The for-profit prison system in the United States is, by many accounts, a nightmare. Advocates for prison reform see private prisons as capitalizing on mass incarceration while running institutions with more inmate violence, more abuse, and many other problems. In light of the myriad issues, California sought to ban the use of for-profit private prisons in the state. A federal appeals court recently rejected the state’s efforts, finding the state law conflicts with federal authority.

California’s lawmakers have good reason to seek an end to private prisons. Private prisons have less accountability and oversight than state-run prisons. They operate on a for-profit basis, meaning their goal is not to protect or reform prisoners but to simply collect as many as possible. They’ve been accused of hiring less qualified staff, maintaining reduced security and inmate monitoring, providing sub-par care to inmates with medical and mental health needs, and otherwise engaging in cost-cutting measures that do no favors to the prison population.

In 2016, the Department of Justice issued a report finding that private prisons are significantly less safe than government-operated prisons. Private prisons performed worse on nearly every metric, including much higher rates of assaults, more seized contraband, and other issues. The report detailed alarming “systemic deficiencies,” such as “failure to initiate discipline in over 50 percent” of use-of-force incidents reviewed by onsite monitors. While the report focused on federal contract prisons, there’s no reason to suspect state private prisons fare any better.

In 2019, California Governor Gavin Newsom signed into law Assembly Bill 32. AB 32 phases out all private detention centers within the state, including state prisons and federal immigration detention centers. The federal government sued and sought a preliminary injunction against enforcing AB 32. The trial court rejected the injunction and granted California’s motion to dismiss the case.

On appeal, a panel of Ninth Circuit judges reversed and found for the federal government. The appeals court held that the state’s actions were unconstitutional under the Supremacy Clause. Because state law was preempted by federal law, AB 32 cannot stand.

The court’s ruling centered on California’s attempt to shutter federal immigration detention centers, which are housed within the state. The Supremacy Clause prohibits a state from preempting federal law by taking action that “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Because the United States Immigration and Customs Enforcement (ICE) “relies exclusively on private detention centers in California,” eliminating the contracts with those states directly conflicts with federal powers.

Moreover, AB 32 “discriminated against the federal government where AB 32 requires the federal government to close all its detention facilities” soon, while it does not require the State of California to close its own private detention facilities until 2028. That discrimination violates the intergovernmental immunity doctrine.

Following that appeal, the state sought review en banc by the entirety of the Ninth Circuit. In September 2022, the 11-judge en banc review found for the federal government. The court again ruled that California cannot override the federal government’s decision to rely on private immigrant detention centers housed within the state, whether reviewed under the preemption or intergovernmental immunity doctrines deriving from the Supremacy Clause.

The Ninth Circuit’s opinion does not technically constitute a final ruling on the matter. It allows the case against AB 32 to proceed and all but requires the trial court to grant the federal government’s injunction against enforcing the law. Because the Ninth Circuit conclusively found the challenge to AB 32 has a strong “likelihood of success on the merits,” there’s little reason to think AB 32 will survive.