THE GEO GROUP, INC., Plaintiff-Appellant, and UNITED STATES OF AMERICA, Plaintiff, v. GAVIN NEWSOM, in his official capacity as Governor of the State of California; ROB BONTA, in his official capacity as Attorney General of the State of California, Defendants-Appellees, and STATE OF CALIFORNIA, Defendant.
No. 20-56172
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
D.C. Nos. 3:19-cv-02491-JLS-WVG, 3:20-cv-00154-JLS-WVG
UNITED STATES OF AMERICA, Plaintiff-Appellant, and THE GEO GROUP, INC., Plaintiff, v. GAVIN NEWSOM, in his official capacity as Governor of the State of California; ROB BONTA, in his official capacity as Attorney General of the State of California; State of California, Defendants-Appellees.
No. 20-56304
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Filed September 26, 2022
D.C. Nos. 3:19-cv-02491-JLS-WVG, 3:20-cv-00154-JLS-WVG. Appeal from the United States District Court for the Southern District of California, Janis L. Sammartino, District Judge, Presiding. Argued and Submitted En Banc June 21, 2022, Pasadena, California.
Before: Mary H. Murguia, Chief Judge, and Johnnie B. Rawlinson, Milan D. Smith, Jr., Sandra S. Ikuta, Jacqueline H. Nguyen, Paul J. Watford, John B. Owens, Ryan D. Nelson, Kenneth K. Lee, Danielle J. Forrest and Jennifer Sung, Circuit Judges.
Dissent by Judge Murguia
SUMMARY*
Preemption / Intergovernmental Immunity / Supremacy Clause
The en banc court vacated the district court‘s denial of the United States’ and The Geo Group, Inc.‘s motion for preliminary injunctive relief, and held that California enacted Assembly Bill (AB) 32, which states that a “person shall not operate a private detention facility within the state,” would give California a virtual power of review over Immigration and Customs Enforcement (ICE)‘s detention decisions, in violation of the Supremacy Clause.
ICE has decided to rely almost exclusively on privately owned and operated facilities in California. Two such facilities are run by appellant The Geo Group, Inc. AB 32 would override the federal government‘s decision, pursuant to discretion conferred by Congress, to use private contractors to run its immigration detention facilities. The en banc court held that whether analyzed under intergovernmental immunity or preemption, California cannot exert this level of control over the federal government‘s detention operations. The en banc court remanded for further proceedings.
* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
The en banc court held that AB 32 would breach the core promise of the Supremacy Clause. To comply with California law, ICE would have to cease its ongoing immigration detention operations in California and adopt an entirely new approach in the state. This foundational limit on state power cannot be squared with the dramatic changes that AB 32 would require ICE to make.
The en banc court also examined how AB 32 fits within modern Supremacy Clause cases, which discuss two separate doctrines: intergovernmental immunity and preemption. California argued that intergovernmental immunity never applies to a generally applicable state regulation of a federal contractor, even when the regulation would control federal operations. California also urged the court to apply the presumption against preemption and conclude that Congress did not speak clearly enough about privately run immigration detention facilities for AB 32 to be preempted. The en banc court held that California‘s argument failed at both steps. The en banc court was not
The en banc court held that appellants are likely to prevail on their claim that AB 32 violates the Supremacy Clause as to ICE-contracted facilities. The panel remanded for the district court to consider in the first instance the remaining preliminary injunction factors in Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
Chief Judge Murguia, joined by Judges Rawlinson and Sung, dissented. She would hold that AB 32 is valid under the intergovernmental immunity doctrine because it neither regulates nor discriminates against the federal government. She wrote that the majority erred by extending intergovernmental immunity to nondiscriminatory, indirect regulation of the government. In addition, AB 32 is not preempted. Because AB 32 is entitled to а presumption against preemption, and Congress has not expressed a clear and manifest intent to overcome that presumption, the law is not preempted. She would hold that the majority erred by failing to apply the presumption against preemption. She
COUNSEL
Mark B. Stern (argued), Daniel Tenny, and Katherine Twomey Allen, Appellate Staff; Randy S. Grossman, Acting United States Attorney; Brian M. Boynton, Acting Assistant Attorney General; Civil Division, United States Department of Justice, Washington, D.C.; for Plaintiff-Appellant United States of America.
Michael W. Kirk (argued), Charles J. Cooper, and Steven J. Lindsay, Cooper & Kirk PLLC, Washington, D.C.; Michael B. McClellan, Newmeyer & Dillion LLP, Newport Beach, California; Michael W. Battin, Navigato & Battin LLP, San Diego, California; for Plaintiff-Appellant The Geo Group, Inc.
