SEATTLE (CN) — The Ninth Circuit on Friday saw a legal battle over Washington’s ability to regulate privately operated civil detention centers in the state.
Washington tried to do so, but the rules only applied to the state’s single private detention facility. A lower court blocked the law last year after operator GEO Group argued it was discrimination.
In 2023, Washington legislators passed House Bill 1470, which directed state agencies to regulate private detention facilities the same way they regulate state prisons. It required standards like adequate food, basic hygiene and a safe environment.
As it happens, that law applied to exactly one facility: Northwest Immigration and Customs Enforcement Processing Center in Tacoma, where detainees await immigration hearings. Florida-based GEO Group has operated the center since 2005 as a contractor for U.S. Immigration and Customs Enforcement.
GEO Group sued in 2023, arguing that the statute unfairly targeted only its civil detention center. U.S. District Judge Benjamin Settle, a George W. Bush appointee, gave the company an injunction in 2024, blocking all of the law except for rules applying to new facilities.
At the Ninth Circuit on Friday, lawyers for Washington once again argued that the state should be able to impose standards at the Tacoma center.
“The state’s police power is at its apex when it regulates the health and safety of its residents,” Ellen Range, Washington assistant attorney general, said. “GEO believes it can disregard these laws, even though the Ninth Circuit, the state of Washington and its own federal contract require compliance with state health and safety laws.”
Range argued the law didn’t discriminate against GEO Group. She admitted the company was the impetus for the law but said it applied to any and all private detention facilities in the state — even if for now there is just one.
“ A neverending series of hunger strikes and abhorrent conditions at the facility spurred the legislature into action,” Range said. “But, the legislature also ensured that HB 1470 is not limited to GEO, lest this happen again.”
U.S. Circuit Judge Jacqueline Nguyen, a Barack Obama appointee, noted that the statute seemed to impose requirements on GEO Group that it didn’t on other facilities, such as requiring it to provide fresh fruits and vegetables.
Range pushed back, saying the rules met state standards for certain types of facilities.
But GEO Group says the standards are overly burdensome. It says the Constitution’s supremacy clause prevents states from regulating the federal government and its agents.
”It has to be exactly the same,” Dominic Draye, attorney with Phoenix-based Greenberg Traurig who is representing GEO Group, said of standards across states. “Otherwise, it puts courts in the impossible position of deciding how much a state can discriminate against the federal government.”
Because the GEO Group contracts with ICE, it has intergovernmental immunity, Draye argued.
”HB 1470 regulates the manner in which the federal function is carried out by dictating, for example, everything from HVAC to toiletries to fruits,” Draye said. “And that is offensive to intergovernmental immunity.”
Bradley Hinshelwood, a Department of Justice attorney representing the United States, backed up arguments that Washington’s statute violated the antidiscrimination component of the intergovernmental immunity doctrine.
“ Here, the state enacted a unique statutory regime that applies only to a federal contractor and can only apply to a federal contractor,” Hinshelwood said.
U.S. Circuit Judge William Fletcher, a Bill Clinton appointee, asked why the court shouldn’t compare the statute’s standards to those applied to other private facilities in the state, such as mental health hospitals.
“ The state … wants to ask you to ignore what it does for jails and prisons and say, ‘No, no, you should compare this to essentially hospitals, or maybe the involuntary treatment facilities,’” Hinshelwood said. “The state itself doesn’t treat all these facilities identically.”
Fletcher, not satisfied with the government’s response, repeated his question.
“ It’s not clear to me on what basis we’re treating those as apples to apples,” Hinshelwood said after a back-and-forth.
“ Well, we’re treating them as apples to apples because they’re all run by contractors rather than run by the state itself,” Fletcher responded.
The Ninth Circuit panel, which also included Clinton-appointed U.S. Circuit Judge Ronald Gould, didn’t indicate when it would rule.