The Geo Group, Inc. v. Gavin Newsom ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THE GEO GROUP, INC., No. 20-56172
Plaintiff-Appellant,
D.C. Nos.
and 3:19-cv-02491-
JLS-WVG
UNITED STATES OF AMERICA, 3:20-cv-00154-
Plaintiff, JLS-WVG
v.
OPINION
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.
*
Under Fed. R. App. P 43(c)(2), Rob Bonta has been substituted for
his predecessor, Xavier Becerra, as California Attorney General.
2 THE GEO GROUP V. NEWSOM
UNITED STATES OF AMERICA, No. 20-56304
Plaintiff-Appellant,
D.C. Nos.
and 3:19-cv-02491-
JLS-WVG
THE GEO GROUP, INC., 3:20-cv-00154-
Plaintiff, JLS-WVG
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.
Appeal from the United States District Court
for the Southern District of California
Janis L. Sammartino, District Judge, Presiding
Argued and Submitted June 7, 2021
Pasadena, California
Filed October 5, 2021
Before: Mary H. Murguia, Bridget S. Bade, and
Kenneth K. Lee, Circuit Judges.
Opinion by Judge Lee;
Dissent by Judge Murguia
THE GEO GROUP V. NEWSOM 3
SUMMARY **
Preemption / Intergovernmental Immunity
The panel reversed the district court’s orders denying the
motion of the United States and GEO Group, Inc., a
company that operates two private immigration detention
centers, for a preliminary injunction, and granting the State
of California’s motions to dismiss and for judgment on the
pleadings, in an action brought by the United States and
GEO challenging California Assembly Bill 32 (“AB 32”),
which phases out all private detention facilities within the
state.
The United States Immigration and Customs
Enforcement (ICE) relies exclusively on private detention
centers in California. The district court denied appellants
United States’ and GEO’s request for preliminary injunctive
relief based on its finding they were unlikely to succeed on
the merits.
The panel concluded that appellants were likely to
succeed on the merits, and the other preliminary injunction
factors tipped in their favor.
As a preliminary matter, the panel held that appellants’
claims were justiciable. By the end of the decade, AB 32
will deprive the United States of the option to continue
contracts with GEO and its other contractors. That result
inevitably flows from the statutory language nullifying any
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
4 THE GEO GROUP V. NEWSOM
contract renewals. The panel concluded that based on the
United States’ standing alone, it had authority to hear the
case.
The panel held that AB 32 conflicted with federal law
and could not stand. Under the Supremacy Clause, a state
law must fall if it stands as an obstacle to the
accomplishment and execution of the full purposes and
objectives of Congress. Under the presumption against
preemption, courts assume that federal law does not
supersede the historic police powers of the states unless there
is a clear and manifest congressional purpose.
The panel held that the district court erred in finding that
that the presumption against preemption applied, and that
federal law did not preempt AB 32 under conflict
preemption. The presumption does not apply to areas of
exclusive federal regulation, such as detention of
immigrants. California did more than just exercise its
traditional state police powers – it impeded the federal
government’s immigration policy. California has not
historically regulated the conditions of detainees in federal
custody, and in particular those housed in immigrant
detention centers. In short, AB 32 did not regulate a field
which the states had traditionally occupied. In addition,
Congress unambiguously granted the Secretary of the
Department of Homeland Security (“DHS”) broad discretion
over immigrant detention, including the right to contract
with private companies to operate detention facilities. The
panel rejected California’s and the ACLU’s argument that
Congress never gave the Secretary of DHS discretion to
contract with private parties to operate detention facilities,
even though the federal government has relied on private
immigration detention centers for decades. The panel also
rejected their arguments that 8 U.S.C. § 1231(g) implied a
THE GEO GROUP V. NEWSOM 5
limit on the Secretary’s discretion, and 8 U.S.C.
§ 1103(a)(11) permitted the Secretary to contract out
detention facilities to states only. Finally, AB 32 conflicted
with the Secretary’s statutory power to contract with private
detention facilities. AB 32 cannot stand because it conflicts
with this federal power and discretion given to the Secretary
in an area that remains in the exclusive realm of the federal
government, and it bars the Secretary from doing what
federal immigration law explicitly permits him or her to do.
The panel held that AB 32 discriminated against the
federal government in violation of the intergovernmental
immunity doctrine. A State violates the discriminatory
aspect of intergovernmental immunity when it treats the state
more favorably than the federal government without
justification. Discrimination exists where the net effects of
a state law discriminate against the federal government. The
panel held that under this net effect analysis, 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.
The panel therefore held that the United States and GEO
were likely to prevail on the merits of their motion for a
preliminary injunction. The panel held further that the
remaining injunction factors also tipped in appellants’ favor.
Constitutional injuries are irreparable harm. Because AB 32
facially discriminated against the federal government, the
United States suffered an irreparable harm. In addition, by
establishing a likelihood that AB 32 violated the U.S.
Constitution, appellants established that both the public
interest and the balance of equities favored a preliminary
injunction.
6 THE GEO GROUP V. NEWSOM
The panel remanded for further proceedings.
Dissenting, Judge Murguia would hold that the district
court acted within its discretion in denying a preliminary
injunction because the United States and GEO were unlikely
to succeed on their conflict-preemption and
intergovernmental-immunity claims. She would apply the
presumption against preemption and would uphold the
district court’s determination that the presumption had not
been overcome by Congress’s clear and manifest intent with
respect to the ICE facilities at issue in this case. She wrote
that AB 32 said nothing about immigration, and it did not
mention the federal government. Therefore, there was no
justification for treating AB 32 as a regulation of
immigration rather than one of health and safety. Although
AB 32 applied to immigration detention facilities in
California, it did not apply only to those facilities, rather, it
applied to a variety of federal and state facilities. In addition,
Congress has not expressed “clear and manifest” intent to
overcome the presumption. AB 32 was not preempted, and
the United States and GEO were not entitled to a preliminary
injunction on the issue.
Further, Judge Murguia would hold that AB 32 does not
violate intergovernmental immunity where AB 32 does not
discriminate against the federal government and does not
directly regulate the federal government. In addition, Judge
Murguia dissented from the majority’s choice to proceed
with de novo review of the remaining preliminary injunction
factors, which went far beyond the “limited and deferential”
abuse-of-discretion review prescribed by case law.
THE GEO GROUP V. NEWSOM 7
COUNSEL
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.
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.
Gabrielle D. Boutin (argued), Deputy Attorney 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
Gavin Newsom, Rob Bonta, and State of California.
Jordan Wells (argued) and Michael Kaufman, 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
Foundation of Northern California, San Francisco,
California; Bardis Vakili and Monika Y. Langarica,
American Civil Liberties Union Foundation of San Diego &
Imperial Counties, San Diego, California; for Amici Curiae
8 THE GEO GROUP V. NEWSOM
National Immigrant Justice Center, American Civil Liberties
Union (ACLU), ACLU of Southern California, ACLU of
San Diego & Imperial Counties, and ACLU of Northern
California.
Steven J. Wells, Alex P. Hontos, and Timothy J. Droske,
Dorsey & Whitney LLP, Minneapolis, Minnesota, for
Amicus Curiae Management & Training Corporation.
Sayoni Maitra and Jaime Crook, Center for Gender &
Refugee Studies, UC Hastings College of Law, San
Francisco, California; Lisa Knox, California Collaborative
for Immigrant Justice, San Francisco, California; Jaclyn
Gonzalez and Hamid Yazdan Panah, Immigrant Defense
Advocates, El Sobrante, California; Alison Pennington,
Immigrant Legal Defense, Oakland, California; for Amici
Curiae Center for Gender & Refugee Studies, California
Collaborative for Immigrant Justice, Immigrant Defense
Advocates, and Immigrant Legal Defense.
Jason R. Litt, Rebecca G. Powell, Garen N. Bostanian, and
Anna J. Goodman, Horvitz & Levy LLP, Burbank,
California, for Amicus Curiae Human Impact Partners.
Sarah P. Alexander, Constantine Cannon LLP, San
Francisco, California, for Amici Curiae Immigrant Legal
Resource Center, Human Rights Watch, and Freedom for
Immigrants.
THE GEO GROUP V. NEWSOM 9
OPINION
LEE, Circuit Judge:
In 2019, California Governor Gavin Newsom signed a
bill, AB 32, that phases out all private detention facilities
within the state. But because of seasonal and other
fluctuations in immigration, the United States Immigration
and Customs Enforcement (ICE) relies exclusively on
private detention centers in California. California’s law
would thus compel the United States to shutter all ICE
detention centers within the state. In contrast, AB 32 carves
out many exceptions for the state’s various private detention
centers.
The United States—along with The GEO Group, Inc., a
company operating two of the private immigration detention
centers—sued California and sought a preliminary
injunction, arguing that AB 32 conflicts with federal law and
violates intergovernmental immunity. The district court
ruled largely in favor of California, holding that the well-
being of detainees falls within a state’s traditional police
powers. We disagree: California is not simply exercising its
traditional police powers, but rather impeding federal
immigration policy.
Under our preemption principles, states may not enact
laws that hinder “the accomplishment and execution of the
full purposes and objectives of Congress.” Hughes v. Talen
Energy Mktg., LLC, 136 S. Ct. 1288, 1297 (2016).
Immigration—in particular, the detention of undocumented
immigrants and those slated for removal—falls within the
core of exclusive federal powers. And Congress has given
the U.S. Department of Homeland Security (DHS) Secretary
the statutory authority to contract with private detention
facilities. AB 32, however, intrudes into the federal sphere
10 THE GEO GROUP V. NEWSOM
of authority by barring the Secretary from exercising his or
her statutory power.
California’s law also does not pass muster under the
doctrine of intergovernmental immunity, which prevents
states from directly regulating or discriminating against the
federal government. California has discriminated against the
United States because AB 32 provides certain exemptions
for state agencies without offering comparable ones for the
federal government.
We reverse the district court’s orders (i) granting
California’s motions to dismiss and for judgment on the
pleadings and (ii) denying the United States’ and GEO’s
motion for a preliminary injunction.
BACKGROUND
I. California Phases Out Private Detention Facilities in
the State.
In 2019, then-Acting DHS Secretary Matthew Albence
told the House of Representatives Committee on
Appropriations that the “influx at the border has especially
strained ICE’s detention resources.” He reported that the
number of new detainees had surged 79% in a single year.
The federal government houses these detainees in detention
facilities until they are either removed from the country or
released.
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
THE GEO GROUP V. NEWSOM 11
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.
Meanwhile, not too long after Acting Secretary Albence
testified before Congress, Governor Gavin Newsom signed
AB 32 into law, which bans private detention facilities in
California within this decade. The author of AB 32
explained that the bill provides “a general ban of for-profit,
private detention facilities in California—including facilities
used for immigration detention.” Sen. Judiciary Comm., Bill
Analysis of A.B. 32, 2019–2020 Reg. Sess. (Cal. 2019).
“We’ve all seen the current humanitarian crisis play out
along the southern border,” he continued. Id. “No human
being deserves to be held in the horrific conditions we’ve
been seeing in these for-profit, private facilities.” Id.AB 32 has three sections:
Section 1: It amends the California Penal Code by adding
§ 5003.1, which bans California Department of Corrections
and Rehabilitation from entering or renewing a contract with
a private, for-profit prison facility located “in or outside of
the state.” Cal. Penal Code § 5003.1(a)–(b). But the law
provides an exception for California’s private prisons “in
order to comply with the requirements of any court-ordered
population cap.” Id. § 5003.1(e).
Section 2: It introduces §§ 9500–9505 to the California
Penal Code. First, § 9500 provides definitions:
(a) “Detention facility” means any facility in
which persons are incarcerated or
otherwise involuntarily confined for
purposes of execution of a punitive
12 THE GEO GROUP V. NEWSOM
sentence imposed by a court or detention
pending a trial, hearing, or other judicial
or administrative proceeding.
(b) “Private detention facility” means a
detention facility that is operated by a
private, nongovernmental, for-profit
entity, and operating pursuant to a
contract or agreement with a
governmental entity.
Id. § 9500 (emphasis added).
Then § 9501 establishes the general rule that “a person
shall not operate a private detention facility within the state.”
Id. § 9501. The remaining provisions specify exemptions to
the general rule. Most of § 9502’s exemptions apply only to
certain facilities operating under California state law. See
id. § 9502(a)–(b), (d), (f)–(g). Two of the exemptions are
facially neutral, but one of them exempts school detention
centers, which the federal government does not operate. See
id. § 9502(c), (e). Finally, § 9505 provides two more
exemptions. First, a “private detention facility that is
operating pursuant to a valid contract with a governmental
entity that was in effect before January 1, 2020, for the
duration of that contract, not to include any extensions made
to or authorized by that contract.” Id. § 9505(a) (emphasis
added). ICE entered into the contracts before 2020, so they
fall within the safe-harbor provision. At the same time, all
of ICE’s contracts include several extensions, which fall
outside this exception. Second, § 9505 exempts a private
detention facility renewed under § 5003.1(e). As noted
above, § 5003.1(e) provides an exception to comply with
court-ordered population caps in state prison.
