By: Natalie Feeney, Volume 104 Staff Member
Private prisons have become a focal point of American criminal justice reform in recent years, especially in regard to solving the problem of mass incarceration. According to data from 2017, the number of individuals incarcerated in privately-owned prisons has increased 39.3 percent since 2000, even though the overall rate of incarceration has only increased by 7.8 percent. The issue of private prisons is further exacerbated by the fact that, today, the vast majority of detained immigrants are being held in privately-owned facilities. Critics of these facilities say that it goes against ideals of justice for companies and individuals to profit from keeping other human beings in captivity, and that they contribute to mass incarceration by incentivizing imprisoning as many people as possible. Recognizing these problems, many states have banned the use of private facilities for state prisoners. However, California recently took things one step further by banning the use of private facilities for federal detainees as well—a move that has interesting implications for what exactly a state’s role is when it comes to regulating business within their borders.
I. CALIFORNIA’S RESPONSE TO THE ISSUE OF PRIVATE PRISONS
California legislators recently passed Assembly Bill 32 (“AB 32”), “which will phase out the use of all private, for-profit prisons, including both prisons and immigration detention facilities, in California.” AB 32 declares that after January 1, 2020, the California Department of Corrections and Rehabilitation may not enter into or renew any contracts with private facilities to house state inmates, and that private detention facilities shall no longer be permitted to operate within the state. Moreover, AB 32 sets forth the state’s plan for all private, for-profit facilities to be phased out of use by January 2028. This Bill is significant because it seeks to not only end the use of such facilities for state prisoners, but also affects the federal government’s ability to hold ICE detainees. Of all the states to have already passed measures to ban or limit private prisons, California’s pronouncement is all but unique in its added focus on federal detention facilities. Illinois has passed a similar ban on such facilities, but California is differently situated because the state already has four privately-owned immigrant detention centers, while Illinois does not have any. Before AB 32 was passed, California’s Senate Judiciary Committee anticipated facing federal backlash, but also stated in its analysis that “[t]he federal government will likely lose” such a challenge.
II. THE FEDERAL ARGUMENT: PREEMPTION AND INTERGOVERNMENTAL IMMUNITY
Sure enough, soon after passing AB 32, California was confronted with two lawsuits: one from a company that runs private detention facilities, and one from the federal government itself. In its Complaint—filed January 24, 2020—the United States Department of Justice declares that AB 32 is unconstitutional to the extent that it affects the ability of the U.S. Government to house its prisoners and detainees. The United States requested that the court declare that the Bill is invalid as applied to federal contracts, and grant injunctive relief against its enforcement against the Federal Government. The lawsuit rests on the idea that while California is free to decide how it wants to handle its own state prisoners and detainees, the state “cannot dictate that choice for the Federal Government, especially in a manner that discriminates against the Federal Government and those with whom it contracts.”
In its first Count, the Department of Justice alleges that AB 32—as applied to federal detainees—is preempted by federal law and its enforcement would violate the Supremacy Clause of the United States Constitution. Specifically, the United States government argues that the California law is both field preempted and conflict preempted. The doctrine of field preemption dictates that when Congress has determined that a certain area of law is exclusive to the federal government, it is implied that the states are barred from enacting laws that would be contrary to federal governance within that “field”. The Supreme Court has articulated that field preemption can be inferred to exist wherever Congress has enacted a “pervasive” framework of regulation, or where there is a dominant federal interest in the area. Similarly, conflict preemption exists where a state law makes “compliance with both federal and state regulations  a physical impossibility.” It is virtually uncontested that the United States Government has “broad, undoubted power over the subject of immigration,” but California is arguing that AB 32 is not actually about immigration or trying to dictate what the federal government can do: “Quite importantly, California is not regulating the federal government; it is regulating private companies, which is very much within the state’s constitutional authority.”
