States have limited ability to respond to sweeping immigration enforcement as prison companies use their relationship with ICE to shield themselves from regulation.
Prison contractors successfully convinced two federal appeals courts that their federal contracts entitled them to immunity from being directly regulated or interfered with by states. They sued over laws to regulate or ban private immigration detention in California, Illinois, Washington, and New Jersey.
President Donald Trump’s immigration crackdown has amounted to ICE holding over 75,000 people in January. A majority of these detainees—79% in late January—are held in facilities run by for-profit entities, with
Immigration and Customs Enforcement was also awarded $45 billion under the Republican mega tax-and-spending law to further expand its detention capacity. Since then, Democrat-led cities including Minneapolis, New Orleans, and Chicago have been subjected to ICE raids that have resulted in thousands of arrests.
California was the first state to try to ban the use of private prisons for immigration detention when then-state legislator Rob Bonta sponsored a bill that subsequently became state law.
As state attorney general now, Bonta’s still fighting to curb private prisons for migrants. “I believe deeply that for-profit detention is fundamentally incompatible with the health and welfare of Californians,” he said in an emailed statement. “Although the courts did not uphold the law, the motivation, and reasons behind it have not changed.”
Among four appellate cases, two courts ruled in favor of prison companies and two upheld the positions of state governments.
The extent of contractor immunity is being reviewed by the Supreme Court in a different context. The justices are deliberating whether Geo Group can use its immunity to axe an immigrant detainee class action claiming the company’s $1-a-day wages violate federal human trafficking law. A ruling in Geo Group’s favor could enhance federal contractors’ immunity protections.
Laws’ Purpose in Question
The state laws were a response to the first Trump administration’s immigration enforcement tactics, said César Cuauhtémoc García Hernández, an Ohio State University professor and immigration law scholar.
Immigrant advocates say the laws were intended to reduce health and safety hazards that aren’t properly addressed by federal contractors. Then and now, these hazards include overcrowding, inadequate health care, cleaning duties without proper supplies, and forced underpaid labor, said Jehan Laner, a senior attorney for the Immigrant Legal Resource Center.
Bonta is still actively involved in the issue. He sent the Department of Homeland Security a letter in December detailing dangerous living conditions at ICE’s California City Detention Facility.
The industry views the states’ efforts differently. A spokesperson for Geo Group said the laws are part of a “politically motivated campaign to abolish ICE and end federal immigration detention by attacking the federal government’s immigration facility contractors.”
They also consider the state laws unconstitutional attempts to prohibit “the federal government from signing or renewing contracts with private sector companies,” said Alexandra Wilkes of Day 1 Alliance, a trade association for contractor-operated detention centers.
Limited State Authority
Appellate courts that have ruled on the issue agree states can’t “outright ban the existence and the operation of private detention centers,” said David Rubenstein, a Washburn University law professor who studies federalism and government contracting.
The courts were tasked to determine whether the laws were “really what they claim to be"—measures to protect immigrant detainees—or “attempts to shut the system down,” said Chris Hajec, general deputy counsel for the Federation for American Immigration Reform.
Last July, the US Court of Appeals for the Third Circuit rejected the application of a New Jersey law banning all immigration detention contracts within the state, a win for CoreCivic determining the law directly regulated the prison and, therefore, the government.
This decision followed the Ninth Circuit’s 2021 ruling that California’s attempt to shut down all private detention centers violated Geo Group’s immunity and discriminated against the government’s authority to contract with prison companies.
Broad Application
States can get around contractor immunity by drafting laws that regulate both private and public detention centers.
Rubenstein said courts tend to favor “generally applicable laws” because they “don’t get the sense that states are trying to pick on one actor.”
That’s exactly what happened last August when the Ninth Circuit allowed Washington state to enforce its health department standards for all detention facilities in the state. García Hernández said Washington’s law “survived the legal challenge” because it prioritized general health and safety oversight, an area that “has long been the purview of state and local governments.”
Geo Group challenged an injunction tied to the Washington decision, but the Ninth Circuit rejected its bid for a rehearing en banc.
The Seventh Circuit upheld an Illinois law prohibiting local immigration detention contracts in 2022. The court viewed the law as a choice to withhold cooperation rather than unlawful discrimination against federal immigration operations.
A generally applicable approach could give states what Rubenstein called an “avenue for ingress into the project of holding the federal government and the contractors accountable.”
Oregon and Colorado are the only other states outside of California, Washington, Illinois, and New Jersey that have succeeded in banning local immigration detention contracts. New Mexico is the latest state to join them, as its Immigrant Safety Act was enacted Feb. 5.
Contractual Loopholes
While states have some direct oversight over county jails and other local detention centers contracted with ICE, for-profit entities like Geo Group and CoreCivic are solely bound to their government contracts. This means detention contractors only need to follow ICE standards based on the year they entered their contract, García Hernández said.
Immigrant advocates say the standards lack enforceability since they’re considered agency guidance and aren’t legally binding.
The administration can also avoid state regulation by detaining people on government land, Rubenstein said.
“On a federal enclave, even a generally applicable law would not apply,” Rubenstein said. “This is a new development and it’s definitely in response to the states.”
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