THE GEO GROUP V. NEWSOM 13
Section 3: It provides that the act’s provisions are
severable.
II. The United States and GEO Sue California.
Shortly after the passage of AB 32, Appellants United
States and GEO sued Governor Gavin Newsom and then-
Attorney General Xavier Becerra (collectively,
“California”), seeking a preliminary and permanent
injunction against AB 32. They argued that AB 32 was
preempted and violated the intergovernmental immunity
doctrine. California, in turn, moved to dismiss GEO’s
complaint and for a judgment on the pleadings for the federal
government’s complaint.
The district court granted California’s motions, found
that Appellants were unlikely to succeed on the merits, and
denied the request for a preliminary injunction.
STANDARD OF REVIEW
We review a denial of a preliminary injunction for abuse
of discretion. But “the district court’s interpretation of the
underlying legal principles is subject to de novo review, and
a district court abuses its discretion when it makes an error
of law.” E. & J. Gallo Winery v. Andina Licores S.A.,
446 F.3d 984, 989 (9th Cir. 2006) (quotation marks and
alterations omitted). 1 We review de novo the grant of a
motion to dismiss for failure to state a claim as well as a
1
Contrary to the dissent’s suggestion, we are not engaging in a de
novo review of the denial of a preliminary injunction. Rather, we hold
that the district court erred in its legal analysis of the preemption and
intergovernmental immunity issues. And a district court abuses its
discretion when it makes an error of law in denying a preliminary
injunction.
14 THE GEO GROUP V. NEWSOM
motion for judgment on the pleadings. See Grigsby v. BofI
Holding, Inc., 979 F.3d 1198, 1204 (9th Cir. 2020).
ANALYSIS
“A plaintiff seeking a preliminary injunction must
establish that he is likely to succeed on the merits, that he is
likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his
favor, and that an injunction is in the public interest.” Winter
v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The
key question is whether GEO and the United States are likely
to succeed on the merits. We conclude that they are likely
to do so, and that the other factors tip in favor of them.
I. Appellants’ Claims Are Justiciable.
To begin, California questions whether Appellants have
standing. Because GEO and the other private detention
companies contracted with the United States in 2019,
AB 32’s exception for operations existing before January 1,
2020 applies. The initial period for these contracts ends in
2024, at which time the United States may terminate the
contracts. According to California, since it is unknown
whether the federal government will exercise this option,
Appellants’ only possible injury is a “future contingency that
may or may not occur.”
We reject this argument. By the end of the decade,
AB 32 will deprive the United States of the option to
continue its contracts with GEO and its other contractors.
That result inevitably flows from the statutory language
nullifying any contract renewals. “Where the inevitability
of the operation of a statute against certain individuals is
patent, it is irrelevant to the existence of a justiciable
controversy that there will be a time delay before the
THE GEO GROUP V. NEWSOM 15
disputed provisions will come into effect.” Blanchette v.
Conn. Gen. Ins. Corps., 419 U.S. 102, 143 (1974). Based on
the United States’ standing alone, we have the authority to
hear this case. See Town of Chester, N.Y. v. Laroe Ests., Inc.,
137 S. Ct. 1645, 1647 (2017) (explaining that when there are
multiple plaintiffs, “at least one plaintiff must have standing
to seek each form of relief requested in the complaint.”).
II. AB 32 Conflicts with Federal Law and Cannot Stand.
The Supremacy Clause makes the laws of the United
States “the supreme Law of the Land.” U.S. Const. art. VI,
cl. 2. So a state law must fall to the wayside if “the
challenged law stands as an obstacle to the accomplishment
and execution of the full purposes and objectives of
Congress.” Hughes, 136 S. Ct. at 1297 (internal quotation
marks omitted) (quoting Crosby v. Nat’l Foreign Trade
Council, 530 U.S. 363, 373 (2000)). Under this principle of
conflict preemption, “[w]hat is a sufficient obstacle is a
matter of judgment, to be informed by examining the federal
statute as a whole and identifying its purpose and intended
effects.” Crosby, 530 U.S. at 373.
Two cornerstones guide our preemption analysis. Wyeth
v. Levine, 555 U.S. 555, 565 (2009). First, “the purpose of
Congress is the ultimate touchstone in every pre-emption
case.” Id. (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470,
485 (1996)) (internal quotations omitted). Second, under the
so-called presumption against preemption, courts should
assume that federal law does not supersede the historic
police powers of the states “unless that was the clear and
manifest purpose of Congress.” Id. (quoting Medtronic,
518 U.S. at 485).
The district court erred in finding that the presumption
against preemption applies, and that federal law does not
16 THE GEO GROUP V. NEWSOM
preempt AB 32 under conflict preemption. This
presumption does not apply to areas of exclusive federal
regulation, such as detention of immigrants. In any event,
Congress unambiguously granted the DHS Secretary broad
discretion over immigrant detention, including the right to
contract with private companies to operate detention
facilities. Given this congressional purpose, AB 32 conflicts
with the Secretary’s statutory power and discretion.
A. The presumption against preemption does not apply
to AB 32.
The district court applied the presumption against
preemption, finding that AB 32 regulates the health and
safety of people detained within the State of California. And
health and safety, the court reasoned, fall within a state’s
traditional police powers.
The district court, however, erred by defining the
relevant regulated area too broadly. To determine the
regulated activity, we first look at “the language of the
statute itself,” which “must ordinarily be regarded as
conclusive.” City of Auburn v. U.S. Gov’t, 154 F.3d 1025,
1029–30 (9th Cir. 1998). The context of the state’s
regulation matters, too. A state cannot automatically trigger
the presumption by merely asserting some generic police
power divorced from the context of the challenged
regulation. See Buckman Co. v. Plaintiffs’ Legal Comm.,
531 U.S. 341, 347 (2001) (holding that a state’s general
police power over fraud did not trigger the presumption
because states had not “traditionally occupied” the field of
“[p]olicing fraud against federal agencies” (emphasis
added)); see also United States v. Alabama, 691 F.3d 1269,
1296 (11th Cir. 2012).
THE GEO GROUP V. NEWSOM 17
If we look at the language of AB 32 as well as its context,
it becomes clear that California law regulates the federal
government’s detention of undocumented and other
removable immigrants. Sections 9500 and 9501 prohibit
operating a detention facility “pursuant to a contract . . . with
a governmental entity.” Cal. Penal Code § 9500–9501.
AB 32 does not limit “governmental entity” to only state or
local governments; it also purposefully includes the federal
government, which detains thousands of people within
California. AB 32’s intentional inclusion of the federal
government stands in stark contrast with other provisions in
the California Penal Code that apply to the treatment of
people held only in state prisons or county jails. See, e.g.,
Cal. Penal Code § 2650 (stating that the “Mistreatment of
Prisoners” provisions apply only to someone “sentenced to
imprisonment in the state prison” and, in some cases, county
jail); Cal. Penal Code §§ 4000–4032 (setting standards for
treatment of people in the “common jails in the several
counties of this State”). So the plain language of the statute
targets in large part the federal government and its detention
policy.
And the context underscores that California did more
than just exercise its traditional state police powers—it
impeded the federal government’s immigration policy.
Unlike the state government, the federal government does
not enjoy any exemptions from AB 32. If federal detainees
might face health and safety risks in private detention
centers, then state detainees presumably endure the same
dangers as well—yet California curiously provides
numerous exemptions for state detainees. If anything, in
AB 32, California appears to show less concern for the well-
being of its own detainees than it does for persons under
federal detention. In short, California’s mantra-like
invocation of “state police powers” cannot act as a talisman
18 THE GEO GROUP V. NEWSOM
shielding it from federal preemption, especially given that
the text and context of the statute make clear that state has
placed federal immigration policy within its crosshairs. 2
The district court erred in relying on language from
United States v. California to reason that California
exercised its traditional state police powers. 921 F.3d 865(9th Cir. 2019). In that case, we considered AB 103, which,
among other things, authorized the California Attorney
General to collect information about the health and welfare
of immigrant detainees in privately run facilities. Id. at 875–
76. We noted in dicta that neither party “dispute[d] that
California possesses the general authority to ensure the
health and welfare of inmates and detainees in facilities
within its borders.” Id. at 886.
But we made clear in California that the statutory
provision did not intrude on federal powers because the
“[m]ere collection of such factual data does not (and cannot)
disturb any federal . . . detention decision.” Id. at 885(emphasis added). That law simply did “not regulate
whether or where an immigration detainee may be
confined.” Id. In contrast here, AB 32 can and does
“disturb” the federal government’s “detention decision”
because it “regulate[s] . . . where an immigration detainee
2
If we accepted California’s argument, then a state could essentially
dictate the policies of the federal prison system. For example, suppose
hypothetically that Colorado enacts a law mandating eight hours of open
space time for all inmates within the state to ensure their mental well-
being. That would mean that the federal “supermax” prison in Colorado
housing the most dangerous terrorists and criminals would have to
provide those eight hours of open space time to them. The dissent points
out that there are federal rules governing prisoners that would preempt
state law. So, too, here: as explained, Congress gave the Secretary power
to detain immigrants in any “appropriate places of detention.”
THE GEO GROUP V. NEWSOM 19
may be confined” by banning the use of private detention
facilities. Id. The California court made clear that a state
cannot make such an intrusion into federal policy.
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. See United States v. Locke, 529 U.S.
89, 99 (2000) (holding that the presumption does not apply
in areas with a “history of significant federal presence”);
City of Los Angeles v. AECOM Servs., Inc., 854 F.3d 1149,
1155 (9th Cir.), amended sub nom. City of Los Angeles by &
through Dep’t of Airports v. AECOM Servs., Inc., 864 F.3d
1010 (9th Cir. 2017) (noting that the Supreme Court’s
decision in Wyeth clarified that the holding in Locke meant
only that the “presumption [] accounts for the historic
presence of state law but does not rely on the absence of
federal regulation”) (internal quotations omitted).
The federal government alone has always set
immigration policy. And that includes detention and
removal of immigrants. “A decision on removability
requires a determination whether it is appropriate to allow a
foreign national to continue living in the United States.
Decisions of this nature touch on foreign relations and must
be made with one voice.” Arizona v. United States, 567 U.S.
387, 409 (2012); see also Jama v. Immigr. & Customs Enf’t,
543 U.S. 335, 348 (2005) (“Removal decisions . . . may
implicate [the Nation’s] relations with foreign powers and
require consideration of changing political and economic
circumstances.” (internal quotation marks omitted)). Our
20 THE GEO GROUP V. NEWSOM
case is thus not like Puente Arizona v. Arpaio, 821 F.3d 1098(9th Cir. 2016), which involved an identity fraud state law
that “touched” upon immigration. Nor is it like Knox v.
Brnovich, 907 F.3d 1167, 1177 (9th Cir. 2018), which
addressed whether a state law limiting who can collect early
election ballots “touched” upon the federal “field of letter
carriage and delivery.” 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.
In short, AB 32 does not regulate a field which the states
have traditionally occupied. To the contrary, it tries to
regulate an area—detention of immigrants—that belongs
exclusively in the realm of the federal government. The
presumption against preemption thus does not apply.
B. ICE has broad statutory authority to contract for
private detention facilities.
Perhaps recognizing that California’s law directly
undermines the United States’ exclusive authority to detain
immigrants, California and the American Civil Liberties
Union (ACLU) advance a rather audacious argument: They
insist that Congress never gave the DHS Secretary discretion
to contract with private parties to operate detention facilities,
even though the federal government has relied on private
immigration detention centers for decades. If this argument
is correct, then ICE lacks statutory authority to privately
contract out detention operations. And no conflict
THE GEO GROUP V. NEWSOM 21
preemption could exist because, well, there would be no
federal law that conflicts with AB 32. 3
Fortune may favor the bold, but not so if it flies against
the statutory text and structure as well as historical tradition.
Contrary to California’s assertions, Congress gave the
Secretary broad discretion to arrange for appropriate
detention facilities, including contracting with private
companies to operate them.
As the Supreme Court has emphasized repeatedly, the
federal government has “broad, undoubted power over the
subject of immigration.” Arizona, 567 U.S. at 394. That is
so because “[i]mmigration policy can affect trade,
investment, tourism, and diplomatic relations for the entire
Nation, as well as the perceptions and expectations of aliens
in this country who seek the full protection of its laws.” Id.
at 395 (citations omitted). Thus, “a principal feature of the
removal system is the broad discretion exercised by
immigration officials.” Id. at 396.