In Count Two, the U.S. Department of Justice invokes the doctrine of intergovernmental immunity, which also falls under the Supremacy Clause. Intergovernmental immunity is the idea that “state laws are invalid if they ‘regulate[ ] the United States directly or discriminate[ ] against the Federal Government or those with whom it deals.’” This doctrine is implicated in situations in which a state law directly burdens the Federal Government, especially in a way that non-federal entities are not burdened. In United States v. Newsom, the Department of Justice is arguing that the Federal Government is being discriminatorily burdened by California’s ban, because the law provides exemptions to state contracts that it does not provide to federal facilities. California’s legislature again anticipated this argument, but stated in its Senate Judiciary Committee Analysis that “the bill provides equal treatment of for-profit detention companies that contract with the state and for-profit detention companies that contract with the federal government.” California, it seems, is focusing purely on its power to regulate companies within its borders, and does not presume to regulate that which is traditionally left up to the federal government, such as immigration or the detention of federal prisoners.
California is only the second state to attempt to ban private, for-profit immigration detention centers within its borders, and the first to do so with already-existing private detention centers. When framing the issue, the United States Department of Justice is focusing on the idea that the federal government has the unconditional right to control where it houses federal detainees, while the California government is saying that their new law does not interfere with the federal government because it does not affect how the federal government determines immigration status or “interfere with [their] determinations of who is detained and who is not detained.” California states that the purpose of AB 32 is simply to “protect vulnerable individuals from serious harm within [the] state border.” Even if this new law is deemed constitutional by the courts, however, the passage of this bill may have unintended consequences for those detained in California. While California seems to hope that the federal government would respond by providing more funding for government-owned facilities, the federal government suggests that it would instead to choose to remove the detainees from the state entirely. This may prove to be more harmful to federal prisoners and civil detainees in the long run, because relocating these prisoners would separate them from their support systems and complicate their ability to build their cases. Therefore, while California’s novel attempt at reducing the use of for-profit detention facilities is a step in the right direction, it may initially cause unintended harm to federal detainees, at least until more states enact similar legislation—a prospect that the current administration seems to view with apprehension.
 See, e.g., Private Prisons, ACLU, https://www.aclu.org/issues/smart-justice/mass-incarceration/private-prisons (last visited Feb. 5, 2020).
 Private Prisons in the United States, Sentencing Project (Oct. 24, 2019), https://www.sentencingproject.org/publications/private-prisons-united-states/.
 Reports suggest that 73 percent of detained immigrants are housed in privately-owned facilities. Id.
 See Joseph Margulies, This Is the Real Reason Private Prisons Should Be Outlawed, Time (Aug. 24, 2016), https://time.com/4461791/private-prisons-department-of-justice/ (stating that the private prison use should end because “justice should not be administered through the prism of profit”).
 See Avlana K. Eisenberg, Incarceration Incentives in the Decarceration Era, 69 Vand. L. Rev. 71, 96 (2016) (stating that private prisons contribute to mass incarceration, because companies are paid per prisoner and “many private prison contracts provide for a guaranteed occupancy rate of 95% or higher”).
 Catherine Kim, Private Prisons Face an Uncertain Future as States Turn Their Backs on the Industry, Vox (Dec. 1, 2019),https://www.vox.com/policy-and-politics/2019/12/1/20989336/private-prisons-states-bans-califonia-nevada-colorado (stating that “22 states — under both Democratic and Republican control — do not house incarcerated people in for-profit prisons”).
 Governor Newsom Signs AB 32 to Halt Private, For-Profit Prisons and Immigration Detention Facilities in California, Office of Gov. Gavin Newsom (Oct. 11, 2019), https://www.gov.ca.gov/2019/10/11/governor-newsom-signs-ab-32-to-halt-private-for-profit-prisons-and-immigration-detention-facilities-in-california/.
 Assemb. Bill 32, 2019–20 Gen. Assemb., Reg. Sess. § 5003.1 (Cal. 2019).
 Id. at § 9501.
 Id. at § 5003.1(c).