Aimee Feinberg (argued) and Gabrielle D. Boutin, Deputy Attorneys General; Anthony R. Hakl, Supervising Deputy Attorney General; Thomas S. Patterson, Senior Assistant Attorney General; Rob Bonta, Attorney General; Office of the Attorney General, Sacramento, California; for Defendants-Appellees.
Michael Kaufman (argued) and Jordan Wells, American Civil Liberties Union Foundation of Southern California, Los Angeles, California; Mark Fleming, National Immigrant Justice Center, Chicago, Illinois; Mary Van Houten Harper, National Immigrant Justice Center, Washington, D.C.; Eunice Hyunhye Cho, American Civil Liberties Union National Prison Project, Washington, D.C.; Vasudha Talla and Sean Riordan, American Civil Liberties Union
Steven J. Wells, Alex P. Hontos, and Timothy J. Droske, Dorsey & Whitney LLP, Minneapolis, Minnesota, for Amicus Curiae Management & Training Corporation.
Garen N. Bostanian, Jason R. Litt, Rebecca G. Powell, and Anna J. Goodman, Horvitz & Levy LLP, Burbank, California, for Amicus Curiae Human Impact Partners.
Jaclyn Gonzalez and Hamid Yazdan Panah, Immigrant Defense Advocates, El Sobrante, California; Sayoni Maitra and Jamie Crook, Center for Gender & Refugee Studies, UC Hastings College of Law, San Francisco, California; Lisa Knox, California Collaborative for Immigrant Justice, San Francisco, California; Alison Pennington, Immigrant Legal Defense, Oakland, California; for Amici Curiae California Collaborative for Immigrant Justice, Center for Gender & Refugee Studies, Immigrant Defense Advocates, and Immigrant Legal Defense.
Sarah P. Alexander, Constantine Cannon LLP, San Francisco, California, for Amici Curiae Immigrant Legal Resource Center, Human Rights Watch, Freedom for Immigrants.
Lawrence J. Joseph, Washington, D.C.; Christopher J. Hajec, Director of Litigation, Immigration Reform Law
Yvette M. Piacsek, National Federation of Federal Employees, International Association of Machinists, and Aerospace Workers, AFL-CIO, Washington, D.C., for Amicus Curiae National Federation of Federal Employees.
Nicholas D. Wanger, McDonald Lamond Canzoneri, Southborough, Massachusetts, for Amicus Curiae United Government Security Officers of America.
NGUYEN, Circuit Judge, with whom IKUTA, OWENS, R. NELSON, LEE, and FORREST, Circuit Judges, join in full, and with whom M. SMITH and WATFORD, Circuit Judges, join except as to section V.B.2:
At the direction of Congress, Immigration and Customs Enforcement (ICE) carries out extensive detention operations, a substantial portion of which takes place in California. Due to significant fluctuations in the population of noncitizens who are detained, and other challenges unique to California, ICE relies almost exclusively on privately operated detention facilities in the state to maintain flexibility. But in 2019, California enacted Assembly Bill (AB) 32, which states that “a person shall not operate a private detention facility within the state.”
The Supremacy Clause “prohibit[s] States from interfering with or controlling the opеrations of the Federal Government.” United States v. Washington, 142 S. Ct. 1976, 1984 (2022). Private contractors do not stand on the same footing as the federal government, so states can impose many laws on federal contractors that they could not apply to the federal government itself. For example, although a state can tax a federal contractor, it cannot tax the federal government itself. See United States v. New Mexico, 455 U.S. 720, 733–34 (1982). But any state regulation that purports to override the federal government‘s decisions about who will carry out federal functions runs afoul of the Supremacy Clause. “[A state] may not deny to those failing to meet its own qualifications the right to perform the
AB 32 would override the federal government‘s decision, pursuant to discretion conferred by Congress, to use private contractors to run its immigration detention facilities. It would give California a “virtual power of review” over ICE‘s detention decisions, Leslie Miller, Inc. v. Arkansas, 352 U.S. 187, 190 (1956) (per curiam), and allow the “discretion of the federal officers [to] be exercised . . . only if the [state] approves.” Pub. Utils. Comm‘n, 355 U.S. 534, 543 (1958). Whether analyzed under intergovernmental immunity or preemption, California cannot exert this level of control over the federal government‘s detention operations. AB 32 therefore violates the Supremacy Clause.
Accordingly, we vacate the district court‘s denial of preliminary injunctive relief аnd remand for further proceedings.