This broad discretion applies to immigration detention.
Congress made that clear. We see it in 8 U.S.C. § 1231,
which states that the Secretary “shall arrange for appropriate
places of detention for aliens . . . .” 8 U.S.C. § 1231(g)(1)
(emphasis added). The word “appropriate” represents “the
classic broad and all-encompassing term that naturally and
traditionally includes consideration of all the relevant
factors.” See Michigan v. EPA, 576 U.S. 743, 752 (2015)
(noting the “capaciousness” of the term “appropriate and
3
The dissent notes that we spend a quarter of our opinion on
addressing whether ICE has statutory authority to contract with private
facilities. We do so only because California and the ACLU devoted most
of their briefs challenging the Secretary’s statutory power.
22 THE GEO GROUP V. NEWSOM
necessary” in the Clean Air Act). The statute does not limit
the Secretary to housing detainees in “appropriate federal”
or even “appropriate governmental” places of detention.
Rather, as we have recognized in a different context,
8 U.S.C. § 1231(g) grants the Secretary “broad discretion in
exercising his authority to choose the place of detention for
deportable aliens.” Comm. of Cent. Am. Refugees v. INS,
795 F.2d 1434, 1440 (9th Cir.), amended, 807 F.2d 769 (9th
Cir. 1986). The Secretary also has the power “to make
contracts . . . as may be necessary and proper.” 6 U.S.C.
§ 112(b)(2). In short, this statutory language—
“appropriate” and “necessary and proper”—is a hallmark of
vast discretion. 4
Congress has also made clear in other ways that it
delegated to the Attorney General (and now the DHS
Secretary) the power to contract with private immigration
detention centers. In the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (IIRIRA), Congress
required the executive branch to report to Congress the
number of criminal aliens “released from detention facilities
of [INS] (whether operated directly by the Service or
through contract with other persons or agencies).” See
4
The dissent points out that § 1231 does not explicitly mention
contracting with private immigration detention centers, but that
18 U.S.C. § 4013(a)—which governs federal prisoners in state
facilities—explicitly allows the federal government to enter into
agreements with “private entities” to house those held in custody by the
U.S. Marshal. The dissent thus reasons that the DHS Secretary does not
have the statutory power to contract with private entities. But Congress
already provided plenary power to the Secretary to “arrange for
appropriate places of detention for aliens.” 8 U.S.C. § 1231(g)(1). So
there was no need to specify private parties. In contrast, the U.S. Marshal
does not have such broad powers of detention for federal prisoners, and
Congress thus specified the power to contract with private parties.
THE GEO GROUP V. NEWSOM 23
IIRIRA, sec. 386, 110 Stat. at 3009–654 (emphasis added)
(codified at 8 U.S.C. § 1368(b)(2)(A)(i)(I)). By that time,
the executive branch had been contracting with private
companies to operate immigration detention facilities for
over ten years. See Joan Mullen, Corrections and the Private
Sector, NAT’L INST. OF JUSTICE: RSCH. IN BRIEF, Oct.
1984. Indeed, by 1991, private companies operated half of
all immigration detention facilities. See U.S. GOV’T
ACCOUNTABILITY OFFICE, GAO/GGD-91-21,
PRIVATE PRISONS: COST SAVINGS AND BOP’S
STATUTORY AUTHORITY NEED TO BE RESOLVED
20 (1991).
And to this day, Congress continues to pass
appropriation bills that specifically earmark money for ICE
to contract with private detention facilities. See
Consolidated Appropriations Act, 2021, Pub. L. No. 116-
260, div. F, tit. II, § 215(a), 134 Stat 1182, 1457 (2020);
Consolidated Appropriations Act, 2020, Pub. L. No. 116-93,
§ 215(a), 133 Stat. 2317, 2507 (2019); Consolidated
Appropriations Act, 2019, Pub. L. No. 116-6, § 210, 133
Stat. 13, 23 (2019); see also Consolidated Appropriations
Act, 1997, Pub. L. No. 104-208, § 386, 110 Stat. 3009(1996) (contemplating detention facilities “operated directly
by [ICE] or through contract with other persons or
agencies” (emphasis added)). Cf. Isbrandtsen-Moller Co. v.
United States, 300 U.S. 139, 147 (1937) (“Whatever doubt
may be entertained as to the intent of Congress . . . Congress
appears to have recognized the validity . . . by [passing
several] appropriation Acts”). Common sense dictates that
24 THE GEO GROUP V. NEWSOM
Congress would not explicitly provide funding for an
allegedly unauthorized and unlawful activity. 5
California and the ACLU resist this textual and common-
sense reading of the Secretary’s statutory powers.
According to them, 8 U.S.C. § 1231(g) implies a limit on the
Secretary’s discretion, and 8 U.S.C. § 1103(a)(11) permits
the Secretary to contract out detention operation to states
only. Neither of these arguments withstands scrutiny.
California and the ACLU argue that the second sentence
of § 1231(g)(1) limits the Secretary’s discretion. It reads:
The Attorney General shall arrange for
appropriate places of detention for aliens
5
The district court did not question that the Secretary generally has
the authority to contract out detention operations. Instead, the district
court found that these statutes did not demonstrate a clear and manifest
intent that ICE could contract with private parties to operate detention
facilities in part because the statutory language does not explicitly
mention private detention facilities. But the relevant question is whether
Congress clearly and manifestly granted the Secretary the discretion to
enter such a contract. And the answer is clearly “yes.” Taken to its
logical conclusion, the district court’s ruling would require Congress to
provide a detailed laundry list of every possible type of expenditure to
prevent states from handcuffing the federal government’s authority to
spend money on it. Otherwise, a state could argue that Congress did not
clearly and manifestly intend to prevent state regulation of the federal
government’s ability to enter into contracts. In any event, DHS issued a
regulation that specifically allows the agency to contract with private
detention facilities, though the parties dispute the statutory basis to
promulgate that regulation. 48 C.F.R. § 3017.204-90 (providing that
ICE “may enter into contracts of up to fifteen years’ duration for
detention or incarceration space or facilities, including related services”);
see also Wyeth, 555 U.S. at 576 (“This Court has recognized that an
agency regulation with the force of law can pre-empt conflicting state
requirements”).
THE GEO GROUP V. NEWSOM 25
detained pending removal or a decision on
removal. When United States Government
facilities are unavailable or facilities adapted
or suitably located for detention are
unavailable for rental, the Attorney General
may expend from the appropriation
“Immigration and Service—Salaries and
Expenses”, without regard to section 6101 of
Title 41, amounts necessary to acquire land
and to acquire, build, remodel, repair, and
operate facilities (including living quarters
for immigration officers if not otherwise
available) necessary for detention.
8 U.S.C. § 1231(g)(1). They argue that the prefatory phrase
of that second sentence—“When United States Government
facilities are unavailable or facilities adapted or suitably
located for detention are unavailable for rental”—makes
clear that only federal facilities can house immigrant
detainees. Put another way, the word “appropriate” in the
first sentence—the Secretary “shall arrange for appropriate
places of detention of aliens”—refers to “United States
government facilities” only.
But such a reading goes against the ordinary meaning of
the word “appropriate.” Scalia and Garner, Reading Law:
The Interpretation of Legal Texts, 70 (“One should assume
the contextually appropriate ordinary meaning unless there
is reason to think otherwise.”). The word “appropriate”
means “especially suitable or compatible : FITTING.” See
Merriam-Webster Dictionary. Nothing in § 1231(g)(1) or
any other statutory provision suggests that “appropriate”
means the “United States government” only. We know this
because another statutory provision, 8 U.S.C. § 1103(a)(11),
expressly allows the United States to contract with state and
26 THE GEO GROUP V. NEWSOM
local governments to house immigrant detainees. California
and the ACLU’s proffered definition of “appropriate” thus
conflicts with the well-established canon that statutory
provisions must be read in harmony. See Food & Drug
Admin. v. Brown & Williamson Tobacco Corp., 529 U.S.
120, 133 (2000) (“A court must therefore interpret the statute
‘as a symmetrical and coherent regulatory scheme,’ and ‘fit,
if possible, all parts into an harmonious whole.’” (internal
citations omitted)). 6
California and the ACLU next seize on 8 U.S.C.
§ 1103(a)(11) to argue that the Secretary may only contract
out detention operations to “a State or political subdivision
of a State.” Because Congress only mentioned agreements
with states and localities (and not with private companies),
it must mean that the Secretary cannot contract with private
companies, according to California and the ACLU.
We reject such a reading. The negative inference canon
generally does not apply if the list of powers is not exclusive.
Portland 76 Auto/Truck Plaza, Inc. v. Union Oil Co. of Cal.,
153 F.3d 938, 945 (9th Cir. 1998). Section 1103(a)(11) does
not purport to enumerate the exclusive instances when the
Secretary may place immigrants in non-federal detention.
The statutory provision does not use the words “only,”
“exclusively,” or similar words. 7 And without such a word
6
So what does the second sentence in § 1231(g)(1) mean? It appears
to address when the Secretary can spend money to build facilities; it does
not purport to limit how the Secretary houses aliens. If the United States
wants to build a facility, it can do so only if there are (i) no United States
facilities available and (ii) no other places, including private detention
centers, available for rent.
7
In fact, § 1103(a)(11) does not appear to expound on the
Secretary’s power. Instead, § 1103(a)(11) explains the Attorney
THE GEO GROUP V. NEWSOM 27
in the statute, the negative inference canon can apply only if
“it is fair to suppose that Congress considered the unnamed
possibility and meant to say no to it.” Marx v. Gen. Revenue
Corp., 568 U.S. 371, 381 (2013) (quoting Barnhart v.
Peabody Coal Co., 537 U.S. 149, 168 (2003)). And here, we
face “contrary indications that adopting a particular rule or
statute was probably not meant to signal any exclusion.” Id.(quoting United States v. Vonn, 535 U.S. 55, 65 (2002)).
First, such a reading clashes with the canon against
implied repeal. As noted before, the United States has
contracted with private immigration detention facilities at
least as far back as 1984, and indeed, the federal government
housed a substantial portion of undocumented and
removable immigrants in private facilities by the early
1990s. It would seem highly unusual for Congress to usher
in a sea change in the federal government’s power to detain
immigrants in such an indirect and vague manner when it
enacted § 1103(a)(11) as part of the IIRIRA in 1996. Cf.
Scalia and Garner at 327 (“[I]f statutes are to be repealed,
they should be repealed with some specificity.”). In fact, the
IIRIRA fortified the executive branch’s power to contract
with private detention facilities by formally codifying
§ 1231(g), which empowers the executive branch to place
immigrants in “appropriate places of detention.” 8 U.S.C.
§ 1231(g) (codifying Pub. L. No. 414, ch. 477, § 242(c), 66
Stat. 163, 210 (1952)).
Second, the text and structure of § 1103 suggest that the
provision is about federalism—specifically, the anti-
General’s powers. Here, “the Attorney General” does not mean “the
Secretary of Homeland Security.” See §1103(a)(1).
28 THE GEO GROUP V. NEWSOM
commandeering doctrine—and not about specific detention
operations.
We begin with the text of § 1103(a)(11). Sub-section
(A) authorizes the Attorney General to make payments to
states related to their “administration and enforcement of the
laws relating to immigration” if the states’ actions were
taken under “an agreement with a State.” Id.
§ 1103(a)(11)(A). The “administration and enforcement of
the laws” contemplates far more than just detention
operations.
And § 1103(a)(11)(B) then allows the Attorney General
to enter into “cooperative agreement[s]” with States for
state-run immigration detention facilities. By setting the
conditions under which the United States can house
immigrant detainees in state and local government facilities,
§ 1103(a)(11) clarifies that the federal government cannot
commandeer state and local governments into serving
federal functions.
This reading make sense in historical context. This
section was first enacted in 1996—a year before the
Supreme Court in Printz v. United States, 521 U.S. 898(1997) resolved a circuit conflict and held that the federal
government cannot commandeer states or local officials for
background checks. It was thus likely enacted with
federalism in mind, not as an exclusive enumeration of
delegated powers.
The structure of the 1996 version of 8 U.S.C. § 1103supports this federalism-based interpretation. See Kucana v.
Holder, 558 U.S. 233, 246 (2010) (interpreting a provision
in line with its neighboring provisions). This section appears
at the very beginning of Chapter Twelve of Title Eight—the
Chapter addressing “Immigration and Nationality.” It is
THE GEO GROUP V. NEWSOM 29
titled “Powers and duties” and begins sub-section (a) by
discussing the Attorney General’s powers. 8 8 U.S.C. § 1103(1996). From the outset, this placement suggests that § 1103
is concerned with the broadest delegation of powers, rather
than the specifics of any particular area.