 See Bonta Applauds Return of Last CA Inmates from Out-of-State, For-Profit, Private Prisons; Announces Significant Expansion of AB 32, Assemblymember Rob Bonta (June 26, 2019),
https://a18.asmdc.org/press-releases/20190626-bonta-applauds-return-last-ca-inmates-out-state-profit-private-prisons (“No human being deserves to be held in the horrific conditions we’ve been seeing in these for-profit, private facilities. It’s clearly not enough to focus our legislation on prisons alone.” (quoting California Assemblymember and author of AB 32 Rob Bonta)).
 See Kim, supra note 6.
 Illinois has also passed similar legislation to ban private immigration detention. Sophia Tareen, Advocates Hope Illinois Private Detention Ban Sparks Change, AP News (July 13, 2019) (“The state recently enacted a first-of-its kind ban on privately-run immigration detention.”).
 See Andrea Castillo, Firm Sues California Over Law Banning Private Prisons and Immigration Detention Centers, LA Times (Dec. 31, 2019), https://www.latimes.com/california/story/2019-12-31/prison-company-sues-california-over-law-banning-private-immigration-detention-centers (describing a lawsuit against California by GEO Group, one of the three companies that “run California’s four private immigrant detention centers”).
 See Sophie Murguia, Illinois Is Cracking Down On Private Immigration Detention, Pacific Standard (June 24, 2019), https://psmag.com/news/illinois-is-cracking-down-on-private-immigration-detention.
 Senate Judiciary Analysis, Assemb. Bill 32, 2019–20 Gen. Assemb., Reg. Sess. 9 (Cal. 2019), http://leginfo.legislature.ca.gov/faces/billAnalysisClient.xhtml.
 See Castillo, supra note 16.
 See Jacob Dougherty, DOJ Sues California over New Law Banning Private Prisons (Jan. 27, 2020), https://www.jurist.org/news/2020/01/doj-sues-california-over-new-law-banning-private-prisons/.
 Complaint for Declaratory and Injunctive Relief at 14–15, United States v. Newsom, No. 3:20-cv-00154 (S.D. Cal. Jan. 24, 2020) [hereinafter Complaint].
 Id. at 15.
 Id. at 1.
 Id. at 14–15 (citing U.S. Const. art. VI).
 The United States’ Motion for Preliminary and Permanent Injunction & Memorandum of Points and Authorities at 30–44, United States v. Newson, No. 3:20-cv-00154 (S.D. Cal. Feb. 5, 2020) [hereinafter Motion for Injunction].
 See Arizona v. United States, 567 U.S. 387, 399 (2012).
 Motion for Injunction at 40.
 Arizona, 567 U.S. at 394.
 Senate Judiciary Analysis, supra note 18 at 9–14.
 Id. at 10 (quoting Erwin Chemerinsky, constitutional law scholar and Dean of Berkeley Law).
 Complaint at 15.
 United States v. California, 921 F.3d 865, 878 (9th Cir. 2019).
 “The doctrine has been invoked, to give a few examples, to prevent a state from imposing more onerous clean-up standards on a federal hazardous waste site than a non-federal project . . . to preclude cities from banning only the U.S. military and its agents from recruiting minors . . . and to foreclose a state from taxing the lessees of federal property while exempting from the tax lessees of state property.” Id. at 880 (internal citations omitted).
 Complaint at 15.
 Motion for Injunctive Relief at 27–30 (stating that California leaves its own contractors nine exemptions, while the federal government could only possibly use three of those exemptions).
 See Senate Judiciary Committee Analysis, supra note 18 at 13.
 See supra notes 14–15 and accompanying text.
 See Senate Judiciary Committee Analysis, supra note 18 at 12.
 Id. at 1.
 Motion for Injunctive Relief at 45.
 Complaint at 15.
 See Motion for Injunctive Relief at (“[I]f A.B. 32 is allowed to impede federal operations, other States could be emboldened to impose similar restraints.”).