State Laws “Shall Not Apply” in ICE’s New Detention Center Contracts – According to federal documents examined by WIRED, US Immigration and Customs Enforcement is putting its private detention network out of the reach of state inspectors by releasing draft contract provisions that state and local laws “shall not apply” to the facilities.
The revised terms were released earlier this month, one day after a federal judge ordered the opening of ICE’s largest detention facility in the Pacific Northwest to Washington health officials, ruling that a contract cannot supersede state law.
Only after three years of litigation, ten inspections that the state claims were denied, and 3,500 complaints from detainees did US District Judge Benjamin Settle make the decision. On July 21, a judge in the Ninth Circuit temporarily halted the ruling; a judgment regarding a longer stay is anticipated in early August.
Settle ruled that nothing in the company’s federal contract prohibited the admission of Washington state health inspectors and that no contract could, in any event, supersede state law, ordering the operator of Tacoma’s immigration detention center to let them. On July 10, the following morning, ICE released proposed contract terms for 5,500 detention beds throughout four regions of the nation, which included a clause stating that local and state laws “shall not apply” to the operations of the facility.
In order to bolster its argument that ICE, not GEO, controlled access to the building, Settle discovered that the private prison firm that owns the Tacoma facility, GEO Group, had signed a new contract with ICE in the midst of the litigation. Settle retorted, “GEO’s new contract cannot preempt state law, even if it purports to, and preemption requires Congressional intent, not a contract.”
Settle also pointed out that a portion of a contract clause in which ICE consented to request that the Justice Department either dismiss GEO from cases pertaining to its performance or substitute ICE as the defendant was missing from GEO’s court filing.
Although its terms imply otherwise, the new procurement document, which was originally published by the newsletter Project Salt Box and posted to a government contracting site on July 10, is presented as an initial step toward a competitive bidding procedure. Facilities must start housing inmates within 30 days of an award—a deadline that no new building could meet—and the necessary bed counts and locations coincide with the four detention facilities that GEO currently runs, which are located in Tacoma, Aurora, Colorado; Pompano Beach, Florida; and Philipsburg, Pennsylvania.
According to ICE’s own facilities statistics, the Pompano Beach facility’s contracted bed guarantee precisely matches the Florida minimum of 700 beds. The four locations’ operating agreements expire in the upcoming months: the county arrangement for the Pennsylvania facility expires on September 28, and Tacoma’s contract expires on October 27. The contract periods for Colorado and Florida expire in October and September, respectively, according to GEO’s securities filings.
Before the window ended on July 17, businesses had less than a week to reply.
The conditions of the draft contract are fresh. The Tacoma contract that GEO signed in the middle of the litigation in March, which Settle said “cannot preempt state law, even if it purports to,” has precisely identical wording that attempts to negate state law. Now, ICE wants to expand it to three additional states.
Once, Settle rejected the language. However, his decision is provisional, it is not binding on any court outside of Washington, and it is not necessary for ICE’s objectives. It took three years of battle for Washington to bring inspectors to one facility’s door, and they are still outside while GEO files an appeal. The same language might rekindle that conflict in all four states at once if it were incorporated into contracts.
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