15 F.4th 919
9th Cir.2021Background
- In 2019 California enacted AB 32 to phase out private, for-profit detention facilities; it contains multiple state-oriented exemptions and a safe-harbor for contracts in effect before Jan. 1, 2020 but bars contract renewals/extensions.
- ICE relies exclusively on privately operated detention centers in California; GEO Group operates two such facilities and has contracts with the federal government.
- The United States and GEO sued California, alleging AB 32 is conflict-preempted by federal immigration law and violates intergovernmental-immunity (discrimination/direct regulation); they sought a preliminary injunction.
- The district court largely denied injunctive relief and granted California’s motions; the United States and GEO appealed.
- Ninth Circuit majority reversed: it held the presumption against preemption did not apply, concluded DHS/Secretary has statutory authority to arrange detention and to contract with private operators, found AB 32 conflict-preempted and discriminatory against the federal government, and held preliminary-injunction factors favored appellants.
- Judge Murguia dissented: she would apply the presumption against preemption, uphold the district court, and would not find AB 32 discriminatory or directly regulating the federal government.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Preemption (scope) | AB 32 obstructs federal immigration objectives by banning private detention in CA. | AB 32 regulates health and safety—traditional state police power—so presumption against preemption applies. | Presumption does not apply (immigration detention is an area of exclusive federal concern); AB 32 is conflict-preempted. |
| Statutory authority to use private contractors | DHS/Secretary has broad discretion to "arrange for appropriate places of detention" and to make contracts, including with private operators. | Statutes do not clearly authorize contracting with private entities (or limit contracting to states/localities). | DHS/Secretary has statutory authority to contract with private detention facilities. |
| Intergovernmental immunity (discrimination) | AB 32 treats state entities more favorably (exemptions, phased timelines) and thus discriminates against the federal government and its contractors. | AB 32 is facially neutral; exemptions reflect significant differences and legitimate state concerns. | AB 32 discriminates under a net-effects analysis and violates intergovernmental-immunity doctrine. |
| Preliminary injunction (irreparable harm, equities) | Denial forces federal government to lose option to extend contracts and inflicts constitutional injury—irreparable harm; public interest and equities favor relief. | Harm speculative (safe-harbor delays); injunction unnecessary now. | Appellants likely to succeed on merits; irreparable harm and balance/public interest favor preliminary injunction. |
Key Cases Cited
- Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008) (standard for preliminary injunction)
- Hughes v. Talen Energy Mktg., LLC, 136 S. Ct. 1288 (2016) (state law invalid if it obstructs Congress’s objectives)
- Wyeth v. Levine, 555 U.S. 555 (2009) (presumption against preemption principle)
- Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363 (2000) (state law preempted when it frustrates federal foreign-policy scheme)
- Arizona v. United States, 567 U.S. 387 (2012) (immigration is chiefly federal)
- Blanchette v. Conn. Gen. Ins. Corps., 419 U.S. 102 (1974) (justiciability where statute inevitably operates against parties)
- Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645 (2017) (standing: at least one plaintiff must have standing for relief sought)
- Davis v. Mich. Dep't of Treasury, 489 U.S. 803 (1989) (intergovernmental-immunity discrimination test)
- Dawson v. Steager, 139 S. Ct. 698 (2019) (net-effects approach to discrimination)
- Washington v. United States, 460 U.S. 536 (1983) (net-effects discrimination analysis)
- United States v. California, 921 F.3d 865 (9th Cir. 2019) (data-collection on detainees distinguished from regulation of detention sites)
- Gartrell Constr., Inc. v. Aubry, 940 F.2d 437 (9th Cir. 1991) (procurement/contracting conflict preemption analogy)
- Boeing Co. v. Movassaghi, 768 F.3d 832 (9th Cir. 2014) (intergovernmental-immunity direct-regulation/discrimination analysis)