Illegal Border Crossings Today:

Bills to Shut Down Immigration Detention Spring up in Multiple States

federal contract detention facility

FAIR Take | February 2023

In recent years, open-borders groups have successfully pushed several state legislatures to ban private contractors or local governments from contracting with Immigration & Customs Enforcement (ICE) to detain illegal aliens while they go through the deportation process.  Most of ICE’s detention facilities are operated under a contractual arrangement, involving both private companies and local governments.

California passed the first ban of these bans in 2019. The state was promptly sued by one of the contractors. On appeal, first a three-judge panel and then a larger 11-judge “en banc” panel for the US Court of Appeals ruled the ban was unconstitutional.  Writing for the en banc court, Judge Jacqueline H. Nguyen, an Obama appointee, said that “California would breach the “core promise” of the Supremacy Clause” and that “[t]o comply with California law, ICE would have to cease its ongoing immigration detention operations in California and adopt an entirely new approach in the state.”

The next states to ban the ICE contracts were Illinois and New Jersey in 2021. While New Jersey’s ban was never challenged, the Illinois ban was upheld by the 7th Circuit.

The difference between the bans in California and Illinois was that Illinois did not restrict private contractors, only local governments.  However, all three detention facilities operating at the time in Illinois involved contracts with local governments, so they were shut down.

This January when the state legislative sessions began, nearly identical bills to ban private immigration detention facilities were introduced in Colorado, New Mexico and New York. Like the ban in Illinois, these bans were focused on prohibiting local governments from contracting with ICE rather than private contractors. However, these bans were also designed to make it difficult for private contractors as well.

The detention-ban bills in the three states would prohibit state agencies and local governments from:

  • Entering into detention contracts relating to a privately owned, managed or operated immigration detention facility;
  • Selling property for the purpose of establishing a privately owned, managed or operated immigration detention facility;
  • Paying any costs related to sale, purchase, construction, development, ownership, management, or operation of a privately owned, managed or operated immigration detention facility;
  • Receiving payment related to detention of illegal aliens in a privately owned, managed or operated immigration detention facility; or
  • Giving financial incentives or benefits to a private entity in connection with the sale, purchase, construction, development, ownership, or management of a privately owned, managed or operated immigration detention facility; or
  • Entering into or renewing contracts to house or detain anyone for federal civil immigration purposes.

The bills would also require local governments with existing detention contracts to terminate their contracts by January 1, 2024.

Colorado’s bill, House Bill (HB) 1100 sponsored by Representative Naquetta Ricks (D-Aurora), has progressed the furthest of the three, with a hearing before the House Judiciary Committee scheduled for February 7.  It is possible that if this bill passed both chambers, Governor Jared Polis (D) might veto it because he likes to portray himself as a moderate. In fact, he has claimed that Colorado is not a sanctuary state despite signing a sanctuary bill into law in 2019.

The New Mexico bill, Senate Bill (SB) 172 introduced by Senator Gerald Ortiz y Pino (D-Albuquerque), is assigned to the Senate Health and Public Affairs Committee and has not been set for a hearing.  While Governor Michelle Lujan Grisham (D) would be likely to sign it if it reached her desk, New Mexico has relatively short legislative sessions so many bills typically die in the legislative process.  The New Mexico legislature is scheduled to adjourn on March 18.

New York’s bill, SB 306, sponsored by Sen. Julia Salazar (D-Brooklyn), is before the Crime Victims, Crime and Correction Committee. It also has not been scheduled for a hearing.  Much like the recently-introduced bills to give illegal aliens a permanent “right” to taxpayer-funded legal counsel in immigration proceedings, there is a good chance that if the detention ban bill is passed Governor Kathy Hochul (D) would veto it since New York taxpayers are heavily burdened by the Biden Administration’s border crisis.  If Governor Hochul vetoes the detention ban bills, it is unlikely the legislature would have the votes for an override.

Since it appears that the open-borders advocates are coordinating their efforts in the states to ban contracts with ICE, other states could be expected to introduce such legislation during the legislative session. Notably, open-border groups have already begun vocally pushing for it in Pennsylvania.