I
A
Congress has directed federal officials to detain noncitizens in various circumstances during immigration proceedings. See
The Secretary also has general administrative powers to contract with private parties. The Secretary has “authority to make contracts . . . as may be necessary and proper to carry out the Secretary‘s responsibilities.”
A few practical and legal constraints inform ICE‘s detention decisions. Congress has expressed that the Secretary should favor the use of existing facilities for immigration detention, whether through purchase or lease.
For these reasons, ICE does not build or operate its own detention facilities. Instead, ICE contracts out its detention responsibilities to (1) private contractors, who run facilities owned either by the contractor or the federal government, and (2) local, state, or other federal agencies.
In California, ICE faces a further obstacle: a California statute preceding AB 32 prohibits local governments from entering into new agreements or expanding existing
B
In 2019, California enacted AB 32. 2019 Cal. Legis. Serv. Ch. 739 (West). AB 32 provides that “a person shall not operate a private detention facility within the state.”
AB 32 also provides a “temporary safe harbor” to accommodate existing contracts. The safe harbor exempts facilities operating under a contract “in effect before January 1, 2020,” but does not “include any extensions made to or authorized by that contract.”
From ICE‘s perspective, AB 32 leaves no good options. ICE owns just one facility in California, but that facility is occupied by another agency. Because California law prevents local governments from expanding or entering into
While ICE could house detainees outside California, that transition would not be easy. Securing new contract facilities in other states would take time—up to a year or even longer if construction is required. Regularly transferring detainees out-of-state would require a significant expansion of ICE‘s transportation capabilities. And the shift could cause crowding in out-of-state facilities.
AB 32 does not prohibit the federal government from leasing existing facilities owned by private companies. See
C
The United States and GEO filed suit to enjoin the enforcement of AB 32, and the district court consolidated the proceedings. The United States and GEO each moved for a preliminary injunction, and California moved to dismiss and for judgment on the pleadings. The district court dismissed the United States and GEO‘s claims as to ICE-contracted
The United States and GEO timely appealed. A divided three-judge panel reversеd. See GEO Grp., Inc. v. Newsom, 15 F.4th 919 (9th Cir. 2021). The majority held that appellants were likely to succeed in their challenge to AB 32 under their theories of preemption and discrimination. Id. at 935–38. The majority declined to reach the direct regulation theory of intergovernmental immunity. Id. at 939. The dissent concluded that AB 32 was not preempted given the lack of clear congressional intent to overcome the presumption against preemption. Id. at 942–47. The dissent also disagreed with appellants’ intergovernmental immunity arguments. Id. at 947–52.
We granted California‘s petition for rehearing en banc.
II
We have jurisdiction under
To obtain a preliminary injunction, a plaintiff must establish (1) a likelihood of success on the merits, (2) a
III
For the first time on appeal, California argues that appellants’ claims are not justiciable. California contends that any future injury is speculative because ICE may choose not to extend its contracts, and that any such injury is not imminent because it would not occur until at least 2024.
Whether framed as standing or ripeness, California‘s injury arguments “boil down to the same question.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157 n.5 (2014) (citation omitted). “An injury sufficient to satisfy Article III must be ‘concrete and particularized’ and ‘actual or imminent, not “conjectural” or “hypothetical.“‘” Id. at 158 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). “An allegation of future injury may suffice if the threatened injury is ‘certainly impending,’ or there is a ’ “substantial risk” that the harm will occur.’ ” Id. (quoting Clapper v. Amnesty Int‘l USA, 568 U.S. 398, 409, 414 n.5 (2013)).
Appellants’ future injuries are not conjectural or hypothetical. Virtually all of ICE‘s detention capacity in California is in privately owned and operated facilities. The United States represents that ICE intends to continue to rely on private detention facilities. ICE has explained that it contracts out detention responsibilities to give it flexibility in meeting fluctuating demand, and there is no reason to think demand will cease to fluctuate in the future. ICE
IV
A
“[T]he Constitution guarantees ‘the entire independence of the General Government from any control by the respective States.’ ” Trump v. Vance, 140 S. Ct. 2412, 2425 (2020) (citation omitted). The Supremacy Clause states that “the Laws of the United States . . . shall be the supreme Law
This foundational idea—embodied in the modern doctrine of intergovernmental immunity—traces its origin to McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819). See id. at 1983–84. McCulloch held that a Maryland tax that applied only to the Bank of the United States violated the Supremacy Clause. 17 U.S. at 436; see United States v. Fresno County, 429 U.S. 452, 457–60 (1977). As McCulloch explained, “[i]t is of the very essence of supremacy, to remove all obstacles to its action within its own sphere, and so to modify every power vested in subordinate governments, as to exempt its own operations from their own influence.” 17 U.S. at 427.
