that runs through 2099 and that at present allows for the detention of hundreds of immigrants at that facility.

• “ICE, however, does not build or operate any immigration detention facilities because of “significant fluctuations in the number and location of removable aliens apprehended by DHS,” according to the federal government. To avoid spending large sums of money on government-owned buildings that may remain vacant if immigration wanes, ICE relies only on privately operated detention facilities, including in California. GEO contracted with the federal government in 2019 to operate two such facilities in California.” (p. 9) 

This is again not true, as ICE owns some facilities, and contracts with governmental entities for the majority of its services. They do not exclusively rely on private detention facilities nationwide.

• “Here, AB 32 does not just “touch” upon the area of immigration detention; it bulldozes over the federal government’s ability to detain immigrants by trying to ban all the current immigration detention facilities in California.” (p. 20) 

This is also not true, nothing prevents ICE from detaining individuals in the Yuba County Jail, in the U.S. Marshall custody, or operating its own facility as it does in other places across the nation as noted above. Furthermore, ICE could even hire private contractors to work at these facilities, so long as they are not operating the detention facility as defined by AB 32. 

• “Here, the conflict is worse. California is not just placing different limits on the federal government’s contracting standards; it is trying to ban contractors from contracting with the federal government altogether—even though Congress allows such contracts involving the uniquely national issue of immigration detention.” (p. 33) 

AB 32 does not ban the use of contractors in various capacities. It bans the for-profit operation of a detention facility, which is a different matter. 

• “Two facts are undisputed. One, AB 32 requires the federal government to close all its detention facilities, including its ICE facilities. Two, AB 32 will not require California to close any of its private detention facilities until 2028.” (p. 35) 

This is patently false on both counts. See below

• “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.” (p. 5) 

This is a distortion of when California actually closed its for-profit prisons. AB 32 placed a uniform deadline for when no new contracts could be formed with prisons and civil detention facilities. That took place on Jan 1, 2020. Any existing contracts signed before that date could not be extended and were allowed to expire. California closed multiple prisons after this date, including many with contracts set to expire before 2028.  The provision cited, actually places a higher burden on California to close all facilities by 2028, while any private civil facility with a valid contract could have continued well beyond 2028 assuming it was operating under a valid contract.

• “If anything, in AB 32, California appears to show less concern for the wellbeing of its own detainees than it does for persons under federal detention.” (p. 17) 

The Court simply did not do its homework. Since the enactment of AB 32, California has shut down every private prison in the state precisely because of its concern for individuals detained in for-profit prisons in our state. It attempts to claim that California made various exemptions that would benefit the state but not the federal government. However, these exemptions were made for facilities that do not fit within a traditional prison or detention definition and were not made to favor one party over another, but to ensure that particular facilities that offered mental health or rehabilitation services were not affected.  The Court’s decision to turn a blind eye to this fact is yet another example of its blatant attempt to distort reality to reach today’s politically motivated decision. 

The decision itself is worthy of a much longer analysis, particularly as it pertains to the history of detention contracting by ICE and the role states have played. The majority ignores the fact that almost every ICE contract includes provisions requiring the facility to abide by state law. Part of the reason why ICE has used the IGSA structure is because it has relied on states and local authorities to oversee detention conditions and operations. 

• “Having defined the relevant area regulated by AB 32, we next ask if California has historically regulated the conditions of detainees in federal custody, and in particular those housed in immigrant detention centers. Wyeth, 555 U.S. at 565. California does not even try to argue that it has such a historical practice. Nor could it. No such history exists. Indeed, the federal government exclusively regulates immigration detention.”

The majority goes to great pains to pretend that this isn’t how ICE detention works, claiming no such history exists, when more than half (59%) of all ICE detainees are housed in facilities that operate under an IGSA, and include some level of state or local oversight.

The dissent in the decision provides a compelling and concise rebuttal of why the majority’s decision was wrong, and is worth reading. 

A full legal analysis of this opinion is beyond the scope of this post, but the factual errors presented in the majority opinion can and should inform future legal strategy. While today’s decision is disappointing, the legal battle over the constitutionality of AB 32 is far from over, with appeals or rehearing requests a possibility. The fight continues.