Ninth Circuit Rejects Gavin Newsom’s Effort to Send Migrant Detainees from California to Other States

In 2019, California governor Gavin Newsom signed into law AB32, a bill to prohibit anyone — including a contractor with the federal or state government — from running a privately operated prison or detention facility within the state of California. Newsom’s sales pitch aligned the bill with the progressive crusade against policing, imprisonment of criminals, enforcement of the criminal law, and enforcement of the immigration laws: “During my inaugural address, I vowed to end private prisons, because they contribute to over-incarceration, including those that incarcerate California inmates and those that detain immigrants and asylum seekers. These for-profit prisons do not reflect our values.”

In practice, AB 32 makes it impossible for Immigration and Customs Enforcement to house immigrant detainees in California, at least without a dramatic overhaul to how ICE handles detention. All of ICE’s detention facilities are privately operated, and the agency has neither the staff nor the training to operate its own. There are valid reasons for this: among other things, the wide fluctuations in the number of people detained for immigration violations make it impractical to build permanent federal facilities. AB32 allows existing private contracts to continue until they expire, but because ICE has renewal options up in 2024, the law could be construed by California authorities to ban ICE’s facilities as early as the year of the next presidential election, when Newsom may be a candidate. If ICE did not overhaul its detention system, that would mean it had to expel the migrant detainees from California and dump them into facilities in other states — courtesy of Gavin Newsom.

ICE and its private contractors sued Newsom and California in federal court to block enforcement of the law, arguing that it was unconstitutional for the state to effectively dictate federal policy by prohibiting a contracting practice that Congress has explicitly authorized. After a Los Angeles district judge (a George W. Bush appointee) refused to issue the injunction, ICE appealed, and a divided panel of the Ninth Circuit ruled in ICE’s favor. On Monday, an 11-judge Ninth Circuit, sitting en banc, struck down AB32 as unconstitutional. As the court reminded Newsom, citing a line of cases dating back to McCulloch v. Maryland (1819), “the Supremacy Clause precludes states from dictating to the federal government who can perform federal work.” For example, the Supreme Court held more than a century ago, in Johnson v. Maryland (1920), that states cannot penalize postal workers from driving postal vehicles on duty without a state driver’s license; it has since applied the same rule to building contractors on federal projects. Even longer ago, in a case involving a former Chief Judge of the California Supreme Court who was gunned down by U.S. Marshals while assaulting a Supreme Court justice, the Court held that federal law enforcement officers cannot be criminally tried in state court for acting on duty.

The Supremacy Clause does not bar all state laws from applying to private contractors with the federal government, but the Ninth Circuit found that AB32 clearly crossed the line: “AB 32 would give California the power to control ICE’s immigration detention operations in the state by preventing ICE from hiring the personnel of its choice . . . AB 32 would breach the core promise of the Supremacy Clause.” Much as Newsom may prefer to think otherwise, California does not have the right to nullify federal immigration law or dictate terms to the rest of the country. Nor does it have the right or the power to ask its neighbors to house migrants detained by the federal government.

A note on en banc cases in the Ninth Circuit: in most federal Circuits, when litigants ask the whole Circuit to rehear a case decided by a three-judge panel, it is heard en banc by all the active judges who have not taken senior status. Because the Ninth Circuit is so large, with 29 active judges, it selects 11-judge panels rather than have en banc cases decided by all of them. In this case, the panel consisted of 6 Democratic appointees and 5 Republican appointees, out of a court with 16 Democratic and 13 Republican appointees. So, the en banc panel was slightly less tilted to Democratic appointees than the full court. The opinion striking down AB 32 was written by Judge Jacqueline Nguyen, an Obama appointee; Chief Judge Mary Murguia, another Obama appointee, dissented, joined by judges Johnnie Rawlinson (a Clinton appointee) and Jennifer Sung (a Biden appointee).