As Immigration Detention Bans Stall in Some States, More Are Introduced
FAIR Take | March 2023
At the behest of the open-borders lobby, several states have passed laws attempting to ban private contractors or local governments from contracting with Immigration & Customs Enforcement (ICE) to detain illegal aliens. California was the first to pass a ban on immigration detention contracts in 2019, followed by Illinois, Washington, and New Jersey in 2021 and Maryland in 2022. This year is no different, with similar bans introduced in Colorado, Georgia, Massachusetts, New Mexico, New York, Pennsylvania and Rhode Island.
Colorado’s detention ban bill has advanced the furthest in the 2023 legislative session. House Bill (HB) 1100, sponsored by Representative Naquetta Ricks (D-Aurora), was introduced on January 23, passed the House Judiciary Committee on February 7, and then passed the full House by a 41-22 vote. Significantly, four Democrats, Reps. Shannon Bird (D-Westminster), Bob Marshall (D-Highlands Ranch), Barbara McLachlan (D-Durango) and Marc Snyder (D-Colorado Springs), joined all the Republicans in opposing HB 1100.
HB 1100 was referred to the Colorado Senate Judiciary Committee on March 1, but has not moved since. It is likely that if the bill passes, Governor Jared Polis (D) will sign it, despite trying to portray himself as a moderate. He claimed that Colorado is not a sanctuary state even though he signed a sanctuary bill into law in 2019. The Colorado Senate will have to move on the legislation within the next few weeks if it is to pass, as the Colorado Legislature is scheduled to adjourn May 6.
In New Mexico, the detention ban bill failed despite Democrats controlling the state house, senate and Governor’s office. Senate Bill (SB) 172, introduced by Senator Gerald Ortiz y Pino (D-Albuquerque) on January 23, initially appeared likely to succeed, favorably passing two committees. However, it was defeated on March 14 when the Senate voted 18-20 against it. Five Democrats joined all fifteen Republicans in voting against the bill, while four more Democrats were either excused or absent.
In Rhode Island, identical bills were introduced in the House and Senate: HB 5785 sponsored by Rep. Joshua Giraldo (D-Central Falls), and SB 408 sponsored by Sen. Jonathon Acosta (D-Central Falls/Pawtucket). Both bills received hearings. HB 5785 was considered in the House State Government and Elections Committee on March 17 and SB 408 in the Senate Judiciary on March 21. These bills were each ordered to be “held for further study.” This is a common face-saving practice in legislatures rather than voting a bill down outright. However, bills can be recalled from study any time during the same legislative session and Rhode Island is not scheduled to adjourn until June 30.
The remaining detention ban bills have been introduced and mostly referred to committee in their respective chambers, but have not been set for hearing or otherwise progressed through the legislative process. In New York, Sen. Julia Salazar (D-Brooklyn/Queens), introduced SB 306 on January 4. This bill has been referred to the Senate Crime Victims, Crime and Corrections Committee. A companion bill, Assembly Bill (AB) 4354, sponsored by Assemblywoman Karines Reyes (D-Bronx), was introduced on February 14 and referred to the Assembly Corrections Committee. In Georgia, Rep. Scott Holcomb (D-Atlanta), introduced HB 376 on February 13. To date, this bill has not yet been referred to committee. In Massachusetts, Sen. Adam Gomez (D-Springfield) and Rep. Antonio Cabral (D-New Bedford) introduced SB 997 and HB 1401 respectively. Both bills have been referred to the Joint Committee on the Judiciary. Finally, in Pennsylvania, Rep. Stephen Kinsey (D-Philadelphia) introduced HB 466 on March 16 which was referred to House Judiciary.
Of those states, Georgia is currently scheduled to adjourn on March 29, New York on June 8, Massachusetts on November 15 and Pennsylvania on December 31.
It is reasonable to anticipate that several more detention ban bills could be filed in additional states as the year progresses.
Most of the detention bans that have been signed into law have faced, or are facing, court challenges. For example, in the Ninth Circuit, the Court of Appeals struck down California’s ban as an unconstitutional state intrusion on federal supremacy over immigration. However, in Washington State, a detention facility continues to operate despite being governed by the same judicial precedent. In the Seventh Circuit, the Court upheld Illinois’s detention ban. The Third Circuit Court of Appeals is currently considering a lawsuit challenging New Jersey’s law. But Maryland’s law, which is in the Fourth Circuit, has not yet been contested.
However, whether the legislation prevents the state government from contracting with ICE or private contractors for the detention of aliens, the outcome is the same. Detaining aliens becomes increasingly harder. And if the federal government can’t detain aliens, it is nearly impossible to deport them. Thus, the strategy is really an effort to stop immigration enforcement altogether.