Bloomberg Law
Sept. 26, 2022, 4:25 PM

California Ban on Private Prisons in State Held Unconstitutional

Bernie Pazanowski
Bernie Pazanowski

California legislation that bans all private prisons in the state impermissibly inserts the state into immigration regulation, which is the domain of the federal government, the en banc Ninth Circuit said Monday.

Immigration and Customs Enforcement oversees the extensive detention of immigrants in California and almost exclusively uses privately owned detention facilities, the opinion by Judge Jacqueline H. Nguyen said. California’s legislation requires ICE to entirely transform its approach to detention in California, Nguyen said.

The supremacy clause prohibits states from controlling the operations of the federal government, the court said. Although the state can regulate private contractors, in this instance, the regulation overrides decisions of the federal government in violation of the supremacy clause, it said.

California’s legislation is also preempted because states can’t control federal operations, the court said.

Judges Sandra S. Ikuta, John B. Owens, Ryan D. Nelson, Kenneth K. Lee, and Danielle J. Forrest joined the opinion. Judges Milan D. Smith Jr. and Paul J. Watford joined all but the preemption discussion.

Dissenting Chief Judge Mary H. Murguia, joined by Judges Johnnie B. Rawlinson and Jennifer Sung said that California’s legislation is valid because “it neither directly regulates nor discriminates against the federal government.” The legislation also overcomes the presumption against preemption, Murguia said.

DOJ represented the federal government. Cooper & Kirk PLLC, Newmeyer & Dillion LLP, and Navigato & Battin LLP represented the private prison company. The California Attorney General’s Office represented the state.

The case is Geo Grp. Inc. v. Newsom, 9th Cir. en banc, No. 20-56172, 9/26/22.

To contact the reporter on this story: Bernie Pazanowski in Washington at

To contact the editors responsible for this story: Rob Tricchinelli at; Nicholas Datlowe at