Sub-section (a)(1) specifies that the Attorney General
“shall be charged with the administration and enforcement
of this chapter,” which includes § 1231: “Detention.” Id.
§ 1103(a)(1) (1996). Sub-sections (a)(2) through (a)(6)
establish various supporting powers the Attorney General
possesses to carry out his or her duties under Chapter
Twelve. 9 These broad grants confirm that § 1103 concerned
general delegation of powers.
The rest of sub-section (a) provides certain limitations to
this general delegation when the immigration power touches
other constitutional areas. Thus, sub-sections (a)(7) through
(a)(9) concerns the overlap of immigration with foreign
affairs. 10 Sub-section (a)(7) empowers the Attorney
General, “with the concurrence of the Secretary of State,” to
establish immigration offices in foreign countries. Id.
§ 1103(a)(7) (1996). Similarly, sub-section (a)(8) allows the
8
The 1996 version of § 1103 was enacted before the Secretary was
delegated the Attorney General’s powers.
9
8 U.S.C. § 1103(a)(2) (1996) (supervision of employees); Id.§ 1103(a)(3) (1996) (power to issue regulations); Id. § 1103(a)(4)
(1996) (authorize or require employees of the Service or the DOJ to
perform the duties of the Chapter); Id. § 1103(a)(5) (1996) (power to
guard the borders); Id. § 1103(a)(6) (1996) (authority to confer the
Chapter’s power on any employee of the United States with the consent
of the Department head).
10
There were two separate sub-sections (a)(8) and (a)(9) enacted in
1996.
30 THE GEO GROUP V. NEWSOM
Attorney General, “[a]fter consultation with the Secretary of
State,” to authorize foreign officers to be stationed in the
United States. Id. § 1103(a)(8) (1996). And sub-section
(a)(9) specifies that those foreign officers will have the
power and duties of immigration officers. Id. § 1103(a)(9)
(1996).
The sub-sections addressing the states—which include
the precursor to § 1103(a)(11)—are no different. Sub-
sections (8) and (9) concerned the overlap of immigration
with federalism. Under sub-section (a)(8), if the Attorney
General “determines that an actual or imminent mass influx
of aliens arriving off the coast of the United States . . .
presents urgent circumstances requiring an immediate
Federal response,” then the Attorney General may empower
a “State or local law enforcement officer, with the consent of
the head . . . under whose jurisdiction the individual is
serving,” to perform the functions of a federal employee. Id.
§ 1103(a)(8) (1996) (emphasis added). And sub-section
(a)(9)—the 1996 precursor to today’s § 1103(a)(11)—
authorized the Attorney General to expend funds and enter
agreements with states to house immigration detainees. Id.
§ 1103(a)(9) (1996).
Read in harmony with their neighboring provisions,
these provisions address the special circumstance where the
immigration power touches on federalism—not the
exclusive times when the Attorney General/DHS Secretary
may contract out detention facilities.
Another statute, 8 U.S.C. § 1357(g), passed at the same
time as § 1103(a)(11) corroborates this reading. See
8 U.S.C. § 1357(g) (1996). That statute begins by granting
the Attorney General the power to “enter into a written
agreement with a State” to allow state employees to perform
immigration functions. 8 U.S.C. § 1357(g)(1). The next
THE GEO GROUP V. NEWSOM 31
several sections set federalism-related statutory limits on
those agreements. Id. § 1357(g)(2)–(8). And the statute
concludes by explicitly stating that the sub-section must not
be construed as permission to commandeer the states. Id.
§ 1357(g)(9)–(10). It thus prohibited commandeering and
established federalism-related conditions on agreements
between the federal government and the states.
Federalism stands as an integral thread unmistakably
woven into the fabric of our Constitution. So it is no surprise
that Congress paid heed to the limits of federal power in the
statute. In contrast, agreements with private companies do
not pose the same constitutional concerns, so it would make
sense for Congress not to address such agreements in the
same provision. Taken together, these statutory provisions
strongly suggests that § 1103(a)(11) clarified boundaries
between the federal government and the states. It did not
prohibit the executive branch from continuing to rely on
private detention centers.
C. AB 32 conflicts with the Secretary’s statutory power
to contract with private detention facilities.
“A state law is preempted where . . . ‘under the
circumstances of a particular case, the challenged law stands
as an obstacle to the accomplishment and execution of the
full purposes and objectives of Congress.’” Hughes, 136 S.
Ct. at 1297 (quoting Crosby, 530 U.S. at 373).
Shorn of its creative but ultimately unconvincing
arguments, California’s case against preemption withers.
We are left with these simple facts: the Secretary may
arrange for “appropriate” detention facilities (8 U.S.C.
§ 1231(g)); he or she has the power to contract out detention
operations as “necessary and proper” (6 U.S.C.
§ 112(b)(2)); and the federal government has sole authority
32 THE GEO GROUP V. NEWSOM
over immigration. The words used in the statute are
extremely broad and permissive, and the United States has
exclusive domain in this area. It is thus “clear and manifest”
that the Secretary has broad power and discretion to arrange
for appropriate places of detention, including the right to
contract with private companies to operate detention
facilities. Wyeth, 555 U.S. at 565.
AB 32 cannot stand because it conflicts with this federal
power and discretion given to the Secretary in an area that
remains in the exclusive realm of the federal government. It
bars the Secretary from doing what federal immigration law
explicitly permits him or her to do. See Ariz. Dream Act
Coal. v. Brewer, 757 F.3d 1054, 1062 (9th Cir. 2014)
(“Preemption analysis must contemplate the practical result
of the state law, not just the means that a state utilizes to
accomplish the goal.” (alteration omitted)). That is a classic
case of conflict preemption.
The procurement cases provide an apt analogy. Consider
our decision in Gartrell Construction Inc. v. Aubry, 940 F.2d
437 (9th Cir. 1991). There, California required federal
contractors to obtain state licensing. Id. at 438. To obtain
state licensing, contractors had to meet certain standards. Id.
at 439. At the same time, the Federal Acquisition
Regulations required contractors to meet certain similar but
potentially different standards. Id. We found conflict
preemption because the state, “through its licensing
requirements, [was] effectively attempting to review the
federal government’s responsibility determination.” Id.; see
also Leslie Miller, Inc. v. Arkansas, 352 U.S. 187, 190
(1956); United States v. Virginia, 139 F.3d 984, 987–89 (4th
Cir. 1998); Student Loan Serv. All. v. District of Columbia,
351 F. Supp. 3d 26, 62 (D.D.C. 2018).
THE GEO GROUP V. NEWSOM 33
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.
AB 32 also conflicts with federal law because it
improperly tries to cabin the Secretary’s statutory discretion.
Crosby v. National Foreign Trade Council provides a telling
example of what states cannot do. 530 U.S. 363 (2000). In
Crosby, Massachusetts barred state entities from buying
goods or services from someone identified as doing business
with Burma. Id. at 366. Shortly after, Congress passed a
law restricting Burma and granting the President power to
impose new (or remove old) sanctions at his general
discretion. Id. at 373–74. In finding conflict preemption,
the Court reasoned that Massachusetts’s law “undermines
the President’s intended statutory authority by making it
impossible for him to restrain fully the coercive power of the
national economy when he may choose to take the
discretionary action open to him.” Id. at 377. “Quite simply,
if the Massachusetts law is enforceable the President has less
to offer and less economic and diplomatic leverage as a
consequence.” Id.The lesson of Crosby is that where Congress grants a
federal officer broad discretion to pursue an objective (e.g.,
putting pressure on Burma), states may not cabin the
discretion of that officer if doing so would stand as an
obstacle to that objective.
That reasoning applies here. Congress has entrusted the
Secretary with balancing the many different objectives
involved with immigration. See, e.g., Arizona, 567 U.S.
at 395 (“Immigration policy can affect trade, investment,
34 THE GEO GROUP V. NEWSOM
tourism, and diplomatic relations for the entire Nation . . . .
[For example,] [p]erceived mistreatment of aliens in the
United States may lead to harmful reciprocal treatment of
American citizens abroad.”). To carry out these competing
objectives, Congress has given the Secretary discretion to
arrange for “appropriate” places of detention and to make
contracts as he or she determines to be “necessary and proper
to carry out [his or her] responsibilities.” 8 U.S.C.
§ 1231(g)(1); 6 U.S.C. § 112(b)(2). This discretion thus
includes the authority to contract with private companies to
operate detention facilities.
AB 32 denies the Secretary that discretion. And that
denial frustrates the Secretary’s efforts to balance the
competing objectives involved with immigration. As the
United States explained, ICE does not build its own
detention centers because immigration flow may surge or
taper depending on the season, economic conditions in the
United States and elsewhere, the current administration’s
foreign policy, and a host of other reasons. Seeking
flexibility, the Secretary made the policy decision to rely
exclusively on private detention centers in California. But
AB 32 denies the Secretary that policy choice, forcing the
agency to close all private detention facilities. Indeed, as
GEO rightly argues, California’s action does more than
“blunt the consequences” of the Secretary’s discretionary
action—it altogether prohibits the Secretary from taking
certain discretionary actions.
III. AB 32 Discriminates Against the Federal
Government in Violation of the
Intergovernmental Immunity Doctrine.
“Under the Supremacy Clause, ‘the activities of the
Federal Government are free from regulation by any state.’”
Boeing Co. v. Movassaghi, 768 F.3d 832, 839 (9th Cir. 2014)
THE GEO GROUP V. NEWSOM 35
(quoting Mayo v. United States, 319 U.S. 441, 445 (1943)).
All parties agree that under the intergovernmental immunity
doctrine, a state may not “regulate[] the United States
directly or discriminate[] against the Federal Government or
those with whom it deals.” Id. (quoting North Dakota v.
United States, 495 U.S. 423, 436 (1990) (plurality opinion)
(Stevens, J.)) (alteration in original). The parties’ agreement
ends there. The parties dispute whether the law
discriminates against the federal government and its
contractors.
We hold that, at the very least, AB 32 discriminates
against the federal government and thus violates
intergovernmental immunity.
“A State violates [the discriminatory aspect of
intergovernmental immunity] when it treats [the] state []
more favorably than [the] federal [government] and no
‘significant differences between the two classes justify the
differential treatment.’” Dawson v. Steager, 139 S. Ct. 698,
703 (2019) (quoting Davis v. Mich. Dep’t of Treasury,
489 U.S. 803, 814–816 (1989)). A state must “treat those
who deal with the [federal] Government as well as it treats
those with whom it deals itself.” Phillips Chem. Co. v.
Dumas Indep. Sch. Dist., 361 U.S. 376, 385 (1960); see also
California, 921 F.3d at 878.
The Supreme Court has held that discrimination exists
where the net effects of a state law discriminate against the
federal government. See Washington v. United States,
460 U.S. 536, 544–45 (1983). And under this net effects
analysis, AB 32 discriminates against the federal
government. 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
36 THE GEO GROUP V. NEWSOM
require California to close any of its private detention
facilities until 2028. 11
This discrimination occurs in two steps. First, § 9501
generally prohibits any person from operating a private
detention facility. See Cal. Penal Code § 9501. But then a
series of exemptions operate to permanently exempt some
state detention facilities, 12 while providing a ten-year phase-
out for private state prisons. See id. §§ 9502(a)–(b), (d), (f)–
(g), 9503, 9505(b), 5003.1(e), (c). State prisons may “renew
or extend” a private detention contract to comply with a
court-ordered population cap until January 1, 2028. Id.
§ 5003.1(e); 5003.1(c).
AB 32 facially discriminates against the federal
government. California created a blanket prohibition and
then exempted large swaths of state contractors in line with
its own preferences. Meanwhile, it provided no comparable
exceptions for the federal government. Put differently,
California is the only meaningfully “favored class” under
AB 32. Dawson, 139 S. Ct. at 705. AB 32 thus discriminates
11
At oral argument, counsel for California claimed that the state has
now closed its private prisons. But that fact is beside the point. There is
a difference between voluntary action and a legal mandate. AB 32 does
not require California to close its prisons before 2028.
12
A few exemptions are facially neutral. See Cal. Penal Code
§§ 9502(c), (e), 9503, 9505(a). But even the facially neutral exemptions
will often only practically apply to state entities. Additionally, under
Dawson, the only sub-sections relevant to the analysis are those that
discriminate, not those that are facially neutral. Dawson, 139 S. Ct.
at 705.