As part of its protection of federal operations from state control, the Supremacy Clause precludes statеs from dictating to the federal government who can perform federal work. A state may not “require[] qualifications” for those doing government work “in addition to those that the Government has pronounced sufficient.” Johnson v. Maryland, 254 U.S. 51, 57 (1920). And “[a state] may not deny to those failing to meet its own qualifications the right to perform the functions within the scope of the federal authority.” Sperry, 373 U.S. at 385.
In Johnson v. Maryland, for example, the Supreme Court held that a state could not enforce its law requiring driver‘s licenses against a federal postal employee acting within the scope of his duty. 254 U.S. at 57. The Court explained that a state cannot demand that federal employees “desist from
We recognize that a critical distinction exists between a state regulation like the one in Johnson, which was applied to a federal employee, and AB 32, which only applies to private contractors. The scope of a federal contractor‘s protection from state law under the Supremacy Clause is substantially narrower than that of a federal employee or other federal instrumentality. Federal contractors are not federal instrumentalities. See New Mexico, 455 U.S. at 736–38 (explaining that federal contractors are not “so assimilated by the Government as tо become one of its constituent parts” (citation omitted)); see also United States v. Muskegon Township, 355 U.S. 484, 487 (1958) (observing that contractors have not been immune from taxes “even though they were closely supervised in performing these functions by the Government“). “The congruence of professional interests between . . . contractors and the Federal Government is not complete; their relationships with the Government have been created for limited and carefully defined purposes.” New Mexico, 455 U.S. at 740–41.
Absent federal law to the contrary, the Supremacy Clause therefore leaves considerable room for states to enforce their generally applicable laws against federal contractors. “[A] state law is [not] unconstitutional just because it indirectly increases costs for the Federal Government, so long as the law imposes those costs in a neutral, nondiscriminatory way.” Washington, 142 S. Ct. at 1984. Thus, “a State can impose a nondiscriminatory tax on private parties with whom the United States . . . does business, even though the financial burden of the tax may fall on the United States.” Cotton Petrol. Corp. v. New Mexico, 490 U.S. 163, 175 (1989); see also United States v.
But even when evaluating state regulations of federal contractors, courts distinguish regulations that merely increase the federal government‘s costs from those that would control its operations. That distinction goes back at least to Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738 (1824). There, in considering the state‘s argument that the Bank of the United States was a private entity, id. at 748–49, the Court asked hypothetically what state laws could be applied to a contractor supplying goods to the military, id. at 867. The Court answered that “the property of the contractor may be taxed, as the property of other citizens; and so may the local property of the Bank. But we do not admit that the act of purchasing, or of conveying the articles purchased, can be under State control.” Id. Later cases have drawn this very distinction between “nondiscriminatory state taxes on activities of contractors,” which “at most . . . increase the costs of the operation,” and state laws that “place[] a prohibition on the Federal Government.” Pub. Utils. Comm‘n, 355 U.S.
The Supreme Court has already decided on which side of this distinсtion to place state laws that interfere with the federal government‘s contracting decisions, as AB 32 does. The Supreme Court has applied the principle of Johnson—that states may not control federal decisions about who is to carry out federal work—to private actors performing federal functions. See, e.g., Sperry, 373 U.S. at 385 (holding that a state cannot enforce its attorney licensing requirements against individuals authorized to practice before the Patent Office). Crucially for this case, that includes regulations of federal contractors.
In Leslie Miller, Inc. v. Arkansas, the Supreme Court held that a state law requiring building contractors to obtain a state license could not be enforced under the Supremacy
Likewise, in Public Utilities Commission v. United States, the Supreme Court held that it violated the Supremacy Clause for a state law to require common carriers to seek approval from a state agency for rates negotiated with the federal government to transport federal property. 355 U.S. at 544. The Court explained that the state law “place[d] a prohibition on the Federal Government” by allowing federal procurement officials to “exercise[]” the “discretion” to negotiate rates that federal law “entrust[ed]” to them “only if the Commission approves.” Id. at 543-44. The Court identified a “conflict“-“as clear as any that the Supremacy Clause . . . of the Constitution was designed to resolve“-“between the federal policy of negotiated rates and the state policy of regulation of negotiated rates.” Id. at 544; see also United States v. Ga. Pub. Serv. Comm‘n, 371 U.S. 285, 292-93 (1963) (holding that a similar state regulation could not be applied to federal contractors).
