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Preempting Private Prisons

Abstract: In 2019 and 2021, respectively, California and Washington enacted laws banning the operation of private prisons within each state, including those operated by private companies in contracts with the federal government. Nevertheless, the federal government continues to contract with private prisons through Immigrations and Customs Enforcement for the detention of non-United States citizens. In 2022, the Ninth Circuit Court of Appeals held in GEO Group, Inc. v. Newsom that federal immigration law preempted California’s private prison ban.

Preemption—when federal law supersedes state law—is a doctrinal thicket. Federal courts analyze preemption issues in multiple different ways in a particular case, often leaving unclear rules as to which mode of analysis is applicable. However, recent United States Supreme Court precedent clarified how lower courts should apply preemption doctrines.

This Note asserts that the Ninth Circuit erred in GEO Group v. Newsom. In doing so, it analyzes preemption doctrines, including intergovernmental immunity and an interpretive tool called the “presumption against preemption.” It also analyzes GEO Group’s impact on Washington’s private prison statute and how the dissent’s position in GEO Group not only applied the law correctly but resulted in a more manageable allocation of state and federal power. This Note concludes by offering solutions for Washington State to avoid preemption problems in the future.


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