All of ICE’s detention facilities are privately operated, and the agency has neither the staff nor the training to operate its own. There are valid reasons for this: among other things, the wide fluctuations in the number of people detained for immigration violations make it impractical to build permanent federal facilities. AB32 allows existing private contracts to continue until they expire, but because ICE has renewal options up in 2024, the law could be construed by California authorities to ban ICE’s facilities as early as the year of the next presidential election, when Newsom may be a candidate. If ICE did not overhaul its detention system, that would mean it had to expel the migrant detainees from California and dump them into facilities in other states — courtesy of Gavin Newsom.

ICE and its private contractors sued Newsom and California in federal court to block enforcement of the law, arguing that it was unconstitutional for the state to effectively dictate federal policy by prohibiting a contracting practice that Congress has explicitly authorized. After a Los Angeles district judge (a George W. Bush appointee) refused to issue the injunction, ICE appealed, and a divided panel of the Ninth Circuit ruled in ICE’s favor. On Monday, an 11-judge Ninth Circuit, sitting en banc, struck down AB32 as unconstitutional. As the court reminded Newsom, citing a line of cases dating back to McCulloch v. Maryland (1819), “the Supremacy Clause precludes states from dictating to the federal government who can perform federal work.” For example, the Supreme Court held more than a century ago, in Johnson v. Maryland (1920), that states cannot penalize postal workers from driving postal vehicles on duty without a state driver’s license; it has since applied the same rule to building contractors on federal projects.