Under Leslie Miller and Public Utilities Commission, when federal law gives discretion to a federal official to hire a contractor to perform federal work, a state cannot override the federal official‘s decision to do so. That is a level of control over federal operations that the Supremacy Clause does not tolerate. And while a state has greater power to apply neutral regulations to a federal contractor than a federal employee, interfering with the federal government‘s hiring decisions goes too far-regardless of whether the decision is to hire an employee or a private contractor.
B
Just as in these federal procurement cases, 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. Given the fluctuating demand, Congress‘s preference for existing facilities, see
On a practical level, AB 32 cannot be reconciled with the holding of Leslie Miller that the Supremacy Clause prevents a state from enforcing its licensing requirements against federal contractors. A simple hypothetical makes this clear. If California had passed a licensing scheme requiring private detention operators in California to obtain a state license, there is no doubt that it would be struck down under Leslie Miller. But AB 32 goes much further. It is an outright ban on hiring any private contractor. If California could not prohibit ICE from hiring a particular private detention operator by imposing licensing requirements, it surely cannot regulate private detention operators out of existence through a direct ban. There is “no important difference” for Supremacy Clause purposes between a state “requir[ing] a permit” and “order[ing] compliance with state regulations.” Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 181 n.3 (1988). “In both settings the State is claiming the authority to dictate the manner in which the federal function is carried out.” Id.
Simply put, AB 32 would breach the core promise of the Supremacy Clause. To comply with California law, ICE would have to cease its ongoing immigration detention operations in California and adopt an entirely new approach
V
A
While the outcome in this case is clear under basic Supremacy Clause principles and Supreme Court authority, how a statute such as AB 32 fits within the structure of modern Supremacy Clause doctrine is less certain. See North Dakota v. United States, 495 U.S. 423 (1990) (splitting four-to-four over how to analyze neutral state restrictions on a federal contractor).
Modern Supremacy Clause cases discuss two separate doctrines: intergovernmental immunity and preemption. See United States v. California, 921 F.3d 865, 878-79 (9th Cir. 2019). Intergovernmental immunity “prohibit[s] state laws that either regulate the United States directly or discriminate against the Federal Government or those with whom it deals (e.g., contractors).” Washington, 142 S. Ct. at 1984 (cleaned up). Under the doctrine of obstacle preemption (the only preemption doctrine the parties discuss), a state law is preempted if it “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” California, 921 F.3d at 879 (quoting Arizona v. United States, 567 U.S. 387, 399 (2012)). In light of the principles and case law discussed above, much of which precedes and confounds such a rigid distinction, either doctrine would lead to the same result.
California would have us hold that intergovernmental immunity never applies to a generally applicable statе regulation of a federal contractor, even when the regulation would control federal operations. California would then have us apply the presumption against preemption and conclude that Congress did not speak clearly enough about privately run immigration detention facilities for AB 32 to be preempted. As explained below, California‘s argument fails at both steps.7
1
California first argues that AB 32 is a generally applicable regulation that operates only against private contractors rather than the federal government itself, and therefore intergovernmental immunity is inapplicable. In support, California relies largely on the plurality opinion in North Dakota.
The question in North Dakota was whether state reporting and labeling requirements for out-of-state liquor suppliers could be applied to suppliers of liquor to a military base. Justice Stevens, joined by three Justices, would have upheld both requirements because the federal government‘s Supremacy Clause arguments failed. 495 U.S. at 434-44 (plurality opinion). Justice Brennan, writing for three other Justices, would have upheld the reporting requirement but invalidated the labeling requirement because it substantially
The Stevens plurality and Brennan dissent diverged over how the direct regulation theory of intergovernmental immunity applies to contractors. According to the Stevens plurality, the direct regulation theory of intergovernmental immunity is inapplicable when state regulations “operate against suppliers, not the Government.” North Dakota, 495 U.S. at 437 (plurality opinion). Absent discrimination, “[c]laims to any further degree of immunity must be resolved under principles of congressional pre-emption.” Id.
We are not persuaded that AB 32 cannot implicate intergovernmental immunity, even assuming it is drafted as a generally applicable regulation of federal contractors. When a state regulation of a contractor would control federal operations, “[e]nforcement of the substance of [the regulation] against the contractors would have the same effect as direct enforcement against the Government.” United States v. Town of Windsor, 765 F.2d 16, 19 (2d Cir. 1985). Regardless of the object of enforcement, “there is obviously implicated the same interest in getting the Government‘s work done.” Boyle v. United Techs. Corp., 487 U.S. 500, 505 (1988); see also Murray Corp., 355 U.S. at 492 (“[W]e must look through form and behind labels to substance” in assessing “constitutional immunity.“).