THE GEO GROUP V. NEWSOM 37
against the federal government and violates the
intergovernmental immunity doctrine. 13
The district court incorrectly applied an exemption-by-
exemption analysis to the discrimination analysis. To reach
that conclusion, the district court adopted the reasoning in
United States v. Nye County, Nevada, 178 F.3d 1080 (9th
Cir. 1999). But that reliance was misplaced. Nye County
merely reaffirmed the general principle that statutory
schemes should be viewed as a whole, 178 F.3d at 1083–84,
1087, and specified that where “the statute contains a series
of exemptions, some of which favor the federal government,
others of which favor the state, most of which are
unconcerned with the federal/state distinction,” then the
court focuses “on the individual exemption to determine
whether each taken on its own terms discriminates.” Id.
at 1088.
Nye County does not apply here. Unlike in Nye County,
here, AB 32, taken as a whole, discriminates against the
federal government. Nor are there cross-cutting exemptions:
none of the exemptions expressly benefit the federal
government alone. And the great majority of the exemptions
13
The dissent suggests there are significant differences between
California and the United States that justify differential treatment. We
disagree with the dissent’s framing of the issue. The law as written
allows only state prisons to “renew or extend” private detention contracts
“to comply with the requirements of any court-ordered population cap.”
Cal. Penal Code § 5003.1(e). The text of the exemption is not limited to
court orders existing at the time of enactment; it carves out an exemption
for “any court-ordered population cap.” Id. If federal detention facilities
are one day subjected to such an order, they still would not qualify for
§ 5003.1(e)’s exemption. The exemption thus does not differentiate
based on whether an entity is under a court-ordered population cap. It
instead hinges on which governmental entity is operating the detention
facility. See Dawson, 139 S. Ct. at 706.
38 THE GEO GROUP V. NEWSOM
are not even facially neutral but expressly benefit the state.
As GEO rightly points out, “If the discrimination analysis
focused on each statutory exception in isolation, a state could
easily evade the intergovernmental-immunity doctrine.”
The district court also erred in holding that § 5003.1 was
relevant here. According to the district court, § 5003.1
benefits the federal government because it prevents
California (and only California) from using out-of-state
detention facilities. But § 5003.1 does not provide an
exemption to the federal government. It merely provides
another limitation on California. And California can
partially avoid even this limitation by relying on § 5003.1(e),
which exempts state prisons subject to a court-ordered
population cap. 14
* * * * *
Because we hold that AB 32 discriminates against the
federal government, we need not reach whether it “directly
regulates” the United States under the intergovernmental
immunity doctrine. As the parties’ briefing suggests, it
appears unsettled whether a “legal incidence” test or a
14
GEO also makes a separate argument that AB 32’s limitations do
not apply because the contract falls into California Penal Code Section
9505(a)’s exception, which specifies that AB 32’s prohibition does not
apply to a “private detention facility that is operating pursuant to a valid
contract with a governmental entity that was in effect before January 1,
2020, for the duration of that contract, not to include any extensions
made to or authorized by that contract.” Without citing any precedent,
GEO asserts that its contract options do not constitute “extensions” under
Section 9505(a). But ICE may terminate its contract every five years, so
it follows that each time ICE declines to terminate the contract it is
extending that contract. Thus, the district court did not abuse its
discretion in finding that GEO’s contract does not fall under Section
9505(a)’s exemption.
THE GEO GROUP V. NEWSOM 39
“substantially interference” analysis applies. See, e.g., North
Dakota, 495 U.S. at 423, 451–52 (competing plurality
opinions of Justice Stevens and Justice Brennan); Boeing
Co. v. Movassaghi, 768 F.3d 832, 839–40 (9th Cir. 2014)
(ruling that the state law “regulate[d] [the federal
government’s] cleanup activities directly” but also noting
that the law “interferes with the functions of the federal
government” (emphasis added)); California, 921 F.3d at 880
(citing cases in which the state law “directly or indirectly
affected the operation of a federal program or contract”).
IV. The Other Injunction Factors Favor Appellants.
In deciding whether to grant a preliminary injunction,
courts consider the likelihood of success on the merits as the
most important factor. Disney Enters. v. VidAngel, Inc.,
869 F.3d 848, 856 (9th Cir. 2017). The United States and
GEO are likely to prevail on the merits, as detailed above.
The remaining injunction factors also tip in their favor. 15
15
To be entitled to injunctive relief, the United States and GEO must
also establish that, without that relief, they are likely to suffer irreparable
harm and the balance of equities tip in their favor. Winter, 555 U.S.
at 20. “If we were in doubt whether [the United States and GEO]
satisfied the remaining requirements for injunctive relief, we would
remand to allow the district court to assess the likelihood of irreparable
injury and to balance the equities.” Klein v. City of San Clemente,
584 F.3d 1196, 1207 (9th Cir. 2009). Because “it is clear that these
requirements are satisfied,” we complete the preliminary injunction
analysis here. See id. at 1207–08 (assessing irreparable harm and
balancing the equities even though the district court decision rested
solely on a finding that a movant had not established a likelihood of
success on the merits).
40 THE GEO GROUP V. NEWSOM
A. The United States suffers irreparable harm.
Constitutional injuries are irreparable harms. See, e.g.,
Nelson v. Nat’l Aeronautics & Space Admin., 530 F.3d 865,
882 (9th Cir. 2008), rev’d on other grounds, 562 U.S. 134(2011). Because AB 32 facially discriminates against the
federal government, the United States suffers an irreparable
harm.
California argues that this irreparable injury is not
immediately occurring. Because of AB 32’s safe harbor
provision, California argues that the appellants cannot suffer
an irreparable injury until 2024, the date of the contracts’
first extension option. But that the injury will occur in the
future is by itself irrelevant. A party “does not have to await
the consummation of threatened injury to obtain preventive
relief. If the injury is certainly impending, that is enough.”
Pennsylvania v. West Virginia, 262 U.S. 553, 593 (1923).
Here, it is indisputable that the United States cannot extend
its contracts with GEO and its other contractors in 2024.
B. Balance of equities and the public interest favor the
United States.
“Finally, by establishing a likelihood that [AB 32]
violates the U.S. Constitution, [Appellants] have also
established that both the public interest and the balance of
the equities favor a preliminary injunction.” Ariz. Dream
Act Coal., 757 F.3d at 1069.
CONCLUSION
We profess no opinion on the wisdom of California’s law
banning private detention centers or the policy implications
of so-called “for-profit prisons.” California can enact laws
that it believes are best for its people. But California cannot
THE GEO GROUP V. NEWSOM 41
intrude into the realm of the federal government’s exclusive
powers to detain undocumented and other removable
immigrants if the state law conflicts with federal law and
violates the intergovernmental immunity doctrine. The
district court’s orders granting Appellees’ motions to
dismiss and for judgment on the pleadings and denying
Appellants’ motion for a preliminary injunction are
REVERSED. The case is REMANDED for further
proceedings consistent with this opinion.
MURGUIA, Circuit Judge, dissenting:
“A preliminary injunction is an extraordinary remedy
never awarded as of right.” Winter v. Nat. Res. Def. Council,
555 U.S. 7, 24 (2008). In this case, the United States and the
GEO Group, Inc. (“GEO”), a company that operates private,
for-profit detention centers, contend that they are entitled to
a preliminary injunction preventing enforcement of
California’s Assembly Bill 32 (“AB 32”), which prohibits
the operation of “private detention facilities” within the
state. The district court granted the motion for a preliminary
injunction in part and denied the motion in part. The
majority concludes that this was an abuse of discretion. I
disagree, and I respectfully dissent.
I. Background
This case concerns California’s ability to regulate private
detention facilities within its borders, which California
contends is a matter of public health and safety. In response
to reports of substandard conditions, inadequate medical
42 THE GEO GROUP V. NEWSOM
care, sexual assaults, and deaths in for-profit facilities, 1 the
California legislature has taken steps to limit their operation
within the state. California is not the only state to do so:
Illinois, Nevada, New York, and Washington have all passed
legislation limiting or preventing the operation of private
prisons. 2
California’s efforts culminated in AB 32, which
generally prevents the operation of private detention
facilities in the state of California. AB 32 has three parts:
Section 1 prevents the California Department of Corrections
and Rehabilitation (“CDCR”) from entering or renewing a
1
According a 2016 report published by the U.S. Department of
Justice’s Office of the Inspector General, “contract prisons incurred
more safety and security violations per capita than comparable
[government-run] institutions” between 2011 and 2014. Dep’t of Justice,
Off. of Inspector Gen., Review of the Federal Bureau of Prisons’
Monitoring of Contract Prisons i, 3–4, 44 (Aug. 2016),
https://oig.justice.gov/reports/2016/e1606.pdf; see also Dep’t of
Homeland Sec., Off. of Inspector Gen., ICE Does Not Fully Use
Contracting Tools to Hold Detention Facility Contractors Accountable
for Failing to Meet Performance Standards 7 (Jan. 2019),
https://www.oig.dhs.gov/sites/default/files/assets/2019-02/OIG-19-18-
Jan19.pdf (concluding that “ICE does not adequately hold detention
facility contractors accountable for not meeting performance
standards”). These health, safety, and security concerns are the focus of
several of the amicus briefs in this case, which highlight various
governmental reports, news stories, and firsthand accounts of the
conditions in private prisons and immigration detention centers.
2
See Rachel La Corte, Washington State Governor OKs Bill
Banning For-Profit Jails, AP News (Apr. 14, 2021),
https://apnews.com/article/legislature-prisons-washington-legislation-
immigration-ceda36fec7dfc3a56c8fe8f7a66d3d76; Illinois Way
Forward Act, S.B. 667, 102d Gen. Assemb. (Ill. 2021); A.B. 183, 2019
Leg., 80th Sess. (Nev. 2019); A.B. 4484B, 2007–2008 Leg., Reg. Sess.
(N.Y. 2007); H.B. 1090, 67th Leg., Reg. Sess. (Wash. 2021).
THE GEO GROUP V. NEWSOM 43
contract with a “private, for-profit prison facility located in
or outside of the state,” with some exceptions, see Cal. Penal
Code § 5003.1; Section 2 prohibits “a person” from
operating “a private detention facility within the state,” with
various exceptions, see id. §§ 9501–9505; and Section 3
provides that AB 32’s provisions are severable. See 2019
Cal. Legis. Serv. ch. 739 (A.B. 32). AB 32 also contains a
“safe harbor” exempting any facility “that is operating
pursuant to a valid contract with a governmental entity that
was in effect before January 1, 2020, for the duration of that
contract.” Cal. Penal Code § 9505(a).
The United States and GEO sued to prevent the
enforcement of AB 32 with respect to three groups of
facilities in the state of California: Bureau of Prisons
(“BOP”) facilities, U.S. Marshals Service (“USMS”)
facilities, and Immigration and Customs Enforcement
(“ICE”) facilities. At the core of their respective complaints,
the United States and GEO argue that the state of California
has impermissibly interfered with federal operations.
Specifically, they contend that AB 32 is preempted by
federal law and that AB 32 violates intergovernmental
immunity by directly regulating—or at least discriminating
against—the federal government. The district court granted
a preliminary injunction with respect to the USMS facilities
but denied injunctive relief with respect to the BOP and ICE
facilities. 3 Only the ICE facilities are at issue in this appeal.
3
With respect to the USMS facilities, the district court concluded
that AB 32 was preempted by a federal statute allowing the Attorney
General to make payments “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.” See 18 U.S.C. § 4013(a) (emphasis
44 THE GEO GROUP V. NEWSOM
II. Our Review Is “Limited and Deferential.”
As the majority acknowledges, we are not tasked with
determining whether AB 32 is good policy. Nor are we
tasked with definitively resolving the United States’s and
GEO’s claims that AB 32 is conflict-preempted and violates
intergovernmental immunity. Instead, we are presented with
the narrow question of whether the United States and GEO
are entitled to temporarily prevent the enforcement of AB 32
with respect to ICE facilities while this litigation plays out
in the district court. More specifically, we must determine
whether the district court abused its discretion in concluding
they are not.
To obtain a preliminary injunction, the United States and
GEO must demonstrate that (1) they are likely to succeed on
the merits of their conflict-preemption or intergovernmental-
immunity claims, (2) they would suffer irreparable harm
absent injunctive relief, and (3) the balance of equities and
the public interest favor an injunction. Winter, 555 U.S.
at 20; see also Drakes Bay Oyster Co. v. Jewell, 747 F.3d
1073, 1092 (9th Cir. 2014). “We review a district court’s
decision to grant or deny a preliminary injunction for abuse
of discretion.” Roman v. Wolf, 977 F.3d 935, 941 (9th Cir.
2020) (per curiam). “Our review is limited and deferential.”
United States v. California, 921 F.3d 865, 877 (9th Cir.