Leslie Miller and Public Utilities Commission are direct counterexamples to California‘s position. In both cases, the
As discussed above, beginning with Osborn, numerous cases distinguish for purposes of intergovernmental immunity between regulations of federal contractors that merely increase the federal government‘s costs, like taxes, and regulations that would control federal operations.10 See, e.g., New Mexico, 455 U.S. at 735 n.11; Boeing, 768 F.3d at 839. Leslie Miller and Public Utilities Commission fall on the latter side of the distinction. Both сases invalidated state statutes that would have impermissibly interfered with federal functions by overriding federal contracting decisions. And although the Stevens plurality in North Dakota spoke about neutral regulations of federal
AB 32 clearly falls on the same side as Leslie Miller and Public Utilities Commission, controlling federal operations by interfering in the same way with ICE‘s contracting decisions. AB 32 gives California a “virtual power of review” over ICE‘s contracting decisions, Leslie Miller, 352 U.S. at 190, and effectively “places a prohibition on the Federal Government” from operating with its desired personnel, Pub. Utils. Comm‘n, 355 U.S. at 544. Even assuming it is a neutral regulation of private conduct, see
2
We likewise disagree with California‘s contention that AB 32 is not preempted. California leans hеavily on the presumption against preemption. When it applies, courts presume “that ‘the historic police powers of the States’ are not superseded ‘unless that was the clear and manifest purpose of Congress.‘” Arizona, 567 U.S. at 400 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)). The presumption “applies when a state regulates in an area of historic state power even if the law ‘touche[s] on’ an area of significant federal presence,” Knox v. Brnovich, 907 F.3d 1167, 1174 (9th Cir. 2018), including immigration, see Puente Ariz. v. Arpaio, 821 F.3d 1098, 1104 (9th Cir. 2016). While we have applied the presumption when state regulations have “incidental effects in an area of federal interest,” Knox, 907 F.3d at 1177, we have never applied the presumption to a state law that would control federal operations.
We accepted in California that a state‘s historic police powers include “ensur[ing] the health and welfare of inmates and detainees in facilities within its borders.” 921 F.3d at 886. We applied the presumption to a state law requiring state inspections of immigration detention facilities, and we held that the law was not preempted. Id. But we specifically recognized that the requirement did not “regulate whether or where an immigration detainee may be confined” or cause “active frustration of the federal government‘s ability to discharge its operations.” Id. at 885. AB 32 goes much further, and California thus does not dictate that the presumption applies here.
Moreover, if it were not styled as a regulation of federal contractors, a state law that obstructs federal functions as thoroughly as AB 32 would normally be analyzed under intergovernmental immunity, and it would therefore be subject to precisely the opposite presumption. When a state law implicates intergovernmental immunity, courts presume that Congress did not intend to allow the state law to be enforced. “We will find that Congress has authorized regulation that would otherwise violate the Federal Government‘s intergovernmental immunity ‘only when and to the extent there is a clear congressional mandate.‘” Washington, 142 S. Ct. at 1984 (quoting Hancock v. Train, 426 U.S. 167, 179 (1976)); see also id. (“Congress must ‘provid[e] “clear and unambiguous” authorization for’ this kind of state regulation.” (quoting Goodyear Atomic, 486 U.S. at 180)). In Gartrell, we applied that opposite presumption-and not a presumption against preemption-
Without the presumption against preemption, there can be little doubt that AB 32 would be preempted. Obstacle preemption applies when a state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” California, 921 F.3d at 879 (quoting Arizona, 567 U.S. at 399). Congress sought to delegate to the DHS Secretary the responsibility to “arrange for appropriate places of detention.”
VI
For the foregoing reasons, we hold that appellants are likely to prevail on their claim that AB 32 violates the Supremacy Clause as to ICE-contracted facilities. That leaves the three remaining Winter factors-likelihood of irreparable harm, balance of the equities, and public interest-which the district court did not reach. Because “[t]he grant of a preliminary injunction is a matter committed to the discretion of the trial judge,” Epona v. County of Ventura, 876 F.3d 1214, 1227 (9th Cir. 2017) (citation omitted), we remand to allow the district court to reach the remaining Winter factors in the first instance. See Goldman, Sachs & Co. v. City of Reno, 747 F.3d 733, 747 (9th Cir. 2014) (“[D]espite Goldman‘s ‘overwhelming likelihood of success on the merits,’ we remand this case to the district court to consider the remaining Winter factors consistent with this opinion.” (citation omitted)).
Accordingly, we VACATE the district court‘s denial of preliminary injunctive relief and REMAND for further
MURGUIA, Chief Judge, dissenting, with whom RAWLINSON and SUNG, Circuit Judges, join:
I respectfully dissent. Assembly Bill (“AB“) 32 is valid under the intergovernmental immunity doctrine because it neither directly regulates nor discriminates against the federal government. The majority errs by extending intergovernmental immunity to nondiscriminatory, indirect regulation of the government. Nor is AB 32 preempted. Because AB 32 is entitled to a presumption against preemption, and Congress has not expressed “clear and manifest” intent to overcome that presumption, the law is not preempted. The majority errs by failing to apply the presumption against preemption.
I
In North Dakota v. United States, 495 U.S. 423 (1990), the Supreme Court offered competing interpretations of the intergovernmental immunity doctrine. All agreed that the doctrine prohibited a state from discriminating against the federal government. The justices disagreed, however, about the scope of the doctrine in the absence of discrimination. The plurality opinion, written by Justice Stevens, concluded that “[a] state regulation is invalid only if it regulates the United States directly or discriminates against the Federal
In the decades that followed, most courts-including ours-followed the plurality opinion, holding that the intergovernmental immunity doctrine is triggered only by discrimination or direct regulation of the federal government. See e.g., United States v. California, 921 F.3d 865, 878 (9th Cir. 2019) (holding that “state laws are invalid if they ‘regulate[ ] the United States directly or discriminate[ ] against the Federal Government or those with whom it deals‘” (alterations in original) (quoting North Dakota, 495 U.S. at 435 (plurality opinion))); Boeing Co. v. Movassaghi, 768 F.3d 832, 840 (9th Cir. 2014) (under principles of intergovernmental immunity, “[i]t is well settled that the activities of federal installations are shielded by the Supremacy Clause from direct state regulation unless Congress provides clear and unаmbiguous authorization for such regulation” (quoting Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 180 (1988))); United States v. City of Arcata, 629 F.3d 986, 991 (9th Cir. 2010) (“A state or local law is
Recent developments confirm that we were right to follow that course. In United States v. Washington, 142 S. Ct. 1976 (2022), the Supreme Court unanimously rejected Justice Brennan‘s view that substantial interference with federal operations is sufficient to trigger the doctrine and adopted Justice Stevens‘s view that only direct regulation will do so. The Court explained that, in McCulloch v. Maryland, 17 U.S. 316 (1819), it had “interpreted the Constitution as prohibiting States from interfering with or controlling the operations of the Federal Government.” Washington, 142 S. Ct. at 1983-84. But
[o]ver time this constitutional doctrine, often called the intergovernmental immunity doctrine, evolved. Originally we understood it as barring any state law whose “effect . . . was or might be to increase the cost to the Federal Government of performing its functions,” including laws that imposed costs on federal contractors. United States v. County of Fresno, 429 U.S. 452, 460 (1977). We later came to understand the doctrine, however, as prohibiting state laws that either “regulat[e] the United States directly or discriminat[e] against the Federal Government or those with whom it deals”
(e.g., contractors). North Dakota v. United States, 495 U.S. 423, 435 (1990) (plurality opinion) (emphasis added); id., at 444 (Scalia, J., cоncurring in judgment) (noting that “[a]ll agree” with this aspect of the plurality opinion) . . . .
Washington squarely resolves the question left unanswered in North Dakota. Before Washington, one could plausibly argue that the intergovernmental immunity doctrine extends to a state‘s indirect regulation that substantially interferes with federal operations. After Washington, such arguments are foreclosed.1
The majority justifies its resuscitation of the substantial interference test by relying heavily on Leslie Miller, Inc. v. Arkansas, 352 U.S. 187 (1956) (per curiam). Although Leslie Miller used the term “immunity” rather than the term “preemption,” the decision can no longer be classified as an intergovernmental immunity case. In North Dakota, the plurality instructed us to treat the case as a preemption case,
In short, the majority errs by holding that thе intergovernmental immunity doctrine extends to nondiscriminatory, indirect regulation of the federal government. That view is foreclosed by North Dakota and Washington. To the extent that we are concerned with state laws that burden the federal government by regulating private parties, those concerns are more appropriately addressed by preemption. See North Dakota, 495 U.S. at 435 (plurality opinion) (noting that “[c]laims to any further degree of immunity [beyond discrimination or direct regulation] must be resolved under principles of congressional pre-emption“); California, 921 F.3d at 879-80 (cautioning against stretching the intergovernmental immunity doctrine “beyond its defined scope“).