2019) (quoting Sw. Voter Registration Educ. Project v.
added). By contrast, the district court explained that there was no such
“clear and manifest” congressional intent to preempt AB 32 with respect
to the ICE facilities because there was no mention of private entities in
the statutes governing immigration detention. As for the BOP facilities,
the district court concluded that the United States’s claims were not
justiciable. The United States does not challenge this determination on
appeal.
THE GEO GROUP V. NEWSOM 45
Shelley, 344 F.3d 914, 918 (9th Cir. 2003) (en banc) (per
curiam)).
The district court acted within its discretion in denying a
preliminary injunction because the United States and GEO
are not likely to succeed on their conflict-preemption and
intergovernmental-immunity claims. Accordingly, I part
ways with the majority as to the de novo analysis of the
conflict-preemption and intergovernmental-immunity
claims. 4 But even if I could join in the majority’s analysis
on the merits—which I conclude, for the reasons set out
below, is inconsistent with our case law—I cannot endorse
the majority’s choice to proceed with de novo review of the
remaining preliminary-injunction factors, 5 which goes far
4
I agree with the majority that the United States’s and GEO’s claims
are justiciable. See Thomas v. Anchorage Equal Rights Comm’n,
220 F.3d 1134, 1139 (9th Cir. 2000) (explaining that we may consider
whether plaintiffs face “a realistic danger of sustaining a direct injury as
a result of the statute’s operation or enforcement” in determining
whether there is a constitutional “case or controversy” over which we
can exercise jurisdiction) (citation omitted); Majority Op. 15. Nobody
disputes that AB 32 will prevent GEO from operating its existing ICE
facilities as “private detention facilities” in California at some point—
the only question is when.
5
The majority maintains that it is not engaging in de novo review
“of the denial of a preliminary injunction.” Majority Op. 13 n.1. But it
is undisputed that the district court did not consider the harm to the
plaintiffs absent a preliminary injunction as to the ICE facilities, nor the
balance of the equities with respect to these ICE facilities. The majority
undertakes this analysis in the first instance, which constitutes de novo
review.
I also cannot agree that the United States and GEO so clearly have
satisfied the requirements for a preliminary injunction as to negate the
need to remand to the district court. See Majority Op. 39 n.15. The
situation at bar is a far cry from Klein v. City of San Clemente—the case
46 THE GEO GROUP V. NEWSOM
beyond the “limited and deferential” abuse-of-discretion
review our case law prescribes. See id. Therefore, I
respectfully dissent with respect to the majority’s ultimate
preliminary-injunction analysis as well.
III. AB 32 Is Likely Not Conflict-Preempted.
Nothing in AB 32 prevents the federal government from
apprehending and detaining noncitizens who are present in
the country unlawfully. Yet the United States and GEO
insist that they are likely to succeed on the merits of their
challenge to AB 32 because AB 32 is preempted by federal
immigration law. In accepting this argument, the majority
adopts a narrow view of AB 32 that is not justified by the
legislation’s text and context nor our case law. I would apply
the presumption against preemption and conclude that
AB 32 is not conflict-preempted.
A. The presumption against preemption applies.
Our preemption inquiry is rooted in the Supremacy
Clause, but it is also sensitive to principles of federalism,
under which “both the National and State Governments have
elements of sovereignty the other is bound to respect.” See
cited by the majority—where the parties seeking an injunction faced the
loss of their First Amendment right to engage in time-sensitive political
speech. See id. (citing 584 F.3d 1196, 1207–08 (9th Cir. 2009)). No
such time-sensitive issue exists here. The likelihood of irreparable harm
is particularly uncertain given that the contracts at issue do not expire for
several years and may even continue past 2024. See discussion infra
Section V. Unresolved issues, like the remaining length of the contracts,
are precisely why the case should be remanded to the district court. Cf.
Evans v. Shoshone-Bannock Land Use Pol’y Comm’n, 736 F.3d 1298,
1307 (9th Cir. 2013) (citation omitted) (noting that the grant or denial of
a preliminary injunction “is a matter committed to the discretion of the
trial judge”).
THE GEO GROUP V. NEWSOM 47
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 is known as the presumption
against preemption, and it holds true even if the state law
“‘touche[s] on’ an area of significant federal presence,” such
as immigration. Knox, 907 F.3d at 1174 (quoting Puente
Arizona v. Arpaio, 821 F.3d 1098, 1104 n.5 (9th Cir. 2016)).
States’ historic police powers include regulation of
health and safety. Wyeth, 555 U.S. at 565 n.3; Puente
Arizona, 821 F.3d at 1104. To that end, in United States v.
California, we upheld a state law providing for inspections
of federal immigration detention facilities against a
preemption challenge, 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.
Citing California, the district court here determined that
AB 32 regulated “conditions in detention facilities located in
California.” The district 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 detainees within the state’s borders. 6 The district
6
This legislative history included committee analysis referring to
the 2016 Department of Justice report documenting “higher rates of
inmate-on-inmate and inmate-on-staff assaults, as well as higher rates of
staff use of force,” at private prisons. See Sen. Judiciary Comm., Bill
Analysis of Assembly Bill 32, 2019–2020 Reg. Sess., at 7 (July 2, 2019);
see also Review of the Federal Bureau of Prisons’ Monitoring of
48 THE GEO GROUP V. NEWSOM
court concluded that AB 32 regulates health and safety, falls
within California’s historic police powers, and is entitled to
the presumption against preemption.
This result is consistent with our case law. To be sure,
AB 32 goes further than the state health-inspection
regulations at issue in California. But the majority fails to
explain why its narrow view of AB 32—as a regulation of
“the federal government’s detention of undocumented and
other removable immigrants”—should prevail over the
district court’s broader view of AB 32 as regulating detainee
health and safety. See Majority Op. 17. AB 32 says
absolutely nothing about immigration, and it does not
mention the federal government. 7 Therefore, there is no
justification for treating AB 32 as a regulation of
immigration rather than one of health and safety.
Moreover, we recently explained that “effects in the area
of immigration” do not prevent us from applying the
presumption against preemption. Puente Arizona, 821 F.3d
at 1104. The majority slices and dices AB 32 in order to
frame it as a regulation of immigration detention, but that is
particularly odd considering the United States sought a
preliminary injunction with respect to BOP and USMS
facilities as well—and obtained an injunction as to the
Contract Prisons, supra note 1, at 18. Like the district court, we may
take judicial notice of legislative history. See Anderson v. Holder,
673 F.3d 1089, 1094 n.1 (9th Cir. 2012).
7
On its face, AB 32’s prohibitions on private detention apply to
(1) “a person” operating a private detention facility, which is necessarily
a private entity, and (2) state agency CDCR, which must phase out
private prisons by the year 2028 and is prevented from renewing
contracts with private detention facilities unless certain exceptions apply.
Cal. Penal Code §§ 5003.1, 9501.
THE GEO GROUP V. NEWSOM 49
USMS facilities—in this very litigation. Although AB 32
applies to immigration detention facilities in California, it
certainly does not apply only to immigration detention
facilities. Rather, AB 32 applies to a variety of federal and
state facilities, including the BOP and USMS facilities the
district court considered earlier. The majority offers no
support for its decision to focus narrowly on the effect of
AB 32 on only one type of facility—ICE detention centers. 8
At the end of the day, two concerns seem to animate the
majority’s conclusion that the presumption against
preemption should not apply: the potential burden on the
federal government if private companies may no longer
operate detention facilities, and the nagging suspicion that
California was targeting the federal government’s
immigration detention facilities with AB 32. Majority Op.
16–18. But neither of these concerns is relevant to the
presumption against preemption.
Consider the majority’s hypothetical “open space time”
law as an illustration. The majority posits that if we accepted
8
The majority suggests that the “language” of a state law is often
“conclusive” in determining whether the law is an exercise of the state’s
historic police power, but that the context of the state law is also relevant
and may be able to displace the plain text. Majority Op. 16. It is doubtful
that this is the proper test, given that the case cited in support of this
proposition appears to focus on the language of the federal statute as an
indication of Congress’s preemptive intent. See City of Auburn v. U.S.
Gov’t, 154 F.3d 1025, 1028–29 (9th Cir. 1998) (rejecting a plaintiff’s
reliance on legislative history of a federal statute, rather than “the
language of the statute itself,” in determining whether a state law was
expressly preempted) (citation omitted). But in any event, the plain
language of AB 32 is neutral and not targeted at immigration, and the
context of its enactment suggests that California was concerned with the
health and safety of detainees, which is a matter within its historic police
powers.
50 THE GEO GROUP V. NEWSOM
California’s argument that it was exercising its traditional
police powers by enacting AB 32, we would also be required
to allow the state of Colorado to mandate eight hours of
fresh-air time at the federal “supermax” prison in that state.
Majority Op. 18 n.2. Of course, such a regulation would
very obviously relate to health and safety of prisoners, a
matter of historic state concern. That would not mean,
though, that the federal supermax prison—which is operated
by the BOP—would be required to provide “the most
dangerous terrorists and criminals” eight hours outdoors
every day. The presumption against preemption can be
overcome, as discussed below, by clear and manifest
congressional intent to displace the state law. See Wyeth,
555 U.S. at 565. So, if BOP had its own conflicting
regulations—for instance, providing that supermax inmates
may only have one hour of “open space time”—then those
regulations would likely apply. That is not the case with
AB 32, because there is no specific federal statute or
regulation that AB 32 directly contradicts. 9 What’s more,
any such state regulation falling directly on federal officials
operating a federally owned facility would likely be subject
to the limits of the intergovernmental-immunity doctrine,
which is entirely separate from the conflict-preemption
analysis.
Of course, it is understood that a state cannot simply
assert that it is regulating “health and safety” in order to
9
The majority asserts that Congress has granted the Secretary of
Homeland Security authority to enter into contracts with private
detention facilities. Majority Op. 9. But, as discussed in more detail
below, the regulations and statutes the majority cites do not provide any
express statement of Congress’s intent for the Secretary to enter into such
contracts. To be clear, Congress has never expressly spoken on this
issue.
THE GEO GROUP V. NEWSOM 51
insulate any regulation from preemption. Majority Op. 17–
18. But nobody meaningfully disputes that the health,
safety, and welfare of detainees within a state is within the
state’s historic police powers. There is no support in our
case law for narrowing our view of AB 32 to its potential
effects in the immigration context. Therefore, as did the
district court, I would apply the presumption against
preemption.
B. Congress has not expressed “clear and manifest”
intent to overcome the presumption.
But the presumption against preemption does not end our
inquiry, since “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) (concluding that
Arizona’s policy of denying drivers’ licenses to DACA
recipients was preempted). When the presumption applies,
we must determine whether Congress expressed “clear and
manifest” intent in federal immigration statutes to preempt
AB 32. Puente Arizona, 821 F.3d at 1104. Because
Congress has expressed no such clear and manifest intent,
AB 32 is not conflict-preempted.
The United States and GEO rely on a handful of statutes
and regulations to establish Congress’s purportedly “clear
and manifest” intent to preempt AB 32. Among these
federal enactments are 8 U.S.C. § 1231(g)(1), which allows
the Secretary of Homeland Security 10 to “arrange for
10
Although § 1231(g) refers to the Attorney General, the statute
predates the creation of the Department of Homeland Security. This
authority now resides with the Secretary of Homeland Security. See
Clark v. Martinez, 543 U.S. 371, 374 n.1 (2005).
52 THE GEO GROUP V. NEWSOM
appropriate places of detention for aliens detained pending
removal or a decision on removal,” and 6 U.S.C.
§ 112(b)(2), which allows the Secretary to “make contracts,
grants, and cooperative agreements.” The district court
concluded that this collection of immigration, criminal, and
contract law did not “clearly and manifestly express[]”
congressional intent to allow federal officials to enter into
contracts for private immigration detention facilities.
Therefore, the district court determined that AB 32’s general
prohibition on private detention facilities was not preempted
with respect to the ICE facilities at issue here.
While I do not disagree with the majority’s conclusion
that the Secretary of Homeland Security may enter into
contracts for private immigration detention, see Majority
Op. 20–31, that is beside the point. Even if Congress has not
prevented private immigration detention, Congress certainly
has not clearly authorized such detention either. Whether
the Secretary is allowed to enter into contracts is not
dispositive—rather, our inquiry turns on whether Congress
clearly spoke with respect to the private detention facilities
covered by AB 32. At bottom, the collage of statutes and
regulations allowing the Secretary to enter into contracts and
other agreements for detention of noncitizens says nothing
about private companies like GEO, so there is nothing
expressing the sort of “clear and manifest” intent necessary
to prevent the operation of AB 32’s general prohibition on
private detention.