II
“Federalism . . . adopts the principle that both the National and State Governments have elеments of sovereignty the other is bound to respect.” See Arizona v. United States, 567 U.S. 387, 398 (2012). Accordingly, “when a state regulates in an area of historic state power,” Knox v. Brnovich, 907 F.3d 1167, 1174 (9th Cir. 2018), we presume that the resulting state law has not been preempted unless that was the “clear and manifest purpose of Congress,” Wyeth v. Levine, 555 U.S. 555, 565 (2009) (citation omitted). This presumption against preemption holds true even if the state law “‘touche[s] on’ an area of significant federal presence,” such as immigration. Knox,
States’ historic police powers include regulation of health and safety. Puente Arizona, 821 F.3d at 1104; Wyeth, 555 U.S. at 565 n.3. And these historic powers extend to laws regulating health and safety in federal detention facilities located within a state. In United States v. California, we applied the presumption against preemption and rejected a preemption challenge to a state law providing for inspections of federal immigration detention facilities, noting that the United States “d[id] not dispute that California possesses the general authority to ensure the health and welfare of inmates and detainees in facilities within its borders.” 921 F.3d at 885-86.
Relying on California, the district court here determined that AB 32 regulated “conditions in detention facilities located in California.” GEO Grp., Inc. v. Newsom, 493 F. Supp. 3d 905, 935 n.12 (S.D. Cal. 2020). The court took judicial notice of AB 32‘s legislative history, which supports the conclusion that the state law responds to concerns about the health and welfare of detaineеs within the state‘s borders. This legislative history included committee analysis referring to a 2016 Department of Justice report documenting higher rates of inmate-on-inmate and inmate-on-staff violence, as well as higher rates of use of force by staff, at private prisons. See Sen. Judiciary Comm., Bill Analysis of Assembly Bill 32, 2019-2020 Reg. Sess., at 7 (July 2, 2019) (citing Dep‘t of Justice, Off. of Inspector Gen., Review of the Federal Bureau of Prisons’ Monitoring of Contract Prisons (Aug. 2016), https://oig.justice.gov/rep
The presumption against preemption is rebuttable: When the presumption applies, we must determine whether Congress has expressed “clear and manifest” intent to preempt the state law at issue. Puente Arizona, 821 F.3d at 1104. “[A] law that regulates an area of traditional state concern can still effect an impermissible regulation of immigration.” Ariz. Dream Act Coal. v. Brewer, 855 F.3d 957, 972 (9th Cir. 2017) (as amended) (holding that an Arizona policy denying drivers’ licenses to certain noncitizens was preempted). Here, however, Congress has not expressed a clear and manifest intent to preempt AB 32. The statute, therefore, is not preempted.
The United States and The GEO Group, Inc., argue that a handful of statutes and regulations establish Congress‘s “clear and manifest” intent to preempt AB 32. Among these
In this respect,
The Attorney General, in support of United States prisoners in non-Federal institutions, is authorized to make payments from funds
appropriated for Federal prisoner detention for . . . the housing, care, and security of persons held in custody of a United States marshal pursuant to Federal law under agreements with State or local units of government or contracts with private entities.
Federal discretion, moreover, is insufficient to achieve preemption. Instead, our caselaw requires discretion in the context of a separate and comprehensive scheme with which a state law interfered. In Crosby v. National Foreign Trade Council, for example, the federal statute provided a specific and “calibrated” scheme for imposing sanctions on the country then known as Burma, which included certain conditions and exemptions. 530 U.S. 363, 377-78 (2002) (“These detailed provisions show that Congress‘s calibrated Burma policy is a deliberate effort ‘to steer a middle path.‘” (citation omitted)). Therefore, a state statute preventing entities from doing business with Burma impermissibly interfered with this scheme. Id. at 379. And in Gartrell Construction Inc. v. Aubry, 940 F.2d 437, 439 (9th Cir. 1991), there were separate but “similar” federal licensing requirements with which a state licensing requirement conflicted. Neither of these cases establishes a bright-line rule that interfering with the federal government‘s discretiоn is impermissible. Rather, these cases stand for the unsurprising principle that when there is a comprehensive federal scheme in place, there is no room for states to impose regulations that conflict with specific provisions of that scheme.
The Supreme Court has warned us that “[i]mplied preemption analysis does not justify a ‘freewheeling judicial inquiry into whether a state statute is in tension with federal objectives‘; such an endeavor ‘would undercut the principle that it is Congress rather than the courts that pre-empts state law.‘” Chamber of Com. v. Whiting, 563 U.S. 582, 607 (2011) (quoting Gade v. Nat‘l Solid Wastes Mgmt. Ass‘n, 505 U.S. 88, 111 (1992)). Therefore, I would uphold the district court‘s determination that the presumption against preemption has not been overcome by Congress‘s “clear and manifest” intent with respect to the ICE facilities at issue in this case.
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