To understand why Congress’s general statement that the
Secretary of Homeland Security may arrange for
“appropriate places of detention,” 8 U.S.C. § 1231(g)(1), is
not enough to provide “clear and manifest” intent to preempt
AB 32, consider the differences between the statutes
governing ICE detention and USMS detention—both of
THE GEO GROUP V. NEWSOM 53
which were initially at issue in this case. The USMS statute
provides:
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.
18 U.S.C. § 4013(a) (emphasis added). Notably, the district
court found this language particularly persuasive in
concluding that AB 32 was conflict-preempted as to the
USMS facilities, explaining that “Congress clearly
authorized USMS to use private detention facilities in
limited circumstances,” and citing additional provisions of
§ 4013 that outline specific eligibility requirements for “a
private entity” housing USMS detainees. See 18 U.S.C.
§ 4013(c)(2). By contrast, the immigration-detention statute
does not mention “private entities” at all; it explains only that
the Secretary may spend funds to “acquire, build, remodel,
repair, and operate facilities.” 8 U.S.C. § 1231(g)(1).
Another section of the immigration statute, 8 U.S.C.
§ 1103(a)(11), authorizes federal payments for, among other
things, “housing, care, and security of persons detained” by
the Department of Homeland Security “under an agreement
with a State or political subdivision of a State.” Again,
unlike the USMS statute, this provision does not expressly
mention contracts with private entities. In the absence of a
clear statement from Congress in the statutes relating to
immigration detention, the district court did not err in
54 THE GEO GROUP V. NEWSOM
concluding that there was no “clear and manifest” intent that
could overcome the presumption against preemption with
respect to the ICE facilities.
The majority locates Congress’s “clear and manifest”
intent in general, permissive statutory language. See, e.g.,
8 U.S.C. § 1231(g)(1) (allowing Secretary to arrange for
“appropriate places of detention”). According to the
majority, AB 32 conflicts with Congress’s intent to provide
the Secretary with broad discretion in the field of
immigration detention. Majority Op. 32. But our case law
does not support the “conflict with discretion” rule that the
majority sets out here. In each of the cases the majority
discusses, federal law provided a separate and
comprehensive scheme with which a state law interfered. In
Crosby v. National Foreign Trade Council, 530 U.S. 363(2000), 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. Id. at 377–78 (“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 (9th Cir. 1991), there were separate but “similar” federal
licensing requirements with which a state licensing
requirement conflicted. Id. at 439; Majority Op. 32. Neither
of these cases establishes a bright-line rule that interfering
with the federal government’s discretion 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 GEO GROUP V. NEWSOM 55
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)). The majority’s reliance on
AB 32’s conflict with a federal official’s “discretion,”
unfortunately, veers into the sort of far-reaching inquiry the
Court cautioned against. In the specific context of
immigration detention, it is far from clear whether Congress
intended the Secretary of Homeland Security to enter into
contracts with private detention facilities. In my view, that
should resolve our preemption inquiry. And the fact that the
majority spends approximately a quarter of its entire opinion
simply establishing that the Secretary is not prevented from
entering into such contracts in the first place, Majority Op.
20, suggests that Congress’s intent is not so “clear and
manifest” in this respect.
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.
In other words, AB 32 is not preempted, 11 and the United
11
Although the district court also addressed the possibility of field
preemption and concluded that AB 32 was not preempted based on the
federal government’s occupation of the field of immigration detention,
the United States and GEO do not specifically challenge this ruling on
appeal. So, like the majority, I address only conflict preemption here.
See Acosta-Huerta v. Estelle, 7 F.3d 139, 144 (9th Cir. 1992) (holding
that issues raised without argument in an opening brief are abandoned on
appeal).
56 THE GEO GROUP V. NEWSOM
States and GEO are not entitled to a preliminary injunction
on this claim.
IV. AB 32 Likely Does Not Violate Intergovernmental
Immunity.
By its terms, AB 32 applies only to the state department
of corrections and private “person[s].” Cal. Penal Code
§§ 5003.1, 9501. However, the United States and GEO
insist that AB 32 violates the principles of intergovernmental
immunity by directly regulating, or at least discriminating
against, the federal government. The majority concludes
that AB 32 discriminates against the federal government in
favor of the state, and that we therefore need not decide
whether AB 32 directly regulates the federal government.
Again, I respectfully disagree.
A. AB 32 does not discriminate against the federal
government.
The doctrine of intergovernmental immunity is also
rooted in the Supremacy Clause. Boeing Co. v. Movassaghi,
768 F.3d 832, 839 (9th Cir. 2014). There are two types of
intergovernmental-immunity challenges: A state law
violates intergovernmental immunity if the state (1) directly
regulates the federal government or (2) discriminates against
the federal government “or those with whom it deals.” North
Dakota v. United States, 495 U.S. 423, 435 (1990) (Stevens,
J.) (plurality opinion). Here, the district court rejected both
the direct-regulation and the discrimination challenges.
Following the majority’s lead, I address the discrimination
challenge first.
The “discrimination” type of intergovernmental
immunity provides that a state regulation is unlawful when
it “discriminate[s] against the federal government and
THE GEO GROUP V. NEWSOM 57
burden[s] it in some way.” California, 921 F.3d at 880. “It
is not implicated when a state merely references or even
singles out federal activities in an otherwise innocuous
enactment.” Id. at 881. “[A] state ‘does not discriminate
against the Federal Government and those with whom it
deals unless it treats someone else better than it treats
them.’” Id. (quoting Washington v. United States, 460 U.S.
536, 544–45 (1983)). But a state treating someone else
better than the federal government does not amount to
discrimination when “significant differences” exist that
justify different treatment. See Davis v. Mich. Dep’t of
Treasury, 489 U.S. 803, 816 (1989).
AB 32’s prohibition on the operation of private detention
facilities is facially neutral: “Except as otherwise provided
in this title, a person shall not operate a private detention
facility within the state.” Cal. Penal Code § 9501. However,
the United States and GEO contend that the exceptions to the
statute effectively discriminate by treating the state’s
detention facilities better than their federal counterparts.
They assert that the effect of AB 32’s exceptions, many of
which apply to facilities operating pursuant to certain state
laws or licensing schemes, is to require the federal
government to close all its facilities while requiring
California to close none. This assertion is belied by the
record, and in any event, misses a key nuance of our case
law: The relevant inquiry is not only whether AB 32 treats
federal facilities differently from state facilities, but also
whether the different treatment is justified based on
significant differences between the two types of facilities.
See Davis, 489 U.S. at 816.
As the district court explained, each of the exceptions in
AB 32 is justified by the characteristics of the facilities
exempted. AB 32 enacts an across-the-board prohibition on
58 THE GEO GROUP V. NEWSOM
the operation of a “private detention facility,” which is
defined as “any facility in which persons are incarcerated or
otherwise involuntarily confined for the purposes of
execution of a punitive sentence imposed by a court or
detention pending a trial, hearing, or other judicial or
administrative proceeding.” Cal. Penal Code §§ 9500(a),
9501. It then exempts certain types of facilities: juvenile
rehabilitative centers, id. § 9502(a); civil-commitment
facilities, id. § 9502(b); educational, vocational, and medical
facilities, id. § 9502(c); residential care facilities, id.
§ 9502(d); school facilities, id. § 9502(e); and quarantine
facilities, id. § 9502(f). Even if the term “private detention
facilities” would encompass all these facilities, it is not
difficult to see why the health and safety concerns animating
AB 32 would not necessarily apply to these exempted
facilities, many of which would already be subject to
separate state licensing and health regulations. In other
words, there are “significant differences” between these
wide-ranging educational and rehabilitative facilities and the
“private detention facilities” subject to AB 32’s prohibitions.
See Davis, 489 U.S. at 816. And several of these exemptions
may be used by the federal government; facially, the
exceptions for educational, vocational, medical, and school
facilities are not limited to state-licensed entities. See Cal.
Penal Code § 9502(c), (e); cf. United States v. Nye County,
178 F.3d 1080, 1088 (9th Cir. 1999) (explaining that a tax
exemption for contractors who work with state universities
was not discriminatory because there were no analogous
federal institutions in the state).
The United States and GEO focus much of their
argument on § 5003.1(e), which allows CDCR—and only
CDCR—to renew or extend a contract with a “private, for-
profit prison facility” to “comply with the requirements of
any court-ordered population cap.” California’s state
THE GEO GROUP V. NEWSOM 59
prisons are currently subject to a court order requiring
CDCR to “reduce its prison population to 137.5% of design
capacity.” See Brown v. Plata, 563 U.S. 493, 501–02
(2011); Coleman v. Brown, 952 F. Supp. 2d 901, 934 (E.D.
Cal. 2013) (noting that ongoing monitoring of “design
capacity ratio” is necessary). As the United States and GEO
point out, this means that CDCR—unlike the federal
government—may be allowed to renew contracts with
private prisons despite AB 32. But again, this exemption
only constitutes discrimination—and a violation of
intergovernmental immunity—if there are no “significant
differences” between the exempted state facilities and the
federally affiliated facilities. Davis, 489 U.S. at 816. Here,
as the district court recognized, there is a significant
difference: CDCR is under a court-ordered population cap;
ICE facilities are not. 12
I agree in principle with the majority that the proper
approach is to view AB 32 as a whole in determining
whether it discriminates. Nye County, 178 F.3d at 1087–88
(explaining that we assess a challenged exemption “in light
of the . . . statute as a whole”); see North Dakota, 495 U.S.
at 438 (Stevens, J.) (“A state provision that appears to treat
the Government differently on the most specific level of
12
The federal government is subject to several court orders that
touch on immigration detention and proceedings, but none relate to
facility capacity or population size. See Gonzalez v. Sessions, 325 F.R.D.
616 (N.D. Cal. 2018) (requiring the government to provide a bond
hearing to certain detainees after 180 days of detention); Franco-
Gonzalez v. Holder, No. CV 10-02211 DMG (DTBx), 2013 WL
8115423 (C.D. Cal. Apr. 23, 2013) (requiring bond hearings and
“qualified representatives” for certain immigration detainees); Orantes-
Hernandez v. Meese, 685 F. Supp. 1488 (C.D. Cal. 1988) (preventing
federal government from pressuring Salvadoran nationals to accept
voluntary departure).
60 THE GEO GROUP V. NEWSOM
analysis may, in its broader regulatory context, not be
discriminatory.”); Majority Op. 37. But it is not clear how
that would change the result the district court reached here.
Of course, the “significant differences” justifying particular
exemptions are still relevant to our inquiry. And to the
extent we are concerned with the “net result” of AB 32, see
Washington, 460 U.S. at 538–39—what the majority calls
“net effects”—it does seem clear that the result of AB 32 will
be the closure of both state and federal private detention
facilities that are not medical or educational in nature.
Majority Op. 35. That is because it is undisputed that CDCR
is currently operating well under the court-ordered
population cap and is therefore subject to the broader
prohibition on renewing or extending contracts for private
detention. Cal. Dep’t of Corr. & Rehab.,
Population Reports, https://www.cdcr.ca.gov/research/popu
lation-reports-2/ (last accessed Aug. 12, 2021) (reporting
that CDCR was operating at 111.3% of design capacity as of
August 11, 2021). This data is consistent with California’s
representations in its briefing and at oral argument that the
population-cap exemption has not excused CDCR from
closing any private facilities. The majority characterizes the
reality on the ground as “beside the point,” because it reads
§ 5003.1(e) to render compliance with AB 32 optional for
the state. Majority Op. 36 n.11. However, § 5003.1(e) is not
optional. It allows for extensions or renewals of CDCR’s
contracts with private prisons only “in order to comply with
the requirements of any court-ordered population cap.”
Because CDCR continues to operate at a capacity well under
the court-ordered population cap in Brown v. Plata, CDCR
cannot currently refuse to close private facilities based on
that population cap. What’s more, nothing in AB 32 allows
CDCR to enter into new contracts with private facilities once
THE GEO GROUP V. NEWSOM 61
it closes existing facilities—even if CDCR exceeds the
court-ordered population cap in the future. 13
Finally, the majority suggests that California could have
provided more exemptions that benefit the federal
government. Majority Op. 36–37. That may be, but nothing
in our intergovernmental-immunity case law requires a state
to provide exceptions that favor the federal government.
And the lack of exceptions that treat the federal government
better than someone else does not constitute discrimination.
In sum, the district court correctly determined that AB 32
does not discriminate against the federal government but
instead effects a general prohibition on private detention
facilities. Moreover, even if AB 32 discriminated through
its use of exemptions that favored the state over the federal
government, I would decline to adopt the majority’s
approach in enjoining AB 32’s operation given the existence
of AB 32’s severability clause. If AB 32’s exemptions are
the problem, we could simply sever the problematic
exemptions rather than enjoining AB 32 altogether. See
Vivid Ent., LLC v. Fielding, 774 F.3d 566, 574 (9th Cir.
2014) (explaining that California law directs us to consider
13
The majority suggests that because “[t]he text of the exemption is
not limited to [court-ordered population caps] existing at the time of
enactment, . . . if federal detention facilities are one day subject to such
an order, they still would not qualify for § 5003.1(e)’s exemption.”
Majority Op. 37 n.13. But this is equally true for any facility placed
under a future court-ordered population cap, not just federal detention
facilities. If the current court-ordered population cap on the California
system is lifted, AB 32’s exemption would cease to apply to CDCR. Any
remaining CDCR contracts would expire. And even if a new court-
ordered cap were later instituted, the exemption would not allow CDCR
to enter into new contracts. See Cal. Penal Code § 5003.1(e) (allowing
only for extension or renewal of existing contracts).
62 THE GEO GROUP V. NEWSOM
the inclusion of a severability clause in state or local
legislation, which establishes a presumption in favor of
severance). Alternatively, as California argues, we could
require the state to extend AB 32’s exemptions—for
example, the population-cap exemption—to the federal
government. Davis, 489 U.S. at 818.
B. AB 32 does not directly regulate the federal
government.
Because AB 32 does not discriminate against the federal
government, the next question is whether AB 32 directly
regulates the federal government, which could also violate
intergovernmental immunity. AB 32 does not directly
regulate the federal government either.
A direct regulation is one that “imposes [a] prohibition
on the national government or its officers.” Penn Dairies v.
Milk Control Comm’n of Pa., 318 U.S. 261, 270 (1943). To
that end, we have explained that state laws or local
ordinances that restrict the conduct of federal agents and
employees like military recruiters, see United States v. City
of Arcata, 629 F.3d 986, 991 (9th Cir. 2010), or subject
federal property to state safety requirements, see Blackburn
v. United States, 100 F.3d 1426, 1435 (9th Cir. 1996),
constitute direct regulation of the federal government. 14 The
14
Relatedly, a state law violates intergovernmental immunity if it
directly regulates an “instrumentality” of the federal government. See
United States v. New Mexico, 455 U.S. 720, 732 (1982). GEO argues
that its facilities are “federal instrumentalities” because their work is
very closely related to federal government functions. This argument is
not supported by our case law. A federal instrumentality is an entity “so
assimilated by the Government as to become one of its constituent parts.”
United States v. Boyd, 378 U.S. 39, 47 (1964) (citation omitted). Federal
contractors like GEO are not federal instrumentalities. See id. at 48
THE GEO GROUP V. NEWSOM 63
district court distilled this case law as establishing a “legal
incidence” test for state regulations—a state or local
regulation directly regulates the federal government if the
“legal incidence” of the regulation falls on a federal entity. 15
However, GEO proposes a novel “substantial
interference” test for direct regulation, positing that “under
the intergovernmental-immunity doctrine, generally
applicable state laws are invalid if they substantially
interfere with federal operations.” Although the majority
suggests that it is “unsettled” whether such a test applies in
this case, Majority Op. 38–39, the case law does not support
GEO’s “substantial interference” test—which, notably, the
United States does not ask us to apply.
GEO’s proposed “substantial interference” test is
ostensibly rooted in one of the two competing plurality
opinions in North Dakota v. United States, 495 U.S. 423(1990). In North Dakota, the Supreme Court upheld a state
liquor-labeling regulation against the federal government’s
(contractors operating federal atomic energy plant were not
instrumentalities); New Mexico, 455 U.S. at 740–41 (same).
15
This legal-incidence test originated in the tax-immunity context
and requires a court to determine “which entity or person bears the
ultimate legal obligation to pay the tax to the taxing authority.”
Confederated Tribes & Bands of Yakama Indian Nation v. Gregoire,
658 F.3d 1078, 1084 (9th Cir. 2011). If the legal incidence of a tax falls
on the federal government, that tax violates intergovernmental
immunity; if the tax falls on contractors that are “entities independent of
the United States,” the tax “cannot be viewed as a tax on the United
States itself.” See New Mexico, 455 U.S. at 738. We have long relied
on the legal-incidence test in the context of state taxes that apply to
federal contractors. See, e.g., United States v. Cal. State Bd. of
Equalization, 683 F.2d 316, 318 (9th Cir. 1982); United States v. Nev.
Tax Comm’n, 439 F.2d 435, 439 (9th Cir. 1971).
64 THE GEO GROUP V. NEWSOM
intergovernmental-immunity (and preemption) challenges.
Justice Stevens wrote the opinion for a four-Justice plurality,
applying tax-immunity (legal incidence) principles to
conclude that the North Dakota regulation did not violate
intergovernmental immunity because it “operate[d] against”
suppliers of liquor, not against the federal government. Id.at 436–37 (Stevens, J.). Justice Stevens’s plurality opinion
therefore supports the district court’s conclusion that the
legal-incidence test is applicable in the context of state
regulations, not just state taxes.
Justice Brennan, writing for a separate four-Justice
plurality, dissented in part. Justice Brennan explained:
contrary to the plurality’s view, the rule to be
distilled from our prior cases is that those
dealing with the Federal Government enjoy
immunity from state control not only when a
state law discriminates but also when a state
law actually and substantially interferes with
specific federal programs.
Id. at 451–52 (Brennan, J.). In GEO’s view, this language
created a new test for direct regulation. And although
neither GEO nor the United States can identify any
subsequent case explicitly referring to the “substantial
interference” formulation, and I have found none, GEO
insists that we implicitly adopted such a test in Boeing Co.
v. Movassaghi, 768 F.3d 832 (9th Cir. 2014). To be clear,
we did not adopt a “substantial interference” test in Boeing.
Instead, we articulated the longstanding rule that a “federally
owned facility performing a federal function is shielded from
direct state regulation, even though the federal function is
carried out by a private contractor.” Id. at 839 (quoting
Goodyear Atomic Corp. v. Miller, 483 U.S. 174, 181 (1988))
THE GEO GROUP V. NEWSOM 65
(emphasis added). In Boeing, the state had imposed certain
environmental remediation requirements on a single
radioactive cleanup site owned in part by the federal
government. Id. at 834–35. We concluded that this
constituted an impermissible direct regulation. That
conclusion was consistent with our previous direct-
regulation case law, which provides that a regulation that
proscribes the behavior of federal officials or federal
property is “direct” and violates intergovernmental
immunity. See City of Arcata, 629 F.3d at 991; Blackburn,
100 F.3d at 1435.
Whether or not we characterize our direct-regulation test
as “legal incidence,” AB 32 clearly does not directly regulate
the federal government. AB 32 does not prevent a federal
actor from doing anything—its prohibition applies to private
persons and to CDCR. It is incorrect and a stretch to
characterize this as a “direct” regulation—the regulation
only affects the federal government, if at all, through
prohibitions on other, private actors. To the extent we are
concerned with state laws that burden the federal
government by regulating private parties, those concerns are
more appropriately addressed by our preemption case law.
See California, 921 F.3d at 879–80 (cautioning against
stretching intergovernmental-immunity doctrine “beyond its
defined scope”).
Therefore, I would hold that the district court did not err
in concluding that AB 32 does not violate intergovernmental
immunity because AB 32 neither directly regulates nor
discriminates against the federal government. And because
the United States and GEO are not likely to succeed on the
merits of this claim or their conflict-preemption claim, I
would hold that the district court did not abuse its discretion
66 THE GEO GROUP V. NEWSOM
in denying a preliminary injunction with respect to the ICE
facilities. 16
V. The District Court Did Not Abuse Its Discretion.
Separate and apart from my disagreement with the
majority’s conclusions regarding the United States and
GEO’s likelihood of success on the merits, I am concerned
with the majority’s approach to our “limited and deferential”
review of the district court’s preliminary-injunction
decision. See California, 921 F.3d at 877. We have
explained that the grant or denial of a preliminary injunction
“is a matter committed to the discretion of the trial judge,”
and even a plaintiff with an “overwhelming likelihood of
success on the merits” may not be entitled to a preliminary
injunction. See Evans, 736 F.3d at 1307 (citation omitted).
To that end, where the district court has not yet considered
all the relevant preliminary-injunction factors, we have
remanded for the district court to consider these factors in
the first instance. Id.; see also Arc of Cal. v. Douglas,
757 F.3d 975, 992 (9th Cir. 2014). Regrettably, the majority
declines to do so here.
After concluding that the United States and GEO are
likely to succeed on the merits of their conflict-preemption
and intergovernmental-immunity (discrimination) claims,
the majority proceeds to determine in the first instance that
the remaining preliminary-injunction factors tip in favor of
the plaintiffs. Majority Op. 40. The majority concludes that
the United States will suffer irreparable harm absent a
preliminary injunction because AB 32 will inflict a
constitutional injury. Majority Op. 40. But everyone agrees
16
The district court similarly did not abuse its discretion in denying
a permanent injunction based on these claims.
THE GEO GROUP V. NEWSOM 67
that all of ICE’s existing detention facilities—several of
which are operated by GEO—may continue to operate in
California until at least 2024, at which point the government
has the option to terminate the contracts. Majority Op. 12;
see Cal. Penal Code § 9505(a) (exempting a “private
detention facility that is operating pursuant to a valid
contract with a governmental entity that was in effect before
January 1, 2020, for the duration of the contract, not to
include any extensions”). 17 And the federal government has
recently indicated its intent not to renew “contracts with
privately operated criminal detention facilities.” See
Executive Order on Reforming Our Incarceration System to
Eliminate the Use of Privately Operated Criminal Detention
Facilities, 2021 WL 254321 (Jan. 26, 2021).
Given this uncertain record, I see no reason to conclude
that the United States and GEO are entitled to the
extraordinary remedy of a preliminary injunction while their
challenge to AB 32 plays out in the district court. Perhaps,
as the district court concluded with respect to the USMS
facilities, the United States may need to take steps now to
plan for the transfer of ICE detainees in California. But the
USMS contracts expire in 2021, several years before the ICE
contracts do, and it is far from clear that the same
irreparable-harm analysis would apply to the ICE facilities.
In any event, the district court, not our panel, is in the best
position to assess these practical realities in the first instance.
See Evans, 736 F.3d at 1307.
17
Given the continued uncertainty and limited briefing with respect
to whether the contract options constitute “extensions” or part of “the
duration of the contract,” I would conclude that GEO has not carried its
burden to demonstrate that it is entitled to a preliminary injunction based
on this “temporary safe harbor” provision.
68 THE GEO GROUP V. NEWSOM
VI. Conclusion
I cannot conclude that the district court abused its
discretion in denying the United States’s and GEO’s request
for a preliminary injunction in part. The district court did
not err in determining that California’s AB 32, which
prohibits the operation of private detention centers to protect
detainees within the state’s borders, is entitled to the
presumption against preemption as a regulation of health and
safety within the state’s historic police powers, and that
Congress did not express any “clear and manifest” intent to
overcome that presumption with respect to the ICE facilities
at issue in this case. The district court carefully
distinguished between the statute governing USMS
detention, which explicitly refers to “contracts with private
entities,” see 18 U.S.C. § 4013(a)(3), and the collection of
statutes governing immigration detention, which makes no
reference to private entities. The court did not err in
concluding that Congress’s intent was clear as to the USMS
facilities, but not as to the ICE facilities.
Nor did the district court err in determining that AB 32,
a law that applies only to the state department of corrections
and private parties, neither directly regulates nor
discriminates against the federal government in violation of
intergovernmental immunity. At the end of the day, AB 32
enacts a prohibition on “a person” operating a “private
detention facility”; it does not prohibit the federal
government from doing anything. And AB 32’s exemptions
are permissible because they reflect significant differences
between the exempted facilities and the ICE facilities that
operate pursuant to contracts with private, for-profit
companies. Therefore, I would affirm the district court’s
denial of a preliminary injunction with respect to the ICE
facilities.
THE GEO GROUP V. NEWSOM 69
But even if I could agree with the majority that the
district court erred as to the merits, the majority goes too far
in concluding that the district court abused its discretion in
denying a preliminary injunction. The district court’s
analysis granting a preliminary injunction in part and
denying it in part was thorough, thoughtful, and well-
reasoned. But because of its conclusion that the United
States and GEO were not likely to succeed on the merits of
their claims related to immigration-detention facilities, the
district court did not have the opportunity to address the
irreparable harm, balance of equities, and the public interest
in an injunction preventing enforcement of AB 32 with
respect to ICE facilities in California. We should not take it
upon ourselves to balance these equities in the first instance.
See Evans, 736 F.3d at 1307. I respectfully dissent.